COURT OF APPEALS OF VIRGINIA

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COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Willis and Bumgardner

Argued at Salem, Virginia

RONNIE LEE MOTSINGER

MEMORANDUM OPINION* BY

v. Record No. 1406-98-3 CHIEF JUDGE JOHANNA L. FITZPATRICK

APRIL 13, 1999

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY

William N. Alexander, II, Judge

Albert L. Shaw for appellant.

Richard B. Campbell, Assistant Attorney

General (Mark L. Earley, Attorney General,

on brief), for appellee.

Ronnie Motsinger (appellant) was convicted in a jury trial

of two counts of grand larceny by check, in violation of Code

18.2-181. On appeal, he contends that the trial court erred

by instructing the jury on the rebuttable presumption of intent

to defraud provided by Code 18.2-183. He argues that while

Code 18.2-183 does not require the Commonwealth to prove the

date when the payee sent notice to the defendant, this Court

should imply such an obligation as a matter of law. Finding no

error, we affirm his convictions.

I.

Under familiar principles of appellate review, we examine

the evidence in the light most favorable to the Commonwealth,

the prevailing party below, granting to it all reasonable

inferences fairly deducible therefrom. See Juares v.

Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997).

So viewed, the evidence established that appellant purchased

jewelry from Peter Paul Yun (Yun), the manager of Oknam Jewelry

(Oknam), a wholesale jewelry business in Atlanta, Georgia.

Appellant, trading as "Jewel City" in Danville, Virginia, had

done business with Yun for "one to two years" prior to the time

of the instant charges.

In the fall of 1996, appellant ordered two shipments of

jewelry from Oknam, which were sent by UPS. Yun later received

two checks from appellant for the orders. Check 173 was written

on September 14, 1996, in the amount of $868.56; check 175 was

written on September 18, 1996, in the amount of $974.54. The

business name on the checks was "Jewel City" and appellant

signed the checks.

Yun deposited the checks twice, but they were returned each

time unpaid and marked, "NOT SUFFICIENT FUNDS." Thereafter, he

attempted to contact appellant to demand repayment. Yun

testified as follows:

Q. What did you do after that to attempt

to collect on these two checks?

A. I immediately sent Certified letters

for each check.

Q. And to what address did you send those

Certified letters to?

A. Jewel City, the address on the check.

Yun further testified that there were two additional checks

written to Oknam that were also returned for insufficient funds.

Yun stated that he sent notices for every check from Jewel

City that had bounced and the notices were returned "Refused."

One notice, sent on December 24, 1996, was admitted into

evidence. The return receipt card for that notice indicated

that delivery was attempted on three different dates and was

stamped, "UNCLAIMED."

On cross-examination, Yun admitted that he was not sure

whether the December 24, 1996 notice corresponded with either

check 173 or check 175.

Q. The question is, can you say that this

notice [dated December 24, 1996], as opposed

to some other notice . . . [and] it's an

important distinction for this case, that

this notice contained information about

these checks?

A. Those checks in your hand?

Q. Couldn't it have been the other two

checks?

A. May have been.

Q. Okay, so you're not sure of this

notice?

A. I'm not sure, no sir.

However, Yun reiterated that four checks from Jewel City were

returned for insufficient funds and that he sent out a certified

letter on each check.

Q. Do you remember sending this notice for

these checks, absolutely, unequivocally, or

could there have been some . . . ?

A. Without, without a doubt in my mind,

any checks that have bounced from Jewel

City, a Certified letter went along with

that.

* * * * * * *

Q. Any checks that came from Jewel City

that bounced, of those checks, did you ever

not send a Certified notice?

A. No, I did send a Certified notice for

any bounced check coming from Jewel City.

That is standard procedure.

At the conclusion of the evidence, appellant objected to

Instruction No. 3, which provided as follows:

If the holder of a check sends notice by

certified or registered mail to the maker or

drawer of a check at the maker's address

written or printed on the face of the check,

whether that address is his home, office, or

otherwise, that the check has not been paid

to the holder, and if the maker or drawer

fails to pay the amount due on the check

together with interest within five days of

the notice, you may infer that the maker or

drawer had the intent to defraud or had

knowledge or insufficient funds in, or

credit with, the bank. You are further

instructed that such notice shall be deemed

sufficient and equivalent to notice having

been actually received by the maker or

drawer, whether such notice shall be

returned undelivered or not.

The jury found appellant guilty of two counts of grand

larceny by check. Appellant filed a post-trial Motion to Set

Aside the Jury's Verdict, which was denied by the trial court.

II.

Code 18.2-181, the statute under which appellant was

convicted, provides that it is unlawful for any person, with the

intent to defraud, to make, draw or utter a check, knowing at

the time of such making, drawing or uttering, there are

insufficient funds in his or her account. Under Code

18.2-183,

. . . the making or drawing or uttering or

delivery of a check, draft, or order,

payment of which is refused by the drawee

because of lack of funds or credit shall be

prima facie evidence of intent to defraud or

of knowledge of insufficient funds in, or

credit with, such bank . . . unless such

maker . . . shall have paid the holder

thereof the amount due thereon, . . . within

five days after receiving written notice

that such check . . . has not been paid to

the holder thereof. Notice mailed by

certified or registered mail, evidenced by

return receipt, to the last known address of

the maker or drawer shall be deemed

sufficient and equivalent to notice having

been received by the maker or drawer.

If such check . . . shows on its face a

printed or written address, home, office, or

otherwise, of the maker or drawer, then the

foregoing notice, when sent by certified or

registered mail to such address, with or

without return receipt requested, shall be

deemed sufficient and equivalent to notice

having been received by the maker or drawer,

whether such notice shall be returned

undelivered or not.

(Emphasis added).

In the instant case, appellant concedes that Code

18.2-183 does not require the Commonwealth to prove the date

the notice was sent or that the notice was actually received by

appellant. Additionally, he agrees that oral testimony or

circumstantial evidence may be used to show that the payee sent

the notice. Nevertheless, appellant asks this Court to imply

the obligation to establish the date the notice was sent even

though such proof is not required specifically by the statute.

"Where a statute is unambiguous, the plain meaning is to be

accepted without resort to the rules of statutory

interpretation." Sykes v. Commonwealth, 27 Va. App. 77, 80, 497

S.E.2d 511, 512 (1998) (quoting Last v. Virginia State Bd. of

Med., 14 Va. App. 906, 910, 421 S.E.2d 201, 205 (1992)).

"Courts are not permitted to rewrite statutes. This is a

legislative function. The manifest intention of the

legislature, clearly disclosed by its language, must be

applied." Id. at 80-81, 497 S.E.2d at 512-13 (quoting Barr v.

Town & Country Properties, Inc., 240 Va. 292, 295, 396 S.E.2d

672, 674 (1990) (quoting Anderson v. Commonwealth, 182 Va. 560,

566, 29 S.E.2d 838, 841 (1944))).

Applying these rules to the instant case, we hold that Code

18.2-183 does not require the Commonwealth to establish either

actual receipt of the notice or the date the payee sent the

notice. Rather, the statute only requires proof the notice was

sent by certified mail and the accused failed to repay the

amount due within five days. See Code 18.2-183. Here, the

Commonwealth introduced the check numbers 173 and 175, which

were returned for insufficient funds. Yun testified he sent

certified letters to appellant requesting payment on each of the

checks in question. Significantly, the evidence established

that appellant never paid the amount due on the outstanding

checks and certainly he did not make payment within five days of

a written request to do so.

"[An appellate] court's responsibility in reviewing jury

instructions is 'to see that the law has been clearly stated and

that the instructions cover all issues which the evidence fairly

raises.'" Lewis v. Commonwealth, 28 Va. App. 164, 171, 502

S.E.2d 222, 225 (1998) (quoting Darnell v. Commonwealth, 6 Va.

App. 485, 488, 370 S.E.2d 717, 719 (1988)). Instruction No. 3

clearly stated the principle of law codified in Code 18.2-183.

Furthermore, the evidence fairly raised the presumption of

intent to defraud and having introduced evidence that certified

notice was sent to appellant, the Commonwealth was entitled to

rely upon that presumption. Finding no error, we affirm

appellant's convictions.

Affirmed.

* Pursuant to Code 17.1-413, recodifying Code

17-116.010, this opinion is not designated for publication.

Code 18.2-181 provides in part:

Any person who, with intent to defraud,

shall make or draw or utter or deliver any

check, . . . knowing, at the time of such

making, drawing, uttering or delivering,

that the maker or drawer has not sufficient

funds in, or credit with, such bank, . . .

for the payment of such check, . . .

although no express representation is made

in reference thereto, shall be guilty of

larceny; and, if this check . . . has a

represented value of $200 or more, such

person shall be guilty of a Class 6 felony.

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