COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Senior Judge Duff
Argued at Richmond, Virginia
GERALD W. BOWMAN, S/K/A
GERALD WESLEY BOWMAN
OPINION BY
v. Record No. 2168-97-2 JUDGE JAMES W. BENTON, JR.
AUGUST 18, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HALIFAX COUNTY
William L. Wellons, Judge
Steven B. Novey, Assistant Public Defender
(Office of the Public Defender, on brief),
for appellant.
Michael T. Judge, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Gerald Wesley Bowman was convicted of four counts each of
forgery and uttering, in violation of Code § 18.2-172, and four
counts of petit larceny, in violation of Code § 18.2-96. On
appeal, Bowman contends the trial judge erred in admitting the
testimony of the deceased bank account holder's executor that the
account from which the checks were drawn had been closed by the
account holder three years earlier. Bowman also contends the
evidence was insufficient to convict him of forgery. We hold
that the testimony of the executor was based on inadmissible
hearsay and that the trial judge committed reversible error in
admitting this evidence. Therefore, we reverse the convictions
and remand for a new trial.
I.
The evidence proved that Bowman negotiated three $40 checks
at Gene's Orange Market on October 4, 1996. All the checks were
payable to Bowman, contained the purported signature of Virginia
Ford, and were drawn on Ford's First Federal Savings and Loan
checking account. A cashier testified that she saw Bowman write
one of the checks entirely in the store and saw him endorse all
three checks.
The next day, Bowman negotiated a check at the Country Mart
in the amount of $60. The check was also payable to Bowman and
drawn on Ford's account. The manager of Country Mart testified
that Bowman said he had performed work for Ford and wanted to
cash the check. The check was already written when Bowman
endorsed it.
When the checks were presented for payment, First Federal
Savings and Loan refused payment and stamped each of the checks
"ACCOUNT CLOSED." The checks, which were entered into evidence,
contained no indication of the date when the account had been
closed.
Jerome Betts, Ford's cousin and the executor of her estate,
testified that Ford died on June 7, 1996, four months prior to
Bowman's negotiation of the checks. Betts testified that he had
known Ford for forty-six years, that he was familiar with Ford's
handwriting, and that the signatures on the four checks,
purporting to be Ford's signature, were not those of Ford. Betts
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also testified that he knew Bowman and had not given Bowman
permission to use any of Ford's checks.
Over defense counsel's objection, Betts testified that the
"particular checking account [from which these checks were drawn]
had been closed in 1994." Betts testified that he had "personal
knowledge" of Ford's finances because Ford had given him a power
of attorney during her lifetime and named him executor of her
will. He also testified that he reviewed Ford's finances.
On cross-examination, Betts testified that he went with Ford
to the First Federal Savings and Loan in December 1994 and waited
in the car while Ford went inside the bank. Over defense
counsel's hearsay objection, Betts testified that he "was aware
of the fact" that Ford had closed her account and that he "had
discussed it" with Ford. The trial judge permitted the
prosecutor to lay a further foundation for Betts' testimony:
Q. Did you go to the bank on the checks in
question?
A. Yes, I was contacted by the bank.
Q. Okay. And were the checks honored to
your knowledge?
A. No, they were not.
Q. You reviewed all of her finances during
your position as administrator for her
estate?
A. I think I gave the investigator at the
bank -- the lady at the bank is supposed to
have produced the said date that the account
was closed and all the information.
Q. I guess what I'm trying to ask is do you
have personal knowledge by going to the bank
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that the account was closed?
A. Yes, I do.
Q. And you reviewed her bank statements,
correct?
A. Yes, I did.
Q. The account was closed?
A. It was closed.
Q. It had been closed for three years?
A. Yes, sir.
The trial judge overruled defense counsel's objection and allowed
the responses to be admitted into evidence. At the conclusion of
the evidence, the trial judge found Bowman guilty of all twelve
charges.
II.
Bowman contends the trial judge erred in admitting Betts'
testimony that Ford had closed her checking account in 1994. He
argues the testimony was hearsay. The Commonwealth contends that
Ford's executor could testify pursuant to Code § 8.01-397
concerning any matter to which Ford could have testified.
Hearsay is "testimony given by a witness who relates not
what he knows personally, but what others have told him or what
he has heard said by others." Cross v. Commonwealth, 195 Va. 62,
74, 77 S.E.2d 447, 453 (1953) (citation omitted). "Hearsay
evidence is inadmissible at trial unless it falls into one of the
recognized exceptions to the hearsay rule." West v.
Commonwealth, 12 Va. App. 906, 909, 407 S.E.2d 22, 23 (1991).
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Code § 8.01-397 provides in pertinent part as follows:
In an action by or against a person who, from
any cause, is incapable of testifying, or by
or against the committee, trustee, executor,
administrator, heir, or other representative
of the person so incapable of testifying,
. . . whether such adverse party testifies or
not, all entries, memoranda, and declarations
by the party so incapable of testifying made
while he was capable, relevant to the matter
in issue, may be received as evidence in all
proceedings including without limitation
those to which a person under a disability is
a party.
In accordance with well established principles, "when
analyzing a statute, we must assume that 'the legislature chose,
with care, the words it used when it enacted the relevant
statute, and we are bound by those words as we interpret the
statute.'" City of Virginia Beach v. ESG Enters., Inc., 243 Va.
149, 153, 413 S.E.2d 642, 644 (1992) (citation omitted).
[W]hen a statute . . . is clear and
unambiguous . . . a court may look only to
the words of the statute to determine its
meaning. The intention of the legislature
must be determined from those words, unless a
literal construction would result in a
manifest absurdity. Thus, when the
legislature has used words of a clear and
definite meaning, the courts cannot place on
them a construction that amounts to holding
that the legislature did not intend what it
actually has expressed.
Hubbard v. Henrico Ltd. Partnership, 255 Va. 335, 339, 497 S.E.2d
335, 337 (1998) (citations omitted).
By its clear and unambiguous language, Code § 8.01-397 only
applies in actions "by or against a person who . . . is incapable
of testifying, or by or against the committee, trustee, executor,
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administrator, heir, or other representative of the person so
incapable of testifying." We will not extend the statute's
application to criminal proceedings in which the "person
incapable of testifying" is not a party. Therefore, we hold that
Code § 8.01-397 does not apply to render Betts' testimony
admissible.
Betts testified that he had "personal knowledge by going to
the bank that the account was closed." He reviewed Ford's bank
statements and learned that the account had been closed for three
years. The Supreme Court of Virginia has defined "personal
knowledge" as "knowledge of a fact which a person has himself
gained through his own senses and not from others or from
information supplied by others." Fagan v. Commonwealth, 220 Va.
692, 694, 261 S.E.2d 320, 322 (1980). It is "'[k]nowledge of the
truth in regard to a particular fact or allegation, which is
original, and does not depend on information or hearsay.'" Id.
(citation omitted). The information upon which Betts relied to
make his statement that the account was closed was information
supplied by others and was hearsay.
Ford's statement to Betts that she had closed her account
was clearly hearsay. See West, 12 Va. App. at 909, 407 S.E.2d at
23. The Commonwealth did not introduce the bank statements into
evidence. No bank official testified concerning the account.
Instead, the Commonwealth sought to have Betts testify concerning
the information he derived about the status of the account from
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his examination of the statements and his conversation with Ford.
"Statements otherwise objectionable as hearsay are not rendered
admissible because they have been reduced to writing." See
Williams v. Commonwealth, 200 Va. 413, 417, 105 S.E.2d 829, 832
(1958). The Commonwealth cannot use Betts' testimony concerning
what was contained in the bank statements to circumvent the
hearsay rule applicable to written documents. See West, 12 Va.
App. at 909-10, 407 S.E.2d at 24 (discussing the admissibility of
multiple hearsay).
The Commonwealth also relies on Sands v. Commonwealth, 61
Va. (20 Gratt.) 800 (1871), for the proposition that an intimate
friend of the deceased can testify to the decedent's affairs. In
Sands, the witness was asked whether the deceased "was in good
pecuniary circumstances at the time of the date of the bond."
Id. at 803. The judge overruled the defendant's objection and
the witness was allowed to answer that the deceased "had plenty
of money always, and money in bank; was doing a first rate
business, and owned six houses and lots." Id. The trial judge
also overruled the defendant's objection to the Commonwealth's
question of whether the witness, who had stated that he knew the
deceased intimately for a number of years and was familiar with
the deceased's business and habits, had ever known the deceased
to borrow money. Id. The Court held that the trial judge did
not err in its rulings on "the admissibility of evidence offered
by the Commonwealth to show the pecuniary condition and habits"
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of the deceased. Id. at 821.
The holding in Sands is not dispositive of this case. The
witness in Sands was not testifying to the hearsay statements of
the deceased or to information he had gained through a review of
the deceased's bank statements. The witness testified based on
his own personal knowledge and observations regarding whether he
had ever known the deceased to borrow money and about certain
money and property he knew the deceased possessed.
For these reasons, we hold that the trial judge erred in
admitting Betts' testimony regarding the date on which Ford
closed her bank account.
III.
The Commonwealth further argues that the error was harmless.
We disagree.
A trial judge's admission of hearsay may be harmless error
if the content of that testimony is clearly established by other
evidence. See Schindel v. Commonwealth, 219 Va. 814, 817, 252
S.E.2d 302, 304 (1979). However, to be harmless, it must plainly
appear "'from the record and the evidence . . . that' the error
did not affect the verdict." Lavinder v. Commonwealth, 12 Va.
App. 1003, 1005, 407 S.E.2d 910, 911 (1991) (en banc) (quoting
Code § 8.01-678). Stated another way, "[a]n error does not
affect a verdict [only] 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." Id.
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No other evidence proved that Ford closed her account in
1994. The only evidence in the record that the account was
closed is the canceled checks themselves, stamped "ACCOUNT
CLOSED." However, the checks do not indicate when the account
was closed. Therefore, the content of Betts' hearsay statements
regarding when the bank account was closed was not "clearly
established by other evidence." Schindel, 219 Va. at 817, 252
S.E.2d at 304.
The Commonwealth argues the date the account was closed was
unnecessary to the determination of guilt and, therefore, any
error in the admission of Betts' testimony regarding when the
account was closed was harmless. Bowman contends the evidence
regarding when the account was closed affected the verdict
because the trier of fact might have concluded that it was highly
unlikely that Ford would have given Bowman permission to sign or
negotiate the checks on an account that had been closed. Bowman
argues that without this evidence, the trier of fact may not have
drawn such an inference and the verdict would not necessarily
have been the same.
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
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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.
In Lewis, the defendant's convictions for forgery and
uttering rested solely on the testimony of a bank teller that the
body and signature on the check which the defendant attempted to
cash were in the defendant's handwriting. Id. at 156, 191 S.E.2d
at 233. The purported maker of the check was not called as a
witness "and the record fail[ed] to account for his absence. The
record even fail[ed] to disclose whether [the maker] had an
account at the bank." Id. Based on this evidence, the Court
ruled that the Commonwealth failed to meet its burden of proving
that the defendant did not have authority to sign the maker's
name to the check. Id. at 157, 191 S.E.2d at 233.
In Lawson, the person whose checks the defendant signed
testified at trial that the defendant "probably did have
authority, or that possibly she had given him express authority,
but at best she did not remember whether she had or not [, and]
. . . in her testimony she indicated that she . . . was rather of
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opinion that he had a right to have it." 210 Va. at 667, 112
S.E.2d at 901. Thus, the Court held that her "evidence in this
case was too indefinite and uncertain to warrant [the
defendant's] conviction." Id.
The Commonwealth had the burden to prove beyond a reasonable
doubt that Bowman did not have authority to endorse Ford's name
on the four checks. See id. at 666, 112 S.E.2d at 901. To
overcome the presumption that Bowman had authority from Ford to
negotiate these checks for payment, the evidence of the date on
which the account was closed was material.
The Commonwealth also argues that any authority Ford may
have given to Bowman to sign her name to the checks terminated by
operation of law upon Ford's death. See Sturgill v. Virginia
Citizens Bank, 223 Va. 394, 398, 291 S.E.2d 207, 209 (1982)
(noting that "[b]ecause the death of a principal terminates an
agent's authority . . . , [the agent] had no authority to write
checks" on the principal's account after her death); see also
King, Adm'x v. Beal, 198 Va. 802, 808-09, 96 S.E.2d 765, 770
(1957) (noting that the authority of arbitrator terminates by
operation of law upon death of party or death or arbitrator).
Although this civil agency principle is instructive, in a
criminal proceeding charging forgery and uttering, which require
intent to defraud, the Commonwealth must establish that the
defendant knew that his or her authority to sign and present the
checks had terminated. See Sylvestre v. Commonwealth, 10 Va.
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App. 253, 258-59, 391 S.E.2d 336, 339 (1990) (ruling that
"[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'")
(citation omitted).
One cannot possess the intent to defraud when one does not
have knowledge that one's authority has terminated. If a
defendant in fact had authority and believed he or she was still
acting under legitimate authority, i.e., lacking knowledge that
the source of that authority has died, he or she cannot possess
the requisite fraudulent intent. No evidence in the record
proved that Bowman knew Ford had died prior to the time Bowman
offered the checks.
For these reasons, we hold that the trial judge's erroneous
admission of the hearsay evidence affected the verdict and was
reversible error. Accordingly, we reverse Bowman's convictions
and remand the case for a new trial if the Commonwealth be so
advised.
Reversed and remanded.
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