COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judge Lemons and 

 Senior Judge Duff 

Argued at Alexandria, Virginia 

CARL WESLEY ERNEST WARNER 

 OPINION BY 

v. Record No. 0982-98-4 JUDGE DONALD W. LEMONS 

 JUNE 29, 1999 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF LOUDOUN COUNTY 

Carleton Penn, Judge Designate 

 Barry A. Zweig, Assistant Public Defender 

(Office of the Public Defender, on brief), 

for appellant. 

 Donald E. Jeffrey, III, Assistant Attorney 

General (Mark L. Earley, Attorney General; 

Richard B. Campbell, Assistant Attorney 

General, on brief), for appellee. 

 Carl Wesley Ernest Warner appeals his bench trial 

conviction of feloniously uttering a check with knowledge that 

the account on which the check was drawn contained insufficient 

funds, a violation of Code § 18.2-181. On appeal, he contends 

that the evidence was insufficient to support his conviction and 

that the trial court’s admission of hearsay evidence was 

reversible error. We disagree and affirm the conviction. 

I. BACKGROUND 

 On August 14, 1997, Carl Wesley Ernest Warner, appellant, 

an employee of Aliloo Oriental Rugs, requested that he be paid 

his weekly wage a day early. The evidence at trial revealed 
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that Warner received a check for $231 and attempted to cash it 

on August 15, 1997. The bank informed him that the account 

contained insufficient funds. Warner told his employer, and his 

employer gave him a second check for $200. Warner retained the 

check for $231. Warner cashed the $200 check that day. On 

August 17, 1997, he cashed the check for $231 at the Aldie 

Country Store. 

 In the absence of the owner, Parviz “Paul” Hadjialilo, 

Christopher Syrjala was operating Aliloo Oriental Rugs. Syrjala 

testified that Warner told him “the bank wouldn’t cash the check 

because of insufficient funds.” Syrjala stated that he went to 

the bank and was informed that the account contained only $218. 

Syrjala stated that he “told . . .[Warner] there was $218 in the 

account, that I would write a check for $200, which was most of 

. . . [Warner’s] salary, and that Paul [Hadjialilo] would fix it 

up when he got back, you know, the underpayment.” Syrjala 

testified that he wrote the check for $200 and Warner 

immediately went to Southern Financial Bank and cashed it. 

Syrjala stated that he did not ask Warner to return the $231 

check because “it seemed totally unnecessary. . . . I mean, it 

was obvious that it was a bad check at that point.” Syrjala 

stated that he had initially mentioned that Warner might try 

cashing the $231 check at a country store, but testified, “then 

I thought better of it and came up with the idea of writing the 

second check that was within the amount of that in the account.” 
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On Saturday, August 16, 1997, Warner was supposed to work, 

but Warner’s girlfriend called to tell Syrjala that Warner was 

unable to come into work because a family member was ill. After 

cashing both checks, Warner never went back to work for Aliloo 

Oriental Rugs. 

Syrjala testified that he received a call from Eagle Check 

Cashing in Manassas, Virginia. In response to the call, Syrjala 

stated that he “told them that a bank had refused to cash the 

check. . . .” Syrjala identified the check at trial as “[t]he 

one for $231 because of insufficient funds. . . .” 

 Hadjialilo testified that he received a call from a check 

cashing company in Manassas and he told them “the check is not 

good, not to cash the check.” Hadjialilo stated that he called 

Southern Financial Bank and issued a stop payment on the $231 

check. 

Warner testified that he believed that the $231 check was, 

in part, pre-payment for the following weekend and week’s wages. 

Warner stated that he did not work because his father had a 

heart attack. Warner stated that the bank had not informed him 

that the account contained insufficient funds and that when he 

cashed the $231 check, he did not know that there were 

insufficient funds. 

II. SUFFICIENCY OF THE EVIDENCE 

 Where the sufficiency of the evidence is an issue on 

appeal, an appellate court must view the evidence and all 
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reasonable inferences fairly deducible therefrom in the light 

most favorable to the Commonwealth. See Cheng v. Commonwealth, 

240 Va. 26, 42, 393 S.E.2d 599, 608 (1990). “Intent is the 

purpose formed in a person’s mind that may, and often must, be 

inferred from the facts and circumstances in a particular case, 

and may be shown by a person’s conduct.” Hernandez v. 

Commonwealth, 15 Va. App. 626, 632, 426 S.E.2d 137, 140 (1993) 

(citations omitted). The “[i]ntent to defraud means that the 

defendant intends to deceive another person, and to induce such 

other person, in reliance upon such deception, to assume, 

create, transfer, alter or terminate a right, obligation or 

power with reference to property.” Sylvestre v. Commonwealth, 

10 Va. App. 253, 258-59, 391 S.E.2d 336, 339 (1990) (citations 

omitted). 

 On appeal, Warner acknowledges that he cashed the $231 

check but argues that the evidence was insufficient to prove he 

had the intent to defraud or knowledge that the account 

contained insufficient funds when the check was uttered. Warner 

also contends that he had a bona fide claim of right to the $231 

check, which negated the criminal intent required for his 

conviction, and that the evidence was insufficient to prove that 

the Aldie Country Store is a depository as required by the 

indictment. 
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A. Claim of Right

 At trial, Warner stated that Syrjala gave him the $231 

check, in part, as prospective payment for the following week. 

Warner testified that he intended to work the next week, prior 

to his father’s heart attack, and that the money would then be 

“owed” to him. On appeal, Warner asserts that he believed he 

was entitled to the money, in part, as a prospective wage at the 

time he uttered the check, and in part because he was still owed 

thirty-one dollars from the previous week. Consequently, he 

maintains he lacked the requisite intent to defraud the Aldie 

Country Store. 

 Warner cites Butts v. Commonwealth, 145 Va. 800, 133 S.E. 

764 (1926), for the proposition that a person cannot commit a 

larceny of his or her own property or of property that a person 

in good faith believes is his or her own. In Butts, the 

defendant was fired from his job without being paid his final 

wages. Butts returned to his former place of employment with a 

pistol and demanded payment from his supervisor at gunpoint. 

The Court reversed Butts’ robbery conviction, holding that 

Butts’ claim of right to the wages negated the requisite 

criminal intent for the conviction. See id. at 813-15, 133 S.E. 

at 768-69. Butts is distinguishable from the case before us 

because Warner had been paid $200 for the hours he worked. He 

was owed only thirty-one dollars. He did not earn an additional 

$200, either at the time the check was uttered or the following 
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week. The evidence established that Warner was routinely paid 

retroactively, not prospectively. 

 Additionally, a claim of right defense only applies against 

a party that holds that person’s funds. A party may not assert 

a “claim of right” against an innocent third party. Here, the 

victim of the uttering was the Aldie Country Store, not Warner’s 

employer. 

B. “Depository” Language in the Indictment

 On appeal, Warner argues that the evidence was insufficient 

to prove that he defrauded a “bank or other depository” as 

charged in the indictment. Code § 18.2-181 states in relevant 

part: 

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 . . . 

shall be guilty of larceny. . . . 

 Warner argues that the Aldie Country Store is not a 

depository as defined by Code § 18.2-181. Warner, however, 

misconstrues the use of the term “depository” in the statute. A 

“depository bank” refers to “the first bank to which an item is 

transferred for collection even though it is also the payor 

bank.” Code § 8.4-105(a). A “payor bank” is defined as “a bank 

by which an item is payable as drawn or accepted.” Code 

§ 8.4-105(b). Therefore, a depository as defined by the 
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legislature is the institution upon whose funds the check is 

drawn. Here, the depository referred to in the indictment is 

Southern Financial Bank, not the Aldie Country Store. 

 To construe the statute as Warner suggests would 

criminalize the passing of bad checks only when they are passed 

directly at the depository bank. We hold that the “depository” 

language in Code § 18.2-181 refers to the institution upon which 

the funds are drawn, not to the entity where the check is 

uttered. 

III. HEARSAY EVIDENCE 

 On appeal, Warner argues that the trial court erred in 

admitting evidence in violation of the hearsay rule. We agree, 

but we find that the admission of the statements was harmless 

error. 

 Hearsay is “testimony which consists [of] a narration by 

one person of matters told him by another.” Williams v. Morris, 

200 Va. 413,417, 105 S.E.2d 829, 832 (1958). “The strongest 

justification for the exclusion of hearsay evidence is that the 

trier of fact has no opportunity to view the witness on 

cross-examination and to observe the demeanor of the 

out-of-court declarant to determine reliability.” Evans-Smith 

v. Commonwealth, 5 Va. App. 188, 197, 361 S.E.2d 436, 441 

(1987), citing C. Friend, The Law of Evidence in Virginia § 224 

(2d ed. 1983). However, “[i]f the declaration is offered solely 

to show that it was uttered, without regard to the truth or 
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falsity of its content, the declaration is not excluded by the 

hearsay rule.” Evans-Smith, 5 Va. App. at 197, 361 S.E.2d at 

441 (citations omitted) (emphasis omitted). 

 Warner objected to the admission of the following testimony 

from Syrjala: 

Q: Do you recall when you actually opened 

the office whether or not you received a 

phone call from Eagle Check Cashing Company? 

 A: Yes. 

DEFENSE COUNSEL: Objection, hearsay. 

THE COURT: State the grounds of your 

objection. 

DEFENSE COUNSEL: Hearsay. 

THE COURT: Whether or not a call was 

received is not hearsay. She did not ask 

what the content of the conversation was. 

Overruled. 

 DEFENSE COUNSEL: May I – 

THE COURT: Overruled. Go ahead. 

COMMONWEALTH: Thank you, Your Honor. 

Q: Do you recall what day it was in the 

sequence of events that you got this call? 

A: Saturday morning just after I opened the 

store, about 15 minutes afterwards, I got a 

call from Eagle Check Cashing in Manassas 

asking me to verify – 

Q: -- just answer the question that I asked 

you. Now, as a result of Eagle Check 

Cashing, what if any response did you make 

back to those people during your telephone 

conversation with them? 
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A: Well, can I say what they asked? 

THE COURT: No. That’s hearsay. The 

objection made by [defense counsel] is 

sustained. Actually, the Commonwealth 

backed off. You may not because it’s 

hearsay, sir. 

A: I told them that a bank had refused to 

cash the check yesterday. 

 Q: What check? 

A: The one for $231 because of insufficient 

funds I gave them as the reason. 

 Warner also objected to the following testimony from 

Hadjialilo: 

Q: Now, regarding the exhibit that I showed 

you, the check in the amount of $231, did 

you have a conversation with him about the 

check? 

A: I saw Mr. Warner after I had a call from 

a check cashing company in Manassas. 

DEFENSE COUNSEL: Your Honor, I would object 

as to hearsay. 

THE COURT: If he had the call, it is a 

fact. There’s been no question and no 

statement regarding any hearsay. Overruled 

at this stage. 

 

Q: After receiving that phone call from the 

check-cashing place in Manassas, what did 

you do with regard to . . . Warner? 

 A: They told me there’s a - - 

THE COURT: Don’t tell what they told you. 

The question is what did you do. 

WITNESS: What I told - - can I tell them 

what I told them? 

THE COURT: Answer the question. 
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Q: What did you tell the bank institution 

that called you? 

A: I told them that the check is not good, 

not to cash that check. He already got paid 

for the work that he worked and I tried to 

get in touch with Mr. Warner. And, 

actually, I saw him again in the street, and 

I was kind of disappointed I told him. I 

showed him my disappointment [sic] and got a 

call the next day from John Beiler at the 

country store. 

 Warner argues that in both instances the court erred in 

allowing Syrjala and Hadjialilo to testify that the phone calls 

were received from check cashing companies. We agree. 

Testimony that phone calls were received is not hearsay. 

Testimony that a phone call came from a person unknown to the 

recipient and who is identified only by the caller is hearsay if 

offered to establish the identity of the caller. The only way 

Syrjala and Hadjialilo could know who was calling was from an 

out-of-court declaration from the caller. The relevancy of 

Syrjala’s and Hadjialilo’s responses to the call is dependent 

upon who made the call. Clearly, this information lacks any 

significance unless the source of the call is known. Similarly, 

it is clear that the identification of the caller in each 

instance was based solely upon out-of-court declarations and was 

offered for the truth of the matters stated. 

 “Error will be presumed prejudicial unless it plainly 

appears that it could not have affected the result.” Joyner v. 

Commonwealth, 192 Va. 471, 477, 65 S.E.2d 555, 558 (1951). 
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Therefore, “[a] criminal conviction shall not be reversed for an 

error committed at trial when it plainly appears from the record 

and the evidence given at the trial that the parties have had a 

fair trial on the merits and substantial justice has been 

reached.” Hanson v. Commonwealth, 14 Va. App. 173, 189, 416 

S.E.2d 14, 23 (1992) (citations omitted); see Code § 8.01-678. 

A nonconstitutional error is harmless if “it 

plainly appears from the record and the 

evidence given at trial that the error did 

not affect the verdict.” “An error does not 

affect a verdict if a reviewing court can 

conclude, without usurping the jury’s fact 

finding function, that had the error not 

occurred, the verdict would have been the 

same.” 

Scott v. Commonwealth, 18 Va. App. 692, 695, 446 S.E.2d 619, 620 

(1994) (quoting Lavinder v. Commonwealth, 12 Va. App. 1003, 

1005, 407 S.E.2d 910, 911 (1991) (en banc)). 

 Excluding the hearsay evidence that Syrjala and Hadjialilo 

both received phone calls from a check cashing company in 

Manassas, the Commonwealth presented overwhelming evidence to 

prove that Warner cashed the $231 check with the intent to 

defraud and with knowledge that the funds in the account were 

insufficient. Syrjala testified that Warner told him that the 

bank refused to cash the $231 check because the funds in the 

account were insufficient. Syrjala wrote a second check to 

Warner in the amount of $200, which the funds in the account 

were sufficient to cover, and told him that Hadjilalilo would 

pay him an additional thirty-one dollars when he returned to the 
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country. Warner cashed the check for $200. Two days later, he 

presented the $231 check to the Aldie Country Store. Syrjala 

testified that he did not ask Warner to return the $231 check 

because Warner knew that the check was “bad.” Warner never 

returned to work at Aliloo Oriental Rug Corporation. 

IV. CONCLUSION 

 The evidence is sufficient to prove beyond a reasonable 

doubt that Warner knew the account contained insufficient funds 

to cover the $231 check when he presented it to the Aldie 

Country Store. He is not entitled to a claim of right defense 

because he was not entitled to the sum of $231 and the right may 

not be asserted against an innocent victim who does not hold the 

funds claimed. Finally, we hold that the trial court erred in 

admitting hearsay statements concerning two phone calls; 

however, upon review of the record we conclude that the error 

did not affect the verdict. Accordingly, the conviction is 

affirmed. 

 Affirmed.