Campbell v. Com.

• Decision Date: 11 August 1992
• Docket Number: No. 1048-90-1,1048-90-1
• Citation: 14 Va.App. 988,421 S.E.2d 652
• Parties: Joseph Hugh CAMPBELL v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 652

421 S.E.2d 652

14 Va.App. 988

Joseph Hugh CAMPBELL v. COMMONWEALTH of Virginia.

Record No. 1048-90-1.

Court of Appeals of Virginia.

Aug. 11, 1992.

Va.App. 1992.

Anthony F. Troy, Richmond (Alan D. Albert, William P. Robinson, Jr., Mays & Valentine, Robinson, Zaleski & Lindsey, Norfolk, on briefs), for appellant.

Robert Q. Harris, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: KOONTZ, C.J., and BARROW, BENTON, BRAY, COLEMAN, DUFF, ELDER, MOON and WILLIS, JJ.

BENTON, Judge.

This Court granted a rehearing en banc from a divided panel decision solely to determine whether the "ends of justice" exception to Rule 5A:18 should be invoked because an erroneous jury instruction may have deprived Joseph Hugh Campbell of a fair trial. Since a proper description of the elements of the offense was vital to ensure a fair trial, we hold that the "ends of justice" exception should be applied and we reverse the conviction. We leave unchanged the panel's disposition of other issues originally raised on appeal. See Campbell v. Commonwealth, 13 Va.App. 33, 409 S.E.2d 21 (1991).

I.

During Campbell's jury trial for forging a public record in violation of Code § 18.2-168, the jury was instructed as follows:

JURY INSTRUCTION EIGHT

To act with the intent to defraud means to act with an evil intent, or with the specific intent to deceive or trick. It is sufficient if it was the intention of the defendant to frustrate the administration of a law or if his actions were prejudicial to, or a fraud upon, a Commonwealth or a governmental unit or tended to impair a governmental function.

This was an incorrect statement of law. While the first sentence correctly defined intent to defraud, the second sentence effectively eliminated mens rea as an element of the offense. The use of the conjunction "or" in the second sentence allowed the jury to find Campbell guilty of forgery based solely on an action prejudicial to or tending to impair a governmental unit, and, thus, it allowed the jury to convict Campbell without finding that he had acted with intent to defraud. Intent to defraud is an element of the offense of forgery of public documents. See Hanbury v. Commonwealth, 203 Va. 182, 187, 122 S.E.2d 911, 914-15 (1961).

The Commonwealth argues that Campbell did not preserve for appeal his objection to the jury instruction. ¹ Campbell argues that he offered at trial an instruction embodying a theory contrary to Instruction Eight and, thus, satisfied the contemporaneous objection rule. See Pilot Life Ins. Co. v. Karcher, 217 Va. 497, 229 S.E.2d 884 (1976). Campbell's Instruction N, which was refused, stated:

The prosecution must further prove beyond a reasonable doubt that the defendant acted with specific intent, that is that the defendant intended to inflict the specific harm prohibited by the offense.

To establish specific intent the prosecution must prove that the defendant knowingly did an act which the law forbids, purposely intending to violate the law.

It is not enough, therefore, to believe beyond a reasonable doubt that the defendant purposely did an act wrongful in itself; the prosecution must also prove beyond a reasonable doubt that the defendant intended to impose a harm upon another in a way prohibited by law. Such intent may be determined from all the facts and circumstances surrounding the case.

Because the granted Instruction Eight purported to define "intent to defraud" and the refused Instruction N addressed "specific intent," we cannot say that Campbell's refused instruction "propound[ed] the contrary theory to one set forth in [the] granted instruction." Id. at 498, 229 S.E.2d at 885.

Campbell claims error because Instruction Eight incorrectly defined "intent to defraud." However, at trial, Campbell objected to the instruction only:

on the grounds that [the instruction] fails to point out that intent to defraud means to deprive under the circumstances of this case one of tangible rights.

Although the objection raised at trial is not the same as the issue raised on appeal and although Rule 5A:18 generally precludes this Court from entertaining issues that were not properly brought to the attention of the trial judge, we review this issue to attain the "ends of justice." Rule 5A:18.

II.

"[W]hen a principle of law is vital to a defendant in a criminal case, a trial court has an affirmative duty properly to instruct a jury about the matter." Jimenez v. Commonwealth, 241 Va. 244, 250, 402 S.E.2d 678, 681 (1991). That duty arises even when "trial counsel neglected to object to the instruction." Id. at 248, 402 S.E.2d at 679. Obviously, the proper description of the elements of the offenses is vital to a defendant. Attaining the "ends of justice" requires correction of an instruction which allows a jury to convict a defendant without proof of an element of a crime. Instruction Eight was so defective that it allowed the jury to convict Campbell of forgery even if the jury concluded that Campbell lacked an intent to defraud. Intent to defraud, however, is a necessary element of forgery. Fitzgerald v. Commonwealth, 227 Va. 171, 173, 313 S.E.2d 394, 395 (1984).

[A]n essential of the due process guaranteed by the Fourteenth Amendment [is] that no person shall be made to suffer the onus of a criminal conviction except upon sufficient proof--defined as evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense.

Jackson v. Virginia, 443 U.S. 307, 316, 99 S.Ct. 2781, 2787, 61 L.Ed.2d 560 (1979) (emphasis added). The jury cannot be said to have reached the level of certitude constitutionally required to convict when the jury was instructed that it could find the defendant guilty even though all of the elements of the offense had not been proved beyond a reasonable doubt. Unless [the appropriate] elements are defined by instructions available to the members of the jury during their deliberation, they cannot properly determine whether the Commonwealth has carried its burden.... "It is always the duty of the court at the proper time to instruct the jury on all principles of law applicable to the pleadings and the evidence," and "a correct statement of the law applicable to the case, when the law is stated, ... [is one of the] essentials of a fair trial."

Dowdy v. Commonwealth, 220 Va. 114, 116, 255 S.E.2d 506, 508 (1979) (citations omitted); see also Darnell v. Commonwealth, 6 Va.App. 485, 488, 370 S.E.2d 717, 719 (1988).

The instructions given by the trial judge relieved the Commonwealth of its burden to prove criminal intent by improperly informing the jury that it could convict Campbell simply if the jury found a prejudicial effect or impairment on a governmental function. Thus, the jury could have believed Campbell's defense--that he had no intent to defraud because his statement to the clerk who changed the record was only intended as a joke--and yet convicted him by finding that his conduct "tended to impair a governmental function." This occurrence deprived Campbell of the process that he was due.

"There is always in litigation a margin of error, representing error in factfinding, which both parties must take into account. Where one party has at stake an interest of transcending value--as a criminal defendant his liberty--this margin of error is reduced as to him by the process of placing on the other party the burden of ... persuading the factfinder at the conclusion of the trial of his guilt beyond a reasonable doubt."

In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970) (quoting Speiser v. Randall, 357 U.S. 513, 525-26, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460 (1958)). This doctrine, which is the cornerstone of our system of criminal justice, "requires more than simply a trial ritual." Jackson, 443 U.S. at 316-17, 99 S.Ct. at 2788.

The Commonwealth misconstrues the holding of Mounce v. Commonwealth, 4 Va.App. 433, 357 S.E.2d 742 (1987), when it claims the "ends of justice" provision requires reversal only if the error "invariably works a miscarriage of justice" (emphasis added). In Brown v. Commonwealth, 8 Va.App. 126, 380 S.E.2d 8 (1989), this Court emphasized that, "[a]lthough the ends of justice exception is narrow and is to be used sparingly, [the Court will not place] too restrictive an interpretation upon Mounce." Id. at 132, 380 S.E.2d at 11. Specifically, the Court explained:

The language in Mounce that to avail himself of the rule the defendant had to affirmatively show that "a miscarriage of justice [has] occurred, not ... that a miscarriage might have occurred" requires that the error be clear, substantial and material.

Id. Unquestionably, the error in instructing this jury meets that standard. No amount of sophistry can avoid the hypothesis that the jury believed the defense testimony, that Campbell lacked an intent to defraud, yet convicted him because of the incorrectly drawn instruction that authorized conviction based on a finding that his conduct "tended to impair a governmental function."

The resolution of this dilemma is not found in weighing Campbell's hypothesis of innocence against the quantum of proof that the Commonwealth offered in support of guilt. If the jury believed the testimony of Campbell, as it was entitled to do, the quantum of contrary evidence was irrelevant.

Traditional principles dictate, both in the civil and criminal law, that the determination of a witness' credibility is within the fact finder's exclusive purview because he has the best opportunity to observe the appearance and demeanor of the witness.

The credibility of witnesses is a question exclusively for the jury, and where a number of witnesses testify directly opposite to each other, the jury is not bound to regard the weight of the evidence as equally balanced, they have the right to determine from the appearance of the witnesses on the stand, their manner of testifying, and their...