                   COURT OF APPEALS OF VIRGINIA


Present: Judges Bray, Frank and Humphreys
Argued at Chesapeake, Virginia


JASON D. MANAS
                                          MEMORANDUM OPINION * BY
v.   Record No. 2789-00-1                  JUDGE ROBERT P. FRANK
                                             SEPTEMBER 25, 2001
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
                  William C. Andrews, III, Judge

          Stephen K. Smith for appellant.

          Steven A. Witmer, Assistant Attorney General
          (Randolph A. Beales, Acting Attorney General,
          on brief), for appellee.



     Jason D. Manas (appellant) was convicted in a bench trial of

two counts of forgery, in violation of Code § 18.2-172, two counts

of uttering, in violation of Code § 18.2-172, and one count of

obtaining money by false pretenses, in violation of Code

§ 18.2-178.   On appeal, appellant contends the trial court erred

in finding the evidence sufficient to convict him of one forgery

and one uttering count. 1




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     1
       Appellant does not challenge the conviction for obtaining
money by false pretenses nor the convictions involving the
forging and uttering of William Allen's check.
                           I.   BACKGROUND

     On February 8, 1999, appellant, who owed Monica Donovan

money, told Donovan that his uncle owed him money.   Appellant gave

Donovan check #2632 in the amount of $900, drawn against the joint

checking account of Linda A. Poppie and Matthew M. Poppie at

Virginia Educators Credit Union, Inc. and payable to Donovan.

Matthew Poppie was appellant's uncle.

     When appellant gave the check to Donovan, it was already made

out to her and signed with the name "Matthew M. Poppie."

     Appellant told Donovan that since he had no bank account nor

any identification, he could not cash a check payable to himself.

Appellant suggested to Donovan that she could cash the check for

him, keep what was owed to her, and give him the difference.

Donovan cashed the $900 check, kept the $400 due her, and gave

appellant $500.

     Appellant's activities came to the attention of Linda Poppie

when she noticed money was missing from her checking account.        She

subsequently discovered a book of her checks was missing.      She

gave no one permission to take any of her checks.    Between

February 8 and 9, 1999, appellant had access to the Poppies' home.

     Linda Poppie identified check #2632 as a check from her

missing checkbook.   She did not make out the check nor did she

give anyone permission to make out the check.   The signature on

the check was not that of her husband, Matthew M. Poppie.



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     Previously, on January 8, 1999, appellant had called Sherry

Duncan and asked her to cash a check for him.

     Duncan picked up appellant, and they drove to a location

where he clamed he and his grandfather worked.   Appellant entered

the building and quickly returned, telling Duncan that he had the

check, "and he said his grandfather had made it to [Duncan] so

[she] could cash it for him because he didn't have any

identification or a banking account."   The check was already made

out when appellant gave it to Duncan.   Duncan cashed the check and

gave the proceeds to appellant.

     On January 8, 1999, William Allen, appellant's grandfather

and Linda Poppie's father, was visiting Linda from his home in

Florida.   When he returned to his home a month later, he received

his bank statement and discovered a lot of "high dollar" checks

had been written against his account for a total of $2,800.   Upon

investigation, William Allen and his wife discovered that nine

checks had been torn out of the back of their checkbook while they

were in Virginia.

     Allen had not given appellant permission to take his checks,

to sign his name, or to use the account.   Allen identified the

check that Duncan cashed as one of his checks stolen from Linda

Poppie's house.

     At the conclusion of the Commonwealth's case, appellant moved

to strike the evidence on sufficiency grounds.   Appellant rested

without putting on any evidence and renewed his motion to strike.

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The trial court denied both motions and convicted appellant of

each of the five indictments.

                           II.    ANALYSIS

          "Where the sufficiency of the evidence is
          challenged after conviction, it is our duty
          to consider it in the light most favorable to
          the Commonwealth and give it all reasonable
          inferences fairly deducible therefrom. We
          should affirm the judgment unless it appears
          from the evidence that the judgment is
          plainly wrong or without evidence to support
          it." Higginbotham v. Commonwealth, 216 Va.
          349, 352, 218 S.E.2d 534, 537 (1975).
          Moreover, "[i]f there is evidence to support
          the conviction, an appellate court is not
          permitted to substitute its own judgment for
          that of the finder of fact, even if the
          appellate court might have reached a
          different conclusion." Commonwealth v.
          Presley, 256 Va. 465, 466, 507 S.E.2d 72, 72
          (1998).

          Furthermore, "[t]he credibility of a witness
          and the inferences to be drawn from proven
          facts are matters solely for the fact
          finder's determination. 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."
          Marable v. Commonwealth, 27 Va. App. 505,
          509-10, 500 S.E.2d 233, 235 (1998) (citations
          omitted).

Snow v. Commonwealth, 33 Va. App. 766, 774, 537 S.E.2d 6, 10

(2000).

     Forgery is "'the false making or materially altering with

intent to defraud, of any writing which, if genuine, might

apparently be of legal efficacy, or the foundation of legal

liability.'"   Fitzgerald v. Commonwealth, 227 Va. 171, 173, 313


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S.E.2d 394, 395 (1984) (quoting Bullock v. Commonwealth, 205 Va.

558, 561, 138 S.E.2d 261, 263 (1964)).   Uttering, a separate and

distinct offense, is defined as "an assertion by word or action

that a writing known to be forged is good and valid."   Bateman v.

Commonwealth, 205 Va. 595, 600, 139 S.E.2d 102, 106 (1964).

     This Court has explained previously the Commonwealth's burden

in such cases:

          To sustain a conviction for forgery in
          violation of Code § 18.2-172, the
          Commonwealth must prove that the accused
          falsely made or materially altered a writing,
          without the authority to do so, and did so to
          the prejudice of another's right. See Code
          § 18.2-172; Lewis v. Commonwealth, 213 Va.
          156, 157, 191 S.E.2d 232, 233 (1972); Lawson
          v. Commonwealth, 201 Va. 663, 667, 112 S.E.2d
          899, 901 (1960). The trial judge had to
          determine whether the Commonwealth proved
          beyond a reasonable doubt that Bowman did not
          have authority from Ford to sign and present
          the checks. "Where one signs the name of
          another to a check it is presumed, in the
          absence of other evidence, that he has
          authority to do so. The burden was upon the
          Commonwealth not only to prove that [Bowman]
          signed [Ford's] name as maker of the check
          but the evidence must establish that this was
          done without authority." Lewis, 213 Va. at
          157, 191 S.E.2d at 233.

Bowman v. Commonwealth, 28 Va. App. 204, 213, 503 S.E.2d 241, 245

(1998) (emphasis in original).

     Here, the issue is whether the Commonwealth proved beyond a

reasonable doubt that appellant had no authority to sign Matthew

M. Poppie's name to check #2632.




                                 - 5 -
     Absence of authority may be proven by circumstantial

evidence.    "'Circumstantial evidence is as competent and is

entitled to as much weight as direct evidence, provided it is

sufficiently convincing to exclude every reasonable hypothesis

except that of guilt.'"   Patrick v. Commonwealth, 27 Va. App. 655,

662, 500 S.E.2d 839, 843 (1998) (quoting Coleman v. Commonwealth,

226 Va. 31, 53, 307 S.E.2d 864, 876 (1983)).   "Whether an

alternative hypothesis of innocence is reasonable is a question of

fact and, therefore, is binding on appeal unless plainly wrong."

Archer v. Commonwealth, 26 Va. App. 1, 12-13, 492 S.E.2d 826, 832

(1997).

     Appellant correctly cites Lewis v. Commonwealth, 213 Va. 156,

191 S.E.2d 232 (1972) (per curiam), for the presumption of

authority to sign a check in the absence of other evidence.     But,

Lewis is distinguishable on its facts.   The only evidence before

the trial court in Lewis was that "the body and signature on the

check which Lewis attempted to cash were in Lewis' handwriting."

Id. at 156, 191 S.E.2d at 233.

     One element of Lewis is the same here:    the account holder

did not testify.   However, the presumption of authority in this

case was rebutted by other compelling evidence.

     Between February 8 and 9, 1999, appellant had access to the

Poppies' residence.   William Allen was visiting the Poppies during

that time.   During that time, checks belonging to the Poppies and

to William Allen were stolen.    Linda Poppie gave no one, which the

                                 - 6 -
fact finder could infer included her husband, permission to take

or use any of her checks.    On February 8, 1999, appellant was in

possession of checks stolen from Poppie and from Allen.    Allen

testified he gave no one permission to sign his name.

     Appellant asks this Court to find Matthew Poppie stole the

check from his wife and then gave it to appellant with permission

to sign it.   Given the evidence, this "hypothesis of innocence" is

unreasonable.   See Shaver v. Commonwealth, 30 Va. App. 789, 801,

520 S.E.2d 393, 399 (1999).

     It would defy reality to believe appellant had Matthew

Poppie's authority to sign the stolen check.   Linda Poppie

testified she gave no one permission to take any of her checks,

which would include #2632.    The trial court reasonably could infer

from that testimony that her husband also did not have permission

to take that check.   See Higginbotham, 216 Va. at 352, 218 S.E.2d

at 537; Archer, 26 Va. App. at 12-13, 492 S.E.2d at 832.

     In determining whether appellant had Matthew Poppie's

authority, the fact finder also could consider that William Allen

did not authorize appellant to sign his name to his stolen check.

     Appellant employed the same scheme for both checks.      He told

Monica Donovan and Sherry Duncan that since he had no

identification and no banking account, he had the maker of the

check make the check payable to a third party, not the appellant.

     Evidence tending to show an accused is guilty of other crimes

of a similar nature "is incompetent and inadmissible for the

                                - 7 -
purpose of showing the commission of the particular crime

charged."   Kirkpatrick v. Commonwealth, 211 Va. 269, 272, 176

S.E.2d 802, 805 (1970).   However, "[e]vidence of 'other crimes' is

relevant and admissible if it tends to prove any element of the

offense charged.   Thus, evidence of other crimes is allowed when

it tends to prove motive, intent, or knowledge of the defendant."

Guill v. Commonwealth, 255 Va. 134, 138, 495 S.E.2d 489, 491

(1998) (citation omitted) (emphasis in original).   "In order for

evidence that the accused has committed other crimes to be

admissible, it need only be relevant to prove a material fact or

issue, and its relevance must outweigh the prejudice inherent in

proving that an accused has committed other crimes."   Wilson v.

Commonwealth, 16 Va. App. 213, 220, 429 S.E.2d 229, 234, aff'd on

reh'g en banc, 17 Va. App. 248, 436 S.E.2d 193 (1993) (citation

omitted).

       Here, whether or not appellant had the authority to sign

Matthew Poppie's name is an element of the offense.    Code

§ 18.2-172.   See also Bowman, 28 Va. App. at 213, 503 S.E.2d at

245.   Evidence that an accused used a similar scheme to commit a

crime previously is permissible proof of a defendant's knowledge

that he was acting without authority.   Wilson, 16 Va. App. at 220,

429 S.E.2d at 234.

       Given the parallels between appellant's actions regarding

Allen's check and Poppie's check, the evidence that Allen did not

give appellant permission to sign the stolen check is additional

                                - 8 -
relevant evidence of guilt in the forgery and uttering of Poppie's

check.   Clearly, the Commonwealth excluded any reasonable

hypothesis of innocence.

     Finding the evidence sufficient to convict, we affirm the

judgment of the trial court.

                                                    Affirmed.




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