Henry v. Commonwealth

• Decision Date: 18 February 2014
• Docket Number: Record No. 0631–13–2.
• Citation: 753 S.E.2d 868,63 Va.App. 30
• Court: Virginia Court of Appeals
• Parties: William Lloyd HENRY v. COMMONWEALTH of Virginia.

63 Va.App. 30

753 S.E.2d 868

William Lloyd HENRY

v.COMMONWEALTH of Virginia.

Record No. 0631–13–2.

Court of Appeals of Virginia,

Richmond.

Feb. 18, 2014.

(Steven Shareff, on briefs), for appellant. Appellant submitting on briefs.

Susan Baumgartner, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.

Present: PETTY, BEALES and CHAFIN, JJ.

WILLIAM G. PETTY, Judge.

William Lloyd Henry was convicted of two counts of forgery of a public record, two counts of uttering a forged public record, all in violation of Code § 18.2–168, and two counts of perjury in violation of Code § 19.2–161. On appeal, Henry argues that the trial court erred in overruling his motion to strike the forgery and uttering charges on the ground of insufficient evidence. For the following reasons, we agree with Henry and reverse the forgery and uttering convictions. Henry also argues that the trial court erred in overruling his motion to strike the perjury charges on the ground that the Commonwealth failed to prove that his real estate was readily convertible into cash pursuant to Code § 19.2–159. As discussed below, Code § 19.2–159 does not require that real estate be readily convertible into cash; thus, Henry's second assignment of error fails, and we affirm his convictions for misdemeanor perjury.

I. Background

“On appeal, ‘we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom.’ ” Archer v. Commonwealth, 26 Va.App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va.App. 438, 443, 358 S.E.2d 415, 418 (1987)).

At the conclusion of a bench trial, Henry was convicted of two counts of forgery of a public record, two counts of uttering a forged public record, and two counts of perjury. The convictions stem from information Henry provided to a court clerk to determine his eligibility for indigent defense services. During two meetings with the clerk, Henry stood on one side of the window while the clerk stood on the other side of the window and asked the questions to fill out the financial statements of indigency.¹ On a form dated May 6, 2011, the clerk recorded that Henry was receiving SNAP ² assistance, that he was unemployed, and that he had no assets. Under the assets section of the form, the clerk placed a zero on the line for cash on hand, bank accounts, any other assets, real estate, motor vehicles, and other personal property. ³ The clerk passed the completed form under the window, and Henry signed and dated it. Above the signature line, the form contained the following: “This statement is made under oath. Any false statement may constitute a violation of law under Virginia Code § 19.2–161 and be subject to criminal penalty, including incarceration. I hereby state that the above information is correct to the best of my knowledge.” In reference to the question regarding real estate, the clerk testified that she always asks someone “if they own a home or are buying a home.”

On January 6, 2012, Henry, again seeking a court-appointed counsel, approached the same clerk that filled out the May 6, 2011 form. On the January 6, 2012 form, the clerk recorded that Henry was receiving SNAP assistance and that he was unemployed. The clerk recorded “rental property 500/mo” on the “other income sources” line. Twenty dollars, listed as “cash on hand,” was the only entry other than zero in the assets section of the form, which, like the May 6, 2011 form, allowed entries for cash on hand, bank accounts, any other assets, real estate, motor vehicles, and other personal property. Henry once again signed the form under oath, after which the clerk signed as well.

In spite of Henry's representation to the clerk that he owned no real estate, Henry was gifted a parcel of real estate on September 10, 1992 from his parents. The custodian for the land records in Louisa County testified that there was no record of this parcel having been transferred out of Henry's ownershipprior to June 26, 2012, the date that Henry gifted the land to someone else.

II. Analysis

Henry notes two errors in the trial court's decision. First, Henry argues that the trial court erred in overruling his motion to strike charges of forgery and uttering because the alleged misrepresentation on the indigency form did not constitute a forgery. Second, Henry argues that the trial court erred in overruling his motion to strike the perjury charges on the ground that the Commonwealth failed to prove that his real estate was readily convertible into cash pursuant to Code § 19.2–159. For the following reasons, we reverse the forgery and uttering convictions and affirm the two perjury convictions.

“ ‘When reviewing the sufficiency of the evidence to support a conviction, [this] Court will affirm the judgment unless the judgment is plainly wrong or without evidence to support it.’ ” Mayfield v. Commonwealth, 59 Va.App. 839, 850, 722 S.E.2d 689, 695 (2012) (quoting Bolden v. Commonwealth, 275 Va. 144, 148, 654 S.E.2d 584, 586 (2008)). In our review, we have “a duty to examine all the evidence that tends to support the conviction.” Bolden, 275 Va. at 147, 654 S.E.2d at 586. Accordingly, “[w]e ‘must discard all evidence of the accused that conflicts with that of the Commonwealth and regard as true all credible evidence favorable to the Commonwealth and all fair inferences reasonably deducible therefrom.’ ” Holcomb v. Commonwealth, 58 Va.App. 339, 346, 709 S.E.2d 711, 714 (2011) (quoting Lea v. Commonwealth, 16 Va.App. 300, 303, 429 S.E.2d 477, 479 (1993)).

Moreover, “[a]n appellate court does not ‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’ ” Williams v. Commonwealth, 278 Va. 190, 193, 677 S.E.2d 280, 282 (2009) (quoting Jackson v. Virginia, 443 U.S. 307, 318–19, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)). “Rather, the relevant question is whether ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” Id. (quoting Jackson, 443 U.S. at 319, 99 S.Ct. at 2789). “ ‘This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.’ ” Brown v. Commonwealth, 56 Va.App. 178, 185, 692 S.E.2d 271, 274 (2010) (quoting Jackson, 443 U.S. at 319, 99 S.Ct. at 2789).

A. Forgery

Henry was charged with forging public records in violation of Code § 18.2–168,⁴ which states:

If any person forge a public record, or certificate, return, or attestation, of any public officer or public employee, in relation to any matter wherein such certificate, return, or attestation may be received as legal proof, or utter, or attempt to employ as true, such forged record, certificate, return, or attestation, knowing the same to be forged, he shall be guilty of a Class 4 felony.

“Forgery is a common law crime in Virginia. It is defined as ‘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.’ ” Rodriquez v. Commonwealth, 50 Va.App. 667, 671, 653 S.E.2d 296, 298 (2007) (quoting Fitzgerald v. Commonwealth, 227 Va. 171, 173–74, 313 S.E.2d 394, 395 (1984)). “At common law, to constitute a forgery, there must be a false making with the intent to defraud.” Id. at 673, 653 S.E.2d at 299.⁵

However, “[w]here the ‘falsity lies in the representation of facts, not in the genuineness of execution,’ it is not forgery.” Gilbert v. United States, 370 U.S. 650, 658, 82 S.Ct. 1399, 1404, 8 L.Ed.2d 750 (1962) (quoting Marteney v. United States, 216 F.2d 760, 763–64 (10th Cir.1954)). Furthermore, “[f]orgery is a crime aimed primarily at safeguarding confidence in the genuineness of documents relied upon in commercial and business activity. Though a forgery, like false pretenses, requires a lie, it must be a lie about the document itself: the lie must relate to the genuineness of the document.” 3 Wayne R. LaFave, Substantive Criminal Law § 19.7(j)(5) (2d ed.2003) (footnotes omitted).

Falsifying the genuineness of a document is so critical to the offense of forgery that “when a person writes a letter or completes a loan application or other instrument and signs it with his own name, he is not guilty of forgery because a false statement is contained therein, even if he knew it was false and acted with intent to defraud.”

Vizcarra–Ayala v. Mukasey, 514 F.3d 870, 875 (9th Cir.2008) (quoting 4 Wharton's Criminal Law § 487 (15th ed.)). In fact, “ ‘[i]n criminal cases the great weight of authority holds false statements in or fraudulent execution of otherwise valid instruments not to be forgery within its common law or unexplained meaning.’ ” United States v. Jones, 553 F.2d 351, 355 (4th Cir.1977) (quoting First National Bank of South Carolina v. Glens Falls Ins. Co., 304 F.2d 866, 870 n. 1 (4th Cir.1962)).

Both Henry and the Commonwealth rely on this Court's opinion in Rodriquez for the resolution of this case. In Rodriquez, a police officer initiated a traffic stop of Rodriquez's vehicle because it had expired plates. Rodriquez, 50 Va.App. at 670, 653 S.E.2d at 298. Rodriquez did not have an operator's license in his possession. Id. In preparing two summonses, the officer asked Rodriquez for his identifying information and the defendant responded with that of his brother rather than himself. Id. Rodriquez then illegibly signed his own name on the summonses. Id. Consequently, Rodriquez was convicted of two counts of forgery and two counts of uttering a forged public document, both under Code § 18.2–168. Id. at 669, 653 S.E.2d at 297. This Court upheld the convictions, reasoning that “[a]lthough Rodriquez did not personally write the false information, he provided the information to [the officer] as he created the...