Hines v. Com.

• Decision Date: 25 February 2003
• Docket Number: Record No. 0481-02-1.
• Citation: 576 S.E.2d 781,39 Va. App. 752
• Court: Virginia Court of Appeals
• Parties: Martin Levette HINES v. COMMONWEALTH of Virginia.

576 S.E.2d 781

39 Va. App. 752

Martin Levette HINES v. COMMONWEALTH of Virginia.

Record No. 0481-02-1.

Court of Appeals of Virginia, Chesapeake.

February 25, 2003.

David Michael Good, for appellant.

Jennifer R. Franklin, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

Present: ANNUNZIATA and FRANK, JJ. and BRAY, Senior Judge.

ROBERT P. FRANK, Judge.

Martin Levette Hines (appellant) was convicted in a bench trial of five counts of forging a public record, in violation of Code § 18.2-168. On appeal, he contends the trial court erred in convicting him of five counts of the offense when only one offense was committed. For the reasons stated below, we affirm the judgments of the trial court.

BACKGROUND

The facts are not in controversy. On March 11, 2000, after observing a car force other vehicles off the road, Virginia Beach Police Officer Eric Livingston activated his emergency equipment and pursued the offending car. Committing additional traffic offenses, the car accelerated and then drove down a dead end street. At this point, the driver jumped out and attempted to flee. The officers caught the driver and escorted him back to their police car.

Appellant, the driver, did not have any identification. Officer Livingston asked for his name. Appellant said he was "Antoine Fernando Hines," in actuality, the name of his brother. Appellant also gave his brother's birthday and social security number. Livingston checked the name, birth date, and social security number. He discovered "Antoine Fernando Hines" had only a learner's permit for driving.

Based on this information and his observations of appellant's driving, Officer Livingston prepared five separate summonses for failure to have the vehicle's registration, driving down the center line of the road, driving on the shoulder, disregarding a red light, and driving with a learner's permit without a licensed driver. The officer took appellant to the magistrate, where appellant falsely signed each summons with "Antoine Hines."

Appellant testified his true name was Martin Levette Hines, and his birthday was actually January 31, 1971. He knew outstanding arrest warrants under the name of Martin Hines were on file at the time the police attempted to stop him. He acknowledged he had a brother named Antoine Fernando Hines, but denied providing the officer with Antoine's birthday and social security number. Appellant admitted signing each summons with his brother's name.

In his closing argument, appellant argued only one crime occurred with only one intent: to avoid the outstanding warrants. Appellant asked the trial court to strike all but one charge of forging a public record. The trial court declined to do so.

ANALYSIS

Appellant asserts the trial court erred in convicting him of five counts of forging public documents. He maintains Code § 18.2-168 should be interpreted to allow only one conviction under the facts of this case. In support of this argument, appellant asks us to extend the underlying rationale of the "single larceny doctrine" to non-larceny offenses. He contends that, in signing the five summonses, he acted pursuant to a "single impulse and in execution of a general fraudulent scheme," citing Richardson v. Commonwealth, 25 Va.App. 491, 496, 489 S.E.2d 697, 700 (1997) (en banc). While appellant correctly states the "single larceny doctrine," that doctrine has no applicability to non-larceny cases.

Although appellant contends "Virginia case law is replete with cases extending the single larceny doctrine to other than larceny-based offenses," we find no such cases, and he cites none. Recently, the Supreme Court of Virginia was invited to extend the "single larceny doctrine" to multiple counts of shooting at an occupied vehicle and discharging a firearm while in a motor vehicle. In Stephens v. Commonwealth, the Court stated:

In Holly's Case, [113 Va. 769, 75 S.E. 88 (1912),] we stated the following rule: "The theft of several articles at one and the same time constitutes an indivisible offense, and a conviction or acquittal of any one or more of them is a bar to a subsequent prosecution for the larceny of the others." Id. at 772, 75 S.E. at 89. This rule is not applicable here because it "applies only to a case involving multiple larceny prosecutions predicated upon the theft of multiple articles stolen contemporaneously." Jones v. Commonwealth, 218 Va. 757, 761, 240 S.E.2d 658, 661, cert. denied, 439 U.S. 892 [99 S.Ct. 249, 58 L.Ed.2d 238] (1978).

263 Va. 58, 63, 557 S.E.2d 227, 230 (2002). We do not find the "single larceny doctrine" has been broadly applied in Virginia.

Appellant asks us to consider a federal appellate opinion, Thomas v. Kerby, 44 F.3d 884 (10th Cir.1995), which applied New Mexico's single larceny doctrine to multiple convictions for forgery and uttering. "Significantly," however, the New Mexico courts had applied this doctrine more broadly than the Virginia courts have. See id. at 887-88. The federal court also noted a "basic similarity between larceny ... and the taking of funds by transfer of a forged or worthless instrument" when it extended New Mexico's single larceny rule. Id. at 888 n. 3. Forgery of a public document and larceny, however, do not exhibit the same similarity.

Larceny involves the loss of property. See Jones v. Commonwealth, 3 Va.App. 295, 300-01, 349 S.E.2d 414, 417-18 (1986) (explaining the gravamen of the crime of larceny is the taking of property from its owner). See, e.g., Quidley v. Commonwealth, 221 Va. 963, 966, 275 S.E.2d 622, 624-25 (1981) (noting the gravamen of theft by fraud "is the obtainment of ownership of property," although ultimate loss "is immaterial"). In contrast, the Supreme Court of Virginia concluded, after an extensive review of the history of the common law offenses of forging a public document and forging private papers, that actual prejudice to the public's ownership rights is not a necessary element of the crime of forging a public document. Campbell v. Commonwealth, 246 Va. 174, 179-82, 431 S.E.2d 648, 651-53 (1993). The Court noted:

"At 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. 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.

Id. at 179-80, 431 S.E.2d at 651 (emphasis in original). The Court further reviewed the legislative history and the scheme of the Virginia forgery statutes and concluded "that harm or prejudice to the right of another person has never been and is not now an element of the crime of forgery of public records in this Commonwealth." Id. at 184, 431 S.E.2d at 654.

As the crime of forgery of a public document does not require personal loss of ownership, appellant's comparison to larceny is inapposite. Therefore, we will not extend the single larceny doctrine to cases involving Code § 18.2-168.

Additionally, the language and structure of the Code prove the legislature intended to allow multiple forgery convictions in situations such as the one before us. Code § 18.2-168 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.

(Emphasis added.) While criminal statutes must be construed strictly against the Commonwealth and in favor of the accused, Johnson v. Commonwealth, 211 Va. 815, 819, 180 S.E.2d 661, 664 (1971), when the language of a statute is clear and unambiguous, a court will give the statute its plain meaning, Tross v. Commonwealth, 21 Va.App. 362, 377-78, 464 S.E.2d 523, 530...