COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Lemons and Senior Judge Cole Argued at Richmond, Virginia
GEORGE HENSON, JR. MEMORANDUM OPINION * BY v. Record No. 1741-97-2 JUDGE LARRY G. ELDER DECEMBER 22, 1998 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF GOOCHLAND COUNTY Jay T. Swett, Judge Craig S. Cooley for appellant.
Donald E. Jeffrey, III, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
George Henson, Jr. (appellant) appeals from his jury trial
conviction for perjury in violation of Code § 18.2-435. On
appeal, he contends that the evidence was insufficient to support
his conviction because it did not prove that he gave conflicting
testimony "knowingly and with the intent to testify falsely."
For the reasons that follow, we reject appellant's contentions
and affirm his conviction.
I.
FACTS
Claiborne Stokes, Assistant Commonwealth's Attorney,
testified that the trial court previously had ordered appellant
to pay restitution in a case and to write letters to the Virginia
* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. Employment Commission because he was unemployed and contended his
lack of employment prevented him from paying restitution.
Appellant failed to comply with the court order, and on December
28, 1995, the trial court conducted a hearing on the matter.
Stokes testified that when appellant was asked why he had not
written the letters, appellant testified, while under oath, that
he could not read. Based on that testimony, the trial court
dismissed the charge because the Commonwealth had not proven that
appellant was capable of writing the required letters. Stokes testified that in June of 1996, at a child custody
hearing, appellant, while under oath, denied testifying
previously that he could not read and said that he had testified
he could not spell well. Stokes also stated that, after the
hearing Stokes told appellant he believed appellant had just
committed perjury. Stokes testified that appellant responded,
"Well, it's your job to catch me."
A deputy clerk of the Goochland County Circuit Court
testified that she recalled appellant testifying on December 28,
1995 that he could not write, that he could read only "very small
words," and that he could sign his name. A deputy sheriff who
served as a bailiff at the December 28, 1995 hearing stated that,
on that date, appellant testified he could not read or write.
The deputy sheriff testified that, at the June 1996 hearing,
appellant denied testifying previously that he could not read and
write and said he had testified only that his spelling skills
- 2 - were poor. Several other witnesses confirmed that appellant
testified on December 28, 1995 that he could not read or write.
II.
ANALYSIS
Code § 18.2-435 provides, in relevant part, that [i]t shall . . . constitute perjury for any person, with the intent to testify falsely, to knowingly give testimony under oath as to any material matter or thing and subsequently to give conflicting testimony under oath as to the same matter or thing. . . . Upon the trial . . . , it shall be sufficient to prove that the defendant, knowingly and with the intent to testify falsely, gave . . . differing testimony and that the differing testimony was given on two separate occasions.
Id. The Commonwealth need not prove which testimony was false.
See Scott v. Commonwealth, 14 Va. App. 294, 296-97, 416 S.E.2d
47, 48-49 (1992).
Appellant's challenge to the sufficiency of the evidence is
twofold. He contends the evidence failed to prove (1) that he
acted with the requisite intent because he could reasonably have
believed he could not read and write well enough to write
business letters but could do so well enough to care for a child
and (2) that his statements were conflicting because his literacy
could have improved between the probation violation proceeding in
which he testified that he could not read and write and the
custody proceeding six months later in which he testified that he
could. We reject both contentions.
When considering the sufficiency of the evidence on appeal
- 3 - in a criminal case, this Court views the evidence in the light
most favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom. See Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). On
review, this Court does not substitute its own judgment for that
of the trier of fact. See Cable v. Commonwealth, 243 Va. 236,
239, 415 S.E.2d 218, 220 (1992). The judgment will not be set
aside unless it is plainly wrong or without supporting evidence. See Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415,
418 (1987).
That the giving of false testimony was intentional or
willful, like any element of a crime, may be proved by
circumstantial evidence, see Waldrop v. Commonwealth, 23 Va. App.
614, 628, 478 S.E.2d 723, 729 (1996), rev'd on other grounds, 255
Va. 210, 495 S.E.2d 822 (1998); Servis v. Commonwealth, 6 Va.
App. 507, 524, 371 S.E.2d 156, 165 (1988), such as a person's
conduct and statements, see Long v. Commonwealth, 8 Va. App. 194,
198, 379 S.E.2d 473, 476 (1989). "Circumstantial evidence is as
competent and is entitled to as much weight as direct evidence,
provided it is sufficiently convincing to exclude every
reasonable hypothesis except that of guilt." Coleman v.
Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983).
However, "the Commonwealth need only exclude reasonable
hypotheses of innocence that flow from the evidence, not those
that spring from the imagination of the defendant." Hamilton v.
- 4 - Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 29 (1993).
Whether a hypothesis of innocence is reasonable is a question of
fact. See Cantrell v. Commonwealth, 7 Va. App. 269, 290, 373
S.E.2d 328, 339 (1988).
Here, the evidence proved that appellant acted with the
requisite intent. It did not support a finding that he
reasonably believed he could not read and write well enough to
write business letters but could do so well enough to care for a
child. The evidence, viewed in the light most favorable to the
Commonwealth, proved that appellant knowingly and intentionally
gave false testimony regarding a material fact--his ability to
read and write in the context of obtaining employment. He
testified in the probation violation proceeding on December 28,
1995 that he failed to comply with the court's order to write
letters seeking employment because he could not read or write.
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COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Lemons and Senior Judge Cole Argued at Richmond, Virginia
GEORGE HENSON, JR. MEMORANDUM OPINION * BY v. Record No. 1741-97-2 JUDGE LARRY G. ELDER DECEMBER 22, 1998 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF GOOCHLAND COUNTY Jay T. Swett, Judge Craig S. Cooley for appellant.
Donald E. Jeffrey, III, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
George Henson, Jr. (appellant) appeals from his jury trial
conviction for perjury in violation of Code § 18.2-435. On
appeal, he contends that the evidence was insufficient to support
his conviction because it did not prove that he gave conflicting
testimony "knowingly and with the intent to testify falsely."
For the reasons that follow, we reject appellant's contentions
and affirm his conviction.
I.
FACTS
Claiborne Stokes, Assistant Commonwealth's Attorney,
testified that the trial court previously had ordered appellant
to pay restitution in a case and to write letters to the Virginia
* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. Employment Commission because he was unemployed and contended his
lack of employment prevented him from paying restitution.
Appellant failed to comply with the court order, and on December
28, 1995, the trial court conducted a hearing on the matter.
Stokes testified that when appellant was asked why he had not
written the letters, appellant testified, while under oath, that
he could not read. Based on that testimony, the trial court
dismissed the charge because the Commonwealth had not proven that
appellant was capable of writing the required letters. Stokes testified that in June of 1996, at a child custody
hearing, appellant, while under oath, denied testifying
previously that he could not read and said that he had testified
he could not spell well. Stokes also stated that, after the
hearing Stokes told appellant he believed appellant had just
committed perjury. Stokes testified that appellant responded,
"Well, it's your job to catch me."
A deputy clerk of the Goochland County Circuit Court
testified that she recalled appellant testifying on December 28,
1995 that he could not write, that he could read only "very small
words," and that he could sign his name. A deputy sheriff who
served as a bailiff at the December 28, 1995 hearing stated that,
on that date, appellant testified he could not read or write.
The deputy sheriff testified that, at the June 1996 hearing,
appellant denied testifying previously that he could not read and
write and said he had testified only that his spelling skills
- 2 - were poor. Several other witnesses confirmed that appellant
testified on December 28, 1995 that he could not read or write.
II.
ANALYSIS
Code § 18.2-435 provides, in relevant part, that [i]t shall . . . constitute perjury for any person, with the intent to testify falsely, to knowingly give testimony under oath as to any material matter or thing and subsequently to give conflicting testimony under oath as to the same matter or thing. . . . Upon the trial . . . , it shall be sufficient to prove that the defendant, knowingly and with the intent to testify falsely, gave . . . differing testimony and that the differing testimony was given on two separate occasions.
Id. The Commonwealth need not prove which testimony was false.
See Scott v. Commonwealth, 14 Va. App. 294, 296-97, 416 S.E.2d
47, 48-49 (1992).
Appellant's challenge to the sufficiency of the evidence is
twofold. He contends the evidence failed to prove (1) that he
acted with the requisite intent because he could reasonably have
believed he could not read and write well enough to write
business letters but could do so well enough to care for a child
and (2) that his statements were conflicting because his literacy
could have improved between the probation violation proceeding in
which he testified that he could not read and write and the
custody proceeding six months later in which he testified that he
could. We reject both contentions.
When considering the sufficiency of the evidence on appeal
- 3 - in a criminal case, this Court views the evidence in the light
most favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom. See Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). On
review, this Court does not substitute its own judgment for that
of the trier of fact. See Cable v. Commonwealth, 243 Va. 236,
239, 415 S.E.2d 218, 220 (1992). The judgment will not be set
aside unless it is plainly wrong or without supporting evidence. See Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415,
418 (1987).
That the giving of false testimony was intentional or
willful, like any element of a crime, may be proved by
circumstantial evidence, see Waldrop v. Commonwealth, 23 Va. App.
614, 628, 478 S.E.2d 723, 729 (1996), rev'd on other grounds, 255
Va. 210, 495 S.E.2d 822 (1998); Servis v. Commonwealth, 6 Va.
App. 507, 524, 371 S.E.2d 156, 165 (1988), such as a person's
conduct and statements, see Long v. Commonwealth, 8 Va. App. 194,
198, 379 S.E.2d 473, 476 (1989). "Circumstantial evidence is as
competent and is entitled to as much weight as direct evidence,
provided it is sufficiently convincing to exclude every
reasonable hypothesis except that of guilt." Coleman v.
Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983).
However, "the Commonwealth need only exclude reasonable
hypotheses of innocence that flow from the evidence, not those
that spring from the imagination of the defendant." Hamilton v.
- 4 - Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 29 (1993).
Whether a hypothesis of innocence is reasonable is a question of
fact. See Cantrell v. Commonwealth, 7 Va. App. 269, 290, 373
S.E.2d 328, 339 (1988).
Here, the evidence proved that appellant acted with the
requisite intent. It did not support a finding that he
reasonably believed he could not read and write well enough to
write business letters but could do so well enough to care for a
child. The evidence, viewed in the light most favorable to the
Commonwealth, proved that appellant knowingly and intentionally
gave false testimony regarding a material fact--his ability to
read and write in the context of obtaining employment. He
testified in the probation violation proceeding on December 28,
1995 that he failed to comply with the court's order to write
letters seeking employment because he could not read or write. This testimony was material to the willfulness of his failure to
comply with the court's previous order and, in fact, resulted in
the dismissal of the probation violation proceedings. In the
child custody proceeding on June 27, 1996, again during
questioning regarding his ability to read and write in the
context of obtaining employment, he testified that he had not denied being able to read and write in that prior proceeding and
that he could, in fact, read and write. Once again, appellant's
testimony was material, for it bore directly on his ability to
care for the child of whom he sought custody.
- 5 - The record contains no evidence indicating that appellant
attempted to explain or qualify his June 1996 denial by saying he
could not read and write well enough to write business letters
but, nevertheless, believed himself capable of reading and
writing well enough to care for a child. Rather, he flatly
denied testifying in the December 1995 proceeding that he could
not read or write, contending he said only that he could not
spell well. This explanation was at odds with both the
Commonwealth's evidence regarding appellant's December 1995
testimony and the trial court's ultimate disposition on the
probation violation. In addition, in a conversation appellant
initiated with the Commonwealth's attorney immediately after the
June 1996 proceeding, appellant tacitly admitted the conflict in
his testimony when he said to the Commonwealth's attorney,
"[I]t's your job to catch me [for committing perjury]." This evidence, viewed as a whole and in the light most
favorable to the Commonwealth, was sufficient to support the
jury's finding, beyond a reasonable doubt, that appellant
knowingly and intentionally testified falsely.
We also reject appellant's contention that an improvement in
his literacy explained the apparent conflict in his testimony and
constituted a reasonable hypothesis of innocence flowing from the
circumstantial evidence. Code § 18.2-435 provides that, "[u]pon
the trial of [a perjury] indictment, it shall be sufficient to
prove that the defendant, knowingly and with the intent to
- 6 - testify falsely, gave . . . differing testimony and that the
differing testimony was given on two separate occasions." Here,
the Commonwealth presented a prima facie case of conflicting
evidence by proving that appellant gave differing testimony on
two separate occasions. Implicit in the language of the statute
is that appellant then bore the burden of producing some evidence
to show that the testimony was not, in fact, conflicting.
"It is undoubtedly the general rule that the
state must prove all the essential facts
entering into the description of the offense.
But it has been held in many cases that 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)); see Overstreet v. Commonwealth, 193 Va. 104, 110-11, 67
S.E.2d 875, 879 (1951) (discussing burden of production under
statute stating explicitly what constitutes "prima facie evidence of intent to defraud"); see also 1 Charles E. Friend, The Law of
Evidence in Virginia § 9-5, at 317 (4th ed. 1993) (discussing
burdens of production and persuasion). In this case, because
appellant presented no such evidence, the Commonwealth's evidence
was sufficient to prove appellant's guilt beyond a reasonable
doubt. In addition, the evidence proving the statements
- 7 - themselves was direct rather than circumstantial, rendering
inapplicable the principle that circumstantial evidence must
exclude all reasonable hypotheses of innocence.
For these reasons, we affirm appellant's conviction.
Affirmed.
- 8 -