Campbell v. Com., 921406

• Decision Date: 11 June 1993
• Docket Number: No. 921406,921406
• Citation: 246 Va. 174,431 S.E.2d 648
• Parties: Joseph H. CAMPBELL v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 648

431 S.E.2d 648

246 Va. 174

Joseph H. CAMPBELL v. COMMONWEALTH of Virginia.

Record No. 921406.

Supreme Court of Virginia.

June 11, 1993.

Anthony F. Troy, Richmond (Alan D. Albert, Mays & Valentine, on briefs), for appellant.

Robert Q. Harris, Asst. Atty. Gen. (Stephen D. Rosenthal, Atty. Gen., on brief), for appellee.

Present: CARRICO, C.J., COMPTON, STEPHENSON, WHITING, LACY and HASSELL, JJ., and POFF, Senior Justice.

POFF, Senior Justice.

We awarded this appeal from the Virginia Court of Appeals to consider the question presented by the defendant's assignment of error, that is, whether conviction of forgery of public records requires proof of harm or prejudice to the rights of another person. We also granted the cross-error assigned by the Commonwealth in order to address the question whether this Court has jurisdiction to adjudicate that assignment. Because we decide both questions in the negative, we do not reach the subsidiary issues raised by the parties.

Joseph H. Campbell, a judge of the General District Court of the City of Norfolk, was convicted by a jury in the Circuit Court of the City of Norfolk of a violation of Code §§ 18.2-152.14 and 18.2-168. The indictment charged that Campbell did "forge or cause to be forged certain public records in that he directed that the true name 'Paul A. Sciortino' which appeared in computer data relating to ... [a traffic ticket] be altered to the false name 'Anthony P. Schortinoe'."

The evidence adduced at trial is detailed in the record before us and, under familiar principles, we will review the evidence in the light most favorable to the Commonwealth. On March 20, 1989, Paul A. Sciortino, then Commonwealth's Attorney for the City of Virginia Beach, was charged with making an improper turn that resulted in a minor traffic accident. Sciortino was earlier involved in a traffic accident that had exposed him to adverse publicity and cost the City of Virginia Beach more than $1,000,000.

Pursuant to a longstanding policy of the General District Court, Sciortino and his attorney, Andrew Ege, met with Campbell in his chambers to plead guilty to the ticket. During the meeting, Ege, in a "lighthearted manner", asked Campbell if the court could "just dismiss it." Campbell informed Ege and Sciortino that "the usual disposition on a plea of guilty is $60 fine and thirty suspended and traffic school." Sciortino and Ege agreed that this was acceptable and Sciortino paid the fine. Ege then asked if Sciortino's name had to "appear on the docket". Campbell said that the case had to appear on the docket. Next, Ege asked, "if his name is misspelled you don't have to correct it, do you?" Campbell responded that "there are a lot of clerical errors."

After Sciortino left, Campbell approached Kathleen Baker, a deputy clerk, and asked her to display Sciortino's record on the computer. This computer was utilized to create a daily docket record for the General District Court. Sciortino was engaged in a political campaign for reelection, and Campbell told Mrs. Baker that Sciortino was "scared to death about this accident because Paul thinks that the newspaper is going to crucify him again, and they probably will." Campbell then asked Mrs. Baker to "scramble or jumble" the letters of Sciortino's last name on the computer screen. Mrs. Baker changed the spelling from "Sciortino" to "Schortinoe" and asked Campbell, "How is that?" Campbell then asked her to switch the middle and the first name from "Paul A." to "Anthony P.". As he walked away from the computer, Campbell told everyone to "get back to work".

The jury fixed Campbell's punishment at three years' confinement in the penitentiary. ¹ Campbell moved to set aside the verdict on the ground that the Commonwealth had produced no evidence of harm or prejudice to another's rights. The trial court ruled that conviction of forgery of public records did not require such proof, denied the motion, and imposed the sentence fixed by the jury with the balance of the term of imprisonment to be suspended after six months' confinement in jail.

Assigning error to that ruling and to other incidents at trial, Campbell appealed to the Court of Appeals. In an opinion issued September 10, 1991, a panel of the Court of Appeals examined the statutory scheme of forgery and, affirming the trial court's ruling, held:

As the forgery of a public record is specifically listed as a writing or document which serves as a predicate to the offense of forgery, as codified in Code § 18.2-168, it need not be considered under the catch-all provision of Code § 18.2-172 which addresses "other writings." The words "to the prejudice of another's right" are only employed in cases involving writings other than those specifically listed as predicates to the offense of forgery. In the context of "other writings," the words "to the prejudice of another's rights" serve to distinguish "between those writings which might affect the rights of others whereof forgery might be committed, and other writings, by which, whether false or genuine, the pecuniary interests of others could not be affected."

Campbell v. Commonwealth, 13 Va.App. 33, 40, 409 S.E.2d 21, 25 (1991) (citation omitted). Applying Rule 5A:18, the panel further held that it could not consider Campbell's challenge to the intent-to-defraud instruction granted by the trial court because he had not properly preserved the issue at trial. Id. at 42, 409 S.E.2d at 27.

Granting Campbell's petition for a rehearing en banc, the Court of Appeals limited the rehearing to the question whether the panel should have applied the "ends of justice" exception to Rule 5A:18. Campbell v. Commonwealth, 14 Va.App. 988, 421 S.E.2d 652 (1992). In the August 11, 1992 opinion, the Court of Appeals decided that question in the affirmative but left "unchanged the panel's disposition of other issues originally raised on appeal". Id. at 990, 421 S.E.2d at 653. The en banc court reversed Campbell's conviction and remanded the case for a new trial. Campbell appeals so much of that decision as upholds the rulings of the panel and the trial court that harm or prejudice to the right of another is not an element of forgery of public records. The Commonwealth assigns error to the en banc ruling underlying the decision to reverse the conviction.

I. FORGERY OF PUBLIC DOCUMENTS

Code § 18.2-168, entitled Forging public records, etc., provides that

[i]f 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.

This statute controls our determination of the case; however, the first inquiry we make in our interpretation of this statute concerns the posture of English common law. Code § 1-10 provides that "[t]he common law of England, insofar as it is not repugnant to the principles of the Bill of Rights and the Constitution of this Commonwealth, shall continue in full force within the same, and be the rule of decision, except as altered by the General Assembly."

Campbell argues that by "utilizing the common-law term 'forge,' Code § 18.2-168 necessarily invokes the common law" and that one of the elements of the crime of forgery at common law was "tangible harm or prejudice to the rights of another", irrespective of whether the writing involved was a private paper or a public record. While we agree that forgery of both public records and private papers was a common-law crime in England, we do not agree with Campbell's interpretation of the elements of those crimes at common law. ²

"Of Forgery there are two kinds; First, by common law. Secondly, by the Statute. Sect. 1. Forgery by the common law seemeth to be an offence in falsely and fraudulently making or altering any matter of record; or any other authentic matter of a public nature...." 1 William Hawkins, Pleas of the Crown 263 n. 1 (London, 8th ed. 1824).

"[A]t Common Law the Counterfeiting a Matter of Record is Forgery; for since the Law gives the highest Credit to all Records, it cannot but be of the utmost ill Consequence to the Publik to have them either forged or falsified." 2 Matthew Bacon, Abridgment * 568 (1786). The common-law crime of forgery of public records, a capital offense in England, was augmented by statutes punishing the lesser offense of forgery of certain private documents. ³ See, e.g., An Act Concerning Counterfeit Letters or Privy Tokens to Receive Money or Goods in Others Men's Names, 1541-42, 33 Hen. VIII, ch. 1 (Eng.). Unlike the crime of forgery of public records in which "ill Consequence to the Publik" was conclusively presumed, and unlike the common-law crime of forgery of private papers in which proof of potential harm or prejudice to another was required, conviction of the several statutory offenses generally required proof of actual harm or prejudice to the rights of another person. See 1 Hawkins at 263 n. 1; 2 Bacon at * 568.

The question whether proof of harm or prejudice was essential to conviction of forgery of public documents as well as conviction of the crime of forgery of private writings and the distinctions between the common-law crimes and the statutory offenses were considered in Rex v. Ward, 92 Eng.Rep. 451 (K.B.1727). There, Ward was convicted of a charge of "falsely making and forging a writing upon the back of a certificate in writing". Id. at 452. On appeal, Ward contended that forgery was an offense at common law only if the writing was a public document and that the writing in issue was a private paper. Ward also maintained that the statutes creating the crime of forgery of such a paper required proof of actual harm or prejudice and that, absent such proof against him, he was wrongfully convicted...