Bowman v. Commonwealth

Citations: 503 S.E.2d 241; 28 Va. App. 204; 1998 Va. App. LEXIS 444Docket: 2168972

Court: Court of Appeals of Virginia; August 18, 1998; Virginia; State Appellate Court

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Gerald Wesley Bowman was convicted of four counts each of forgery and uttering, as well as four counts of petit larceny. On appeal, Bowman argued that the trial judge improperly admitted hearsay evidence from the executor of the deceased account holder, Virginia Ford, regarding the closure of Ford's bank account three years prior to the checks' negotiation. Bowman contended that this evidence was crucial to his conviction for forgery, as it was not admissible and constituted reversible error. The evidence demonstrated that Bowman negotiated checks purportedly signed by Ford after her death. Testimony from a cashier confirmed that Bowman wrote and endorsed the checks in the store, while the manager of another market stated that Bowman claimed to have worked for Ford before cashing a $60 check. All checks were later stamped 'ACCOUNT CLOSED' by the bank. The executor, Jerome Betts, provided testimony asserting that the signatures were not Ford's and confirmed he had not authorized Bowman to use her checks. The court found the executor's testimony regarding the account's closure inadmissible, resulting in a reversal of Bowman's convictions and a remand for a new trial.

Betts testified during cross-examination that he accompanied Ford to First Federal Savings and Loan in December 1994, where he waited in the car while she closed her account. Over a hearsay objection from defense counsel, he stated that he was aware Ford had closed her account and had discussed it with her. The trial judge allowed the prosecutor to further establish the foundation for Betts’ testimony, confirming that he had been contacted by the bank regarding the checks in question, which were not honored. Betts confirmed he reviewed Ford's finances and bank statements, and confirmed that the account had been closed for three years. The trial judge overruled the defense's objection, admitting Betts' testimony into evidence. Bowman, found guilty on all charges, contended that the admission of Betts' testimony was erroneous as it constituted hearsay. The Commonwealth argued that under Code § 8.01-397, Ford’s executor could testify about matters Ford could have testified to herself. Hearsay is defined as testimony based on what others have said rather than personal knowledge, and is generally inadmissible unless it meets recognized exceptions. Code § 8.01-397 allows declarations made by a person who is incapable of testifying to be received as evidence, but it is limited to actions involving that incapacitated person or their representatives. The court determined that the statute did not apply to criminal proceedings where the incapacitated person is not a party, concluding that Betts' testimony was inadmissible under § 8.01-397.

Betts claimed to have personal knowledge of Ford's bank account closure based on his visit to the bank and review of bank statements, asserting the account had been closed for three years. The Supreme Court of Virginia defines 'personal knowledge' as direct knowledge obtained through one's own senses, not through hearsay. Betts' assertion relied on hearsay, specifically Ford's statement about the account closure, as the bank statements were not introduced into evidence, nor did any bank official testify. Consequently, Betts' testimony about the account status did not meet the standards for admissible evidence due to its hearsay nature, as outlined in relevant case law. The Commonwealth attempted to justify the admission of Betts' hearsay testimony using the case of Sands v. Commonwealth, which allowed testimony based on a witness's personal knowledge rather than hearsay. However, this precedent does not apply here, as Betts was not providing original knowledge but rather repeating information he had received. The trial judge's error in admitting Betts' testimony was significant, and the Commonwealth's argument that the error was harmless was rejected, as the record did not clearly establish that the verdict would have been the same without the erroneous testimony.

Ford's account closure in 1994 lacks corroborating evidence beyond the canceled checks marked 'ACCOUNT CLOSED,' which do not specify the closure date. Betts' hearsay statements regarding this timing are not substantiated by other evidence, making their admission potentially erroneous. The Commonwealth contends that the closure date is irrelevant to guilt and any error was harmless. In contrast, Bowman argues that this information was critical, as it could influence the conclusion on whether Ford granted him permission to sign or negotiate the checks. For a forgery conviction under Code § 18.2-172, the Commonwealth must demonstrate that Bowman falsely signed or altered a document without authority, harming another's rights. Presumption supports that signing another's name implies authority, placing the burden on the Commonwealth to prove the absence of authorization. Previous cases, such as Lewis and Lawson, illustrate that insufficient evidence regarding authority can lead to a failure in meeting the burden of proof. The Commonwealth also argues that Ford's death terminated any authority Bowman might have had to sign checks on her account, as established in Sturgill and King cases, emphasizing that an agent's authority ceases with the principal's death.

In a criminal case involving forgery and uttering, the Commonwealth must demonstrate that the defendant was aware their authority to sign and present checks had ended. The court referenced Sylvestre v. Commonwealth, emphasizing that "intent to defraud" involves deceiving another to manipulate rights related to property. A defendant cannot have fraudulent intent without knowledge of the termination of their authority. If a defendant believed they still had legitimate authority, they lack the requisite intent to defraud. In this instance, there was no evidence indicating that Bowman knew Ford had died before presenting the checks. Consequently, the trial judge's erroneous admission of hearsay evidence impacted the verdict, leading to a reversible error. Bowman's convictions are reversed, and the case is remanded for a new trial if the Commonwealth chooses to proceed.