                               COURT OF APPEALS OF VIRGINIA


Present: Judges Frank, Beales and Powell
Argued at Richmond, Virginia


TONYA SERENA CHARLES
                                                              MEMORANDUM OPINION * BY
v.     Record No. 1054-10-2                                   JUDGE RANDOLPH A. BEALES
                                                                     APRIL 19, 2011
COMMONWEALTH OF VIRGINIA


                  FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                               Harold M. Burgess, Judge 1

                 Todd M. Ritter (Travis R. Williams; Daniels & Morgan, on brief),
                 for appellant.

                 John W. Blanton, Assistant Attorney General (Kenneth T. Cuccinelli,
                 II, Attorney General, on brief), for appellee.


       Tonya Serena Charles (appellant) was convicted in a bench trial of two charges of uttering

bad checks, in violation of Code § 18.2-181. On appeal, appellant argues that the evidence was

insufficient to convict her of these offenses. For the following reasons, we affirm both convictions.

                                          I. BACKGROUND

       On Friday, March 14, 2008, appellant cashed a check for $225 at Styles Bi-Rite (the

store), a convenience store in Chesterfield County. On the following day, Saturday, March 15,

2008, appellant cashed another check for $200 at that store. Both of appellant’s checks were




       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       1
         Judge Burgess presided at appellant’s sentencing hearing. Judge Timothy J. Hauler
presided at the trial.
written on her checking account at Connects Federal Credit Union (Connects).2 The store

presented both checks to Connects for payment on the next business day, Monday, March 17, 2008.

However, Connects twice refused payment for appellant’s checks – first on March 21, 2008,

because there were insufficient funds in appellant’s account at Connects; and then on March 28,

2008, because appellant’s account at Connects had been closed.

       On April 11, 2008, the store sent a certified letter to appellant at her last known address

(which was also the address printed on her Connects checks) demanding payment for the refused

checks within five days. The store’s certified letter was returned, undelivered, by the post office –

and was marked “RETURN TO SENDER. REFUSED. UNABLE TO FORWARD.”3

           At trial, appellant claimed that the checks she cashed at the store on March 14 and 15,

2008, should have been covered by Connects’ overdraft protection program. Under this

program, according to appellant, Connects covered all checks up to $1,000. Because Connects

charged a $45 fee for every check drawn on insufficient funds, however, appellant testified that

she experienced financial difficulties due to the accumulation of overdraft fees, resulting in

eviction from her apartment in March 2008. Thus, while appellant testified that she thought

Connects would cover these two checks when she cashed them at the store on March 14 and 15,

2008, she also acknowledged at trial that she was not sure how much money she had in her

checking account at that time.




       2
         According to the store’s vice president, appellant registered for its check cashing system
in August 2007. The address appellant gave upon registration was the same address reflected on
the checks that she cashed at the store on March 14 and 15, 2008.
       3
          In March 2009, approximately a year after appellant cashed these two checks at the
store, a Chesterfield County police officer informed appellant that there was an outstanding
arrest warrant for her for uttering bad checks. Two months later, appellant paid the store for the
amount of the checks and associated fees.

                                                 -2-
       Appellant testified that she withdrew from the overdraft protection program at some point

soon after cashing these checks at the store on March 14 and 15, 2008, and she also testified that

she met with the Connects branch manager to close her checking account approximately two

weeks after cashing these checks. Appellant claimed that the checks she cashed at the store on

March 14 and 15, 2008, did not come up during her review of the checking account with the

branch manager when she closed the account.

       Appellant denied intending to cash any “unworthy” checks at the store. She claimed that

she never received the store’s certified demand letter because she had been evicted from her

apartment by the time the letter arrived there and she had left no forwarding address. Appellant

acknowledged having prior felony convictions.

       In her motion to strike, appellant argued that, although she was suffering from financial

difficulties on March 14 and 15, 2008, the evidence did not prove that she intended to defraud

the store when she cashed the checks for $225 and $200 on those dates. Therefore, she argued

that the evidence was insufficient to convict her under Code § 18.2-181.

       Rejecting appellant’s argument, the trial court found her guilty of uttering bad checks

“upon all competent evidence.”

                                           II. ANALYSIS

                                      A. Standard of Review

       When considering the sufficiency of the evidence on appeal, “a reviewing court does not

‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable

doubt.’” Crowder v. Commonwealth, 41 Va. App. 658, 663, 588 S.E.2d 384, 387 (2003)

(quoting Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). “Viewing the evidence in the light

most favorable to the Commonwealth, as we must since it was the prevailing party in the trial

court,” Riner v. Commonwealth, 268 Va. 296, 330, 601 S.E.2d 555, 574 (2004), “[w]e must

                                                -3-
instead ask whether ‘any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt,’” Crowder, 41 Va. App. at 663, 588 S.E.2d at 387 (quoting

Kelly v. Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) (en banc)). See

also Maxwell v. Commonwealth, 275 Va. 437, 442, 657 S.E.2d 499, 502 (2008). “This familiar

standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the

testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate

facts.” Jackson, 443 U.S. at 319.

                              B. Bad Check Offenses Under Code § 18.2-181

        Pursuant to Code § 18.2-181, which is commonly known as the bad check statute,

                [a]ny person who, with intent to defraud, shall make or draw or utter
                or deliver any check, draft, or order for the payment of money, upon
                any bank, banking institution, trust company, or other depository,
                knowing, at the time of such making, drawing, uttering or delivering,
                that the maker or drawer has not sufficient funds in, or credit with,
                such bank, banking institution, trust company, or other depository,
                for the payment of such check, draft or order, although no express
                representation is made in reference thereto, shall be guilty of larceny;
                and, if this check, draft, or order has a represented value of $ 200 or
                more, such person shall be guilty of a Class 6 felony.

“The ‘Bad Check’ statute is ‘specifically aimed to discourage the giving of bad checks for what

purports to be a cash purchase when the drawer has, instead of the present means, only a vague

intention to make the check good some time in the future.’” Bagheri v. Commonwealth, 12

Va. App. 1071, 1076, 408 S.E.2d 259, 263 (1991) (quoting Cook v. Commonwealth, 178 Va.

251, 259, 16 S.E.2d 635, 638 (1941)).

        Code § 18.2-181 “requires the Commonwealth to establish both the intent to defraud and

knowledge of insufficient funds in order to convict the defendant.” Huntt v. Commonwealth, 212

Va. 737, 739, 187 S.E.2d 183, 185 (1972) (interpreting former Code § 6.1-115, the predecessor to

Code § 18.2-181). “Such intent is an indispensable element of the crime and the burden is upon



                                                  -4-
the Commonwealth to prove its existence at the time of drawing or uttering the check.” Bray v.

Commonwealth, 9 Va. App. 417, 422, 388 S.E.2d 837, 839 (1990).

                       C. Rebuttable Presumption Under Code § 18.2-183

       “Since the drawer’s state of mind is difficult to prove, the General Assembly created ‘a

rebuttable presumption of the necessary intent and knowledge if a dishonored check is not paid

within five days after giving of the notice specified in the statute.’” Bagheri, 12 Va. App. at

1074, 408 S.E.2d at 262 (quoting Huntt, 212 Va. at 739, 187 S.E.2d at 186). Thus,

               Code § 18.2-183 provides that when a check is returned by the
               drawee bank “because of lack of funds or credit,” such return
               constitutes “prima facie evidence of intent to defraud or of
               knowledge of insufficient funds in, or credit with, such bank,”
               unless the maker, within five days after receiving written notice of
               dishonor by certified or registered mail, pays the holder the amount
               due.

Bray, 9 Va. App. at 423, 388 S.E.2d at 840 (internal quotation marks of Code § 18.2-183 added).

       The rebuttable presumption under Code § 18.2-183 is “a rule of evidence upon which the

Commonwealth may rely in facilitating proof of the fraudulent intent of the drawer.” Id. This

presumption can be rebutted if the defendant introduces credible evidence explaining or excusing

her conduct. Sykes v. Commonwealth, 42 Va. App. 581, 588, 593 S.E.2d 545, 548 (2004); see

Johnson v. Commonwealth, 188 Va. 848, 855, 51 S.E.2d 152, 155 (1949); cf. Hodge v.

Commonwealth, 217 Va. 338, 341, 228 S.E.2d 692, 695 (1976) (“[N]either the Due Process

Clause nor Mullaney [v. Wilbur, 421 U.S. 684 (1975),] prohibits the use of presumptions or

inferences as procedural devices to shift to the accused the burden of producing some evidence

contesting the otherwise presumed or inferred fact. These devices, however, must satisfy certain

due process requirements, and the ultimate burden of proof beyond a reasonable doubt must

remain upon the prosecution.”).




                                                -5-
                     D. Whether Prima Facie Evidence of Guilt Was Rebutted

       During oral argument before this Court, appellant’s counsel conceded that the

Commonwealth was entitled to the rebuttable presumption under Code § 18.2-183 because

appellant did not pay the amount due to the store within five days of the store’s giving of notice

as specified by this statute. 4 Thus, under these circumstances, the refusal of appellant’s checks

for lack of funds constituted prima facie evidence of her knowledge of the lack of sufficient

funds in her checking account and her intent to defraud when she cashed the checks at the store

on March 14 and 15, 2008, since she did not pay the amount due within five days of the store’s

giving her notice under the statute. See Code § 18.2-183.

       Under Code § 18.2-183, therefore, the factfinder was certainly permitted to infer

appellant’s knowledge of insufficient funds and her intent to defraud, subject to appellant’s

opportunity then to produce credible evidence contesting those inferences. See Wilson v.

Commonwealth, 225 Va. 33, 41, 301 S.E.2d 1, 5 (1983) (explaining that Virginia’s “general rule


       4
           The relevant portion of Code § 18.2-183 provides:

                Notice mailed by certified or registered mail, evidenced by return
                receipt, to the last known address of the maker or drawer shall be
                deemed sufficient and equivalent to notice having been received by
                the maker or drawer.

                If such check, draft or order shows on its face a printed or written
                address, home, office, or otherwise, of the maker or drawer, then
                the foregoing notice, when sent by certified or registered mail to
                such address, with or without return receipt requested, shall be
                deemed sufficient and equivalent to notice having been received by
                the maker or drawer, whether such notice shall be returned
                undelivered or not.

Here, appellant concedes that the notice provision in Code § 18.2-183 was satisfied because the
store’s demand letter was sent to her last known address – which was also the address printed on
her checks. Although appellant testified that she never received the demand letter because she
had already been evicted from her apartment, her counsel clarified during oral argument before
this Court that her testimony is relevant to the issue of whether she rebutted the prima facie
evidence of her guilt under Code § 18.2-183.
                                                 -6-
is to give rebuttable presumptions permissive or burden-of-production-shifting effect only”);

Dobson v. Commonwealth, 260 Va. 71, 74-75, 531 S.E.2d 569, 571 (2000) (“[T]he Due Process

Clause does not prohibit the use of a permissive inference as a procedural device that shifts to a

defendant the burden of producing some evidence contesting a fact that may otherwise be

inferred, provided that the prosecution retains the ultimate burden of proof beyond a reasonable

doubt.”); see also Hodge, 217 Va. at 342, 228 S.E.2d at 695 (noting that the burden of production

may “shift to the accused to neutralize, by evidence raising a reasonable doubt, a prima facie

showing by the Commonwealth of guilt”). Relying on her own trial testimony, appellant argues

that she rebutted the prima facie evidence that she had knowledge of insufficient funds in her

checking account and that she intended to defraud the store.

       Here, appellant testified that she believed that the $225 check and the $200 check that she

cashed at the store on March 14 and 15, 2008 (respectively) would be covered by Connects’

overdraft protection program – which, according to appellant, covered all checks up to $1,000.

However, appellant also testified that she was dissatisfied with this program due to the $45

overdraft fee for each overdrawn check – and that she withdrew from the program soon after

cashing these checks.

       The record below established that the store presented these checks to Connects on the

next business day, Monday, March 17, 2008, and that Connects refused both of these checks for

insufficient funds four days later. Appellant introduced no evidence explaining why these

checks were not covered by the credit union’s overdraft protection program. Indeed, appellant

presented no evidence reflecting or documenting that she was actually enrolled in the overdraft

protection program or indicating the specific provisions of that program – aside from her own

testimony, which the trial court was entitled to reject. See Marable v. Commonwealth, 27

Va. App. 505, 509-10, 500 S.E.2d 233, 235 (1998) (“In its role of judging witness credibility, the

                                               -7-
fact finder is entitled to disbelieve the self-serving testimony of the accused and to conclude that

the accused is lying to conceal his guilt.”).

       Given that these checks were refused for insufficient funds, the trial court was entitled to

infer that appellant was not enrolled in the overdraft protection program when she cashed these

checks or that she knew she would not be enrolled in the program when the store presented the

checks to Connects for payment. See Sullivan v. Commonwealth, 280 Va. 672, 676, 701 S.E.2d

61, 63-64 (2010) (stating that appellate courts should defer to “any reasonable and justified

inferences the fact-finder may have drawn from the facts proved”). A rational factfinder,

therefore, was certainly not required to find that appellant’s testimony concerning the overdraft

protection program rebutted the Commonwealth’s prima facie case under Code § 18.2-183.

       Furthermore, appellant cannot rely on her testimony about the closing of her credit union

checking account to rebut the Commonwealth’s prima facie case. Appellant testified that she

and the Connects branch manager “review[ed] all the checks that had come through” and

discussed “what needed to be done to have them paid.” According to appellant, this review

occurred approximately two weeks after she cashed the checks in question at the store. “At that

time,” appellant testified, “I did not see any checks from Styles Bi-Rite presented to the

account.” When asked if she was aware these checks cashed at the store “were out there,”

appellant replied, “I can’t attest to that.” However, the trial court was certainly entitled to infer

that appellant remembered cashing two checks totaling $425 only two weeks earlier – and that

she knew that those checks had not yet been honored by her credit union when she decided to

close her checking account.

       In addition, appellant testified that she was having financial difficulties when she cashed

the checks at the store on March 14 and 15, 2008, and that she was evicted from her apartment

“[r]ight around the beginning of March.” Based on this testimony, the trial court was entitled to

                                                 -8-
infer that appellant, who was in financial trouble, cashed these checks on March 14 and 15, 2008,

after she had been evicted from the residence on file with the store and reflected on her checks –

and that she chose not to inform the store that she no longer lived at this address (and did not

indicate a new address) in order to make herself more difficult to locate.

        Thus, while appellant attempted to rebut the Commonwealth’s prima facie case through

her own testimony, the trial court (acting as factfinder here) clearly found that appellant’s

explanations lacked credibility and did not overcome the rebuttable presumption under Code

§ 18.2-183. See Johnson, 188 Va. at 855, 51 S.E.2d at 155. On appeal, appellant fails to

establish that the trial court’s guilty verdicts were plainly wrong or unsupported by the evidence.

See Code § 8.01-680. Accordingly, a rational factfinder certainly could have found beyond a

reasonable doubt that appellant violated Code § 18.2-181 on both March 14, 2008 and March 15,

2008.

                                         III. CONCLUSION

        The evidence was sufficient beyond a reasonable doubt to conclude that appellant

violated Code § 18.2-181 on March 14, 2008 and again on March 15, 2008. Accordingly, for the

foregoing reasons, we affirm appellant’s convictions.



                                                                                          Affirmed.




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