Charles W. Vincent v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Bray and Overton
Argued at Norfolk, Virginia
CHARLES W. VINCENT
v. Record Nos. 0416-95-1 and MEMORANDUM OPINION * BY
0557-95-1 JUDGE NELSON T. OVERTON
JANUARY 30, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Thomas S. Shadrick, Judge
Andrew M. Sacks (Stanley E. Sacks; Michael F.
Imprevento; Sacks, Sacks & Imprevento, on
briefs), for appellant.
Leah A. Darron, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Charles W. Vincent was convicted in a jury trial of nine
counts of unethical solicitation of a gift by a public employee
having official responsibility for a procurement transaction, in
violation of Code § 11-75 and § 11-80. On appeal, Vincent
contends: (1) that the indictment failed to state an offense; (2)
that Code § 11-75 is unconstitutional; (3) that the evidence was
insufficient to prove that the defendant "willfully" violated
Code § 11-75; (4) that the trial court erred in denying
defendant's pretrial motion for a continuance; and (5) that the
trial court erred in denying defendant's motion for a stay of
execution of sentence. For the reasons that follow, we affirm
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
the convictions.
I. Facts
Charles Vincent was elected to the Virginia Beach City
School Board on May 3, 1994, and assumed office on July 1 of that
year. By August he had joined the Architectural Review
Committee, tasked with selecting architectural and engineering
firms for subsequent contracts for work on the school system.
On August 29-30, Vincent met with representatives of nine
firms who later were awarded school contracts. On September 7,
Vincent sent a letter to each of the nine firms, who at that time
had been notified that they were recommended by the committee for
contracts. The letters stated in whole:
Gentlemen,
It was a pleasure meeting with you, and
representatives of your firm, when you recently
appeared before our committee. I am pleased to have
been a part in the selection of [your firm] for [a
particular school project].
On another matter . . . I am trying to retire (or
at least trim) my campaign debt from the recent School
Board election. If you would like to contribute,
please send your checks, payable to VINCENT FOR SCHOOL
BOARD CAMPAIGN, in the enclosed envelope.
Thank you for your support. I look forward to
working with you during the next four years during my
term of office.
The nine letters varied only slightly. Less than two weeks
later, Vincent sent follow-up letters reiterating the last two
paragraphs of the first letter. The follow-up letters contained
a notice on the bottom of the page referencing campaign
contribution filing and reporting requirements. The first
letters did not.
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On October 3, a grand jury indicted Vincent on nine counts
of unethical solicitation of a gift. A jury found him guilty on
all counts and recommended a fine of $200 for each count. The
trial judge sentenced the fine in accordance with the jury's
recommendation and further ordered that Vincent forfeit his
school board seat. The judge stayed the execution of the fines
pending appeal, but refused to stay the forfeiture of the public
position.
II. Indictment
Vincent first argues that the indictment did not properly
state an offense because the wording in the indictment did not
parallel the wording of the statute sections he was charged with
violating. His argument has no merit. The indictment cited Code
§§ 11-75 and 11-80, defining both the crime and the necessary
criminal intent. "By citation of the statute in the indictment
appellant was informed of the essential elements of the case
against him." Reed v. Commonwealth, 3 Va. App. 665, 667, 353
S.E.2d 166, 167-68 (1987). The reference to the applicable
statute sections and the plain wording of the indictment made the
charges against Vincent clear. The indictment sufficiently
stated the offense.
Vincent also contends that Code § 11-75 is
unconstitutionally vague and overbroad. It is neither.
Code § 11-75 states:
No public employee having official
responsibility for a procurement transaction
shall solicit, demand, accept, or agree to
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accept from a bidder, offeror, contractor or
subcontractor any payment, loan,
subscription, advance, deposit of money,
services or anything of more than nominal or
minimal value, present or promised, unless
consideration of substantially equal or
greater value is exchanged. The public body
may recover the value of anything conveyed in
violation of this section.
In order to withstand a void for vagueness challenge, the statute
must provide a reasonably intelligent person with fair notice
that his contemplated conduct is proscribed. Papachristou v.
City of Jacksonville, 405 U.S. 156, 162 (1972). Code § 11-75
clearly delineates the kinds of activities the General Assembly
intended to prohibit: "solicit, demand, accept, or agree to
accept" something of value from a bidder or contractor. A
reasonable public official or employee has sufficient notice as
to potential wrongdoing, and the statute therefore does not fail
for vagueness.
Nor is the statute constitutionally overbroad. If a statute
can be made constitutionally definite by a reasonable
construction, the court is under a legal duty to give it that
construction. Pederson v. City of Richmond, 219 Va. 1061,
1065-66, 254 S.E.2d 92, 98 (1979). When statutory construction
is required, the court must construe a statute to promote the end
for which it was enacted, if such an interpretation can
reasonably be made from the language used. Wollfolk v.
Commonwealth, 18 Va. App. 840, 847, 447 S.E.2d 530, 533 (1994).
Contrary to Vincent's assertion, the statute as written does not
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prohibit an official who once had procurement responsibility
from that point onward ever receiving a campaign contribution
from anyone who once was a contractor. The statute as applied to
the appellant can be construed narrowly so as to confine the
period when he was a public official with procurement
responsibility and the solicitees who were firms involved in that
current transaction.
III. Willful Requirement
At trial, the jury was instructed that a "willful" act as
defined in the offense was "an act done voluntarily and
intentionally, and with the specific intent to do something the
law forbids; that is to say, with bad purpose either to disobey
or to disregard the law." The instruction was given without
objection and becomes the law of the case, thereby binding the
parties in the trial court and this Court on review. Owens-
Illinois, Inc. v. Thomas Baker Real Estate, 237 Va. 649, 652, 379
S.E.2d 344, 346 (1989); Shamblee v. Virginia Transit Co., 204 Va.
1
591, 594-95, 132 S.E.2d 712, 714 (1963).
In the absence of direct evidence, willfulness may be
established through circumstances. Lambert v. Commonwealth, 6
Va. App. 360, 363, 367 S.E.2d 745, 746 (1988). "On appeal, we
review the evidence in the light most favorable to the
1
Because it is the law of this case on appeal, we need not
decide whether this instruction states the law inaccurately,
although we do note in passing that the instruction as given may
have provided the appellant with a more favorable standard than
that to which he was entitled.
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Commonwealth, granting to it all reasonable inferences fairly
deducible therefrom." Martin v. Commonwealth, 4 Va. App. 438,
443, 358 S.E.2d 415, 418 (1987). "[W]hat inferences are to be
drawn from proved facts is within the province of the jury and
not the court so long as the inferences are reasonable and
justified." LaPrade v. Commonwealth, 191 Va. 410, 418, 61 S.E.2d
313, 316 (1950).
The Commonwealth proved that Vincent was provided with
specific guidelines concerning the ethical responsibilities
associated with his new position, and that Vincent acted in
contradiction of the statutory prohibitions. Vincent was given a
copy of the Virginia Beach School Board manual containing the
school board bylaws, policies, and division regulations. This
manual included a section specifically addressing the ethics of
public contracting and the relevant statutory provisions.
Vincent was also present at a special orientation meeting held
for new school board members prior to taking office. These
facts, taken as a whole, provide sufficient evidence to allow a
jury to infer that Vincent's actions were willful.
IV. Trial
Vincent further assigns error to two decisions of the judge
at trial. Vincent first contends that the judge erred in denying
his motion for a continuance because of negative pretrial
publicity. "The decision to grant a continuance is within the
sound discretion of the trial court and its ruling will be
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overturned only "if it is plainly erroneous and upon a showing of
abuse of discretion and resulting prejudice to the movant.'"
Ohlen v. Shively, 16 Va. App. 419, 422, 430 S.E.2d 559, 560
(1993) (quoting Mills v. Mills, 232 Va. 94, 96, 348 S.E.2d 250,
252 (1986)).
The trial judge ascertained that three of the potential
jurors had been exposed to pretrial publicity. One of the jurors
indicated that he had formed an opinion and was stricken for
cause. The other two represented to the judge that they would be
able to render a fair judgment based upon the evidence at trial.
Having empaneled a fair and impartial jury, the judge properly
refused to grant the continuance.
After the sentence was pronounced, the defendant moved to
stay execution of the forfeiture of his elected seat. Code
§ 11-80, of which Vincent was convicted, provides that "[u]pon
conviction, any public employee . . . shall forfeit his
employment." Unlike the other statutes cited by Vincent, Code
§ 11-80 does not expressly postpone removal of a public official
from his position until the exhaustion of all appeals. In light
of the express language of Code § 11-80, we cannot say that the
trial court abused its discretion by denying the stay of
execution.
Accordingly, we affirm the appellant's convictions.
Affirmed.
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