Gerald v. Commonwealth
| Decision Date | 27 December 2016 |
| Docket Number | Record No. 1967-15-2 |
| Court | Virginia Court of Appeals |
| Parties | TARSHA M. GERALD v. COMMONWEALTH OF VIRGINIA |
UNPUBLISHED
Present: Chief Judge Huff, Judges Russell and AtLee
Argued at Richmond, Virginia
FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
Norman H. Lamson for appellant.
Christopher P. Schandevel, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Tarsha M. Gerald ("appellant") appeals her convictions of driving on a suspended license, third offense, in violation of Code § 46.2-301, and perjury, in violation of Code § 18.2-434. After her conviction for driving on a suspended license, third offense, in the Albemarle County General District Court, a grand jury indicted appellant for perjury. Appellant appealed the driving on a suspended license conviction to the Albemarle County Circuit Court ("trial court"), which, following a bench trial on both charges, convicted appellant for driving on a suspended license, third offense, and for committing perjury in the general district court. The trial court sentenced appellant to one year's imprisonment with all but four months suspended for the driving on a suspended license conviction and five years' imprisonment with all but three months suspended for the perjury conviction, for a total active sentence of seven months. On appeal, appellant challenges the sufficiency of the evidence as to the driving on a suspendedlicense and perjury charges and contends that the trial court was an improper venue for the perjury trial. For the following reasons, this Court affirms the convictions.
On appeal, "we consider the evidence and all reasonable inferences flowing from that evidence in the light most favorable to the Commonwealth, the prevailing party at trial." Williams v. Commonwealth, 49 Va. App. 439, 442, 642 S.E.2d 295, 296 (2007) (en banc) (quoting Jackson v. Commonwealth, 267 Va. 666, 672, 594 S.E.2d 595, 598 (2004)). So viewed, the evidence is as follows.
Between 3:00 and 4:00 p.m. on May 26, 2013, a Mercedes rear-ended a Toyota driven by Paul Welch ("Welch") while he waited for a traffic signal on Ivy Road in Albemarle County. Welch "immediately" opened his door to exit his car and saw in his mirror the Mercedes's driver stepping out of the driver's side. Welch identified the driver as Patricia Gerald ("Patricia"). Welch walked to the passenger side of the Mercedes, and appellant—Patricia's daughter—stepped out of the front passenger side of the vehicle. The only other person Welch observed in the Mercedes was a woman in the backseat who did not leave the car. Appellant identified herself as the car's owner and gave Welch a piece of paper with her contact information, insurance company, and license plate number. Appellant had only a state-issued identification card and did not show Welch a driver's license.
Welch then asked to see the license belonging to the car's driver, Patricia. At that point, the two women switched sides—according to Welch, appellant "ran around to the driver's side, hopped in the car, and [Patricia] got in the passenger seat, and they sped off." Welch followed the Mercedes long enough to confirm that the license plate number appellant gave him was accurate and then called police.
Albemarle County Police Officer Ralph Scopelliti ("Scopelliti") responded to the scene and, based on his conversation with Welch, radioed information about the incident to dispatch. Officer Carl Scott Miller ("Miller") heard Scopelliti's call and then traveled to an address associated with the Mercedes provided by dispatch. On arrival, he located the car, appellant, and Patricia. After questioning Patricia, Miller asked appellant whether she had driven the vehicle. Appellant told Miller "that she was not driving the vehicle when the crash occurred, but her mother was very upset after the crash and so she drove the vehicle home." Appellant stated that she had not previously told Miller that she drove the car away from the accident scene because her license had been suspended. Miller later confirmed that both Patricia and appellant had suspended licenses.
During the investigation, Scopelliti called a phone number provided by Miller in order to follow up with the two women. Scopelliti identified himself, and then asked if he was speaking with appellant. Appellant replied "yes." Scopelliti then asked her whether "she was involved in an accident," and appellant replied "yes." Scopelliti asked her next "if she drove off after the accident," and appellant replied "yes." Scopelliti asked her "if she had a valid driver's license," and appellant again replied "yes."1
Based on the investigation, both appellant and Patricia were charged with driving on a suspended license in violation of Code § 46.2-301. The joint trial of appellant and Patricia as codefendants took place in Albemarle County General District Court on October 8, 2013. The general district court judge administered oaths to appellant, Patricia, and the Commonwealth's witnesses before the trial began. Both appellant and Patricia testified in their own defense.
Because there was no record of the general district court proceedings, during the later circuit court proceedings the Commonwealth relied on Scopelliti's testimony to establish the events of the general district court trial. His testimony established that, on direct examination, both appellant and Patricia denied driving. During the general district court trial, the Commonwealth's attorney had read from Miller's investigation notes, which contained the questions he asked appellant and Patricia during the investigation, in order to ask the codefendants those same questions on cross-examination. Scopelliti had an identical copy of Miller's notes on which he had recorded what questions the Commonwealth's attorney had asked appellant.
Specifically, the Commonwealth's attorney had first asked appellant "if she told Officer Miller that she drove the car home because her mother was too upset and could not drive, and she said no." The Commonwealth's attorney then had asked appellant whether she said anything to Miller about her license being suspended, and again appellant said "no." After cross-examining both appellant and Patricia, the Commonwealth had asked the codefendants if they understood they were under oath, and both independently answered that they understood they were under oath and they had told the truth on cross-examination.
The general district court found both appellant and Patricia guilty of driving on suspended licenses, and both appealed their convictions to the circuit court where they were tried jointly for the original driving on a suspended license charges as well as for committing perjury during the general district court trial.
Following the close of the Commonwealth's evidence during the circuit court trial, which included the testimony of Welch, Miller, and Scopelliti, appellant testified in her own defense. According to appellant, she, Patricia, Patricia's boyfriend Aaron Alexander, appellant's two children, and a woman named Bianca "Tiffany" Horne ("Horne") drove to Waynesboro in theMercedes on May 26, 2013 to buy groceries. Appellant testified that Horne drove to and from Waynesboro, and was driving when the Mercedes struck Welch's Toyota. She further testified that after she gave Welch her contact and insurance information, Welch told her she could leave so Horne drove them back to appellant's apartment. Appellant testified that she remembered speaking with Miller at her apartment and that when he asked her for her driver's license, she gave him her state identification. She denied ever speaking to Scopelliti and further denied giving false testimony about the matter in the general district court trial.
Called as a defense witness on December 1, 2014, Horne testified that she had known appellant for "five months . . . or a year." When counsel for appellant asked Horne to clarify how she knew appellant on May 26, 2013 when she had just testified that she had known appellant for only a year, Horne replied: "I—I met her in Waynesboro." She further testified that when she was driving back from Waynesboro, only appellant was in the car with her. When asked whether she was present when an automobile accident occurred on May 26, 2013, Horne replied: "I was a licensed driver coming back from Waynesboro back to Charlottesville, and I plead the Fifth." The defense also called Aaron Alexander, who testified that he was in pain due to back problems and noted that he was asleep in the backseat during the incident. He identified Horne as the driver after initially referring to her as "whatyoucallum," and testified that he did not know Horne's last name. Although called to the stand, Patricia invoked her Fifth Amendment right against self-incrimination and refused to testify.
During the trial, appellant's counsel objected to venue on the basis that the Albemarle County General District Court is located in the City of Charlottesville, not Albemarle County, and thus the trial court was an improper venue for appellant's perjury trial. The trial court determined that the parties would "finish the case except for the issue with regards to venue," which it granted the parties leave to brief. Appellant moved to strike at the close of theCommonwealth's evidence and renewed that motion at the close of all evidence. Appellant contended that the Commonwealth failed to present sufficient evidence to establish that the allegedly perjurious testimony concerned a material issue, that the evidence did not sufficiently corroborate the falsity of appellant's statement, and that Welch's testimony was insufficient because he was interested in the prosecution. The Court denied the motions to strike and continued the case for closing argument following receipt of the venue briefs.
The trial reconvened for closing arguments on February 24, 2015 after the...
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