COURT OF APPEALS OF VIRGINIA
Present: Judges Alston, Chafin and Malveaux Argued at Salem, Virginia UNPUBLISHED
LATOYA DENISE JEFFERSON MEMORANDUM OPINION* BY v. Record No. 0638-17-3 JUDGE MARY BENNETT MALVEAUX MARCH 20, 2018 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY Stacey W. Moreau, Judge
Carlos A. Hutcherson (Hutcherson Law, PLC, on brief), for appellant.
Robert H. Anderson, III, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Latoya Denise Jefferson (“appellant”) was convicted of two counts of felony welfare
fraud, in violation of Code § 63.2-522. On appeal, she argues the trial court erred by: (1) not
permitting her to complete her cross-examination of a witness; (2) denying her motion to strike
because the evidence was insufficient to prove she received overpayments of $200 or more; and
(3) admitting certain evidence during the sentencing phase of her trial. For the reasons that
follow, we affirm appellant’s convictions.
I. BACKGROUND
“In accordance with familiar principles of appellate review, the facts [are] stated in the
light most favorable to the Commonwealth, the prevailing party at trial.” Scott v.
Commonwealth, 292 Va. 380, 381, 789 S.E.2d 608, 608 (2016).
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. Appellant’s Benefits Applications and Benefits Received
During 2015 and 2016, appellant shared a household with her five children and her
boyfriend. Appellant received benefits through the Supplemental Nutrition Assistance Program
(“SNAP”) and fuel assistance through the Pittsylvania County Department of Social Services
(“DSS”).
In February 2015, appellant completed a renewal application in order to continue
receiving SNAP benefits. The application required appellant to disclose her household income,
including “money from all jobs,” whether “full time, part time, seasonal, temporary, [or]
self-employment.” Appellant disclosed her income from Citi Trends and her boyfriend’s income
from Capps Shoes. Appellant did not disclose her income from a job with Frito-Lay that she had
held since November 2014.
Sharon Stephens, an eligibility worker with DSS, testified that she processed the renewal
application and telephoned appellant to review the document with her. Appellant did not
disclose any employment beyond what she had reported in the application. Stephens used the
information from the application and the telephone interview to determine the amount of
appellant’s SNAP benefits.
In September 2015, appellant was required to submit an interim report noting any
changes to the information provided in her renewal application. In completing the report,
appellant indicated there had been no changes in her household employment or employment
income since filing the renewal application in February.
In November 2015, appellant completed a fuel assistance application which required her
to list all sources of household income and provide the names of all employers. As in her
renewal application, appellant disclosed only Citi Trends and Capps Shoes as employers and
sources of employment income.
-2- Appellant completed another renewal application for SNAP benefits in February 2016.1
She disclosed household income from Citi Trends and Capps Shoes and answered “no” when
asked whether anyone in her household had been fired or laid off, quit a job, or reduced their
work hours since she applied for benefits.
Sharon Stephens of DSS received the renewal application, ran a check for additional
income, and discovered that appellant had held an unreported job since 2014. Stephens
telephoned appellant to review the application with her and asked appellant about the
undisclosed employment. Appellant told Stephens she was no longer working at that job. A
human resources coordinator for Frito-Lay later testified that appellant had worked for the
company from November 2014 until February 2016.
Dawn Hankins, DSS’s fraud investigator, met with appellant and reviewed with her the
2015 and 2016 renewal applications, the September 2015 interim report, and the November 2015
fuel assistance application. During the meeting, appellant acknowledged reading and
understanding the language in the 2015 renewal application which said she could be breaking the
law by providing false, incomplete, or incorrect information. Appellant told Hankins she “might
have had a part-time job” that started around December 2014, but did not report it in February
2015 because she had not known how long she would be working at Frito-Lay. Appellant also
told Hankins she did not think she had to report her Frito-Lay income because it did not exceed
the income limits for SNAP benefits. When Hankins asked appellant about her 2016 renewal
application, and whether appellant had had any employment or income beyond what she
disclosed in that document, appellant replied that she was not working at the additional job when
she completed the application. When Hankins pointed out that the application asked whether
1 Appellant dated the renewal application February 28, 2015, but later told DSS’s fraud investigator that she must have stated the year incorrectly because “we had just changed over from one year to the next.” DSS date-stamped the application as received on March 1, 2016. -3- anyone in the household had been laid off or fired, quit a job, or gone on reduced hours,
appellant stated that she “didn’t know she had to put the job there.” Hankins told appellant she
had failed to disclose her additional employment income in the fuel assistance application, and
appellant agreed.
Hankins testified that the more income appellant had earned, the fewer benefits she
would have been entitled to receive. She explained that a qualifying applicant receives some
deductions from their gross monthly income, and their monthly benefits are then based on that
adjusted gross income. Among the deductions appellant qualified for were a standard deduction
based on the size of her household, as well as shelter and utility deductions. Hankins testified
that appellant also received a 20% earned income deduction from the reported income from Citi
Trends and Capps Shoes. She also explained that, as per DSS policy, unreported income is not
eligible for the 20% earned income deduction—“[y]ou don’t get anything off the top of that
[income].”
Using appellant’s disclosed income and her pay records from Frito-Lay, Hankins
calculated the amount of benefits overpaid to appellant month by month and on a cumulative
basis. Hankins calculated that appellant received a total overpayment of SNAP benefits in the
amount of $3,417 and a total fuel assistance overpayment of $37.14.2 During the period covered
by appellant’s first indictment, from March 1 to August 31, 2015, appellant received $1,900 in
SNAP overpayments. During the period covered by appellant’s second indictment, from
September 1, 2015 to February 29, 2016, appellant received $1,517 in SNAP overpayments.
2 As noted below, Hankins testified at sentencing that an error occurred in the calculation of SNAP benefits due to appellant in March 2015. When Hankins corrected the error, appellant’s total SNAP benefits overpayment increased by $18, from $3,399 to $3,417. -4- Cross-Examination and Motion to Strike
During cross-examination, counsel for appellant asked Hankins what the impact on
appellant’s benefits payments would have been if appellant had reported her income from
Frito-Lay. Hankins replied that if appellant had reported those earnings, they would have been
added to the earnings from Citi Trends and Capps Shoes to calculate appellant’s gross household
income. Appellant would have received deductions from that gross amount, but because
appellant would have had more reported income, the amount of her benefits would have
decreased. When counsel asked, “[b]ut that number would have been the number that she would
have been entitled to,” the Commonwealth objected, arguing that appellant’s question assumed
facts not in evidence and had already been testified about. The trial court sustained the
objection, stating that “it’s . . . not relevant as to what we’re here on today. . . . The allegation is
she failed to report it. You’re trying to say[,] well, if she had, her benefits would have been
reduced but only because of twenty percent. It’s irrelevant. It doesn’t matter.” When counsel
for appellant asked whether the trial court was stating that the amount of the benefits
overpayment was irrelevant, the court clarified that it was not. However, the court reiterated that
“[i]t’s a hypothetical that doesn’t mean anything. . . . [T]he evidence is that if you don’t report
[income] then when they recalculate it, you do not get the [20% earned income] benefit. . . . It’s
a hypothetical that’s irrelevant.”
At the close of the Commonwealth’s case, appellant moved to strike, arguing that the
evidence did not establish that the value of the benefits she improperly received was $200 or
more. The trial court denied the motion. Appellant was convicted of two counts of felony
welfare fraud, in violation of Code § 63.2-522.
-5- Evidence at Sentencing
At the sentencing hearing, Hankins testified that while reviewing her calculations, she
discovered there had been an error in calculating appellant’s March 2015 SNAP benefits and
overpayment. She stated that appellant was eligible to receive a housing deduction that month as
well as an adjustment for child support received and that neither the deduction nor the
adjustment had been applied. Based upon a recalculation that took those matters into account,
Hankins stated that appellant’s total overpayment for SNAP benefits increased by $18. The
amount of appellant’s fuel assistance overpayment remained unchanged.
Appellant did not object to Hankins’ testimony, but did object to the Commonwealth’s
introduction of a one-page document she had prepared which summarized that testimony. The
trial court admitted the document over appellant’s objection.
Appellant timely appealed her convictions.
II. ANALYSIS
A. Cross-Examination
Appellant argues the trial court erred when it did not allow her to finish cross-examining
Hankins about the amount of benefits she would have received had she reported her Frito-Lay
income. This curtailment of her cross-examination, appellant contends, violated her rights under
the Confrontation Clause of the Sixth Amendment.
“[W]e review a trial court’s decision to admit or exclude testimony using an abuse of
discretion standard.” Jin v. Commonwealth, 67 Va. App. 294, 308, 795 S.E.2d 918, 925 (2017)
(quoting Commonwealth v. Proffitt, 292 Va. 626, 634, 792 S.E.2d 3, 6 (2016)).
“Cross-examination of prosecution witnesses ‘is “fundamental to the truth-finding process and is
an absolute right guaranteed to an accused by the [C]onfrontation [C]lause of the Sixth
Amendment.”’” Id. (quoting Maynard v. Commonwealth, 11 Va. App. 437, 444, 399 S.E.2d
-6- 635, 639 (1990) (en banc)). However, “‘while the liberties of the cross-examiner are very great,’
they are not unlimited.” Scott v. Commonwealth, 18 Va. App. 692, 694, 446 S.E.2d 619, 620
(1994) (quoting Barnard v. Commonwealth, 134 Va. 613, 622, 114 S.E. 563, 565 (1922)).
“Indeed, the Supreme Court has held that ‘trial judges retain wide latitude insofar as the
Confrontation Clause is concerned to impose reasonable limits on . . . cross-examination.’”
James v. Commonwealth, 254 Va. 95, 98, 487 S.E.2d 205, 207 (1997) (quoting Delaware v. Van
Arsdall, 475 U.S. 673, 679 (1986)). Such reasonable limits may be “based on concerns about,
among other things, harassment, prejudice, confusion of the issues, . . . or interrogation that is
repetitive or only marginally relevant.” Jin, 67 Va. App. at 308-09, 795 S.E.2d at 925 (quoting
Van Arsdall, 475 U.S. at 679). “The test establishing relevance is not whether the proposed
evidence conclusively proves a fact, but whether it has any tendency to establish a fact at issue.”
Holsapple v. Commonwealth, 39 Va. App. 522, 537, 574 S.E.2d 756, 763 (2003) (en banc)
(quoting Wise v. Commonwealth, 6 Va. App. 178, 188, 367 S.E.2d 197, 203 (1988)). See also
Va. R. Evid. 2:401 (“‘Relevant evidence’ means evidence having any tendency to make the
existence of any fact in issue more probable or less probable than it would be without the
evidence.”).
Appellant’s argument is without merit. Any testimony by Hankins about what
appellant’s benefits would have been had she disclosed the income would have been purely
hypothetical, and thus irrelevant, since no evidence indicated appellant did disclose that income.
Further, the evidence at trial was that, as per DSS policy, appellant was not entitled to a 20%
earned income deduction from undisclosed income. Consequently, any testimony by Hankins
about the effects of applying that deduction to that income would not have had any tendency to
establish the fact in issue, namely, how much appellant received in benefits overpayments.
Because appellant’s question on cross-examination was irrelevant, we conclude that the trial
-7- court imposed a reasonable limit when it disallowed that question and that doing so did not rise
to the level of a violation of appellant’s Sixth Amendment right to confrontation. Accordingly,
the trial court did not abuse its discretion by disallowing appellant’s question on
cross-examination.
B. Sufficiency
Appellant argues the trial court erred in denying her motion to strike, because the
evidence was insufficient to prove that she received overpayments of $200 or more, and thus that
her offenses were felonies rather than misdemeanors. She maintains that the method DSS used
to calculate her overpayments was improper and did not provide the trier of fact with sufficient
information to reasonably determine the overpayment amounts.
When considering a challenge to the sufficiency of evidence on appeal, “we review the
evidence in the light most favorable to the Commonwealth,” the prevailing party at trial,
“granting to it all reasonable inferences fairly deducible therefrom.” Sierra v. Commonwealth,
59 Va. App. 770, 774, 722 S.E.2d 656, 657 (2012) (quoting Archer v. Commonwealth, 26
Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)). Further, the Court “discard[s] the evidence of the
accused in conflict with that of the Commonwealth.” Johnson v. Commonwealth, 53 Va. App.
79, 99, 669 S.E.2d 368, 378 (2008) (quoting Parks v. Commonwealth, 221 Va. 492, 498, 270
S.E.2d 755, 759 (1980)). In conducting our inquiry, “the relevant question is, after reviewing the
evidence in the light most favorable to the [Commonwealth], whether any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.” Sullivan v.
Commonwealth, 280 Va. 672, 676, 701 S.E.2d 61, 63 (2010). “This familiar standard gives full
play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh
the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Kelly v.
Commonwealth, 41 Va. App. 250, 257-58, 584 S.E.2d 444, 447 (2003) (en banc) (quoting
-8- Jackson v. Virginia, 443 U.S. 307, 319 (1979)). We do not “substitute our judgment for that of
the trier of fact,” Wactor v. Commonwealth, 38 Va. App. 375, 380, 564 S.E.2d 160, 162 (2002),
and “will reverse only where the trial court’s decision is ‘plainly wrong or without evidence to
support it,’” Calloway v. Commonwealth, 62 Va. App. 253, 261, 746 S.E.2d 72, 76 (2013)
(quoting Seaton v. Commonwealth, 42 Va. App. 739, 746, 595 S.E.2d 9, 12 (2004)).
Code § 63.2-522 provides, in pertinent part, that “[w]hoever obtains . . . by means of a
willful false statement or representation, . . . public assistance or benefits from other programs
. . . to which he is not entitled or who fails to comply with the provisions of [Code] § 63.2-513 is
guilty of larceny.” Code § 63.2-513 provides that “[a]ny recipient who knows or reasonably
should know that [a] change in [financial] circumstances will materially affect his eligibility for
assistance or the amount thereof and willfully fails” to notify DSS of the change “is guilty of a
violation of [Code] § 63.2-522.”3
The evidence at trial, viewed in the light most favorable to the Commonwealth and
affording it all reasonable, deducible inferences, showed that appellant received benefits
overpayments of $200 or more during each of the periods covered by her two indictments.
DSS’s overpayment calculations reflect excess SNAP benefits of $1,900 during the period
covered by appellant’s first indictment, and $1,517 during the period covered by appellant’s
second indictment. Further, DSS’s fraud investigator testified that while disclosed income is
eligible to receive a 20% earned income deduction for purposes of calculating SNAP benefits,
undisclosed income is not eligible to receive that deduction. Thus, the evidence directly
contradicts appellant’s argument that her undisclosed income should have been treated as
3 Appellant does not challenge the sufficiency of the evidence that she made willful false statements or representations to obtain benefits she was not entitled to, or that she failed to comply with the reporting requirements of Code § 63.2-513. She challenges only whether, as charged in her indictments, the benefits she received in violation of Code § 63.2-522 amounted to $200 or more. -9- disclosed income for purposes of calculating her benefit overpayments. Since a rational trier of
fact could have found from the evidence that appellant received welfare benefits overpayments
worth $200 or more during each of the indictment periods, the trial court’s denial of the motion
to strike was neither plainly wrong nor without evidentiary support.4
C. Evidence at Sentencing
Lastly, appellant argues that the trial court erred when it admitted, during the sentencing
phase, evidence regarding a recalculation of appellant’s benefits overpayments.
“The admissibility of evidence is within the broad discretion of the trial court, and a
ruling will not be disturbed on appeal in the absence of an abuse of discretion.” Abdo v.
Commonwealth, 64 Va. App. 468, 473, 769 S.E.2d 677, 679 (2015) (quoting Blain v.
Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988)). Further, “[w]e ‘will not
reverse a trial court for evidentiary errors that were harmless to the ultimate result.’” Carter v.
4 Appellant advances several additional arguments with respect to the sufficiency of the evidence. She first argues that since neither Code § 63.2-513 nor Code § 63.2-522 specifies whether the offense identified in Code § 63.2-522 constitutes petit or grand larceny, and since penal statutes are to be construed in the light most favorable to defendants, “the charge is limited to a petit larceny.” This argument is without merit. Where conviction under a statute is made larceny, without differentiation as to grand or petit, it must simply “be read in connection with Code §§ 18.2-95 and 18.2-96 to determine the degree of larceny.” Little v. Commonwealth, 59 Va. App. 725, 730, 722 S.E.2d 317, 319 (2012) (discussing larceny in the context of a conviction for receiving stolen property, in violation of Code § 18.2-108(A), for which a defendant “shall be deemed guilty of larceny”). See also Foster v. Commonwealth, 44 Va. App. 574, 577-78, 606 S.E.2d 518, 519-20 (2004) (reviewing the evolution of larceny at common law and noting that “[t]he term ‘larceny’ includes both petit and grand grades of the offense”). Appellant further argues that a provision “similar” to Code § 63.2-522—Code § 18.2-186.2—“makes the actions [a]ppellant is accused of . . . misdemeanor[s], without any regard to any amount of overpaid benefits or assistance received.” This argument is without merit. Code § 18.2-186.2 criminalizes the use of false representations or non-disclosures to obtain housing assistance program benefits. As such, it is inapposite to the instant case. Appellant also argues that the evidence at sentencing demonstrates that the overpayment calculations were incorrect and that since the distinction between felony and misdemeanor convictions depends upon those calculations, the Commonwealth failed to prove felony offenses beyond a reasonable doubt. This argument is also without merit, since the evidence adduced at sentencing affected only the calculation of a single month’s SNAP benefits and overpayment and, in fact, increased the total amount of SNAP overpayments appellant received by $18. - 10 - Commonwealth, 293 Va. 537, 544, 800 S.E.2d 498, 502 (2017) (quoting Shifflett v.
Commonwealth, 289 Va. 10, 12, 766 S.E.2d 906, 908 (2015)). “Under the harmless error
doctrine, if there was ‘a fair trial on the merits and substantial justice has been reached, no
judgment shall be arrested or reversed . . . for any . . . defect, imperfection, or omission in the
record, or for any error committed on the trial.’” Id. at 545, 800 S.E.2d at 502 (quoting Shifflett,
289 Va. at 12, 766 S.E.2d at 908). See also Code § 8.01-678. “[W]e apply the standard for
non-constitutional harmless error, which is that such error is harmless if we can be sure that it did
not ‘influence the [trier of fact]’ or had only a ‘slight effect.’” Carter, 293 Va. at 545, 800 S.E.2d
at 502 (quoting Shifflett, 289 Va. at 12, 766 S.E.2d at 908).
We first note that while appellant assigns error to the trial court for “admitting evidence
during the sentencing phase[ ] regarding a recalculation of the alleged overpayment,” during
sentencing, appellant objected only to the admission of the document that summarized Hankins’
recalculations. Appellant did not object to Hankins’ testimony about those recalculations. “In
order to preserve an issue for appeal, ‘an objection must be timely made and the grounds stated
with specificity.’” McDuffie v. Commonwealth, 49 Va. App. 170, 177, 638 S.E.2d 139, 142
(2006) (quoting Marlowe v. Commonwealth, 2 Va. App. 619, 621, 347 S.E.2d 167, 168 (1986)).
“[A] litigant who opposes the admission of certain evidence has a duty to explain,
contemporaneously, why he contends such evidence should be excluded in order to preserve and
challenge that exclusion ruling on appeal.” Creamer v. Commonwealth, 64 Va. App. 185, 195,
767 S.E.2d 226, 231 (2015). See also Rule 5A:18 (“No ruling of the trial court . . . will be
considered as a basis for reversal unless an objection was stated with reasonable certainty at the
time of the ruling, except for good cause shown or to enable the Court of Appeals to attain the
ends of justice.”). Because appellant did not object to the admission of Hankins’ testimony, she
has not preserved the admission of that testimony as an issue for appellate review. Thus, we
- 11 - concern ourselves only with appellant’s timely objection to the admission of Hankins’ summary
document.
Assuming, without deciding, that the trial court erred in admitting Hankins’ document
during the sentencing phase, we conclude that any such error was harmless. Hankins testified,
without objection, to all of the information contained in the document. As the document was
merely duplicitous of Hankins’ testimonial evidence, its admission could have had no more than
a slight effect on the trial court as trier of fact.
III. CONCLUSION
We hold that the trial court did not abuse its discretion in curtailing cross-examination.
Further, the trial court did not err in denying appellant’s motion to strike, as the Commonwealth
produced sufficient evidence that appellant’s benefit overpayments exceeded $200. Finally, any
error in the admission of a document during appellant’s sentencing hearing was harmless. Thus,
we affirm the trial court’s judgment finding appellant guilty of two counts of felony welfare
fraud, in violation of Code § 63.2-522.
Affirmed.
- 12 -