COURT OF APPEALS OF VIRGINIA
Present: Judges Elde r, Petty and Alston Argued at Salem, Virginia

CHARLA DENORA WOODING MEMORANDUM OPINION * BY v. Record No. 1385-09-3 JUDGE WILLIAM G. PETTY MAY 18, 2010 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG Mosby G. Perrow, III, Judge Mark B. Arthur for appellant. Eugene Murphy, Senior Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney Gene ral, on brief), for appellee.
On March 23, 2009, Charla Denora Wooding, th e appellant, was convicted in a bench trial of four counts of forgery, in violation of Code § 18.2-172, and four counts of uttering, in violation of Code § 18.2-172. On appeal, Wooding argues that the court e rred in admitting the forgery affidavits without the affiant present. She also contends that the evidence was insufficient to convict her of forgery and utteri ng. For the following reasons, we disagree and affirm Wooding’s convictions.
I. B ACKGROUND “On appeal, we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferenc es fairly deducible therefrom.” Martin v. Commonwealth , 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - In June 2008, SunTrust Bank contacted Dillar d and Ruth Markham to inform them of several apparently forged checks drawn on their account. After confirming that the checks were forgeries, Lisa Redford, an employee of SunTrust, had Ruth Markham sign affidavits confirming that the signatures on the suspicious checks were not hers and that she did not authorize anyone else to sign for her. Ruth Markham died before trial so the Commonwealth offered the affidavits in order to establish that th e signatures were fraudulent. Investigator Couch of the Lynchburg Police De partment first interviewed the Markhams at their produce stand. He observed Charlest on Williams, Jr., an employee of Markham Produce, leaving the premises. Williams entered a gree n SUV where Wooding was riding as a passenger. Investigator Couch then interviewed the teller at SunTrust, who identified Williams as the person who attempted to pass the fraudulent check. Investigator Couch also reviewed video surveillance that showed both Williams and Wo oding as the individuals who had each cashed several of the missing checks. Investigator C ouch additionally interviewed a cashier of Quick Stop, where some of the Markham checks had been cashed. After speaking with the cashier, Investigator Couch prepared a photo lineup; the cashier identifi ed Wooding as the person who cashed the checks. Investigator Couch arrested Williams and la ter interviewed him regarding the Markham checks. Williams admitted that, while mowing the Markhams’ yard, he noticed a book of checks lying on the ground. Williams kept the book of checks and used the money to pay his bills. On July 22, 2008, Investigator Couch interviewed W ooding while she was in police custody. When Investigator Couch asked Wooding if she signe d the checks, Wooding re plied, “I suppose.” Wooding admitted that she obtained the checks from Williams and had split the money with him. At trial, Lisa Redford explained SunTrust’s procedures to repor t fraudulent activity. Redford testified that when a customer repo rts that checks have b een forged, SunTrust- 3 - employees examine the account with the customer to determine which checks are suspected to be forged. The employee then contacts the intern al fraud department a nd helps the customer prepare an affidavit. The affidavit states that the signature on the fr audulent check is not the client’s signature and that the client did not authorize anyone to sign the check. Redford testified that the affidavits are prep ared in the normal course of business for the bank in order to deal with claims of fraud. Re dford completed this pro cess with Ruth Markham for each fraudulent check, and Redford notarized the affidavits. Neither Redford nor any other bank employee informed Ruth Markham that the affidavits would be used in court proceedings. During trial, Wooding argued that the affidav its of forgery were inadmissible because their admission violated the Confrontation Clause. The trial j udge overruled Wooding’s objection and admitted the affidavits holding that the documents were non-testimonial business records and, therefore, their admission did not implicate the Conf rontation Clause. The trial court convicted Wooding of four counts of uttering and four count s of forgery, and this appeal followed.
II. A NALYSIS On appeal, Wooding argues that the trial court erred in admitting Mrs. Markham’s affidavits because they violated her right to confrontation under the Sixth Amendment of the United States Constitution and that the evidence was insufficient to establish the crime of forgery and uttering. For the reasons that follow, we conclude that Mrs. Mark ham’s affidavit was not testimonial and therefore admissible into evidence. We further conclude that the evidence was sufficient to establish Wooding forged and ut tered several checks in violation of Code § 18.2-172.- 4 - A. Admissibility of the Affidavits The Confrontation Clause of the Sixth Amendment provides: “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const. amend. VI. The United States Supreme Court ha s interpreted this right to bar “the admission of testimonial statements of a wi tness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior oppo rtunity to cross-examination.” Crawford v. Washington , 541 U.S. 36, 53-54 (2004). Thus, it is clear that “[t] he Confrontation Clause only applies to testimonial hearsay. ‘Tha t is because only those statements that are testimonial in nature cause the de clarant to be a witness within the meaning of the Confrontation Clause.’” Crawford v. Commonwealth , 55 Va. App. 457, 477, 686 S.E.2d 557, 567 (2009) (quoting Davis v. Washington , 547 U.S. 813, 821 (2006) (internal quotation marks omitted)). “Indeed, ‘[i]t is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause .’” Id. (emphasis and modificati on in original) (quoting Davis , 547 U.S. at 821). The question of whether a statement is “testimonial,” though, is not often easily answered. The Suprem e Court’s decision in Crawford “set[s] forth ‘[v]arious formulations’ of the core class of ‘testimonial’ statements . . . but found it unnecessary to endorse any of them, because ‘some statements qualify under any definition.’” Davis , 547 U.S. at 822. While we recognized in Crawford v. Commonwealth that the Supreme Court has recently stated that “affidavits ‘fall within the core class of testim onial statements’ subjec t to the Confrontation Clause . . . ,” we noted that the Supreme Court ha s not gone as far “as to hold that all affidavits

are per se testimonial.” 55 Va. App. at 478, 686 S.E.2d at 567 (quoting Melendez-Diaz v. Massachusetts , 129 S. Ct. 2527, 2532 (2009)).- 5 - In Crawford v. Commonwealth , we adopted the primary purpose test established in Davis : “[s]tatements . . . are testimonial when the circumstances objectively indicate . . . that the primary purpose of the interrogation is to establish or prove past events poten tially relevant to later criminal prosecution.” 55 Va. App. at 478, 686 S.E.2d 567 (emphasis added). Indeed, we stated that “we see no principled reason to c onclude that a hearsay statement obtained for a
purpose other than criminal prosecution should be treate d differently with respect to the Confrontation Clause solely because it takes the form of an affidavit.” Id. at 479, 686 S.E.2d at 568 (emphasis in original). Thus, we concluded that “the mere fact that the statements in [that] case are contained within an affidavit is not disp ositive to our analysis, and we must still look to the ‘primary purpose of the interrogation’ to determine whether the statements are testimonial or nontestimonial in character.” Id. (quoting Davis , 547 U.S. at 822.) While “[m]ost hearsay exceptions” generally cover “statements that by their nature [are] not testimonial,” it is “not because they qualify u nder an exception to the hearsay rules” that they are “admissible absent confrontation.” Melendez-Diaz , 129 S. Ct. at 2539. Rather, statements such as business records or public records are “g enerally admissible absent confrontation . . . because . . .—having been created for the administ ration of an entity’s affairs and not for the purpose of establishing or proving some fact at trial—they are not testimonial.” Id. at 2539-40; see also Riner v. Commonwealth , 268 Va. 296, 323, 601 S.E.2d 555, 570 (2004) (stating that “business records are a type of hearsay ‘that by their nature [are] not testimonial’” (quoting Crawford , 541 U.S. at 56)); Jasper v. Commonwealth , 49 Va. App. 749, 754, 644 S.E.2d 406, 409 (2007) (holding the Sixth Amendment right to confrontation does no t apply to business records). This general rule applies unless “t he regularly conducted business activity is the production of evidence for use at trial,” in which case the statements are testimonial. Melendez-Diaz , 129 S. Ct. at 2538.- 6 - Thus, it is not the fact that the challenged stat ement is contained in an affidavit that is dispositive, but rather the prim ary purpose for which the affidavit was prepared. An affidavit is testimonial hearsay if it is pr epared primarily for litigation, id. at 2540, and it is a non-testimonial business record if it is prepared primarily “f or the systematic conduct of the business as a business.” Palmer v. Hoffman , 318 U.S. 109, 113 (1943). In other words, if the affidavit’s “primary utility is in litigating,” id. at 114, not in banking, then th e affidavit is testimonial. Melendez-Diaz , 129 S. Ct. at 2540; Davis , 547 U.S. at 821; Crawford , 55 Va. App. at 479, 686 S.E.2d at 568. While a business record may be used to establish a past fact in a subsequent trial, its admission into evidence will not offend the Confrontation Clause unless it is prepared primarily for litigation. Accordingly, the ul timate question revolves around the primary purpose for the affidavit’s production. Crawford , 55 Va. App. at 479, 686 S.E.2d at 568. Here, the bank contacted Mr. and Mrs. Mar kham regarding suspicious activity on their checking account. Mrs. Markham went to the ba nk and met with Lisa Redford. Mrs. Markham signed several affidavits prepared by the bank in its Fraud/Loss Preventi on Department stating that the signatures on the checks were not hers and she had not author ized anyone to sign her name on the checks. The bank’s regional security manager testified: The bank uses [the affidavits] to determine as to whether or not [it] will give restitution to the client. If [the bank] feel[s] as t hough [the] client did everything they were supposed to do according to those rules and regulations, [the bank] reimburse[s] the client the amount of the loss, as [it] did in this case. And then th e bank suffers the loss. Indeed, this statement is consistent with the requirements of Code § 8.4-406(c) which requires the bank customer to “exercise reasonab le promptness in examining the statement or items to determine whether payment was not author ized because of an alteration of an item or because a purported signature by or on behalf of a customer that was not authorized.” In other words, it is the bank customer’s responsibility to dispute the validity of the forged checks in- 7 - order for the bank to reimburse the customer’s account. Code § 8.4-406(d) (Commercial code— Bank Deposits and Collections). Thus, the bank absorbs the loss and the customer does not. The bank security manager furthe r testified that the affidavits are “prepared solely for fraud purposes, for fraud investigation by the bank.” Lisa Redford testified that the affidavits of fraudulent transaction were prepar ed in the normal course of banking business and as “business records that the bank keeps in order to deal with fraud, claims of fraud through the banking system.” Once the customer signs the affidavit, the bank provisionally credits the customer’s account with the amount fraudulently withdrawn from the account. The affidavit is sent to the bank’s Fraud/Loss Prevention Department for a full investigation, and, if the investigation reveals that the money was fraudulently with drawn, then the bank permanently credits the
customer’s account. We have no reason to doubt the fact that the affidavits of fraudulen t transactions were business records prepared by the bank, signed by the customer, and retained by the bank for further investigation. Stokes v. Commonwealth , 49 Va. App. 401, 409, 641 S.E.2d 780, 784 (2007) (holding that an “affidavit of forgery is a bank form that is routinely made and kept by the bank when a depositor complains of an unauthorized w ithdrawal . . . , therefore, . . . [they] were made in the regular course of bank business”). As such, the primary purpose for their production was the systematic conduct of the bank’s business a nd not to prove a past fact in a subsequent criminal proceeding. Thus, we conclude that th e trial judge did not err in concluding that the affidavits were not testimonial. B. Sufficiency of the Evidence Wooding also argues that the evidence was insufficient to support her forgery and uttering convictions. On appeal, we will not ov erturn the trial court’s judgment unless it is “plainly wrong or without evidence to support it.” C ode § 8.01-680. “Code § 18.2-172- 8 - provides, in pertinent part, that , ‘[i]f any person forge any writing . . . to the prejudice of another’s right, or utter, or attempt to empl oy as true, such forged writing, knowing it to be forged, he shall be guilty of a Class 5 felony.’” Oliver v. Commonwealth , 35 Va. App. 286, 295, 544 S.E.2d 870, 874 (2001) (quoting Fitzgerald v. Commonwealth , 227 Va. 171, 173-74, 313 S.E.2d 394, 395 (1984)). “To sustain a conviction for forgery in violation of Code § 18.2-172, the Commonwealth must prove that the accused fa lsely made or materially altered a writing, without the authority to do so , and did so to the prejudice of another’s right.” Bowman v. Commonwealth , 28 Va. App. 204, 213, 503 S.E.2d 241, 245 (1998). Wooding argues that, without the affidavi ts discussed above, the evidence was insufficient to prove that she did not have permission to sign or cash the checks. However, Wooding conceded at oral argument that the eviden ce was sufficient to establish the crimes if the affidavits were lawfully admitted. Having determined that the affidavits were lawfully admitted, and considering all of the facts and circumstances of this case, we conclude that the evidence was clearly sufficient.
III. C ONCLUSION For the foregoing reasons, we a ffirm Wooding’s convictions. Affirmed.