Gordon Michael Donowa, etc. v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: May 28, 1996
• Docket: 1579952
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Coleman and Fitzpatrick Argued at Richmond, Virginia

GORDON MICHAEL DONOWA, s/k/a GORDON MICHAEL DONAWA MEMORANDUM OPINION * BY v. Record No. 1579-95-2 JUDGE SAM W. COLEMAN III MAY 28, 1996 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Robert W. Duling, Judge Stephen T. Harper (Bradford F. Johnson; Johnson & Walker, P.C., on brief), for appellant.

Steven A. Witmer, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

Gordon Michael Donowa was convicted in a jury trial of

committing perjury in violation of Code § 18.2-434 by testifying

falsely under oath at a prior trial. On appeal, Donowa contends

that the evidence is insufficient to prove that the statement in

his prior testimony was false, or, even if false, it was not

material to the issues at the previous trial. We hold that the

statement was material and the evidence is sufficient to support

the conviction.

First, the Commonwealth contends that the defendant is

barred from challenging the sufficiency of the evidence on appeal

because under Rule 5A:18 "[a] mere statement that the judgment or

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. award is contrary to the law and the evidence is not sufficient"

to preserve an issue for appeal.

"The primary function of Rule 5A:18 is to alert the trial

judge to possible error so that the judge may consider the issue

intelligently and take any corrective actions necessary to avoid

unnecessary appeals, reversals and mistrials." Martin v.

Commonwealth, 13 Va. App. 524, 530, 414 S.E.2d 401, 404 (1992)

(en banc). Here, the defendant informed the trial court while

the jury was deliberating that he would move to set aside the

verdict as contrary to the law and the evidence if the jury

returned a guilty verdict. After the jury rendered the verdict,

the defendant moved to set it aside, and the trial judge stated

that he "ha[d] been thinking about [the motion]," and was

"satisfied that it was strictly a jury issue involved as to the three points set forth in the instructions." The "three points"

the judge referred to from the instructions were the three

elements required to prove perjury. The record shows that the

trial judge understood the defendant's objection and was able to

consider it intelligently in ruling that the evidence was

sufficient to support the perjury conviction.

With respect to the merits of the defendant's appeal, in

order to obtain a conviction for perjury, the Commonwealth must

prove that the defendant made a false statement under oath, that

he did so willfully, and that the statement was material to an

issue involved in the trial. Code § 18.2-434; see Holz v.

- 2 - Commonwealth, 220 Va. 876, 880-81, 263 S.E.2d 426, 428-29 (1980).

The defendant contends that the evidence is insufficient as a

matter of law to prove that he testified falsely at his previous

trial when he denied ownership of a 1986 Oldsmobile.

Alternatively, he contends that ownership of the Oldsmobile was

not material to an issue at the prior trial.

The defendant was tried on August 4, 1994 for possession of

cocaine with intent to distribute, possession of a firearm while

in possession of cocaine, and possession of a firearm after being

convicted of a felony. At that trial, the defendant testified

under oath that he was not the owner of the Oldsmobile in which

cocaine and a shotgun were found. According to the defendant,

the car belonged to his father, whose name is Gordon Milton

Donowa, and his father's name was on the car's registration. However, at the defendant's perjury trial, Charlotte Bales,

an employee of the Department of Motor Vehicles (DMV), testified

that the application for a certificate of title for the 1986

Oldsmobile showed that "the owner is Gordon M. Donowa," and also

authenticated other DMV records which showed that the defendant's

social security number matched the number listed on the

application for a certificate of title. Officer Jonathan W.

Stanley testified that he had seen the defendant driving the

Oldsmobile on more than one occasion and that he obtained a

search warrant for the Oldsmobile in September 1993 listing the

defendant as the owner of the car after checking DMV's records

- 3 - and determining that the social security number on the

registration was the defendant's number.

"[A] perjury conviction under Code § 18.2-434 requires proof

of falsity from the testimony of at least two witnesses or other

corroborating evidence of falsity in the event the case is

supported by the testimony of only one witness." Keffer v.

Commonwealth, 12 Va. App. 545, 549, 404 S.E.2d 745, 747 (1991).

Here, Charlotte Bales' testimony proved that DMV's records listed

the defendant as the owner of the Oldsmobile, and this evidence

of ownership was corroborated by Officer Stanley's testimony that

he had witnessed the defendant driving the Oldsmobile on more

than one occasion and that he had named the defendant as the

owner in his affidavit for a search warrant after checking DMV's

records. Contrary to the defendant's assertion, the Commonwealth

was not required to produce a witness with personal knowledge of

the individual who applied for the certificate of title to the

Oldsmobile. The records of ownership with DMV are sufficient to

prove ownership of a motor vehicle. Therefore, the evidence is

sufficient to prove that the defendant owned the Oldsmobile and

willfully testified falsely under oath that he did not own the

Oldsmobile. As to the materiality of the defendant's ownership of the

Oldsmobile, the issue at the August 1994 trial was whether the

defendant exercised dominion and control over the Oldsmobile at

the time the police searched the car and found cocaine and a

- 4 - shotgun in it. According to the defendant, the Commonwealth did

not have to prove that he owned the Oldsmobile in order to prove

possession because Officer Stanley testified that he witnessed

the defendant dealing drugs out of the car and saw him in

possession of the key to the car just prior to the search of the

car. Because Officer Stanley's testimony was sufficient to

establish possession of the car and its contents, the defendant

contends that proof of ownership of the car was not necessary to

prove possession and, therefore, it was not material. Code § 18.2-434 does not require the Commonwealth to

establish that the false testimony was essential to the outcome

of the case in order to prove that it was material. Rather, the

testimony is material if it was "relevant in the trial of the

case, either to the main issue or some collateral issue." Holz,

220 Va. at 881, 263 S.E.2d at 429 (emphasis added). It is

well-established that ownership of an automobile is one

circumstance the fact finder may consider in determining whether

the accused possessed contraband found in the vehicle. See

Scruggs v. Commonwealth, 19 Va. App. 58, 61, 448 S.E.2d 663, 665

(1994); Burchette v. Commonwealth, 15 Va. App. 432, 435, 425

S.E.2d 81, 83 (1992). Therefore, proof of ownership of the

Oldsmobile was material to the primary issue at the defendant's

August 1994 trial.

We find the evidence sufficient to prove all of the elements

of perjury and affirm the defendant's conviction.

- 5 - Affirmed.

- 6 -