Morgan Sinclair Goodwin v. Commonwealth of Virginia , 64 Va. App. 322 ( 2015 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Petty, Beales and Decker
PUBLISHED
Argued by teleconference
MORGAN SINCLAIR GOODWIN
OPINION BY
v. Record No. 0190-14-3 JUDGE MARLA GRAFF DECKER
FEBRUARY 3, 2015
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF AUGUSTA COUNTY
Paul M. Peatross, Jr., Judge Designate
Duane Barron, Deputy Public Defender, for appellant.
Virginia B. Theisen, Senior Assistant Attorney General (Mark R.
Herring, Attorney General, on brief), for appellee.
Morgan Sinclair Goodwin appeals his three convictions for uttering a public record, in
violation of Code § 18.2-168. He argues that the Commonwealth failed to present sufficient
evidence to prove that he did anything other than sign three summonses with a false name. The
appellant suggests that his actions did not constitute utterings under Virginia law because the
evidence failed to prove that he acted with the “purpose of obtaining the [object] mentioned” in
the summonses. We hold that the evidence was sufficient to prove that the appellant uttered
public records. Specifically, the record supports the conclusion that the appellant, through his
actions, asserted that his false signatures on the summonses were good and valid. These actions
were sufficient to prove uttering. Therefore, we affirm the convictions.
I. BACKGROUND
On appeal of a challenge to the sufficiency of the evidence, this Court views the record in
the light most favorable to the Commonwealth, the prevailing party at trial. Stevenson v.
Commonwealth, 258 Va. 485, 488, 522 S.E.2d 368, 368 (1999); Henry v. Commonwealth, 63
Va. App. 30, 35, 753 S.E.2d 868, 870 (2014). To do so, we “‘discard all evidence of the accused
that conflicts with that of the Commonwealth.’” Henry, 63 Va. App. at 37, 753 S.E.2d at 871
(quoting Holcomb v. Commonwealth, 58 Va. App. 339, 346, 709 S.E.2d 711, 714 (2011)). The
Court also accepts as true all the credible evidence favorable to the prosecution as well as all fair
inferences in support of the conviction that may be drawn from the record. Id. Viewed under
this standard, the evidence is as follows.
On November 8, 2012, Deputy Scott Craig of the Augusta County Sheriff’s Department
stopped the appellant’s vehicle for a speeding violation. Before Deputy Craig approached the
automobile, the appellant, who was driving, got out of the car. The appellant turned, placed his
hands behind his back, and announced that he did not have a driver’s license.
The deputy assured him that driving without a license did not necessarily warrant an
arrest. The appellant identified himself as Christopher Venable, stated that he was from New
York, and provided Deputy Craig with a date of birth and social security number. Due to
technical difficulties with equipment, Craig was unable to verify the out of state information with
dispatch.
The deputy issued three summonses to the appellant in the name of Christopher Venable
for speeding, driving without an operator’s license, and failure to wear a seatbelt. The appellant
signed the summonses as “Christopher Venable” and returned them to Deputy Craig. He signed
each document below two pre-printed sentences: “I promise to appear at the time and place
shown above, signing this summons is not an admission of guilt. I certify that my current
mailing address is as shown below.” Two of the documents included “checked” boxes informing
the recipient that he could avoid going to court if he followed the accompanying instructions.
Over a month later, Deputy Craig learned the appellant’s true identity. The appellant had
represented himself as Christopher Venable during a separate encounter with Officer Robert
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Dean of the Waynesboro Police Department. When Dean saw the name Christopher Venable on
a recent record, he contacted Deputy Craig and provided the deputy with the appellant’s actual
name.
At the completion of the Commonwealth’s case, the appellant moved to strike the
uttering charges, alleging that the evidence was insufficient to support them. He argued that the
Commonwealth failed to prove that he sought to obtain an “object mentioned in the [forged]
writing.” The court denied the motion. During closing arguments, the appellant renewed the
motion. The trial court again denied the motion, holding that the forgeries were “the signature[s]
of Christopher Venable.” The court further explained that the appellant “intended to have the
officer believe that” he was Christopher Venable “and handed [them] back with that false
impression” and “that was the object of his uttering.”
The court convicted the appellant of three counts of uttering a public record, in violation
of Code § 18.2-168.1 He was sentenced to a total of nine years in prison for these offenses, with
eight years suspended.
II. ANALYSIS
The appellant argues that the evidence was insufficient to prove uttering.2 Relying on
Bennett v. Commonwealth, 48 Va. App. 354, 357, 631 S.E.2d 332, 333 (2006), he suggests that
an uttering occurs only when the act was “made in the prosecution of the purpose of obtaining
the [object] mentioned in the said writing.” The Commonwealth responds that “uttering,” as
used in the statute at issue, is complete upon proof of “an assertion by word or action that a
writing known to be forged is good and valid.”
1
The appellant’s convictions for forging public records are not challenged in this appeal.
2
The appellant does not contest that the traffic summonses are public records. See
Rodriquez v. Commonwealth, 50 Va. App. 667, 671, 653 S.E.2d 296, 298 (2007) (holding that
the summonses issued to the defendant were “public records” under Code § 18.2-168).
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The relevant facts are not in dispute. Rather, the question in this appeal is whether the
facts of this case meet the definition of “uttering” under Code § 18.2-168. In order to resolve
this issue, we must determine the applicable definition of “uttering,” and then review the relevant
evidence supporting the appellant’s convictions to ascertain whether it was sufficient to prove
that he uttered the forged summonses.3
A. Meaning of Uttering for Purposes of the Statute
The interpretation of a statute is a question of law which this Court reviews de novo on
appeal. Baker v. Commonwealth, 278 Va. 656, 660, 685 S.E.2d 661, 663 (2009); Belew v.
Commonwealth, 62 Va. App. 55, 62, 741 S.E.2d 800, 803 (2013). Generally, an undefined
statutory term “‘must be given its ordinary meaning, given the context in which it is used.’”
Lawlor v. Commonwealth, 285 Va. 187, 237, 738 S.E.2d 847, 875 (2013) (quoting Meeks v.
Commonwealth, 274 Va. 798, 802, 651 S.E.2d 637, 639 (2007)).
Code § 18.2-168, in pertinent part, forbids “any person [from] forg[ing] a public
record . . . or [from] utter[ing], or attempt[ing] to employ as true, such forged record . . . knowing
the same to be forged.” The code section prohibits two distinct offenses: forging a public record
and uttering, or attempting to employ as true, the forged record.4 Bennett, 48 Va. App. at 357,
631 S.E.2d at 333; see also Bateman v. Commonwealth, 205 Va. 595, 599, 139 S.E.2d 102, 105
3
We do not consider the Commonwealth’s contention that under Rule 5A:18, the
appellant procedurally defaulted any argument that the evidence was insufficient to prove that he
made the requisite assertion because Deputy Craig took the documents from him. See 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 . . . .”). Although the
Commonwealth’s point that the appellant did not raise this issue below is well founded, the
appellant acknowledged at oral argument that he did not intend to raise that argument on brief.
(Oral Argument Audio at 22:52).
4
A separate statute, Code § 18.2-172, prohibits the forgery and uttering of instruments
other than public records and currency. See, e.g., Beiler v. Commonwealth, 243 Va. 291, 415
S.E.2d 849 (1992) (affirming convictions under Code § 18.2-172 for forging and uttering two
checks).
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(1964) (holding that Code § 18.1-96 (1960), the precursor to Code § 18.2-172, “list[ed] two
offenses in the disjunctive: one, forgery, and the other, uttering or attempting to employ as true a
forged writing”).
The Supreme Court of Virginia considered the definition of “uttering” in Bateman, 205
Va. 595, 139 S.E.2d 102. The Court referenced Black’s Law Dictionary’s entry on uttering,
“‘[t]o put or send [as a forged check] into circulation[;] . . . to utter and publish.’” Id. at 599-600,
139 S.E.2d at 106 (first and second alterations in original) (quoting Black’s Law Dictionary 1716
(4th ed. 1957)). See generally Elliott v. Commonwealth, 277 Va. 457, 463, 75 S.E.2d 178, 182
(2009) (“When the language of a statute is unambiguous, courts are bound by the plain meaning
of that language and may not assign a construction that amounts to holding that the General
Assembly did not mean what it actually has stated.”). The Court ultimately defined an uttering
as “an assertion by word or action that a writing known to be forged is good and valid.”
Bateman, 205 Va. at 600, 139 S.E.2d at 106.
In Bennett, this Court applied the definition of uttering provided in Bateman in the
context of Code § 18.2-168. Bennett, 48 Va. App. at 357, 631 S.E.2d at 333. Bennett had
submitted an application for a driver’s license under an alias. Id. During the application process,
he signed a false name on “a computer screen bearing his digitalized image.” Id. On appeal,
Bennett argued that the single act of signing the false name could not constitute both a forgery
and an uttering of a public record, because he did not “put the forged document into circulation.”
Id. at 358, 631 S.E.2d at 333. This Court rejected that notion and explained that the forged
document “‘is uttered when it is offered to another as genuine, without regard to whether it is so
accepted.’” Id. (quoting 4 Charles E. Torcia, Wharton’s Criminal Law § 496 (15th ed. 1996)).
The Court further made clear that there was “no requirement that a forged instrument be
negotiated.” Id. at 358, 631 S.E.2d at 334. The opinion adopted the definition of uttering
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provided in Bateman, “‘an assertion by word or action that a writing known to be forged is good
and valid.’” Id. at 357, 631 S.E.2d at 333 (quoting Bateman, 205 Va. at 600, 139 S.E.2d at 106).
The Court reasoned that the act of signing was an assertion to the Department of Motor Vehicles
agent that the false name was “good and valid.” Id. at 358, 631 S.E.2d at 334. The signing
triggered the production of the fraudulent license and, therefore, simultaneously constituted a
forgery and an uttering. Id. Thus, both the definition applied in Bennett and its ultimate holding
are consistent with Bateman.
The appellant cites specific language in Bennett as controlling. The Bennett opinion
does, as the appellant suggests, include language that an uttering is comprised of an assertion that
a forged writing is true if the assertion “‘was made in the prosecution of the purpose of obtaining
the [object] mentioned in the said writing.’” 48 Va. App. at 357, 631 S.E.2d at 333 (alteration in
original) (quoting Sands v. Commonwealth, 61 Va. (20 Gratt.) 800, 823-24 (1871)).5 The
appellant contends that this language signifies that in order for an action to constitute an uttering,
it not only must be an assertion that a forged writing is good and valid, the action must also be
5
In Sands, the case from which the Bennett language cited by the appellant originated,
the Supreme Court of Virginia reviewed convictions for forging and uttering a written document.
The language from Sands that the jury should have been instructed that an assertion “is an
uttering . . . provided that [it] was made in the prosecution of the purpose of obtaining the money
mentioned in said writing” has no application here because the case dealt with a jury instruction
specific to the Commonwealth’s theory of guilt charged in the indictment. Sands, 61 Va. (20
Gratt.) at 823-24; see also Cooper v. Commonwealth, 2 Va. App. 497, 500, 345 S.E.2d 775, 777
(1986) (noting that jury instructions should inform the jury “‘as to the law of the case applicable
to the facts’” (quoting 75 Am. Jur. 2d Trial § 573 (1974))); cf. Shaikh v. Johnson, 276 Va. 537,
546, 666 S.E.2d 325, 329 (2008) (cautioning against using language from an appellate opinion in
jury instructions). Further, Sands involved an uttering of a private financial document, not a
public record. Sands, 61 Va. (20 Gratt.) at 823-24. Applying Sands to Code § 18.2-168 would
be at odds with the statutory language because that language specifically encompasses the
forgery and uttering of “public documents.” The statute is written to include all public
documents, not exclusively documents with writing pertaining to money. Indeed, Bateman,
which also involved money and was decided ninety-three years after Sands, did not even cite the
Sands case or the expanded language relied upon by the appellant. Bateman, 205 Va. 599-600,
139 S.E.2d at 105-06 (reviewing convictions for uttering forged checks).
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done in pursuit of a goal specifically mentioned in the forged document. A full reading of the
opinion, however, demonstrates that the actual analysis did not consider the purpose stated in the
writing to which the defendant affixed his false signature.
The reference to the purpose mentioned in the writing was “not essential to the Court’s
judgment” in Bennett and, as such, “is unbinding dicta.” Sarafin v. Commonwealth, __ Va. __,
__, 764 S.E.2d 71, 77 (2014). In other words, the language relied upon by the appellant does not
bind this Court. See, e.g., Cooper v. Commonwealth, 54 Va. App. 558, 571, 680 S.E.2d 361,
367-68 (2009) (explaining that dicta can be persuasive but is not controlling). Consequently,
while the Bennett holding is instructive and consistent with the common definition of uttering, it
compels a result contrary to the appellant’s argument. We decline to hold, as the appellant
suggests, that an uttering occurs only when the action is done in pursuit of a purpose specifically
mentioned in the forged writing.
Our conclusion that Bennett did not place an additional requirement on the general
statutory meaning of “uttering” and, instead, applied the common definition, is supported by
Bateman and the many Virginia appellate opinions that reviewed uttering convictions without
discussing the “purpose of obtaining the object mentioned” in the forged writing. See, e.g.,
Oliver v. Commonwealth, 35 Va. App. 286, 295-96, 544 S.E.2d 870, 874-75 (2001) (affirming
uttering conviction under Code § 18.2-172); Dillard v. Commonwealth, 32 Va. App. 515, 519,
529 S.E.2d 325, 327 (2000) (analyzing sufficiency of the evidence to support convictions for
forging and uttering a check); Ramsey v. Commonwealth, 2 Va. App. 265, 269-70, 343 S.E.2d
465, 468-69 (1986) (affirming conviction for uttering a forged check); see also Va. Model Jury
Inst. - Crim. Inst. No. G30.300. Based upon this Court’s de novo review of the statute, we hold
that in order to sustain the convictions for uttering under Code § 18.2-168, the Commonwealth
was required to prove that the appellant knew that the writings were forged, yet asserted that they
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were “good and valid.” We next review whether the evidence supporting the uttering
convictions was sufficient to prove that the appellant’s actions met this definition.
B. Sufficiency of the Evidence
When considering a challenge to the sufficiency of the evidence, we must affirm the
decision below unless the trial court’s decision was plainly wrong or lacked evidence to support
it. See, e.g., Allison v. Commonwealth, 207 Va. 810, 811, 153 S.E.2d 201, 202 (1967); Henry,
63 Va. App. at 37, 753 S.E.2d at 871. In our review of the record, we accord the trial court’s
factual determinations “great deference.” See, e.g., Towler v. Commonwealth, 59 Va. App. 284,
297, 718 S.E.2d 463, 470 (2011).
During a routine traffic stop, the appellant identified himself as Christopher Venable to
Deputy Craig. The appellant told the deputy that he was from New York and provided him with
a date of birth and social security number. Based on the appellant’s representations, the deputy
issued three summonses to the appellant under the name of Christopher Venable. The appellant
signed the summonses as “Christopher Venable” and returned them to Deputy Craig. The trial
court found that the appellant uttered the forged summonses when he handed them back to
Deputy Craig with the intent to convey that the false signatures were true. Viewing the evidence
in the light most favorable to the Commonwealth, the record supports the reasonable conclusion
that, through his actions, the appellant asserted that his forged name was true and that the forged
summonses were good and valid. Thus, the trial court’s finding was not plainly wrong, and the
convictions were supported by the evidence.
III. CONCLUSION
We hold that the definition of uttering is “an assertion by word or action that a writing
known to be forged is good and valid.” Bateman, 205 Va. at 600, 139 S.E.2d at 106. Under this
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definition, the evidence was sufficient for the trial court to conclude that the appellant uttered the
summonses. Therefore, we affirm the convictions for uttering a public record.
Affirmed.
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