COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Bray and Senior Judge Baker 

Argued at Richmond, Virginia 

DELMAH RAPHEAL POINDEXTER 

 MEMORANDUM OPINION* BY 

v. Record No. 0457-98-2 JUDGE LARRY G. ELDER 

 APRIL 27, 1999 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY 

William R. Shelton, Judge 

 Elliott B. Bender for appellant. 

 H. Elizabeth Shaffer, Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 Delmah Rapheal Poindexter (appellant) appeals from his 

bench trial convictions for attempted credit card fraud, 

conspiracy to commit credit card fraud, and failure to appear. 

On appeal, he contends that the trial court erroneously (1) 

admitted certain testimony and (2) concluded that the evidence 

was sufficient to support each of his three convictions. For 

the reasons that follow, we affirm appellant’s conviction for 

failure to appear and reverse his convictions for attempted 

credit card fraud and conspiracy to commit credit card fraud. 

 *

Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, 

this opinion is not designated for publication. 
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ADMISSIBILITY OF TESTIMONY 

 Appellant contends that the trial court erred in admitting 

certain portions of the testimony of Richard Mast and Russell 

Rivers. Appellant argues that Mast’s testimony that he saw 

codefendant Chester Carson at Mast’s place of business before 

discovering his wallet and credit card missing was “irrelevant 

and overly prejudicial” and constituted reversible error. 

Appellant also argues that Rivers’ testimony about Carson’s use 

of Mast’s credit card at Sears was irrelevant and prejudicial 

because appellant never presented himself as the cardholder and 

never attempted to make a purchase with the card; appellant’s 

only connection to these events was that he entered and left the 

store with Carson. 

 We note first that appellant objected at trial to the 

admission of this testimony only on relevancy grounds. Because 

he did not contend at that time that the challenged testimony 

was overly prejudicial, we consider only the relevance 

objections. See Rule 5A:18. 

 Determining “[t]he admissibility of evidence is within the 

broad discretion of the trial court, and a ruling will not be 

disturbed on appeal in the absence of an abuse of discretion.” 

Blain v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 

(1988). Evidence is generally admissible if it is both relevant 

and material. See Evans-Smith v. Commonwealth, 5 Va. App. 188, 
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196, 361 S.E.2d 436, 441 (1987). “Evidence is relevant if it 

has any logical tendency, however slight, to establish a fact at 

issue in the case.” Ragland v. Commonwealth, 16 Va. App. 913, 

918, 434 S.E.2d 675, 678 (1993). 

 We hold that the trial court did not abuse its discretion 

in admitting the testimony of Richard Mast that he saw Chester 

Carson at Mast’s place of employment on the day Mast’s wallet 

and credit card disappeared. Although appellant himself was not 

seen at Mast’s office or charged with the theft of the card, the 

Commonwealth’s theory of the case was that Carson stole the card 

and that appellant acted as a principal in the second degree to 

Carson’s attempt to use Mast’s American Express card. Evidence 

that Carson was seen near the location from which the wallet and 

card were taken on the day of their disappearance and could, 

therefore, have been the thief was probative of Carson’s guilt 

as the actual perpetrator of the attempted credit card fraud. 

Therefore, the trial court did not abuse its discretion in 

admitting this testimony. 

 The trial court also did not abuse its discretion in 

admitting Russell Rivers’ testimony. Rivers’ testimony, viewed 

in the light most favorable to the Commonwealth, provided 

evidence probative of appellant’s knowledge regarding the 

purpose of Carson’s visit to Sears and Carson’s failed attempt 

to use a credit card to make his purchase. Rivers testified 
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that appellant told him Carson was there to purchase gifts for 

his mother and that appellant was present when Carson was unable 

to use the card because he could not produce picture 

identification. Although appellant’s knowledge alone is not 

proof of his participation in either offense, it was probative 

of his intent. See Charles E. Friend, The Law of Evidence in 

Virginia § 12-6 (4th ed. 1993). Appellant’s statements in 

Rivers’ presence could also be construed as an effort to allay 

any suspicions Rivers might have had by detailing an innocent 

purpose for their shopping trip and to pressure Rivers to hasten 

the sale so as to avoid discovery that Carson was not Mast. 

 For these reasons, the trial court did not abuse its 

discretion in denying appellant’s motion to exclude the 

challenged testimony. 

SUFFICIENCY OF EVIDENCE 

 Under familiar principles of appellate review, we examine 

the evidence in the light most favorable to the Commonwealth, 

granting to it all reasonable inferences fairly deducible 

therefrom. See Martin v. Commonwealth, 4 Va. App. 438, 443, 358 

S.E.2d 415, 418 (1987). The judgment of a trial court will be 

disturbed only if plainly wrong or without evidence to support 

it. See id. The credibility of a witness, the weight accorded 

the testimony, and the inferences to be drawn from proven facts 

are matters solely for the fact finder’s determination. See
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Long v. Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473, 476 

(1989). 

 Any element of a crime may be proved by circumstantial 

evidence, see, e.g., Servis v. Commonwealth, 6 Va. App. 507, 

524, 371 S.E.2d 156, 165 (1988), “provided it is sufficiently 

convincing to exclude every reasonable hypothesis except that of 

guilt,” Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 

876 (1983). “[T]he Commonwealth need only exclude reasonable 

hypotheses of innocence that flow from the evidence, not those 

that spring from the imagination of the defendant." Hamilton v. 

Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 29 (1993). 

1. Attempted Credit Card Fraud

 To support appellant’s conviction for attempted credit card 

fraud, the evidence must prove that Carson took Mast’s credit 

card without his consent, attempted to use it to obtain goods 

and did so with the intent to defraud Mast, Sears or Foot 

Locker. See Code § 18.2-195. It also must prove that appellant 

was present, aiding and abetting Carson, and that appellant 

either shared Carson’s criminal intent or intended his words, 

gestures, signals or actions to encourage, advise, urge or in 

some way help Carson in his attempt to fraudulently use Mast’s 

credit card. See Allard v. Commonwealth, 24 Va. App. 57, 62, 

480 S.E.2d 139, 141 (1997). 
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 Carson’s own admissions, combined with the testimony of 

Rivers and Oliver, established that Carson was a principal in 

the first degree to attempted credit card fraud. Furthermore, 

the evidence, viewed in the light most favorable to the 

Commonwealth, shows that appellant’s presence with Carson and 

appellant’s statements to Rivers and Oliver may have helped 

Carson in his attempts, albeit unsuccessful, to commit credit 

card fraud. The key question, however, remains whether the 

evidence proves, to the exclusion of all reasonable hypotheses 

of innocence flowing from it, that appellant intended his 

presence, words or actions to encourage or help Carson commit 

attempted credit card fraud. 

 Although Carson claimed that appellant was not aware of his 

unlawful attempts to use Mast’s credit card, the court was free 

to reject Carson’s testimony as incredible. This rejection, 

however, did not provide affirmative evidence of appellant’s 

guilt. Appellant admitted in a statement to police that he knew 

Carson was unemployed and that when “he was at Sears at 

Cloverleaf . . . he thinks something about Carson using a 

[credit] card.” Therefore, by the time Carson and appellant 

arrived at Foot Locker, appellant had at least an awareness that 

the unemployed Carson had a credit card he was attempting to use 

to make substantial purchases. This evidence, however, does not 

exclude the reasonable hypothesis that appellant was unaware the 
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credit card did not belong to Carson and that his presence, 

statements, and actions at Sears and Foot Locker were entirely 

consistent with innocence. The record contains no evidence that 

appellant represented to Rivers or Oliver that Carson was Mast. 

 The Commonwealth makes much of the fact that appellant knew 

Carson was unemployed. However, the record contains no evidence 

regarding how long Carson had been unemployed, what his 

financial situation was, or whether it would have been 

unreasonable for appellant to have believed that Carson could 

previously have qualified for a credit card. Of course, the 

mere fact that Carson was unemployed and may not have had any 

money with which to pay a credit card bill would not have 

prevented him from using a card he already had, although such an 

action might be considered by some to have been fiscally unwise. 

Therefore, the evidence, although highly suspicious, failed to 

exclude all reasonable hypotheses of innocence and was 

insufficient to support appellant’s conviction for attempted 

credit card fraud. 

 Accordingly, we reverse and dismiss appellant’s conviction 

for attempted credit card fraud. 

2. Conspiracy to Commit Credit Card Fraud

 “A conspiracy is ‘an agreement between two or more persons 

by some concerted action to commit an offense.’” Bowman v. 

Commonwealth, 11 Va. App. 259, 265, 397 S.E.2d 886, 889 (1990) 
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(quoting Cartwright v. Commonwealth, 223 Va. 368, 372, 288 

S.E.2d 491, 493 (1982)). “Proof of an explicit agreement . . . 

is not required; the agreement may be proved by circumstantial 

evidence.” Brown v. Commonwealth, 10 Va. App. 73, 77, 390 

S.E.2d 386, 388 (1990). 

 Here, proof of the agreement to commit the offense is 

lacking for the same reasons that the evidence was insufficient 

to support appellant’s conviction for an attempt to commit the 

offense. The circumstantial evidence, although highly 

suspicious, leaves open the reasonable hypothesis that appellant 

and Carson made no agreement to commit credit card fraud and 

that appellant’s presence and actions were naive but innocent. 

 Accordingly, we reverse and dismiss appellant’s conviction 

for conspiracy to commit credit card fraud. 

3. Failure to Appear

 A conviction for failing to appear for trial pursuant to 

Code § 19.2-128 requires the Commonwealth to “prove that the 

accused ‘willfully’ failed to appear at trial.” See Hunter v. 

Commonwealth, 15 Va. App. 717, 721, 427 S.E.2d 197, 20 (1993) 

(en banc). We previously have recognized as follows: 

An accused who is given notice of the 

original trial date is charged with notice 

of those dates to which his or her cause is 

expressly continued when such action is duly 

recorded in the order of the court. . . . 

[Further,] [t]he attorney-client 

relationship presumes that attorney and 

client, as servant and master, will 
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communicate about all the important stages 

of a client’s upcoming trial. . . . 

Therefore, if an attorney had actual notice 

of the client’s trial date, the fact finder 

may infer from that evidence that the client 

also had actual notice of the trial date. 

Id. at 722, 427 S.E.2d at 200-01. As a result, 

evidence that sequential orders ha[ve] been 

duly entered of record providing for a date 

certain or notice of the trial date to 

counsel of record, without more, 

establish[es] a prima facie case that [the 

accused] knew the date on which his felony 

trial was scheduled . . . and that he 

willfully failed to appear. 

Id. at 722-23, 427 S.E.2d at 200-01. 

 Here, the trial record shows that appellant and his 

attorney of record had notice of the September 30, 1997 trial 

date under the standards announced in Hunter. The trial court’s 

order of March 10, 1997 establishes that appellant and his 

attorney appeared on that date to set appellant’s case for trial 

on May 8, 1997. By order of May 22, 1997, the trial court noted 

that the trial would be continued until August 19, 1997. By 

order entered July 9, 1997, the trial court moved the trial date 

from August 19 to August 18, 1997. That order specifically 

recited that “defense counsel further represents that the 

defendant agrees to the requested date and manner of trial,” and 

the order was endorsed by defense counsel. Finally, by order 

entered September 18, 1997, the trial court continued the trial 
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until September 30, 1997, “[o]n motion of the attorney for the 

defendant.” 

 This evidence establishes both that appellant had notice of 

the original trial date and that all continuances were duly 

recorded by order of the trial court, thereby charging appellant 

with notice of the September 30, 1997 date. Furthermore, the 

evidence also establishes that appellant’s attorney of record 

was aware of the September 30, 1997 date and, in fact, had asked 

for it. Therefore, under Hunter, the Commonwealth’s evidence 

established a prima facie case that appellant knew of the 

September 30, 1997 trial date and willfully failed to appear, 

and appellant offered no evidence to the contrary. Accordingly, 

the evidence was sufficient to support appellant’s conviction 

for failure to appear. 

 For the reasons set out above, we affirm appellant’s 

conviction for failure to appear and reverse and dismiss his 

convictions for attempted credit card fraud and conspiracy to 

commit credit card fraud. 

 Affirmed in part 

 and reversed and 

dismissed in part.