Devan Elisa Koch v. Commonwealth ( 2007 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Haley and Senior Judge Annunziata
Argued at Alexandria, Virginia
DEVAN ELISA KOCH
MEMORANDUM OPINION* BY
v. Record No. 3078-05-4 JUDGE ROSEMARIE ANNUNZIATA
JANUARY 9, 2007
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAUQUIER COUNTY
Jeffrey W. Parker, Judge
S. Jane Chittom, Appellate Defender (Catherine E. P. Haas, Assistant
Appellate Defender; Virginia Indigent Defense Commission, on
brief), for appellant.
Karri B. Atwood, Assistant Attorney General (Robert F. McDonnell,
Attorney General, on brief), for appellee.
A jury convicted Devan Elisa Koch (Koch) of forgery and uttering of a public record in
violation of Code § 18.2-168. On appeal, Koch contends the evidence was insufficient to prove the
community service attendance sheet she was charged with altering was a public record within the
meaning of Code § 18.2-168. Koch also contends the trial court erred in admitting into evidence a
document providing Koch with notice that the community service attendance sheet was a public
record. Finding no error, we affirm Koch’s convictions.
FACTS
Under familiar principles of appellate review, we examine the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
therefrom. See Haskins v. Commonwealth, 31 Va. App. 145, 149-50, 521 S.E.2d 777, 779
(1999).
As a condition of Koch’s probation following a conviction in Fauquier County General
District Court, she was ordered to perform twenty-four hours of community service. Stephanie
Adams, a probation officer employed by the Fauquier County Office of Adult Court Services,
was assigned to supervise Koch in her probation.1 As a part of her duties, Adams was
responsible for reporting Koch’s compliance with the conditions of her probation to the
sentencing court.
Adams provided Koch with a community service attendance sheet for purposes of
documenting Koch’s performance of her community service hours. Adams explained to Koch
that she would be assigned to various sites to perform her hours of service. The supervisor of
each site was to sign the attendance sheet and record the date and hours Koch worked. Koch
signed a notice acknowledging that she was not to write upon the attendance sheet. Adams
testified that the attendance sheet could be used as evidence to prove to the court that a
probationer had not completed the required hours of community service.
Commonwealth’s Exhibit 3 was admitted as evidence of the written notice Koch received
advising her that she was not to write on the community service attendance sheet. Koch had
signed and dated the notice. The notice included the following statement:
The community service log sheet is considered a public record.
Forgery of the log sheet is a Class 4 felony which could result in a
sentence of up to ten years imprisonment. Forgery of the log sheet
will be prosecuted. You should not write on the log sheet under
any circumstances.
1
The trial court took judicial notice that Fauquier County was a political subdivision of
the Commonwealth.
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Referring to the excerpt noted above, the trial court provided the following instruction to
the jury:
The only reason this statement is being admitted along with the
other statements is to show that the defendant was placed on notice
as to this issue. That does not mean that, as a matter of law, that
the court is instructing you that the community service log sheet is
considered a public record. That, apparently, is at issue in this
case.
What that sentence simply states is what is contained here
on this – on this overall Exhibit No. 3 itself and is a notice that was
given to the defendant, along with all the other statements that
were on this document, and it is not entitled to any more weight
than any of the other statements on this document.
Adams referred Koch to Crockett Park to perform community service. Crockett Park was
a recreational facility maintained by the Fauquier County Department of Parks and Recreation.
On August 30, 2004, Koch gave Adams a community service attendance sheet indicating
she performed community service hours at Crockett Park on July 15, August 16, and August 22,
2004. The attendance sheet indicated Koch had worked sufficient hours to complete her required
community service. However, Michael Hanson, the supervisor at Crockett Park, had no record
showing that Koch worked at the park on the latter two dates. According to the attendance sheet
Koch gave Adams, Erin Moore was the Crockett Park employee who signed the sheet to verify
Koch’s work hours on the three dates. However, Moore was not working at Crockett Park at the
times Koch allegedly signed out on August 16 and 22. Furthermore, Moore testified that she did
not sign Koch’s attendance sheet on August 16 or 22.
FORGERY AND UTTERING OF A PUBLIC RECORD
Code § 18.2-168 provides:
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
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forged record, certificate, return, or attestation, knowing the same
to be forged, he shall be guilty of a Class 4 felony.
Koch contends the evidence failed to prove that the community service attendance sheet
was a public record for purposes of Code § 18.2-168. “In 1874, in its only opinion on the
subject, the Virginia Supreme Court defined a public record as a written memorial, intended to
serve as evidence of something written, said or done, made by a public officer authorized to
make it.” Reid v. Commonwealth, 16 Va. App. 468, 470, 431 S.E.2d 63, 64 (1993) (citing
Coleman v. Commonwealth, 66 Va. (25 Gratt.) 865, 881-82 (1874)). The General Assembly
later expanded the definition of “public record” by statute. Code § 42.1-77 provides in pertinent
part:
“Public record” . . . means recorded information that documents a
transaction or activity by or with any public officer, agency or
employee of an agency. Regardless of physical form or
characteristic, the recorded information is a public record if it is
produced, collected, received or retained in pursuance of law or in
connection with the transaction of public business. The medium
upon which such information is recorded has no bearing on the
determination of whether the recording is a public record.
This Court has applied the statutory definition in cases involving forgery of a public record. See
Hines v. Commonwealth, 39 Va. App. 752, 758, 576 S.E.2d 781, 784 (2003) (finding a criminal
summons to be a public record); Reid, 16 Va. App. at 470, 431 S.E.2d at 64 (finding fingerprint
card prepared by the police pursuant to statutory requirement to be a public record).
As a probation officer and employee of Fauquier County, Adams was a public officer or
public employee. In the course of her duties, she provided Koch with the community service
attendance sheet for purposes of documenting the completion of Koch’s required hours of
community service. Adams testified that a community service attendance sheet could be used to
prove whether a probationer had performed the required community service ordered by the court.
Koch was not permitted to make entries upon the attendance sheet herself. Yet, she falsified the
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attendance sheet to indicate she had completed her required community service hours at Crockett
Park. Koch gave the document to Adams as proof she had satisfied one of the conditions of her
probation.
The evidence proved that the attendance sheet was a document containing information
Adams collected pursuant to the duties required of her by Fauquier County. Accordingly, the
evidence was sufficient to prove beyond a reasonable doubt that the attendance sheet was a
public record for purposes of Code § 18.2-168 and that Koch was guilty of the charged offenses.2
ADMISSION OF COMMUNITY SERVICE ATTENDANCE SHEET
Koch contends the trial court erred in admitting Exhibit 3 because it included “a legal
conclusion that a community service log is a public record.” She contends that the admission of
the notice relieved the Commonwealth from its burden of proving an essential element of the
offense. We disagree with Koch’s contentions for the reasons that follow.
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. Evidence is admissible if it
tends to prove a matter that is properly at issue in the case and if its
probative value outweighs policy considerations.
Blain v. Commonwealth, 7 Va. App. 10, 16-17, 371 S.E.2d 838, 842 (1988) (citations omitted).
Upon the admission of Exhibit 3, the trial court gave a cautionary instruction that the jury
should not conclude the attendance sheet was a public record based upon the statement contained
in the notice. Unless the record proves otherwise, “[j]uries are presumed to follow prompt
cautionary instructions regarding the limitations placed upon evidence.” Burley v.
Commonwealth, 29 Va. App. 140, 147, 510 S.E.2d 265, 269 (1999). See also LeVasseur v.
Commonwealth, 225 Va. 564, 589, 304 S.E.2d 644, 657 (1983). The record contains no
2
In light of this conclusion, we need not address the Commonwealth’s alternative
argument that the attendance sheet constituted an attestation of a public employee, as set forth in
Code § 18.2-168.
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evidence the jury failed to follow the trial court’s cautionary instruction. Accordingly, we cannot
say the trial court abused its discretion in admitting Exhibit 3.
CONCLUSION
We find no error in the rulings of the trial court that Koch challenges on appeal.
Accordingly, Koch’s convictions are affirmed.
Affirmed.
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Benton, J., dissenting.
The trial judge convicted Devan Elisa Koch on indictments that charged she forged and
uttered a public record in violation of Code § 18.2-168. This statute provides the following:
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.
The Virginia Public Record Act defines a public record as follows:
“Public record” means recorded information that
documents a transaction or activity by or with any public officer,
agency or employee of an agency. Regardless of physical form or
characteristic, the recorded information is a public record if it is
produced, collected, received or retained in pursuance of law or in
connection with the transaction of public business. The medium
upon which such information is recorded has no bearing on the
determination of whether the recording is a public record.
Code § 42.1-77. I would hold that the form used in this case does not satisfy this statutory
definition, and, therefore, I would reverse the conviction.
I.
A judge convicted Koch of a misdemeanor and required her to perform twenty-four hours
of community service as a condition of supervised probation. Koch’s probation officer gave her
a form styled “community service attendance sheet,” which contained in column form a “log” for
documenting her hours of community service. The probation officer testified:
The purpose of the log sheet is to have the defendant take to the
community service site to have the hours documented, at which
point we use that document in the file as proof or evidence that the
hours have been completed for us to communicate to the judge at
the end of the probation that the hours have been done and
verified.
Not every piece of paper prepared by a public employee or to be signed by a public
employee is public record. A penal statute “cannot be extended by implication or construction,
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or be made to embrace cases which are not within their letter and spirit.” Berry v. City of
Chesapeake, 209 Va. 525, 526, 165 S.E.2d 291, 292 (1969).
The record clearly establishes that this form was not a public record. It was not
“produced, collected, received or retained in pursuance of law.” Code § 42.1-77. The form was
not created, approved, or ordered by a court. The probation officer testified the form is not
ordinarily submitted to the court that ordered the probation. Rather, the form is a handy means
of documenting the probationer’s service so that the probation officer might later inform the
court whether a person has successfully performed community service. Thus, for example, when
Koch did not perform her community service, the probation officer filed in the court that ordered
the probation “a letter summarizing [Koch’s] compliance with probation,” but the probation
officer did not file the form in the court. In short, the form was an internal document produced
and used solely for the convenience of the probation officers to aid in monitoring the activities of
persons performing community service. It was not a creature of law in any sense.
Likewise, the form was not produced or used in transaction of public business. The
probation officer testified this form was not available for use or inspection by the public. Its sole
purpose was to aid the probation officer in her duties of monitoring Koch’s community service
activity.
For these reasons, I would hold the evidence was insufficient to support the conviction.
II.
I would also hold the trial judge erred by admitting in evidence a notice the probation
officer required Koch to sign.
During the direct examination by the prosecutor, the probation officer testified about
instructions she gave Koch regarding “how she was to go about completing that community
service.” After the probation officer explained her instructions, the prosecutor offered into
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evidence a written “notice” that the probation officer had required Koch to sign acknowledging
those instructions. The notice also contained the following statements:
The community service log sheet is considered a public record.
Forgery of the log sheet is a Class 4 felony which could result in a
sentence of up to ten years imprisonment. Forgery of the log sheet
will be prosecuted. You should not write on the log sheet under
any circumstances.
Koch’s attorney objected, arguing that providing these statements, particularly the first
sentence, to the jury in an exhibit prejudiced Koch by “stating a question of law as fact.” The
trial judge overruled the objection and denied the request to redact the statements from the
notice.
This exhibit improperly informed the jury that the “log sheet is considered a public
record.” The essential facts necessary to prove a criminal offense are the “ultimate issues to be
resolved by the jury.” Llamera v. Commonwealth, 243 Va. 262, 265, 414 S.E.2d 597, 599
(1992). This statement of opinion on an exhibit was highly prejudicial because it stated as an
undisputed fact the ultimate issue to be decided by the jury. See Webb v. Commonwealth, 204
Va. 24, 33, 129 S.E.2d 22, 33 (1963) (barring ultimate issue opinion by expert); Mitchell v.
Commonwealth, 141 Va. 541, 565, 127 S.E. 368, 376 (1925) (barring ultimate issue opinion by
non-expert). In essence, the statement in the exhibit, which was prepared by the probation
office, told the jury the result it should reach. Thus, when the trial judge later instructed the jury
at the conclusion of all the evidence about public records, this exhibit had the tendency to give
the jury an opinion about a matter it was to decide. Similar to the general rule barring opinion
testimony of a lay witness, the opinion expressed in this document was not competent evidence.
See Bond v. Commonwealth, 226 Va. 534, 537-38, 311 S.E.2d 769, 771-72 (1984). I would
hold that this unredacted exhibit, declaring the log a public record, was so prejudicial that the
jury could not fairly consider the evidence and render a verdict.
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The cautionary instruction was inadequate to negate this prejudice. Indeed, the
instruction placed the judge’s imprimatur upon the misuse of the exhibit by stating:
Ladies and gentlemen, I just want to point out one fact to
you here, or one thing to bear in mind when you review this
Exhibit No. 3. It states that the community service log sheet is
considered a public record. The only reason this statement is being
admitted along with the other statements is to show that the
defendant was placed on notice as to this issue. That does not
mean that, as a matter of law, that the court is instructing you that
the community service log sheet is considered a public record.
That, apparently, is at issue in this case.
What that sentence simply states is what is contained here
on this -- on this overall Exhibit No. 3 itself and is a notice that
was given to the defendant, along with all the other statements that
were on this document, and it is not entitled to any more weight
than any of the other statements on this document. All right?
(Emphasis added).
This instruction served to buttress the improper use of the exhibit. The instruction told
the jury that Koch had reason to know the form was a public record and that the jury could
consider it for this proposition. Under these circumstances, the exhibit and the instruction were
so impressive as to remain with the jurors and to influence the verdict. See Kitze v.
Commonwealth, 246 Va. 283, 288, 435 S.E.2d 583, 586 (1993). This exhibit and the cautionary
instruction had the effect of improperly presenting to the jury this matter as statement of opinion
on the ultimate issue to be decided by the jury.
III.
For these reasons, I would hold the trial judge erred in refusing to redact the statements
from the exhibit. In any event, however, I would hold that the evidence was insufficient to
support the convictions, and I would reverse the convictions.
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