Court Of Appeals Of Va. Samuel C. Asinugo v. Commonwealth Of Va.
| Decision Date | 20 July 2010 |
| Docket Number | Record No. 1671-09-4 |
| Court | Virginia Court of Appeals |
| Parties | COURT OF APPEALS OF VIRGINIA SAMUEL C. ASINUGO v. COMMONWEALTH OF VIRGINIA |
James C. Clark (Land, Clark, Carroll, Mendelson & Blair, P.C., on briefs), for appellant.
Erin M. Kulpa, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.
The trial court convicted appellant of forging a public record, in violation of Code § 18.2-168. On appeal, appellant argues both that the evidence supporting this conviction was insufficient and that the trial court committed reversible error when it admitted the general habit testimony of a witness. We hold a rational factfinder could conclude that the evidence was sufficient to support the forgery conviction beyond a reasonable doubt. Furthermore, although we accept the Commonwealth's concession of error concerning the admission of the witness' general habit testimony and assume without deciding that it was error, we conclude that this error was harmless. Therefore, we affirm appellant's forgery conviction for the reasons stated below.
Appellant was born in Nigeria on August 13, 1959. He was given the name Michael Igwemere at his birth, but a Nigerian government record, which was admitted into evidence at appellant's forgery trial, established that his name was changed to Samuel Asinugo in 1967. After appellant entered the United States as a student, he applied for permanent residency and naturalization under the name Samuel Asinugo, and he was issued a social security number under that name. This social security number ended with the numbers 9489.
On July 19, 2007, the Governor of Virginia granted appellant a pardon for a December 2004 misdemeanor identity fraud conviction. Although the pardon identified appellant as "Samuel Chijioke Asinugo (whose birth name is Michael Igwemere)," the pardon did not permit appellant to use both of these names as appellant has claimed to police; furthermore, according to a stipulated statement of facts filed in September 2008 in another matter in the United States District Court for the Eastern District of Virginia, which was admitted at appellant's trial in this matter, appellant acknowledged that his pardon by the Governor did not permit him to use both of these names or to use more than one social security number.
On September 14, 2007, Special Agent Geoffrey Meixner of the United States Bureau of Alcohol, Tobacco, Firearms, and Explosives stopped a vehicle driven by appellant. The record below provides few details about this traffic stop. Agent Meixner testified at appellant's forgery trial that the traffic stop lasted approximately thirty seconds and that appellant did not "stick around" at the scene. The agent also testified that appellant did not provide his name and other identifying information during this brief traffic stop. However, Agent Meixner determined from a computer check of the vehicle's license plate number that it was registered under the name of Michael Igwemere and that a driver's license had been issued to a person with that name. Agent Meixner's research indicated that Michael Igwemere was born on August 7, 1949 and had beenissued a social security number ending in 0381-a different birth date than appellant's actual birth date, and a different social security number than the one that the federal government had actually issued appellant under the name Samuel Asinugo. Agent Meixner then obtained arrest warrants for Michael Igwemere, believing this was appellant's name, and the arrest warrants listed the false identifying information corresponding to the name Michael Igwemere.
On October 15, 2007, Agent Meixner and state law enforcement served the arrest warrants on appellant at his home, which was the address listed on the warrants. At this time, appellant said that his name was actually Samuel Asinugo and that Michael Igwemere was instead his cousin. Appellant produced a District of Columbia driver's license and a resident alien card-both issued in the name of Samuel Asinugo. However, Agent Meixner believed that appellant was actually Michael Igwemere because appellant appeared to be the same person as the person depicted in the photograph on Michael Igwemere's driver's license, a copy of which the agent had obtained during his investigation. Agent Meixner took appellant to the county detention center.
As part of the booking procedure, Deputy Lynn Hedrick prepared a fingerprint card showing appellant's fingerprints using the same identifying information for appellant that Agent Meixner had obtained from the vehicle registration, including the name Michael Igwemere, a birth year of 1949, and a social security number ending in 0381. Agent Meixner observed appellant sign this fingerprint card.1 Appellant provided no aliases, even though the fingerprint card contained a space for aliases immediately below the signature line, and he did not attempt to correct any of the preprinted information on the card.
Agent Meixner then brought appellant before the magistrate. According to Agent Meixner, some discussion occurred concerning appellant's use of different names, dates of birth, and social security numbers. Appellant told the magistrate that both dates of birth were his, that "he has two names"-Samuel Asinugo and Michael Igwemere-"and that he was given a pardon from the Governor, and is allowed to use other names, identifiers." However, as discussed above, the pardon did not permit appellant to use more than one name or other multiple identifiers.
At trial on an underlying misdemeanor reckless driving charge, which resulted from the arrest warrants Agent Meixner had executed, appellant told the trial court in that proceeding only that his name was Michael Igwemere.
Appellant was charged with forgery of a public record-the fingerprint card-in violation of Code § 18.2-168. In addition to Agent Meixner's testimony pertaining to the fingerprint card, Deputy Hedrick testified that he always explains to arrestees that the act of signing the signature card "verif[ies] their fingerprints and their information on the card" and that he advises arrestees not to sign the fingerprint card if the fingerprints or identifying information is not theirs.2 Moreover, Officer Matthew Kunstel testified that appellant produced a District of Columbia driver's license issued to Samuel Asinugo during an unrelated traffic stop on January 29, 2008.
The trial court denied appellant's motion to strike and found appellant guilty of forgery. The trial court noted that appellant's acknowledgement in the stipulated statement of facts filedin federal district court-that appellant's gubernatorial pardon did not permit him to use both names and multiple social security numbers-was a significant piece of evidence establishing appellant's intent to defraud when he signed the signature card.
When considering the sufficiency of the evidence on appeal, "a reviewing court does not 'ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.'" Crowder v. Commonwealth, 41 Va. App. 658, 663, 588 S.E.2d 384, 387 (2003) (quoting Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). "Viewing the evidence in the light most favorable to the Commonwealth, as we must since it was the prevailing party in the trial court," Riner v. Commonwealth, 268 Va. 296, 330, 601 S.E.2d 555, 574 (2004), "[w]e must instead ask whether 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Crowder, 41 Va. App. at 663, 588 S.E.2d at 387 (quoting Kelly v. Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) (en banc)). See also Maxwell v. Commonwealth, 275 Va. 437, 442, 657 S.E.2d 499, 502 (2008). "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." Jackson, 443 U.S. at 319.
Code § 18.2-168, which proscribes the offense of forgery, provides in pertinent part: "If any person forge a public record... or utter, or attempt to employ as true, such forged record... knowing the same to be forged, he shall be guilty of a Class 4 felony." Fitzgerald v. Commonwealth, 227 Va. 171, 173-74, 313 S.E.2d 394, 395 (1984) (quoting Bullock v. Commonwealth, 205 Va. 558, 561, 138 S.E.2d 261, 263 (1964)).
Rodriguez v. Commonwealth, 50 Va. App. 667, 671, 653 S.E.2d 296, 298 (2007).
"The fingerprint card, which Code § 19.2-390 requires the police to prepare and submit to the Central Criminal Records Exchange (CCRE) on special forms, is clearly a public record," as appellant acknowledges. Reid v. Commonwealth, 16 Va. App. 468, 470, 431 S.E.2d 63, 65 (1993). State v. Martinez, 183 P.3d 935, 938-39 (N.M. Ct. App. 2008) (quoting State v. Johnson, 855 S.W.2d 470, 473 (Mo. Ct. App. 1993).
Appellant argues that he did not commit forgery of the fingerprint card because, he claims, he did not act with the specific intent to defraud that is required to sustain a conviction under Code § 18.2-168. Campbell v. Commonwealth, 14 Va. App. 988, 990, 421 S.E.2d 652, 653 (1992) (en banc), affd, 246 Va. 174, 431 S.E.2d 648 (1993). A person acts with fraudulent intent when he or she acts "with an evil intent, or with the...
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