Wileman v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judge Coleman and Senior Judge Cole
Argued by Teleconference

DEAN A. WILEMAN, JR.
OPINION BY
v. Record No. 1139-96-2 CHIEF JUDGE NORMAN K. MOON
MAY 6, 1997
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF HALIFAX COUNTY
William L. Wellons, Judge
Buddy A. Ward, Public Defender (Office of the
Public Defender, on brief), for appellant.

H. Elizabeth Shaffer, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief) for appellee.

Dean A. Wileman, Jr., appeals his convictions of grand

larceny by false pretenses in violation of Code §§ 18.2-178 and

18.2-95 and of making and uttering a bad check in violation of

Code § 18.2-181. Wileman contends: (1) the trial court erred in

admitting opinion testimony that the signature on a check

allegedly made and passed by Wileman and the signature on a bank

signature card were the same; (2) the evidence was insufficient

to sustain his conviction for making and uttering a bad check;

and (3) the evidence was insufficient to sustain his conviction

for grand larceny.

We hold (1) that the trial court properly admitted opinion

testimony concerning the legitimacy of Wileman's signature, by a

bank officer with more than twenty-four years of experience whose

duties involved verification of customer signatures; (2) that the
testimony of a bank teller, who knew Wileman by sight, that

Wileman presented the check, coupled with testimony that the

signature on the bad check was Wileman's, was sufficient to

sustain Wileman's conviction for making and uttering a bad check;

and (3) that the evidence was sufficient to sustain Wileman's

conviction for grand larceny by false pretenses. For these

reasons, we affirm.

Bad Check
On May 9, 1994, check #1020, drawn on the United Jersey Bank

for $3,975, was deposited into the South Boston Bank account of

Wileman's business, J. L. Motors. The check was received by

Michelle Howerton, a teller at South Boston. Howerton testified

that she was positive that the check was deposited by Wileman.

South Boston's banking procedures require that tellers ask for

identification for any deposit by any customer they do not

recognize and that when doing so, that they indicate on the check

that identification was requested and received. Howerton stated

that although she did not recall the exact transaction in which

Wileman presented check #1020, she was certain it was Wileman,

because if she had not recognized the presenter of the check,

even where the check was being deposited into the depositor's

account, she would have requested identification and so indicated

on the check.

Wileman's account was given immediate credit for the sum of

check #1020 when the check was originally deposited. Check #1020

was returned to South Boston marked, "Acct. Not Found."
- 2 -
Subsequently, Wileman wrote other checks on the South Boston

account for which there were insufficient funds as a result of

the nonpayment of check #1020.

At trial, Lonnie Powell, Vice-President of South Boston Bank

and the chief executive officer for local branches, testified

that he had been a banker for twenty-four years and that his

duties included identifying and authenticating signatures of bank

customers. Wileman's South Boston signature card was introduced

without objection and Powell compared the signature card with

Wileman's signature on two of Wileman's other checks and the

signature appearing on check #1020. Powell concluded that the

signatures were the same on the three instruments and the

signature card. Counsel for Wileman objected to Powell's

testimony, arguing that Powell was not a handwriting expert and

that his opinion invaded the province of the trier of fact.

Opinion Testimony

In Virginia, a lay witness may only offer an opinion as to

the authenticity of an alleged writing of a particular person

where the witness has seen and is familiar with that person's

writing. Adams v. Ristine, 138 Va. 273, 287, 122 S.E. 126, 130

(1924). In essence, "the lay witness who has previously seen the

genuine writing of the person alleged to have written the

questioned document is `comparing' the questioned document with

his recollection of the genuine handwriting." 1 Charles E.

Friend, The Law of Evidence in Virginia § 15-11 (4th ed. 1993).

A lay witness who is not familiar with a particular person's

- 3 -
handwriting cannot be provided a sample of that person's writing

for purposes of familiarizing himself or herself with it, before

comparing an alleged sample to a genuine sample. Such a

side-by-side comparison of genuine samples and alleged samples,

by a party unfamiliar with the alleged writer's handwriting, is

the sole province of the expert witness. Hanriot v. Sherwood,

7 Hans. (82 Va.) 1, 10 (1884). Where a witness is neither an

expert nor familiar with the writings of the person whose

writings are in question, it is error for the trial court to

allow the witness to offer an opinion on such a comparison, as

the jury is as qualified as the witness to make the comparison.
Adams, 138 Va. at 287, 122 S.E. at 130.

Whether a particular witness is qualified to testify as an

expert is "largely a matter in the discretion of the trial court,

and its rulings allowing a witness to testify will not be

disturbed unless it clearly appears that he was not qualified."

Id. at 288, 122 S.E. at 130. Here, a comparison of Wileman's

signatures was made by Powell, a Vice-President at South Boston

with twenty-four years of banking experience. Powell testified

that he was regularly called upon to identify and authenticate

his customers' signatures. Powell's work experience was

sufficient to qualify him as an expert witness. See Updike v.

Texas Co., 147 Va. 208, 212, 136 S.E. 591, 593 (1927); Adams, 138

Va. at 288-89, 122 S.E. at 130.

In Adams, the Virginia Supreme Court held that,
bank officials and clerks of court of long
experience in examining and comparing

- 4 -
 signatures and writings may, in the
discretion of the trial court, give their
opinion as to whether or not the body of the
will, the signature thereto and the names of
one attesting witness were written in the
same ink as the name of the other attesting
witness, and as to which of the two was the
later writing.

138 Va. at 288, 122 S.E. at 130 (citing Savage v. Bowen, 103 Va.

540, 49 S.E. 668 (1905)). Accordingly, the Court ruled that the

trial court did not err in permitting a banker with twenty years

of experience, who testified that his duties required him to

"examine signatures as a daily incident of his business, to

testify as an expert." Id.

In Updike, the Court held it was error, under its ruling in

Adams, not to permit a witness with thirty years of banking

experience, whose duties required him to "scrutinize

handwritings" and who was then vice-president and cashier of the

Lynchburg National Bank, to compare genuine and alleged

signatures of the defendant and to offer an opinion on the

validity of the questioned signature.

Powell's qualifications were equal to or surpassed the

bankers' qualifications who were deemed qualified in the Updike
and Adams cases to give an opinion on the validity of a person's

signature. Accordingly, we find the trial court did not err in

overruling Wileman's counsel's objection that Powell was not

qualified as an expert witness on the validity of a signature.

Further, we find that the record contained sufficient

circumstantial evidence to sustain a finding that the signature

- 5 -
card of Wileman's J. L. Motors business account was a genuine

sample of Wileman's signature. While no document may be

introduced into evidence without proper authentication, Proctor

v. Commonwealth, 14 Va. App. 937, 938, 419 S.E.2d 867, 868

(1992), circumstantial evidence may establish authenticity.

Walters v. Littleton, 223 Va. 446, 451, 290 S.E.2d 839, 842

(1982). The signature card, which was produced from a place of

proper custody, was admitted without objection. Testimony

established that the card produced was the signature card on file

for Wileman's business account, J. L. Motors. It was undisputed

that Wileman was one of two partners trading as J. L. Motors.

Further, the card was introduced with bank statements for the
J. L. Motors account, with checks and deposit slips corresponding

to the deposits and withdrawals recorded in the statements.

Evidence was also introduced that Wileman issued a number of

checks on the J. L. Motors account and that he regularly made

deposits and withdrawals from the account. The evidence proved

that South Boston's bank records reflected no assertion by

Wileman that any of the checks drawn on his account were forged

or were otherwise unauthorized. A number of the checks drawn on

the account bear notations in the memo section that reference

expenses for auto parts, insurance, and other such expenses that

may reasonably be inferred to relate to the operation of an

automobile business.

Accordingly, we find the evidence sufficient to prove that

the signature card was an authentic sample of Wileman's
- 6 -
signature. Thus we affirm the trial court's admission of the

card as a genuine sample of Wileman's signature.

Sufficiency of Bad Check Evidence

Relying on the Virginia Supreme Court's decisions in Doyle

v. Commonwealth, 212 Va. 677, 187 S.E.2d 201 (1972); Kayh v.

Commonwealth, 219 Va. 424, 247 S.E.2d 696 (1978); and Edwards v.

Commonwealth, 227 Va. 349, 315 S.E.2d 239 (1984), Wileman asserts

that Howerton's identification of Wileman as the presenter of

check #1020 was insufficient to prove that Wileman was the

presenter.
In Doyle, the defendant was accused of having issued three

bad checks in a department store where he made separate purchases

from three different sales associates on the same day. None of

the sales associates knew the purchaser and all three requested

identification from the purchaser, who presented a driver's

license. After ascertaining that the individual depicted on the

driver's license was the presenter, all three sales associates

made notations on the respective checks indicating that

identification had been requested and received. At trial, none

of the sales associates could recall the specific transaction in

which they had received the check, but all three testified that

they would not have accepted the check if the person presenting

the check had not been the person depicted on the photo

identification. Doyle, 212 Va. at 678, 187 S.E.2d at 202. The

Court rejected this evidence as insufficient to establish the

- 7 -
identity of the individual who issued the bad checks. Id.

The Court reached the same conclusion on substantially the

same facts in Kayh, where a Sear's sales associate testified that

before he accepted a purchaser's check he requested

identification. He then ascertained that the presenter and

person depicted on the identification were the same and copied

the driver's license number onto the check. Like the sales

associates in Doyle, the sales associate testified that he could

not remember the specific transaction in which the check had been

presented to him, but he presumed it to have been the defendant

because he would not have taken the check without having verified

that the person pictured on the I.D. was the presenter. Citing

their holding in Doyle, the Kayh Court rejected this evidence as
insufficient to establish the defendant as the presenter. 219

Va. at 427, 247 S.E.2d at 698.

Subsequent to the Doyle and Kayh decisions, Code

§ 19.2-270.3 was enacted, providing that:
In any prosecution under Code § 18.2-181 or
Code § 18.2-182 for the presentation of a bad
check, draft or order, the following shall be
admissible in any proceeding, hearing or
trial of the case and may be deemed competent
evidence with respect to the identity of the
person who delivered the check, draft or
order in question to the payee, cashing party
or its representative:
1. The unpaid or dishonored check, draft
or order, bearing a notation thereon of the
full name, residence address, home telephone
number, and either the driver's license,
social security or credit account
identification number of the person who
delivered such check, draft or order to the
payee, the cashing party or its
representative, and bearing the initials of
- 8 -
 the representative of the payee or cashing
party to whom the check, draft or order was
delivered, as evidence that such information
was transcribed on such check, draft or order
at the time of such delivery . . . .

In Edwards, the Virginia Supreme Court rejected the argument

that Code § 19.2-270.3 established a rebuttable presumption that

a given check was presented "by the person whose name, address,

telephone number, and social security or other identifying number

are noted thereon," and reiterated that Doyle and Kayh remained

dispositive. 227 Va. at 352-53, 315 S.E.2d at 240-41.
Doyle, Kayh, and Edwards presented scenarios in which the

presenter of the bad check could have stolen both the checks and

the identification or could have falsified the identification

documents. By either means, the presenter could have

successfully concealed his true identity and implicated an

innocent party as the passer of the bad checks. Recognizing

this, the Virginia Supreme Court found the evidence in all three

cases insufficient to establish the identity of the presenter

because doing so would require basing an inference upon an

inference. Quoting Doyle, the Kayh Court explained that,
"To hold this evidence sufficient to
establish the identity of the defendant as
the person who presented the checks would
require us to base an inference upon an
inference. It would first require us to
infer that the identification documents and
photographs, which are not in evidence, were
genuine and authentic. It would then require
us to infer and assume that the defendant was
the person who presented the checks since
this person presented identification of the
defendant. This we cannot do."

- 9 -
Kayh, 219 Va. at 427, 247 S.E.2d at 698 (citations omitted).

The case before us is distinguishable because no such double

inference is required. Unlike Doyle, Kayh, and Edwards, where

the sales persons relied upon identification documents to

establish the presenter's identity, here, the person accepting

the check knew the presenter. Consequently, there is no

possibility that the presenter's identity was concealed or

falsified. Howerton testified that she knew Wileman by sight and

that based on her personal recognition of him, she would accept

his deposits without requiring identification. Accordingly,

because the proscribed double inference is not at issue, we hold

Howerton's testimony was admissible to prove that Wileman was the

presenter of check #1020.
Howerton's testimony, coupled with Powell's opinion that the

signatures on check #1020 and on the signature card were the

same, is sufficient evidence, when viewed in the light most

favorable to the Commonwealth, to support the trial court's

finding that Wileman was the person who presented the fraudulent

check to South Boston. Accordingly, we affirm Wileman's

conviction of making and uttering a bad check.
Grand Larceny

On February 9, 1994, Wileman and his business partner

purchased nine cars, including a 1988 Pontiac LeMans, at an

auction conducted by Capital Auto. Capitol Auto gave Wileman

seven of the nine vehicle titles and indicated that the other two

titles would be forwarded to Wileman when they were received.

- 10 -
Wileman paid Capital Auto with a check for $9,780, drawn on

Central Fidelity Bank. Wileman's check was returned from Central

Fidelity to Capital Auto marked "payment stopped." Capital Auto

attempted to contact Wileman but was unable to locate him.

Consequently, Capital Auto did not forward the two remaining

titles to Wileman.

On February 12, 1994, Byron and Angela Moore bought the 1988

Pontiac LeMans from Wileman at J. L. Motors. They paid Wileman

$600 down and financed the remainder through J. L. Motors.

Wileman gave the Moores a receipt and thirty-day tags, explaining

that he had just purchased the car and that "the title was being

sent to him along with other vehicles." When the title failed to

arrive within thirty days, Wileman sent the Moores an additional

set of thirty-day tags, explaining that "he was having problems

getting the title."
When the Moores learned that Wileman had failed to pay

Capital Auto for the LeMans, they relinquished the vehicle to the

Department of Motor Vehicles. The Moores contacted Wileman and

he made an appointment to meet with them and refund their money.

However, when the Moores arrived for their meeting, they found a

note from Wileman explaining he could not meet them because his

grandmother was sick. Wileman never repaid the Moores.
To sustain a conviction of larceny by false
pretenses, the Commonwealth must prove: (a)
that the accused intended to defraud; (b)
that a fraud actually occurred; (c) that the
accused used false pretenses to perpetrate
the fraud; and (d) that the false pretenses
induced the owner to part with his property.

- 11 -
Wynne v. Commonwealth, 18 Va. App. 459, 460, 445 S.E.2d 160, 161

(1994) (en banc) (citations omitted). Here, the evidence proved

that Wileman sold a 1988 Pontiac LeMans to the Moores three days

after he purchased the car with a check on which payment was

stopped. It is uncontroverted that in so doing, Wileman did not

have title to the LeMans and that he concealed from the Moores

the fact that he had not paid for the LeMans and consequently

that he was not entitled to sell the vehicle. As a result of

Wileman's representation that the title was being forwarded to

him, the Moores made a $600 down payment to Wileman. Wileman

implicitly represented that he owned the LeMans and that he was

lawfully entitled to the certificate of title. The evidence

proves that Wileman continued this deception by issuing a second

set of thirty-day tags to the Moores and by explaining to them

that he was having trouble getting title for their vehicle.

Finally, the record indicates that once his fraud was discovered,

Wileman promised to refund the Moores' money but ultimately

failed to do so.
The evidence that Wileman sold the Moores a car he had not

paid for and for which he did not have legal title is sufficient

to sustain the trial court's finding that Wileman had the

requisite intent to defraud. Likewise, the evidence that the

Moores gave Wileman $600 for a car, ownership of which he could

not legally transfer, is sufficient proof that fraud actually

occurred. The evidence that Wileman issued a receipt to the

- 12 -
Moores for the car and that he deceived them regarding the status

of the car's title adequately supports the trial court's finding

that Wileman's larceny was accomplished by false pretenses and

that such pretenses were the means by which the Moores were

induced to part with their $600.

Accordingly, we affirm Wileman's conviction for grand

larceny by false pretenses.

Affirmed.

- 13 -