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,
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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
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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
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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).
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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
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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)
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(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
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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
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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.
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