                     COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Willis and Bumgardner
Argued at Salem, Virginia


ROBERT CARL BURNETT
                                       MEMORANDUM OPINION * BY
v.   Record No. 0111-98-3     CHIEF JUDGE JOHANNA L. FITZPATRICK
                                        JANUARY 5, 1999
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
                     James F. Ingram, Judge
             Elwood Earl Sanders, Jr., Director
             Capital/Appellate Services (Public Defender
             Commission, on briefs), for appellant.

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



     Robert Carl Burnett (appellant) was convicted in a bench

trial of two counts of grand larceny by check in violation of

Code § 18.2-181.1.    Appellant contends the evidence was

insufficient to prove beyond a reasonable doubt that he committed

the offenses charged.    We find no error and affirm.

                                  I.

     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 Juares v. Commonwealth, 26 Va. App. 154, 156, 493

S.E.2d 677, 678 (1997).    So viewed, the evidence established that

on June 13, 1997, appellant opened a bank account at American
     *
      Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
National Bank with an initial deposit of $15,049.54.     Between

June 13 and June 18, 1997, appellant wrote eight checks totaling

approximately $14,840.   He withdrew $400 from an automatic teller

machine (ATM) on June 19, and $300 from an ATM on June 20, 1997.

Appellant made no deposits into the account after the initial

June 13 deposit.   On July 3, 1997, the bank mailed a letter to

appellant at his last known address, advising him that his

account had been forcibly closed and that it was overdrawn by

more than $500.    Appellant testified that he did not receive the

bank's letter.
     Between June 28 and July 4, 1997, appellant wrote seven

checks to Ed's Stop N Go, totaling $252.13.     The first check was

returned for insufficient funds, and the latter six were

returned, marked "account closed."      Stop N Go mailed appellant a

demand letter on July 23, 1997, by certified mail, return receipt

requested, which was returned as "unclaimed."     This letter was

mailed to 10 Laurel Avenue, the address on appellant's checks.

     On July 5, July 11, and July 14, 1997, appellant wrote three

checks, totaling $282.42, to Harris Teeter.     All three checks

were returned, marked "account closed."     Brenda Poole, a manager

at Harris Teeter, testified that she called the phone number on

appellant's checks on July 25 and spoke to an individual who

identified himself as "Robert."   Poole advised "Robert" that his

checks had not cleared and that he needed to reimburse Harris

Teeter.   On August 1, 1997, Poole mailed a demand letter by




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certified mail, return receipt requested, to the Laurel Avenue

address listed on appellant's checks.    The letter was

subsequently returned to Harris Teeter as undelivered.

     Appellant testified that he moved from the Laurel Avenue

address during the last week in June.    He did not make any

notations on his checks indicating that he had moved.     Although

appellant arranged with the postal service to forward his mail to

his new address, he did not inform the bank about the change of

address.   Appellant also testified that as he wrote the checks he

made notations in his check register.    Both Stop N Go and Harris

Teeter were reimbursed by appellant in November 1997, the week

before he was tried on these charges.
     The trial court found that the Commonwealth established a

prima facie case of intent and knowledge pursuant to Code

§ 18.2-183.   However, the trial court further noted that there

was sufficient evidence, even without the statutory presumption,

to find appellant guilty.

                                 II.

     On appeal, "[w]e may not disturb the trial court's judgment

unless it is `plainly wrong or without evidence to support it.'"
 Barlow v. Commonwealth, 26 Va. App. 421, 429, 494 S.E.2d 901,

904 (1998) (citation omitted).    In addition, "the inferences to

be drawn from proven facts are matters solely for the fact

finder's determination."    Marshall v. Commonwealth, 26 Va. App.

627, 633, 496 S.E.2d 120, 123 (1998).



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     Under Code § 18.2-181.1, 1 the Commonwealth was required to

prove that:   (1) appellant wrote two or more checks on the same

bank account; (2) the checks were written to the same person,

firm or corporation; (3) he knew when he wrote the checks that he

did not have sufficient funds in his account to cover their

payment; (4) he wrote the checks with the intent to defraud; (5)

the checks were written within a ninety-day period; (6) the

aggregate value of the checks written to each store exceeded

$200; and (7) the appellant received goods or services for each

check.
     1
      Code § 18.2-181.1 provides:

          It shall be a Class 6 felony for any person,
          within a period of ninety days, to issue two
          or more checks, drafts or orders for the
          payment of money in violation of § 18.2-181,
          which have an aggregate represented value of
          $200 or more and which (i) are drawn upon the
          same account of any bank, banking institute,
          trust company or other depository and (ii)
          are made payable to the same person, firm or
          corporation.

Code § 18.2-181 provides in part:

          Any person who, with intent to defraud, shall
          make or draw or utter or deliver any check,
          . . . 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, . . . for the
          payment of such check, . . . although no
          express representation is made in reference
          thereto, shall be guilty of larceny; and, if
          this check . . . has a represented value of
          $200 or more, such person shall be guilty of
          a Class 6 felony.



                               - 4 -
     Appellant contends that his convictions should be reversed

because the evidence was insufficient to prove that he knew, when

he wrote the checks, that his account did not have sufficient

funds or that he intended to defraud the two merchants.    He

argues that the Commonwealth must show that he had actual notice

of any overdraft in his bank account at the time the checks were

written.

     The law does not require the Commonwealth to prove

           by direct evidence the defendant's actual

           notice of insufficient funds to support a

           conviction of larceny by check.   The intent

           to defraud may be proven by circumstantial

           evidence.   Under Code § 18.2-183, the making

           or drawing or uttering or delivery of a

           check, . . . payment of which is refused by

           the drawee because of lack of funds or credit

           shall be prima facie evidence of intent to
           defraud or of knowledge of insufficient funds

           in, or credit with, such bank . . . unless

           such maker . . . shall have paid the holder

           thereof the amount due thereon, . . . within

           five days after receiving written notice that

           such check . . . has not been paid to the

           holder thereof.   Notice mailed by certified

           or registered mail, evidenced by return




                                - 5 -
            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.


(Emphasis added).   The statute further provides that "the

foregoing notice, when sent by certified or registered mail to

such address, . . . 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."     Code § 18.2-183.
     The facts presented here, taken as a whole, were sufficient

to prove appellant's guilt beyond a reasonable doubt.     Appellant

conceded at trial that the requisite letter sent by Stop N Go

complied with the above statute.      Similarly, Brenda Poole of

Harris Teeter testified that she sent a letter to appellant on

August 1, 1997, which explained that he had five days to pay the

returned checks.    Both merchants sent appellant demand letters

pursuant to Code § 18.2-183, but did not receive payment from him

within five days.   Accordingly, the Commonwealth presented prima

facie evidence that appellant intended to defraud each of the

victims.

     Nevertheless, appellant contends that the trial judge did

not rely on the statutory inference when finding appellant

guilty.    To the contrary, the trial court specifically ruled that

the Commonwealth benefitted from the presumption of the statute.

The trial judge added:    "I think that [the presumption] isn't



                                - 6 -
needed in this case, based on the evidence that has been adduced

hereto."   While the Commonwealth relied on Code § 18.2-183 to

establish a prima facie case, there was additional evidence to

support a finding that appellant knew his bank account had

insufficient funds when he wrote the several checks.   After

making the initial and only deposit of approximately $15,000 into

the account, appellant spent the entire sum within one week.

Thereafter, he made ATM withdrawals totalling $700, which

resulted in an overdraft of $511.61 and the closing of his

account.   This was four days before appellant wrote the first of

the checks to Stop N Go.
     Although appellant denied any intent to defraud and

knowledge of insufficient funds in his account, the fact finder

was not required to believe him nor give any weight to his

testimony.   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 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.").   The trial court was

not plainly wrong when it concluded that appellant had knowledge

that his bank account was overdrawn when he wrote the checks.

The Commonwealth's evidence was competent, was not inherently

incredible, and was sufficient to prove beyond a reasonable doubt

that appellant was guilty of both counts of issuing bad checks.




                               - 7 -
Accordingly, appellant's convictions are affirmed. 2

                                                       Affirmed.




     2
      Appellant also contends for the first time on appeal that
Code § 18.2-183, as applied in this case, is unconstitutional
because "it places an undue burden on the poor." Assuming
without deciding the constitutionality of the statute, there was
substantial circumstantial evidence, in the absence of the
statutory inference, to support appellant's convictions.




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