Christopher James Hubbard v. Commonwealth of VA

• Court: Court of Appeals of Virginia
• Decided: November 6, 2001
• Docket: 2345002
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Willis, Elder and Annunziata Argued at Richmond, Virginia

CHRISTOPHER JAMES HUBBARD MEMORANDUM OPINION * BY v. Record No. 2345-00-2 JUDGE LARRY G. ELDER NOVEMBER 6, 2001 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF MECKLENBURG COUNTY Leslie M. Osborn, Judge

Jennifer LeLacheur Jones, Assistant Public Defender (Office of the Public Defender, on brief), for appellant.

Robert H. Anderson, III, Assistant Attorney General (Randolph A. Beales, Acting Attorney General, on brief), for appellee.

Christopher James Hubbard (appellant) appeals from his

bench trial conviction for perjury in violation of Code

§ 18.2-434. We hold that the evidence proved his statement was

willful and was sufficiently corroborated and that the trial

court did not impermissibly shift the burden of proof to

appellant. Therefore, we affirm appellant's conviction.

When considering the sufficiency of the evidence on appeal,

we view the evidence in the light most favorable to the

Commonwealth. See Higginbotham v. Commonwealth, 216 Va. 349,

352, 218 S.E.2d 534, 537 (1975). "Circumstantial evidence is as

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. competent and is entitled to as much weight as direct evidence,

provided it is sufficiently convincing to exclude" all

reasonable hypotheses of innocence. Coleman v. Commonwealth,

226 Va. 31, 53, 307 S.E.2d 864, 876 (1983).

To establish willful falsity, 1 see Mendez v. Commonwealth,

220 Va. 97, 102, 255 S.E.2d 533, 535 (1979), the Commonwealth

must prove not only "that the statements made under oath by the

defendant were false," Holz v. Commonwealth, 220 Va. 876, 880,

263 S.E.2d 426, 428 (1980), but also that the defendant knew the

statements were false, see id., or that he should have known

they were false, Snead v. Commonwealth, 11 Va. App. 643, 646,

400 S.E.2d 806, 807 (1991) (stating that willful

"characterize[s] a thing done without ground for believing it is

lawful").

Here, the only reasonable hypothesis flowing from the

circumstantial evidence, viewed in the light most favorable to

the Commonwealth, is that when appellant testified under oath in

general district court, he knew his Integon insurance policy had

not been in effect at the time of his auto accident. Appellant

made a down payment on the Integon policy on June 11, 1999, and

agreed simultaneously to a payment schedule which required him

to make monthly payments thereafter, but appellant failed to

1 On appeal, appellant does not challenge the sufficiency of the evidence to prove that his statement was made under oath or that it was material to a proper matter of inquiry.

- 2 - make the July payment or any subsequent payments. As a result,

Integon cancelled his policy on July 16, 1999, and notified him

of the cancellation by letter sent to the address he provided

when he had obtained the policy only five weeks earlier.

Even assuming appellant did not receive notice of the

cancellation of his policy, he could not reasonably have

believed when he testified in general district court that his

insurance policy with Integon remained valid when the accident

occurred on September 7, 1999, after he already had failed to

make two of the monthly premium payments to which he had agreed.

Appellant's statement on September 7, 1999 that he was insured

by Geico rather than Integon further supports the conclusion

that appellant knew his policy with Integon was no longer valid

on that date. The evidence also established that appellant

never reported the accident to Integon or its agents. Thus,

when appellant testified in general district court that he was

insured by Integon on September 7, 1999, he did so "without

ground for believing [his testimony was] lawful." Snead, 11 Va.

App. at 646, 400 S.E.2d at 807.

When a perjury conviction is supported by the testimony of

only one witness, the testimony must be corroborated. Stewart

v. Commonwealth, 22 Va. App. 117, 120, 468 S.E.2d 126, 127

(1996). However, the corroborating evidence "need not be equal

in weight to the testimony of a second witness," id., as long as

the evidence confirms the single witness' testimony in a manner

- 3 - strong enough "'to turn the scale and overcome the oath of the

[defendant] and the legal presumption of his innocence,'" Keffer

v. Commonwealth, 12 Va. App. 545, 548, 404 S.E.2d 745, 746-47

(1991) (quoting Schwartz v. Commonwealth, 68 Va. (27 Gratt.)

1025, 1027 (1876)).

Here, the testimony of Insurance Agent William Wells

regarding the status of appellant's insurance coverage with

Integon as of September 7, 1999 was sufficiently corroborated by

both Integon's notification letter to appellant that his policy

had been cancelled for nonpayment, see Holz, 220 Va. at 882, 263

S.E.2d at 429, and appellant's conflicting statements regarding

the identity of his insurance carrier at the time of the

September 7, 1999 accident, see Stewart, 22 Va. App. at 121-22,

468 S.E.2d at 128. Wells testified that when appellant obtained

the policy through Wells' agency, appellant agreed to make

monthly premium payments but failed to make even the first

payment, which resulted in Integon's canceling his coverage on

July 16, 1999. Finally, appellant's statement on September 7,

1999 that he was insured by Geico further corroborated Wells'

testimony that appellant's Integon policy was not in effect on

that date and that appellant was aware of this fact.

Lastly, we reject appellant's contention that the trial

court drew an improper inference from his failure to testify

and, in effect, shifted the burden to him to prove his false

statement was not willful because he was unaware that the

- 4 - Integon policy had been cancelled. The trial court is presumed

to know the law and to apply it properly. Yarborough v.

Commonwealth, 217 Va. 971, 978, 234 S.E.2d 286, 291 (1977).

Once the Commonwealth presents a prima facie case of guilt, the

burden of production shifts to the accused to rebut that prima

facie case. See, e.g., Overstreet v. Commonwealth, 193 Va. 104,

110-11, 67 S.E.2d 875, 879 (1951). Although generally "'the

state must prove all the essential facts entering into the

description of the offense[,] . . . when a negation of a fact

lies peculiarly within the knowledge of the defendant[,] it is

incumbent on him to establish that fact.'" Mayhew v.

Commonwealth, 20 Va. App. 484, 490, 458 S.E.2d 305, 308 (1995)

(quoting State v. Williamson, 206 N.W.2d 613, 618 (Wis. 1973)).

Here, the trial court expressly acknowledged that "the

Commonwealth bears the burden" of proving appellant's false

testimony was willful. In commenting on appellant's failure to

testify, the trial court merely emphasized the fact that

appellant failed to offer any evidence to rebut the

Commonwealth's prima facie case on that element of the offense.

Had appellant testified that he was confused about his duty to

pay monthly premiums or that he did not understand any

cancellation notice he may have received, such testimony would

have provided the trial court with a basis for concluding that

appellant's false testimony was accidental rather than willful.

However, in the absence of such testimony, the trial court, as

- 5 - the finder of fact, was entitled to conclude the only hypothesis

flowing from the circumstantial evidence was that appellant was

aware of his duty to pay monthly premiums, understood his

failure to pay those premiums would void or nullify his policy,

and knew at least by the time he testified under oath in general

district court that his Integon policy was not in effect at the

time of the accident.

For these reasons, we affirm appellant's perjury

conviction.

Affirmed.

- 6 -