COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Coleman and Fitzpatrick 

Argued at Richmond, Virginia 

ALICE DAGENHART 

v. Record No. 2547-94-2 MEMORANDUM OPINION* BY 

 JUDGE JOHANNA L. FITZPATRICK 

COMMONWEALTH OF VIRGINIA DECEMBER 29, 1995 

FROM THE CIRCUIT COURT OF HENRICO COUNTY 

Lee A. Harris, Jr., Judge 

 Christopher J. Collins for appellant. 

 John H. McLees, Assistant Attorney General 

(James S. Gilmore, III, Attorney General; 

Robert B. Condon, Assistant Attorney General, 

on brief), for appellee. 

 Alice Dagenhart (appellant) was convicted in a bench trial 

of making and delivering a bad check in violation of Code 

§ 18.2-181. On appeal, she argues that the trial court erred in 

finding the evidence sufficient to support her conviction. For 

the reasons that follow, we reverse the trial court. 

 In February 1994, appellant was renting a townhouse from 

Pointe Rentals. She wrote her February rent check on February 

28, 1994, and delivered the check to the rental agent on March 

14, 1994. Appellant's bank refused to honor the check because 

appellant's account was closed. At trial, the bank records 

custodian testified that appellant last deposited funds in the 

account on February 24, 1994, and that the bank closed the 

account due to numerous overdrafts on March 3, 1994. The trial 

court found appellant guilty of violating Code § 18.2-181, the 

 

 *Pursuant to Code § 17.116.010 this opinion is not 

designated for publication. 
 2 

 

bad check statute, and denied a later motion to set aside the 

verdict. 

 Appellant argues that the evidence failed to support her 

conviction because the rent check was not "present consideration 

for goods or services," but rather was a payment for a past debt 

and outside the scope of Code § 18.2-181.1

 We agree. 

 "To prove a bad check offense [under Code § 18.2-181], it is 

not necessary that anything be received in return for the check. 

 1 Code § 18.2-181 provides as follows: 

 Any person who, with intent to defraud, 

shall make or draw or utter or deliver any 

check, draft, or order for the payment of 

money, upon any bank, banking institution, 

trust company, or other depository, 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, banking institution, trust company, or 

other depository, for the payment of such 

check, draft or order, although no express 

representation is made in reference thereto, 

shall be guilty of larceny; and, if this 

check, draft, or order has a represented 

value of $200 or more, such person shall be 

guilty of a Class 6 felony. In cases in which 

such value is less than $200, the person 

shall be guilty of a Class 1 misdemeanor. 

 The word "credit" as used herein, shall 

be construed to mean any arrangement or 

understanding with the bank, trust company, 

or other depository for the payment of such 

check, draft or order. 

 Any person making, drawing, uttering or 

delivering any such check, draft or order in 

payment as a present consideration for goods 

or services for the purposes set out in this 

section shall be guilty as provided herein. 
 3 

 The offense is complete when, with intent to defraud, a person 

makes or draws or utters a check he knows to be worthless." Bray 

v. Commonwealth, 9 Va. App. 417, 423, 388 S.E.2d 837, 840 (1990). 

 However, Code § 18.2-181 is "intended to include bad checks 

issued as present consideration for [goods and] services and 

intended to exclude bad checks given as payment for past debts or 

as gifts." Id. at 422, 388 S.E.2d at 839 (emphasis added). See 

also Sylvestre v. Commonwealth, 10 Va. App. 253, 257-58, 391 

S.E.2d 336, 339 (1990) (Code § 18.2-181 does not "make it the 

crime of larceny to give a bad check as payment for past debts"). 

 The outcome of this case is controlled by Bray and 

Sylvestre. We hold that the trial court erred in finding that 

appellant's actions violated Code § 18.2-181. The record 

established that appellant made and delivered a check for past 

rent, actions not within the scope of Code § 18.2-181. 

 Accordingly, the decision of the trial court is reversed and 

the charge against appellant dismissed. 

 Reversed and dismissed.