COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Frank and Felton Argued at Richmond, Virginia
KEVIN JOHAN BROWN MEMORANDUM OPINION * BY v. Record No. 1189-02-2 JUDGE WALTER S. FELTON, JR. MAY 13, 2003 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE Edward L. Hogshire, Judge
Neal L. Walters (University of Virginia School of Law Appellate Litigation Clinic, on briefs), for appellant.
Michael T. Judge, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
Kevin Johan Brown ("Brown") was convicted in a bench trial of
forging a public document in violation of Code § 18.2-168. On
appeal, Brown contends that the evidence was insufficient to
establish, beyond a reasonable doubt, that he had the specific
intent to defraud or deceive the Commonwealth when he signed his
brother's name to a DMV Suspension Notice. For the following
reasons, we affirm the decision of the trial court.
I. BACKGROUND
In the early hours of the morning on January 13, 1999, Brown
was installing a cassette stereo in a vehicle he had purchased
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. with his brother, Richard L. Stinnie, Jr. ("Stinnie"). The
vehicle was registered in Stinnie's name because Brown did not
have a valid driver's license. At approximately 1:30 a.m.,
Officer Catherine Birch of the Charlottesville Police Department
was patrolling the Hardy Drive area of Charlottesville. She
observed a vehicle with an opened door parked near an apartment
complex, but it was not in a proper parking space. Because there
had been several recent robberies in the area, Officer Birch
stopped her police cruiser behind the parked vehicle and checked
the vehicle's registration by "running" its license plate. While
retrieving the vehicle's license plate information, Officer Birch
noticed a person moving around inside the vehicle. The license
plate information revealed that the vehicle was registered to
"Richard Lee Stinnie." In order to ensure that the person in the
vehicle was also its owner and that the stereo was not being
stolen, Officer Birch approached Brown and requested his
identification and registration for the vehicle. Brown handed to
Officer Birch, Stinnie's learner's permit, which he removed from
his shirt pocket, and the vehicle's registration, which was in
Stinnie's name. While running the license check, Officer Birch
discovered that Stinnie's learner's permit was suspended. She
asked Brown if he knew that his learner's permit was suspended,
and he said no. Officer Birch then filled out a Virginia
Department of Motor Vehicles Suspension/Revocation/
Disqualification Notice form ("DMV Suspension Notice"), handed it
- 2 - to Brown for acknowledgment of receipt, and informed Brown that he
could not drive while his license was suspended. Brown signed the
DMV Suspension Notice "Richard L. Stinnie" and returned the form
to Officer Birch.
Officer Birch later discovered that the person who signed the
form was Brown, not Stinnie. Brown was indicted on April 19, 1999
for felonious and fraudulent forgery of a public document in
violation of Code § 18.2-168. On August 11, 1999, following a
bench trial, the trial court entered an order finding Brown
guilty. This appeal follows.
II. ANALYSIS
The sole issue before this Court is whether there was
sufficient evidence to prove beyond a reasonable doubt that Brown
intended to defraud the Commonwealth when he signed his brother's
name to the DMV Suspension Notice. Brown argues that the
evidence on the record is insufficient because he (1) testified
that he did not so intend, and (2) had no motive to defraud the
Commonwealth. The record reflects otherwise.
A. STANDARD OF REVIEW
Whether Brown intended to defraud the Commonwealth by
signing Stinnie's name to the DMV Suspension Notice is a
question of fact. See Hancock v. Commonwealth, 12 Va. App. 774,
783, 407 S.E.2d 301, 306 (1991) (citing Nobles v. Commonwealth,
218 Va. 548, 551, 238 S.E.2d 808, 810 (1977)). "[A trial
judge's] factual findings are entitled to the same weight as
- 3 - that accorded a jury verdict and will not be disturbed on appeal
unless plainly wrong or without evidence to support them."
Schneider v. Commonwealth, 230 Va. 379, 382, 337 S.E.2d 735, 736
(1985) (citing Evans v. Commonwealth, 215 Va. 609, 613, 212
S.E.2d 268, 271 (1975); Granberry v. Commonwealth, 184 Va. 674,
678, 36 S.E.2d 547, 548 (1946)). On review, this Court
considers the evidence in the record "in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deductible therefrom." Martin v.
Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).
The fact finder may make reasonable inferences from proven
facts, Hancock, 12 Va. App. at 782-83, 407 S.E.2d at 306 (citing
Johnson v. Commonwealth, 209 Va. 291, 295, 163 S.E.2d 570, 574
(1968)), and "[t]he mere possibility that the accused might have
had another purpose than that found by the fact finder is
insufficient to reverse a conviction on appeal." Id.
B. SUFFICIENCY OF THE EVIDENCE
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.
- 4 - (Emphasis added). Forgery is a specific intent crime in
Virginia, Campbell v. Commonwealth, 14 Va. App. 988, 990, 421
S.E.2d 652, 653 (1992), aff’d in part, 246 Va. 174, 431 S.E.2d
648 (1993); see Johnson v. Commonwealth, 37 Va. App. 634, 641,
561 S.E.2d 1, 4 (2002), and intent to defraud is a necessary
element of the offense of forgery under Code § 18.2-168. See
Campbell, 14 Va. App. at 990, 421 S.E.2d at 653.
A conviction for forgery under Code § 18.2-168 requires the
Commonwealth to prove beyond a reasonable doubt that Brown
intended to defraud the Commonwealth by signing Stinnie's name to
the DMV Suspension Notice. "Intent to defraud" has been defined
by this Court as acting "with an evil intent, or with the
specific intent to deceive or trick." Id. Intent "may, and
often must, be inferred from the facts and circumstances in a
particular case." Ridley v. Commonwealth, 219 Va. 834, 836, 252
S.E.2d 313, 314 (1979). We must "'look to the conduct and
representations of the defendant.'" Rader v. Commonwealth, 15
Va. App.
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COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Frank and Felton Argued at Richmond, Virginia
KEVIN JOHAN BROWN MEMORANDUM OPINION * BY v. Record No. 1189-02-2 JUDGE WALTER S. FELTON, JR. MAY 13, 2003 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE Edward L. Hogshire, Judge
Neal L. Walters (University of Virginia School of Law Appellate Litigation Clinic, on briefs), for appellant.
Michael T. Judge, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
Kevin Johan Brown ("Brown") was convicted in a bench trial of
forging a public document in violation of Code § 18.2-168. On
appeal, Brown contends that the evidence was insufficient to
establish, beyond a reasonable doubt, that he had the specific
intent to defraud or deceive the Commonwealth when he signed his
brother's name to a DMV Suspension Notice. For the following
reasons, we affirm the decision of the trial court.
I. BACKGROUND
In the early hours of the morning on January 13, 1999, Brown
was installing a cassette stereo in a vehicle he had purchased
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. with his brother, Richard L. Stinnie, Jr. ("Stinnie"). The
vehicle was registered in Stinnie's name because Brown did not
have a valid driver's license. At approximately 1:30 a.m.,
Officer Catherine Birch of the Charlottesville Police Department
was patrolling the Hardy Drive area of Charlottesville. She
observed a vehicle with an opened door parked near an apartment
complex, but it was not in a proper parking space. Because there
had been several recent robberies in the area, Officer Birch
stopped her police cruiser behind the parked vehicle and checked
the vehicle's registration by "running" its license plate. While
retrieving the vehicle's license plate information, Officer Birch
noticed a person moving around inside the vehicle. The license
plate information revealed that the vehicle was registered to
"Richard Lee Stinnie." In order to ensure that the person in the
vehicle was also its owner and that the stereo was not being
stolen, Officer Birch approached Brown and requested his
identification and registration for the vehicle. Brown handed to
Officer Birch, Stinnie's learner's permit, which he removed from
his shirt pocket, and the vehicle's registration, which was in
Stinnie's name. While running the license check, Officer Birch
discovered that Stinnie's learner's permit was suspended. She
asked Brown if he knew that his learner's permit was suspended,
and he said no. Officer Birch then filled out a Virginia
Department of Motor Vehicles Suspension/Revocation/
Disqualification Notice form ("DMV Suspension Notice"), handed it
- 2 - to Brown for acknowledgment of receipt, and informed Brown that he
could not drive while his license was suspended. Brown signed the
DMV Suspension Notice "Richard L. Stinnie" and returned the form
to Officer Birch.
Officer Birch later discovered that the person who signed the
form was Brown, not Stinnie. Brown was indicted on April 19, 1999
for felonious and fraudulent forgery of a public document in
violation of Code § 18.2-168. On August 11, 1999, following a
bench trial, the trial court entered an order finding Brown
guilty. This appeal follows.
II. ANALYSIS
The sole issue before this Court is whether there was
sufficient evidence to prove beyond a reasonable doubt that Brown
intended to defraud the Commonwealth when he signed his brother's
name to the DMV Suspension Notice. Brown argues that the
evidence on the record is insufficient because he (1) testified
that he did not so intend, and (2) had no motive to defraud the
Commonwealth. The record reflects otherwise.
A. STANDARD OF REVIEW
Whether Brown intended to defraud the Commonwealth by
signing Stinnie's name to the DMV Suspension Notice is a
question of fact. See Hancock v. Commonwealth, 12 Va. App. 774,
783, 407 S.E.2d 301, 306 (1991) (citing Nobles v. Commonwealth,
218 Va. 548, 551, 238 S.E.2d 808, 810 (1977)). "[A trial
judge's] factual findings are entitled to the same weight as
- 3 - that accorded a jury verdict and will not be disturbed on appeal
unless plainly wrong or without evidence to support them."
Schneider v. Commonwealth, 230 Va. 379, 382, 337 S.E.2d 735, 736
(1985) (citing Evans v. Commonwealth, 215 Va. 609, 613, 212
S.E.2d 268, 271 (1975); Granberry v. Commonwealth, 184 Va. 674,
678, 36 S.E.2d 547, 548 (1946)). On review, this Court
considers the evidence in the record "in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deductible therefrom." Martin v.
Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).
The fact finder may make reasonable inferences from proven
facts, Hancock, 12 Va. App. at 782-83, 407 S.E.2d at 306 (citing
Johnson v. Commonwealth, 209 Va. 291, 295, 163 S.E.2d 570, 574
(1968)), and "[t]he mere possibility that the accused might have
had another purpose than that found by the fact finder is
insufficient to reverse a conviction on appeal." Id.
B. SUFFICIENCY OF THE EVIDENCE
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.
- 4 - (Emphasis added). Forgery is a specific intent crime in
Virginia, Campbell v. Commonwealth, 14 Va. App. 988, 990, 421
S.E.2d 652, 653 (1992), aff’d in part, 246 Va. 174, 431 S.E.2d
648 (1993); see Johnson v. Commonwealth, 37 Va. App. 634, 641,
561 S.E.2d 1, 4 (2002), and intent to defraud is a necessary
element of the offense of forgery under Code § 18.2-168. See
Campbell, 14 Va. App. at 990, 421 S.E.2d at 653.
A conviction for forgery under Code § 18.2-168 requires the
Commonwealth to prove beyond a reasonable doubt that Brown
intended to defraud the Commonwealth by signing Stinnie's name to
the DMV Suspension Notice. "Intent to defraud" has been defined
by this Court as acting "with an evil intent, or with the
specific intent to deceive or trick." Id. Intent "may, and
often must, be inferred from the facts and circumstances in a
particular case." Ridley v. Commonwealth, 219 Va. 834, 836, 252
S.E.2d 313, 314 (1979). We must "'look to the conduct and
representations of the defendant.'" Rader v. Commonwealth, 15
Va. App. 325, 329, 423 S.E.2d 207, 210 (1992) (quoting Norman v.
Commonwealth, 2 Va. App. 518, 519, 346 S.E.2d 44, 45 (1986)).
The trial court reasonably concluded from the evidence
before it that Brown forged his brother's signature to prolong
his deception of being the person whose license was given to the
officer, or that the person whose license had been suspended was
given personal notice of the suspension, by the officer. Brown
testified that when Officer Birch asked him who owned the
- 5 - vehicle, he responded, "that it was mine," although he knew the
vehicle was registered in Stinnie's name. When asked by Officer
Birch for identification, Brown gave her Stinnie's learner's
permit. Officer Birch found the learner's permit to be
suspended and gave Brown a DMV Suspension Notice form. Brown
signed Stinnie's name to the form acknowledging receipt of
notice, falsely representing to the officer that she had
personally served the notice of suspension on Stinnie as the
signatures on the form reflected.
Brown argues that he possessed an innocent state of mind
when he signed the notice of suspension form. He testified that
he was upset about being questioned by Officer Birch and "just
wanted her to go." Furthermore, within one day of signing
Stinnie's name on the DMV Suspension Notice, he informed his
brother of the suspension. Brown contends that this subsequent
action evidences his innocent intent. The trial judge
reasonably discarded Brown's testimony. The credibility and
weight accorded to testimony of witnesses are determinations
exclusively within the purview of the fact finder. See Long v.
Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473, 476 (1989)
(citing Barker v. Commonwealth, 230 Va. 370, 373, 337 S.E.2d
729, 732 (1985)). The evidence supports the trial judge's
finding that Brown intended Officer Birch to believe that he was
Stinnie and that she had personally served the notice of
suspension on Stinnie, as the form reflected. So finding, the
- 6 - court could conclude from the evidence that Brown was guilty of
forgery under Code § 18.2-168 when he signed Stinnie's name on
the DMV Suspension Notice.
Accordingly, the decision of the circuit court is affirmed.
Affirmed.
- 7 -