COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Elder and Bray 

Argued at Chesapeake, Virginia 

STEPHEN HAROLD SCHRIEBERG 

 MEMORANDUM OPINION* BY 

v. Record No. 1192-98-2 JUDGE LARRY G. ELDER 

 FEBRUARY 29, 2000 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY 

Arthur W. Sinclair, Judge Designate 

 Leslie Lee Robinson (Robinson & Pincus, LLP, 

on brief), for appellant. 

 H. Elizabeth Shaffer, Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 Stephen Schrieberg (appellant) was convicted in a bench 

trial for the felony offense of uttering a bad check pursuant to 

Code § 18.2-181, which offense arose out of his purchase of an 

automobile. On appeal, he contends that the trial court 

erroneously admitted into evidence both the hearsay statement 

made by a bank employee to the automobile's salesman regarding 

the status of appellant's checking account and appellant's 

response to the salesman when told of the bank employee's 

statement. Appellant also contends the evidence is insufficient 

to prove that he had the requisite intent to defraud and 

 

* Pursuant to Code § 17.1-413, recodifying Code 

§ 17-116.010, this opinion is not designated for publication.
knowledge of insufficient funds at the time he wrote the check. 

We hold the trial court committed no error in admitting the bank 

employee's hearsay statement and appellant's response because 

the hearsay statement itself was not separately admitted to 

prove the truth of the matter asserted; the statement properly 

was admitted in conjunction with appellant's response to it 

because it constituted an adoptive admission. Finally, the only 

reasonable hypothesis flowing from the circumstantial evidence, 

viewed in the light most favorable to the Commonwealth, is that 

appellant lied to the automobile salesman when he said he had 

sufficient funds in his account to cover the $14,700 check and, 

therefore, that he acted with the requisite knowledge and intent 

when he wrote the check. For these reasons, we affirm 

appellant's conviction. 

I. 

FACTS 

 On Saturday, May 25, 1996, appellant purchased a used 

Mercedes from Pegasus Motor Car Company through General Manager 

Mark Viglione. Appellant traded in his older model Mercedes and 

wrote a check for the balance due--$14,700. The check was a 

corporate check of Bingo TV, Inc., of Boca Raton, Florida, and 

was drawn on a Florida bank. Appellant assured Viglione that 

"there [were] funds in the account and that it was a good 

check." In the course of the purchase, appellant gave an 

address in Richmond as his home address. 

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 On Monday, May 27, Viglione delivered the check to Pegasus' 

business office, and on June 3, Viglione received the check back 

again. Viglione called appellant at the business number listed 

on the check, and when appellant returned the call, he told 

Viglione "that he had deposited a rather large check into that 

account and it hadn't cleared yet, so it was going to be a few 

days yet" before his account would contain sufficient funds to 

cover the check. For about two or three weeks thereafter, 

Viglione phoned the bank on a daily basis to determine whether 

the account contained sufficient funds and, upon learning that 

it did not, Viglione called appellant. On each of those 

occasions, appellant provided the same explanation for why the 

account still contained insufficient funds. Eventually, the 

business phone number Viglione had been calling was 

disconnected, and Viglione attempted to make contact with 

appellant through appellant's father. 

 Viglione eventually talked with a bank employee about the 

status of appellant's account and communicated to appellant what 

he had been told. Viglione testified in relevant part as 

follows: 

[PROSECUTOR]: Okay. So you confronted 

[appellant] and what specific question did 

you ask about this large check deposit that 

you believed now to be nonexistent, what did 

you ask-- 

[VIGLIONE]: I said that I had talked to 

somebody at his bank and they told me there 

wasn't a check-- 

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* * * * * * * 

[VIGLIONE]: I told him that I had talked to 

his bank and they told me that there in fact 

wasn't a check deposited there that was 

going to clear, that the . . . the funds 

weren't there. He at that point told me 

that he was making other arrangements. 

Viglione confirmed that appellant never refuted the allegations. 

 Appellant told Viglione that he was in California at that 

time but that he would be back in Richmond in about a week. 

About a week later, appellant called Viglione and reported that 

he was still in California but would wire Viglione the money. 

Appellant did not wire the money. In late August 1996, almost 

three months after appellant took possession of the car, 

appellant's father paid Viglione the outstanding balance. 

 Appellant testified at trial, claiming that three to seven 

days before he wrote the check for the car, he had deposited 

into his business account a check for $50,000 drawn on a New 

Jersey account. He was unable to produce a deposit slip or 

account statement documenting that deposit. He said he had no 

knowledge when he wrote the check to Pegasus that the balance in 

his business account was not $50,000 and that he "was sure" the 

account contained sufficient funds because he expected the check 

to clear by that date, but he also admitted that, at the time he 

made the deposit, he "thought it would take . . . three to five 

days" for the check to clear. He contended that after Viglione 

informed him that the account contained insufficient funds, he 

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attempted to investigate and learned that an employee of his 

corporation had taken funds out of the account. He also said he 

had no recollection of Viglione's telling him a bank employee 

said that deposit was never made. 

 At the conclusion of the evidence, the trial court held 

"the credible evidence support[ed] the Commonwealth’s position" 

and convicted appellant of the charged offense. 

II. 

ANALYSIS 

A. 

ADMISSIBILITY OF EVIDENCE 

 Appellant contends the trial court erroneously admitted as 

an adoptive admission the hearsay statements of a bank official 

that appellant had not deposited a check into his account and 

appellant's response when told of that statement. We disagree. 

 "The 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). 

 A statement qualifies as an adoptive admission and may be 

admissible into evidence despite the hearsay rule, under certain 

well-defined circumstances, if the statement has been adopted, 

either expressly or impliedly, by a criminal defendant. See 2 

Charles E. Friend, The Law of Evidence in Virginia § 18-45 (4th 

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ed. 1993 & Supp. 1998). "[B]oth the statement and the fact of 

the accused's failure to deny the statement are admissible in a 

criminal proceeding against the accused." Strohecker v. 

Commonwealth, 23 Va. App. 242, 252, 475 S.E.2d 844, 849 (1996). 

"'An adoptive admission avoids the confrontation problem because 

the words of the hearsay become the words of the defendant.'" 

Id. at 253, 475 S.E.2d at 850 (quoting 29A Am. Jur. 2d Evidence

§ 802 (1994)). 

 In determining whether a statement constitutes an adoptive 

admission, 

the courts have evolved a variety of 

safeguarding requirements against misuse, of 

which the following are illustrative. (1) 

The statement must have been heard by the 

party claimed to have acquiesced. (2) It 

must have been understood by him. (3) The 

subject matter must have been within his 

knowledge. (4) Physical or emotional 

impediment to responding must not be 

present. (5) The personal makeup of the 

speaker, e.g., young child, or his 

relationship to the party or the event, 

e.g., bystander, may be such as to make it 

reasonable to expect denial. (6) Probably 

most important of all, the statement itself 

must be such as would, if untrue, call for a 

denial under the circumstances. . . . The 

essential inquiry in each case is whether a 

reasonable person would have denied under 

the circumstances, with answers not lending 

themselves readily to mechanical 

formulations. 

Edward W. Cleary, McCormick on Evidence § 270, at 800-01 (3d ed. 

1984), quoted with approval in Knick v. Commonwealth, 15 Va. 

App. 103, 107, 421 S.E.2d 479, 481 (1992). 

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 Here, the evidence supports a finding that all the 

requirements for an adoptive admission were met, and we hold the 

trial court did not abuse its discretion in admitting the bank 

employee's statement and appellant's response. First, the 

evidence establishes that appellant heard the statement of the 

bank employee, as reported to him by Viglione, that "there 

wasn't a check." Second, it establishes that appellant 

understood the statement because he responded to it by saying he 

would make other arrangements to complete payment. Third, the 

subject matter was plainly within his knowledge because he and 

Viglione were discussing the status of a check appellant claimed 

personally to have deposited in his corporate bank account. 

Fourth, the record contains no indication that appellant had any 

physical or emotional impediment to responding to the statement. 

Fifth, the record also contains no indication that appellant's 

personal makeup was such as to make it unreasonable to expect a 

denial; at the time of the purchase, appellant was an adult in 

his early fifties, operated his own company, and had twenty-five 

to thirty years of business experience. Finally, the statement 

was of the type that would, if untrue, call for a denial because 

it accused appellant of lying repeatedly to Viglione by telling 

Viglione he had deposited a large check which would soon clear 

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his account, and it implicated appellant in the crime for which 

he was convicted.1

 For these reasons, we hold the trial court did not abuse 

its discretion in admitting into evidence as an adoptive 

admission the bank employee's statement regarding the status of 

appellant's account and appellant's failure to deny that 

statement. 

B. 

SUFFICIENCY OF EVIDENCE TO PROVE INTENT AND KNOWLEDGE 

 Code § 18.2-181 provides in relevant part as follows: 

Any person who, with intent to defraud, 

shall make or draw or utter or deliver any 

check . . . upon any bank . . . 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. 

This statute requires the Commonwealth to prove both intent to 

defraud and knowledge of insufficient funds in order to convict 

 1

 Citing Owens v. Commonwealth, 186 Va. 689, 43 S.E.2d 895 

(1947), appellant claims that the rule requires the statement to 

be one "tending to incriminate [the] one accused of committing a 

crime." He contends the statement at issue here was 

insufficient to meet this test. Assuming without deciding the 

rule requires the statement to implicate one in a crime, the 

statement appellant failed to refute did, in fact, implicate him 

in the crime for which he was convicted. 

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a defendant.2 See Huntt v. Commonwealth, 212 Va. 737, 739-40, 

187 S.E.2d 183, 185-86 (1972). The intent dispositive of the 

crime is the intent that existed when the check was uttered. 

However, subsequent acts of the accused are relevant to 

establish the intent of the accused at the time the check was 

uttered. See Rosser v. Commonwealth, 192 Va. 813, 817, 66 

S.E.2d 851, 853 (1951). 

 Knowledge or intent, like any element of a crime, may be 

proved by circumstantial evidence as long as that evidence 

excludes all reasonable hypotheses of innocence flowing from it. 

See Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 

(1980); Hamilton v. Commonwealth, 16 Va. App. 751, 755, 433 

S.E.2d 27, 29 (1993). 

 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 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 

 2

 Code § 18.2-183 provides a rebuttable presumption that a 

defendant acted with both requisite mental states if he fails, 

within a certain period following actual or constructive written 

notice of the dishonor, to pay the amount due, including any 

interest and protest fees. The Commonwealth correctly conceded 

at trial that the statutory presumption does not apply in this 

case. 

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determination. See Long v. Commonwealth, 8 Va. App. 194, 199, 

379 S.E.2d 473, 476 (1989). The fact finder is not required to 

believe all aspects of a witness' testimony; it may accept some 

parts as believable and reject other parts as implausible. See

Pugliese v. Commonwealth, 16 Va. App. 82, 92, 428 S.E.2d 16, 24 

(1993). 

 Here, the evidence establishes that appellant assured 

Viglione he had sufficient funds in his corporate account to 

cover the $14,700 check. Appellant testified at trial that he 

believed he had sufficient funds in the account because he had 

deposited into the account a $50,000 check. However, he also 

admitted that he could have deposited the $50,000 check as few 

as three days prior to writing the check for the car and that he 

thought when he deposited the out-of-state check that it could 

take three to five days to clear. As a result, the trial court 

was entitled to reject appellant's testimony that he believed 

his account contained sufficient funds and to conclude that 

appellant knew when he wrote the check for the car that the 

$50,000 out-of-state check he allegedly deposited had not yet 

cleared. 

 Further, other evidence allowed the trial court to conclude 

that appellant never deposited any such check, also supporting 

the finding that he knew the account contained insufficient 

funds and that he acted with an intent to defraud when he wrote 

the check. When Viglione received the check back and learned 

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that appellant's account did not contain sufficient funds to 

cover the check, he called appellant's business number, and 

appellant claimed he had deposited a large check into the 

account and was merely waiting for it to clear. Appellant gave 

Viglione this same information repeatedly over the course of 

several weeks. When Viglione confronted appellant with 

information he obtained from the bank that no large check had 

been deposited, appellant did not contend otherwise and simply 

stated that he would make other arrangements to pay the 

outstanding balance. Appellant led Viglione to believe he would 

be returning to Richmond shortly thereafter but still had not 

returned a week later. Appellant then told Viglione he would 

wire the money. He even asked Viglione for the business' 

account information in order to complete the wire transfer, but 

he never wired the money. At some point during the process, 

appellant's business phone was disconnected, and Viglione 

attempted to contact appellant through his father. Appellant 

never made payment, and about three months after appellant 

received the car, his father made payment in full. 

 The only reasonable hypothesis flowing from all the 

evidence, viewed in the light most favorable to the 

Commonwealth, is that when appellant delivered the $14,700 check 

to Viglione, he acted with both an intent to defraud and 

knowledge that the account contained insufficient funds. 

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 For these reasons, we affirm appellant's conviction. 

Affirmed.

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