Opinion
Record No. 0083-92-3
June 29, 1993
FROM THE CIRCUIT COURT OF BOTETOURT COUNTY GEORGE E. HONTS, III, JUDGE.
Thomas W. Roe, Jr. (Carter, Roe, Emick Roe, P.C., on brief), for appellant.
Kathleen B. Martin, Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellee.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
In a bench trial, Brenda Coulson Brown (Brown) was convicted of three counts of uttering forged checks in violation of Code § 18.2-172. However, the trial court found Brown not guilty of two additional charges of uttering and five charges of forgery. On appeal, Brown contends that the evidence was insufficient to support the convictions for uttering. We agree and reverse the trial court's judgment.
We first address the Commonwealth's contention that Brown's failure to argue at trial the specific issues raised on appeal, that the elements of knowledge and intent to defraud were lacking, bars our review of Brown's challenge to the sufficiency of the evidence pursuant to Rule 5A:18. Issues raised on appeal that were not presented to the trial court below may be considered on appeal in order to attain the ends of justice. Rule 5A:18; Mounce v. Commonwealth, 4 Va. App. 433, 436, 357 S.E.2d 742, 744 (1987). "[T]he 'ends of justice' provision may be used when the record affirmatively shows that a miscarriage of justice has occurred, not when it merely shows that a miscarriage might have occurred." Mounce, 4 Va. App. at 436, 357 S.E.2d at 744. Here, we invoke the "ends of justice" exception to Rule 5A:18 because the record clearly shows that a miscarriage of justice occurred.See Jimenez v. Commonwealth, 241 Va. 244, 402 S.E.2d 678 (1991).
Code § 18.2-172 provides:
If any person forge any writing . . . to the prejudice of another's right, or utter, or attempt to employ as true, such forged writing, knowing it to be forged, he shall be guilty of a Class 5 felony. Any person who shall obtain, by any false pretense or token, the signature of another person, to any such writing, with intent to defraud any other person, shall be deemed guilty of forgery thereof, and shall be subject to like punishment.
This provision describes two separate offenses: "one, forgery and the other, uttering or attempting to employ as true a forged writing." Bateman v. Commonwealth, 205 Va. 595, 599, 139 S.E.2d 102, 105 (1964) (referring to former Code § 18.1-96). "Utter" is defined as "'[t]o put or send [as a forged check] into circulation . . . to utter and publish.' It is an assertion by word or action that a writing known to be forged is good and valid." Id. at 599-600, 139 S.E.2d at 106 (quoting Black's Law Dictionary 1716 (4th ed.)); see Ramsey v. Commonwealth, 2 Va. App. 265, 269, 343 S.E.2d 465, 468 (1986).
On appeal, we view the evidence in the light most favorable to the Commonwealth, granting it all reasonable inferences fairly deducible therefrom. Crumble v. Commonwealth, 2 Va. App. 231, 233, 343 S.E.2d 359, 361 (1986). Viewed in this light, the evidence showed that Brown and Musselman acted in concert. The trial court specifically found that Musselman accompanied Brown when she wrote and cashed the checks at Winn-Dixie. For this reason, the trial court found that there was no forgery of these checks. Moreover, there was no evidence that Brown knew that the checks were not "good and valid." See Bateman, 205 Va. at 599-600, 139 S.E.2d at 106. "Knowledge that the instrument was forged at the time of uttering is a necessary element of the crime [of uttering]." 8B Michie's Jurisprudence Forgery § 11 (1977 Repl. vol.) (footnote omitted). Because the evidence failed to show that the checks were forged and that Brown knew the checks were forged, there can be no uttering of a forged check. Thus, on the facts of this case, we find that the evidence was insufficient to prove, beyond a reasonable doubt, that Brown is guilty of uttering forged checks in violation of Code § 18.2-172.
Reversed.