                   COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Bray and Senior Judge Baker
Argued at Richmond, Virginia


DELMAH RAPHEAL POINDEXTER
                                        MEMORANDUM OPINION* BY
v.   Record No. 0457-98-2                JUDGE LARRY G. ELDER
                                             APRIL 27, 1999
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                    William R. Shelton, Judge

          Elliott B. Bender for appellant.

          H. Elizabeth Shaffer, Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellee.


     Delmah Rapheal Poindexter (appellant) appeals from his

bench trial convictions for attempted credit card fraud,

conspiracy to commit credit card fraud, and failure to appear.

On appeal, he contends that the trial court erroneously (1)

admitted certain testimony and (2) concluded that the evidence

was sufficient to support each of his three convictions.   For

the reasons that follow, we affirm appellant’s conviction for

failure to appear and reverse his convictions for attempted

credit card fraud and conspiracy to commit credit card fraud.




     *
      Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
                      ADMISSIBILITY OF TESTIMONY

     Appellant contends that the trial court erred in admitting

certain portions of the testimony of Richard Mast and Russell

Rivers.   Appellant argues that Mast’s testimony that he saw

codefendant Chester Carson at Mast’s place of business before

discovering his wallet and credit card missing was “irrelevant

and overly prejudicial” and constituted reversible error.

Appellant also argues that Rivers’ testimony about Carson’s use

of Mast’s credit card at Sears was irrelevant and prejudicial

because appellant never presented himself as the cardholder and

never attempted to make a purchase with the card; appellant’s

only connection to these events was that he entered and left the

store with Carson.

     We note first that appellant objected at trial to the

admission of this testimony only on relevancy grounds.    Because

he did not contend at that time that the challenged testimony

was overly prejudicial, we consider only the relevance

objections.     See Rule 5A:18.

     Determining “[t]he admissibility of evidence is within the

broad discretion of the trial court, and a ruling will not be

disturbed on appeal in the absence of an abuse of discretion.”

Blain v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842

(1988).   Evidence is generally admissible if it is both relevant

and material.     See Evans-Smith v. Commonwealth, 5 Va. App. 188,


                                  - 2 -
196, 361 S.E.2d 436, 441 (1987).   “Evidence is relevant if it

has any logical tendency, however slight, to establish a fact at

issue in the case.”   Ragland v. Commonwealth, 16 Va. App. 913,

918, 434 S.E.2d 675, 678 (1993).

     We hold that the trial court did not abuse its discretion

in admitting the testimony of Richard Mast that he saw Chester

Carson at Mast’s place of employment on the day Mast’s wallet

and credit card disappeared.   Although appellant himself was not

seen at Mast’s office or charged with the theft of the card, the

Commonwealth’s theory of the case was that Carson stole the card

and that appellant acted as a principal in the second degree to

Carson’s attempt to use Mast’s American Express card.   Evidence

that Carson was seen near the location from which the wallet and

card were taken on the day of their disappearance and could,

therefore, have been the thief was probative of Carson’s guilt

as the actual perpetrator of the attempted credit card fraud.

Therefore, the trial court did not abuse its discretion in

admitting this testimony.

     The trial court also did not abuse its discretion in

admitting Russell Rivers’ testimony.   Rivers’ testimony, viewed

in the light most favorable to the Commonwealth, provided

evidence probative of appellant’s knowledge regarding the

purpose of Carson’s visit to Sears and Carson’s failed attempt

to use a credit card to make his purchase.   Rivers testified


                               - 3 -
that appellant told him Carson was there to purchase gifts for

his mother and that appellant was present when Carson was unable

to use the card because he could not produce picture

identification.     Although appellant’s knowledge alone is not

proof of his participation in either offense, it was probative

of his intent.      See Charles E. Friend, The Law of Evidence in

Virginia § 12-6 (4th ed. 1993).     Appellant’s statements in

Rivers’ presence could also be construed as an effort to allay

any suspicions Rivers might have had by detailing an innocent

purpose for their shopping trip and to pressure Rivers to hasten

the sale so as to avoid discovery that Carson was not Mast.

      For these reasons, the trial court did not abuse its

discretion in denying appellant’s motion to exclude the

challenged testimony.

                         SUFFICIENCY OF EVIDENCE

      Under familiar principles of appellate review, we examine

the evidence in the light most favorable to the Commonwealth,

granting to it all reasonable inferences fairly deducible

therefrom.      See Martin v. Commonwealth, 4 Va. App. 438, 443, 358

S.E.2d 415, 418 (1987).     The judgment of a trial court will be

disturbed only if plainly wrong or without evidence to support

it.   See id.    The credibility of a witness, the weight accorded

the testimony, and the inferences to be drawn from proven facts

are matters solely for the fact finder’s determination.      See


                                  - 4 -
Long v. Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473, 476

(1989).

     Any element of a crime may be proved by circumstantial

evidence, see, e.g., Servis v. Commonwealth, 6 Va. App. 507,

524, 371 S.E.2d 156, 165 (1988), “provided it is sufficiently

convincing to exclude every reasonable hypothesis except that of

guilt,” Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864,

876 (1983).    “[T]he Commonwealth need only exclude reasonable

hypotheses of innocence that flow from the evidence, not those

that spring from the imagination of the defendant."    Hamilton v.

Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 29 (1993).

                   1.   Attempted Credit Card Fraud

     To support appellant’s conviction for attempted credit card

fraud, the evidence must prove that Carson took Mast’s credit

card without his consent, attempted to use it to obtain goods

and did so with the intent to defraud Mast, Sears or Foot

Locker.   See Code § 18.2-195.   It also must prove that appellant

was present, aiding and abetting Carson, and that appellant

either shared Carson’s criminal intent or intended his words,

gestures, signals or actions to encourage, advise, urge or in

some way help Carson in his attempt to fraudulently use Mast’s

credit card.    See Allard v. Commonwealth, 24 Va. App. 57, 62,

480 S.E.2d 139, 141 (1997).




                                 - 5 -
     Carson’s own admissions, combined with the testimony of

Rivers and Oliver, established that Carson was a principal in

the first degree to attempted credit card fraud.   Furthermore,

the evidence, viewed in the light most favorable to the

Commonwealth, shows that appellant’s presence with Carson and

appellant’s statements to Rivers and Oliver may have helped

Carson in his attempts, albeit unsuccessful, to commit credit

card fraud.   The key question, however, remains whether the

evidence proves, to the exclusion of all reasonable hypotheses

of innocence flowing from it, that appellant intended his

presence, words or actions to encourage or help Carson commit

attempted credit card fraud.

     Although Carson claimed that appellant was not aware of his

unlawful attempts to use Mast’s credit card, the court was free

to reject Carson’s testimony as incredible.   This rejection,

however, did not provide affirmative evidence of appellant’s

guilt.   Appellant admitted in a statement to police that he knew

Carson was unemployed and that when “he was at Sears at

Cloverleaf . . . he thinks something about Carson using a

[credit] card.”   Therefore, by the time Carson and appellant

arrived at Foot Locker, appellant had at least an awareness that

the unemployed Carson had a credit card he was attempting to use

to make substantial purchases.    This evidence, however, does not

exclude the reasonable hypothesis that appellant was unaware the


                                 - 6 -
credit card did not belong to Carson and that his presence,

statements, and actions at Sears and Foot Locker were entirely

consistent with innocence.   The record contains no evidence that

appellant represented to Rivers or Oliver that Carson was Mast.

     The Commonwealth makes much of the fact that appellant knew

Carson was unemployed.   However, the record contains no evidence

regarding how long Carson had been unemployed, what his

financial situation was, or whether it would have been

unreasonable for appellant to have believed that Carson could

previously have qualified for a credit card.   Of course, the

mere fact that Carson was unemployed and may not have had any

money with which to pay a credit card bill would not have

prevented him from using a card he already had, although such an

action might be considered by some to have been fiscally unwise.

Therefore, the evidence, although highly suspicious, failed to

exclude all reasonable hypotheses of innocence and was

insufficient to support appellant’s conviction for attempted

credit card fraud.

     Accordingly, we reverse and dismiss appellant’s conviction

for attempted credit card fraud.

           2.   Conspiracy to Commit Credit Card Fraud

     “A conspiracy is ‘an agreement between two or more persons

by some concerted action to commit an offense.’”   Bowman v.

Commonwealth, 11 Va. App. 259, 265, 397 S.E.2d 886, 889 (1990)


                               - 7 -
(quoting Cartwright v. Commonwealth, 223 Va. 368, 372, 288

S.E.2d 491, 493 (1982)).      “Proof of an explicit agreement . . .

is not required; the agreement may be proved by circumstantial

evidence.”     Brown v. Commonwealth, 10 Va. App. 73, 77, 390

S.E.2d 386, 388 (1990).

     Here, proof of the agreement to commit the offense is

lacking for the same reasons that the evidence was insufficient

to support appellant’s conviction for an attempt to commit the

offense.   The circumstantial evidence, although highly

suspicious, leaves open the reasonable hypothesis that appellant

and Carson made no agreement to commit credit card fraud and

that appellant’s presence and actions were naive but innocent.

     Accordingly, we reverse and dismiss appellant’s conviction

for conspiracy to commit credit card fraud.

                         3.   Failure to Appear

     A conviction for failing to appear for trial pursuant to

Code § 19.2-128 requires the Commonwealth to “prove that the

accused ‘willfully’ failed to appear at trial.”      See Hunter v.

Commonwealth, 15 Va. App. 717, 721, 427 S.E.2d 197, 20 (1993)

(en banc).    We previously have recognized as follows:

             An accused who is given notice of the
             original trial date is charged with notice
             of those dates to which his or her cause is
             expressly continued when such action is duly
             recorded in the order of the court. . . .
             [Further,] [t]he attorney-client
             relationship presumes that attorney and
             client, as servant and master, will

                                  - 8 -
          communicate about all the important stages
          of a client’s upcoming trial. . . .
          Therefore, if an attorney had actual notice
          of the client’s trial date, the fact finder
          may infer from that evidence that the client
          also had actual notice of the trial date.

Id. at 722, 427 S.E.2d at 200-01.    As a result,

          evidence that sequential orders ha[ve] been
          duly entered of record providing for a date
          certain or notice of the trial date to
          counsel of record, without more,
          establish[es] a prima facie case that [the
          accused] knew the date on which his felony
          trial was scheduled . . . and that he
          willfully failed to appear.

Id. at 722-23, 427 S.E.2d at 200-01.

     Here, the trial record shows that appellant and his

attorney of record had notice of the September 30, 1997 trial

date under the standards announced in Hunter.       The trial court’s

order of March 10, 1997 establishes that appellant and his

attorney appeared on that date to set appellant’s case for trial

on May 8, 1997.   By order of May 22, 1997, the trial court noted

that the trial would be continued until August 19, 1997.      By

order entered July 9, 1997, the trial court moved the trial date

from August 19 to August 18, 1997.     That order specifically

recited that “defense counsel further represents that the

defendant agrees to the requested date and manner of trial,” and

the order was endorsed by defense counsel.    Finally, by order

entered September 18, 1997, the trial court continued the trial




                               - 9 -
until September 30, 1997, “[o]n motion of the attorney for the

defendant.”

     This evidence establishes both that appellant had notice of

the original trial date and that all continuances were duly

recorded by order of the trial court, thereby charging appellant

with notice of the September 30, 1997 date.   Furthermore, the

evidence also establishes that appellant’s attorney of record

was aware of the September 30, 1997 date and, in fact, had asked

for it.   Therefore, under Hunter, the Commonwealth’s evidence

established a prima facie case that appellant knew of the

September 30, 1997 trial date and willfully failed to appear,

and appellant offered no evidence to the contrary.   Accordingly,

the evidence was sufficient to support appellant’s conviction

for failure to appear.

     For the reasons set out above, we affirm appellant’s

conviction for failure to appear and reverse and dismiss his

convictions for attempted credit card fraud and conspiracy to

commit credit card fraud.

                                              Affirmed in part
                                              and reversed and
                                              dismissed in part.




                              - 10 -
