                    COURT OF APPEALS OF VIRGINIA


Present:  Chief Judge Fitzpatrick, Judge Lemons and
          Senior Judge Duff
Argued at Alexandria, Virginia


CARL WESLEY ERNEST WARNER
                                                    OPINION BY
v.   Record No. 0982-98-4                     JUDGE DONALD W. LEMONS
                                                   JUNE 29, 1999
COMMONWEALTH OF VIRGINIA


             FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
                  Carleton Penn, Judge Designate

           Barry A. Zweig, Assistant Public Defender
           (Office of the Public Defender, on brief),
           for appellant.

           Donald E. Jeffrey, III, Assistant Attorney
           General (Mark L. Earley, Attorney General;
           Richard B. Campbell, Assistant Attorney
           General, on brief), for appellee.


     Carl Wesley Ernest Warner appeals his bench trial

conviction of feloniously uttering a check with knowledge that

the account on which the check was drawn contained insufficient

funds, a violation of Code § 18.2-181.        On appeal, he contends

that the evidence was insufficient to support his conviction and

that the trial court’s admission of hearsay evidence was

reversible error.   We disagree and affirm the conviction.

                            I.   BACKGROUND

     On August 14, 1997, Carl Wesley Ernest Warner, appellant,

an employee of Aliloo Oriental Rugs, requested that he be paid

his weekly wage a day early.     The evidence at trial revealed
that Warner received a check for $231 and attempted to cash it

on August 15, 1997.   The bank informed him that the account

contained insufficient funds.   Warner told his employer, and his

employer gave him a second check for $200.   Warner retained the

check for $231.   Warner cashed the $200 check that day.   On

August 17, 1997, he cashed the check for $231 at the Aldie

Country Store.

     In the absence of the owner, Parviz “Paul” Hadjialilo,

Christopher Syrjala was operating Aliloo Oriental Rugs.    Syrjala

testified that Warner told him “the bank wouldn’t cash the check

because of insufficient funds.”   Syrjala stated that he went to

the bank and was informed that the account contained only $218.

Syrjala stated that he “told . . .[Warner] there was $218 in the

account, that I would write a check for $200, which was most of

. . . [Warner’s] salary, and that Paul [Hadjialilo] would fix it

up when he got back, you know, the underpayment.”   Syrjala

testified that he wrote the check for $200 and Warner

immediately went to Southern Financial Bank and cashed it.

Syrjala stated that he did not ask Warner to return the $231

check because “it seemed totally unnecessary. . . . I mean, it

was obvious that it was a bad check at that point.”   Syrjala

stated that he had initially mentioned that Warner might try

cashing the $231 check at a country store, but testified, “then

I thought better of it and came up with the idea of writing the

second check that was within the amount of that in the account.”

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     On Saturday, August 16, 1997, Warner was supposed to work,

but Warner’s girlfriend called to tell Syrjala that Warner was

unable to come into work because a family member was ill.   After

cashing both checks, Warner never went back to work for Aliloo

Oriental Rugs.

     Syrjala testified that he received a call from Eagle Check

Cashing in Manassas, Virginia.    In response to the call, Syrjala

stated that he “told them that a bank had refused to cash the

check. . . .”    Syrjala identified the check at trial as “[t]he

one for $231 because of insufficient funds. . . .”

     Hadjialilo testified that he received a call from a check

cashing company in Manassas and he told them “the check is not

good, not to cash the check.”    Hadjialilo stated that he called

Southern Financial Bank and issued a stop payment on the $231

check.

     Warner testified that he believed that the $231 check was,

in part, pre-payment for the following weekend and week’s wages.

Warner stated that he did not work because his father had a

heart attack.    Warner stated that the bank had not informed him

that the account contained insufficient funds and that when he

cashed the $231 check, he did not know that there were

insufficient funds.

                  II.   SUFFICIENCY OF THE EVIDENCE

     Where the sufficiency of the evidence is an issue on

appeal, an appellate court must view the evidence and all

                                 - 3 -
reasonable inferences fairly deducible therefrom in the light

most favorable to the Commonwealth.    See Cheng v. Commonwealth,

240 Va. 26, 42, 393 S.E.2d 599, 608 (1990).    “Intent is the

purpose formed in a person’s mind that may, and often must, be

inferred from the facts and circumstances in a particular case,

and may be shown by a person’s conduct.”    Hernandez v.

Commonwealth, 15 Va. App. 626, 632, 426 S.E.2d 137, 140 (1993)

(citations omitted).   The “[i]ntent to defraud means that the

defendant intends to deceive another person, and to induce such

other person, in reliance upon such deception, to assume,

create, transfer, alter or terminate a right, obligation or

power with reference to property.”     Sylvestre v. Commonwealth,

10 Va. App. 253, 258-59, 391 S.E.2d 336, 339 (1990) (citations

omitted).

     On appeal, Warner acknowledges that he cashed the $231

check but argues that the evidence was insufficient to prove he

had the intent to defraud or knowledge that the account

contained insufficient funds when the check was uttered.    Warner

also contends that he had a bona fide claim of right to the $231

check, which negated the criminal intent required for his

conviction, and that the evidence was insufficient to prove that

the Aldie Country Store is a depository as required by the

indictment.




                               - 4 -
                        A.   Claim of Right

     At trial, Warner stated that Syrjala gave him the $231

check, in part, as prospective payment for the following week.

Warner testified that he intended to work the next week, prior

to his father’s heart attack, and that the money would then be

“owed” to him.   On appeal, Warner asserts that he believed he

was entitled to the money, in part, as a prospective wage at the

time he uttered the check, and in part because he was still owed

thirty-one dollars from the previous week.    Consequently, he

maintains he lacked the requisite intent to defraud the Aldie

Country Store.

     Warner cites Butts v. Commonwealth, 145 Va. 800, 133 S.E.

764 (1926), for the proposition that a person cannot commit a

larceny of his or her own property or of property that a person

in good faith believes is his or her own.     In Butts, the

defendant was fired from his job without being paid his final

wages.   Butts returned to his former place of employment with a

pistol and demanded payment from his supervisor at gunpoint.

The Court reversed Butts’ robbery conviction, holding that

Butts’ claim of right to the wages negated the requisite

criminal intent for the conviction.    See id. at 813-15, 133 S.E.

at 768-69.   Butts is distinguishable from the case before us

because Warner had been paid $200 for the hours he worked.    He

was owed only thirty-one dollars.   He did not earn an additional

$200, either at the time the check was uttered or the following

                               - 5 -
week.    The evidence established that Warner was routinely paid

retroactively, not prospectively.

        Additionally, a claim of right defense only applies against

a party that holds that person’s funds.     A party may not assert

a “claim of right” against an innocent third party.     Here, the

victim of the uttering was the Aldie Country Store, not Warner’s

employer.

              B.   “Depository” Language in the Indictment

        On appeal, Warner argues that the evidence was insufficient

to prove that he defrauded a “bank or other depository” as

charged in the indictment.     Code § 18.2-181 states in relevant

part:

             Any 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 . . .
             shall be guilty of larceny. . . .

        Warner argues that the Aldie Country Store is not a

depository as defined by Code § 18.2-181.     Warner, however,

misconstrues the use of the term “depository” in the statute.       A

“depository bank” refers to “the first bank to which an item is

transferred for collection even though it is also the payor

bank.”    Code § 8.4-105(a).   A “payor bank” is defined as “a bank

by which an item is payable as drawn or accepted.”     Code

§ 8.4-105(b).      Therefore, a depository as defined by the

                                  - 6 -
legislature is the institution upon whose funds the check is

drawn.   Here, the depository referred to in the indictment is

Southern Financial Bank, not the Aldie Country Store.

     To construe the statute as Warner suggests would

criminalize the passing of bad checks only when they are passed

directly at the depository bank.   We hold that the “depository”

language in Code § 18.2-181 refers to the institution upon which

the funds are drawn, not to the entity where the check is

uttered.

                      III.   HEARSAY EVIDENCE

     On appeal, Warner argues that the trial court erred in

admitting evidence in violation of the hearsay rule.    We agree,

but we find that the admission of the statements was harmless

error.

     Hearsay is “testimony which consists [of] a narration by

one person of matters told him by another.”     Williams v. Morris,

200 Va. 413,417, 105 S.E.2d 829, 832 (1958).    “The strongest

justification for the exclusion of hearsay evidence is that the

trier of fact has no opportunity to view the witness on

cross-examination and to observe the demeanor of the

out-of-court declarant to determine reliability.”    Evans-Smith

v. Commonwealth, 5 Va. App. 188, 197, 361 S.E.2d 436, 441

(1987), citing C. Friend, The Law of Evidence in Virginia § 224

(2d ed. 1983).   However, “[i]f the declaration is offered solely

to show that it was uttered, without regard to the truth or

                               - 7 -
falsity of its content, the declaration is not excluded by the

hearsay rule.”     Evans-Smith, 5 Va. App. at 197, 361 S.E.2d at

441 (citations omitted) (emphasis omitted).

     Warner objected to the admission of the following testimony

from Syrjala:

          Q: Do you recall when you actually opened
          the office whether or not you received a
          phone call from Eagle Check Cashing Company?

          A:     Yes.

          DEFENSE COUNSEL:    Objection, hearsay.

          THE COURT:    State the grounds of your
          objection.

          DEFENSE COUNSEL:    Hearsay.

          THE COURT: Whether or not a call was
          received is not hearsay. She did not ask
          what the content of the conversation was.
          Overruled.

          DEFENSE COUNSEL:    May I –

          THE COURT:    Overruled.   Go ahead.

          COMMONWEALTH:    Thank you, Your Honor.

          Q: Do you recall what day it was in the
          sequence of events that you got this call?

          A: Saturday morning just after I opened the
          store, about 15 minutes afterwards, I got a
          call from Eagle Check Cashing in Manassas
          asking me to verify –

          Q: -- just answer the question that I asked
          you. Now, as a result of Eagle Check
          Cashing, what if any response did you make
          back to those people during your telephone
          conversation with them?



                                 - 8 -
          A:   Well, can I say what they asked?

          THE COURT: No. That’s hearsay. The
          objection made by [defense counsel] is
          sustained. Actually, the Commonwealth
          backed off. You may not because it’s
          hearsay, sir.

          A: I told them that a bank had refused to
          cash the check yesterday.

          Q:   What check?

          A: The one for $231 because of insufficient
          funds I gave them as the reason.

     Warner also objected to the following testimony from

Hadjialilo:

          Q: Now, regarding the exhibit that I showed
          you, the check in the amount of $231, did
          you have a conversation with him about the
          check?

          A: I saw Mr. Warner after I had a call from
          a check cashing company in Manassas.

          DEFENSE COUNSEL:   Your Honor, I would object
          as to hearsay.

          THE COURT: If he had the call, it is a
          fact. There’s been no question and no
          statement regarding any hearsay. Overruled
          at this stage.

          Q: After receiving that phone call from the
          check-cashing place in Manassas, what did
          you do with regard to . . . Warner?

          A:   They told me there’s a - -

          THE COURT: Don’t tell what they told you.
          The question is what did you do.

          WITNESS: What I told - -     can I tell them
          what I told them?

          THE COURT:   Answer the question.

                               - 9 -
          Q: What did you tell the bank institution
          that called you?

          A: I told them that the check is not good,
          not to cash that check. He already got paid
          for the work that he worked and I tried to
          get in touch with Mr. Warner. And,
          actually, I saw him again in the street, and
          I was kind of disappointed I told him. I
          showed him my disappointment [sic] and got a
          call the next day from John Beiler at the
          country store.

     Warner argues that in both instances the court erred in

allowing Syrjala and Hadjialilo to testify that the phone calls

were received from check cashing companies.    We agree.

Testimony that phone calls were received is not hearsay.

Testimony that a phone call came from a person unknown to the

recipient and who is identified only by the caller is hearsay if

offered to establish the identity of the caller.   The only way

Syrjala and Hadjialilo could know who was calling was from an

out-of-court declaration from the caller.   The relevancy of

Syrjala’s and Hadjialilo’s responses to the call is dependent

upon who made the call.   Clearly, this information lacks any

significance unless the source of the call is known.   Similarly,

it is clear that the identification of the caller in each

instance was based solely upon out-of-court declarations and was

offered for the truth of the matters stated.

     “Error will be presumed prejudicial unless it plainly

appears that it could not have affected the result.”       Joyner v.

Commonwealth, 192 Va. 471, 477, 65 S.E.2d 555, 558 (1951).


                              - 10 -
Therefore, “[a] criminal conviction shall not be reversed for an

error committed at trial when it plainly appears from the record

and the evidence given at the trial that the parties have had a

fair trial on the merits and substantial justice has been

reached.”    Hanson v. Commonwealth, 14 Va. App. 173, 189, 416

S.E.2d 14, 23 (1992) (citations omitted); see Code § 8.01-678.

            A nonconstitutional error is harmless if “it
            plainly appears from the record and the
            evidence given at trial that the error did
            not affect the verdict.” “An error does not
            affect a verdict if a reviewing court can
            conclude, without usurping the jury’s fact
            finding function, that had the error not
            occurred, the verdict would have been the
            same.”

Scott v. Commonwealth, 18 Va. App. 692, 695, 446 S.E.2d 619, 620

(1994) (quoting Lavinder v. Commonwealth, 12 Va. App. 1003,

1005, 407 S.E.2d 910, 911 (1991) (en banc)).

     Excluding the hearsay evidence that Syrjala and Hadjialilo

both received phone calls from a check cashing company in

Manassas, the Commonwealth presented overwhelming evidence to

prove that Warner cashed the $231 check with the intent to

defraud and with knowledge that the funds in the account were

insufficient.   Syrjala testified that Warner told him that the

bank refused to cash the $231 check because the funds in the

account were insufficient.   Syrjala wrote a second check to

Warner in the amount of $200, which the funds in the account

were sufficient to cover, and told him that Hadjilalilo would

pay him an additional thirty-one dollars when he returned to the

                               - 11 -
country.    Warner cashed the check for $200.   Two days later, he

presented the $231 check to the Aldie Country Store.     Syrjala

testified that he did not ask Warner to return the $231 check

because Warner knew that the check was “bad.”     Warner never

returned to work at Aliloo Oriental Rug Corporation.

                           IV.    CONCLUSION

     The evidence is sufficient to prove beyond a reasonable

doubt that Warner knew the account contained insufficient funds

to cover the $231 check when he presented it to the Aldie

Country Store.   He is not entitled to a claim of right defense

because he was not entitled to the sum of $231 and the right may

not be asserted against an innocent victim who does not hold the

funds claimed.   Finally, we hold that the trial court erred in

admitting hearsay statements concerning two phone calls;

however, upon review of the record we conclude that the error

did not affect the verdict.      Accordingly, the conviction is

affirmed.

                                                      Affirmed.




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