COURT OF APPEALS OF VIRGINIA 

Present: Judges Coleman, Elder and Bumgardner 

Argued at Salem, Virginia 

MARK ANTHONY MAXEY 

 MEMORANDUM OPINION* BY 

v. Record No. 1856-98-3 JUDGE LARRY G. ELDER 

 JUNE 29, 1999 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE 

Richard C. Pattisall, Judge 

 Anna Marie Bagwell (Office of the Public 

Defender, on brief), for appellant. 

 Michael T. Judge, Assistant Attorney General 

(Mark L. Earley, Attorney General, on brief), 

for appellee. 

 

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

this opinion is not designated for publication. 

 Mark Anthony Maxey (appellant) appeals from his bench trial 

conviction for attempting to obtain a controlled substance by 

fraud in violation of Code § 18.2-258.1. On appeal, he contends 

the trial court erroneously held that (1) the statute did not 

require proof he knew the prescription was forged; and (2) the 

evidence was sufficient to prove he acted with the requisite 

knowledge or intent. For the reasons that follow, we affirm 

appellant’s conviction. 

 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, sitting 

without a jury, is entitled to the same weight as a jury verdict 

and 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 Long v. Commonwealth, 8 Va. App. 194, 199, 

379 S.E.2d 473, 476 (1989). 

 “‘Forgery is the false making or materially altering with 

intent to defraud, of any writing which, if genuine, might 

apparently be of legal efficacy, or the foundation of legal 

liability.’” Moore v. Commonwealth, 207 Va. 838, 841, 153 

S.E.2d 231, 233 (1967) (quoting Bullock v. Commonwealth, 205 Va. 

558, 561, 138 S.E.2d 261, 263 (1964)). Uttering is “‘[t]o put 

or send [as a forged check] into circulation. . . . to utter and 

publish.’ It is an assertion by word or action that a writing 

known to be forged is good and valid.” Bateman v. Commonwealth, 

205 Va. 595, 599-600, 139 S.E.2d 102, 106 (1964) (quoting 

Black’s Law Dictionary 1716 (4th ed. 1968)) (emphasis added). 

 Here, although the trial court said the statute “does not 

go into intent and knowledge,” it noted that the statute 

proscribes the uttering of a false or forged prescription. Of 

course, as outlined above, uttering requires proof of knowledge 

that the prescription is forged. Therefore, based on the 

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principle that a trial court is presumed to know the law 

“[a]bsent clear evidence to the contrary in the record,” see

Yarborough v. Commonwealth, 217 Va. 971, 978, 234 S.E.2d 286, 

291 (1977), we presume that the trial court was aware of the 

knowledge requirement in convicting appellant of the charged 

offense. 

 We also hold that the evidence is sufficient to prove 

appellant acted with the requisite intent to commit fraud in 

attempting to use the prescription to obtain a controlled 

substance. See, e.g., Wynn v. Commonwealth, 5 Va. App. 283, 

292, 362 S.E.2d 193, 198 (1987) (holding that attempt to commit 

an offense requires specific intent). Intent, like any element 

of a crime, may be proved by circumstantial evidence, see Servis 

v. Commonwealth, 6 Va. App. 507, 524, 371 S.E.2d 156, 165 

(1988), such as a person’s conduct and statements, see Long v. 

Commonwealth, 8 Va. App. 194, 198, 379 S.E.2d 473, 476 (1989). 

“Circumstantial evidence is as competent and is entitled to as 

much weight as direct evidence, 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). However, “the 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). 

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 Here, the evidence proved that appellant delivered the 

forged prescription to the pharmacy to be filled and completed 

the patient profile on Maxey’s behalf, using the name Melanie 

Maxey, the same name that appeared on the prescription. 

Appellant admitted to Officer Lowery that he and Maxey were not 

legally married and merely had been living together for two 

months. The only reasonable hypothesis flowing from this 

evidence was that Maxey was not Melanie’s legal surname and that 

appellant was aware of that fact when he presented the 

prescription to be filled. This evidence supports the trial 

court’s finding that he intended “to obtain [a] drug . . . by 

fraud” in violation of the statute. 

 The decision in McCutcheon v. Commonwealth, 224 Va. 30, 294 

S.E.2d 808 (1982), supports this conclusion. In McCutcheon, the 

Court held that the accused violated Code § 18.2-258.1(A)(iv), 

which makes it “unlawful for any person to obtain or attempt to 

obtain any drug ‘by the use of a false name.’” 224 Va. at 32, 

294 S.E.2d at 809. McCutcheon used a false name and obtained a 

prescription, but he presented evidence from the prescribing 

physician that he would have prescribed the drug for the accused 

if he had given the physician his real name. See id. at 33, 294 

S.E.2d at 810. The Court observed in that case that the Drug 

Control Act, of which Code § 18.2-258.1 was a part, was 

inten[ded] to insure the accuracy and 

completeness of drug-control records and to 

aid their law-enforcement role by penalizing 

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the use of a false name in obtaining or 

attempting to obtain a controlled drug. 

This legislative intent would be subverted 

. . . by requiring the Commonwealth to prove 

that a prescription would not have been 

written or filled but for the use of a false 

name. 

224 Va. at 34, 294 S.E.2d at 811. As a result, held the Court, 

“when the Commonwealth shows that the accused has used a false 

name in obtaining or attempting to obtain a drug, a prima facie 

violation is established. The burden then shifts to the accused 

to go forward with evidence showing that his motivation to use a 

false name was innocent.” Id. at 34-35, 294 S.E.2d at 811. 

 In appellant’s case, the only reasonable hypothesis flowing 

from the evidence is that he knowingly used a false name in 

completing the patient profile on Maxey’s behalf, the same false 

name appearing on the prescription he presented to be filled, 

and that he did so in an attempt to obtain a prescription drug 

by fraud. Therefore, the evidence supported the trial court’s 

finding that appellant uttered a false or forged prescription in 

violation of Code § 18.2-258.1. 

 For these reasons, we affirm appellant’s conviction. 

Affirmed. 

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