Garrett E. Mushaw v. Commonwealth ( 2006 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, McClanahan and Senior Judge Coleman
Argued at Richmond, Virginia
GARRETT E. MUSHAW
MEMORANDUM OPINION∗ BY
v. Record No. 2811-04-2 JUDGE ELIZABETH A. McCLANAHAN
APRIL 18, 2006
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Margaret P. Spencer, Judge
Gregory R. Sheldon (Goodwin, Sutton & DuVal, PLC, on brief),
for appellant.
Karri B. Atwood, Assistant Attorney General (Judith Williams
Jagdmann, Attorney General; Paul C. Galanides, Assistant
Attorney General, on brief), for appellee.
The trial court convicted Garrett E. Mushaw of making a false application for public
assistance in violation of Code § 63.2-502. He contends the evidence was insufficient to prove
he knowingly made a false statement on his application. For the reasons that follow, we affirm
his conviction.
I. BACKGROUND
We view the evidence and the reasonable inferences in the light most favorable to the
Commonwealth. Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786, cert.
denied, 540 U.S. 972 (2003). In so doing, we “‘discard the evidence of the accused in conflict
with that of the Commonwealth.’” Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755,
759 (1980) (citation omitted). In response to emergency conditions created by Hurricane Isabel
∗
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
on September 18, 2003, federal funds were made available to affected residents in the form of
disaster food stamp benefits. The program was administered in Virginia by the Virginia
Department of Social Services (“DSS”). On October 2, 2003, Mushaw applied for, and
subsequently received, food stamp benefits under the program. At the time, Mushaw, a
Richmond resident, was employed by DSS as an accountant in its finance department and held a
masters degree in business administration. Following an investigation of all DSS employees
who received those benefits, Mushaw was indicted for making a false application for benefits in
violation of Code § 63.2-502.1
The Commonwealth’s position at trial was that Mushaw, inter alia, knowingly and
falsely represented on his application that the money in his bank accounts was not available to
him at the time he applied for benefits because of the disaster. In his defense, Mushaw denied
knowingly making any such false representation on his application. Instead, he faulted the social
workers, who assisted him with his application, for any incorrect information contained in the
application.
At trial, Brinette Jones, a social worker, explained the application process implemented at
the DSS office in Richmond where Mushaw applied. Jones stated that social workers distributed
application forms to those in line outside the office and then directed them in groups of thirty to
an inside conference room. Applicants were required to bring documentation of residence,
which the social workers reviewed while the applicants waited in line or after they entered the
conference room. Jones initialed Mushaw’s application, verifying his identity and residency
from his driver’s license.
1
Pursuant to Code § 63.2-502, one who knowingly makes a false application for such
benefits is guilty of perjury.
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Inside the conference room, Jones and other social workers explained the questions on
the application and the application process. They also answered applicants’ questions about the
application. The applicants were to complete the application at this stage of the process. Jones
testified that, preliminarily, every applicant needed to know the dates of the disaster benefit
period in order to complete the application. Those dates, September 18 through October 17,
2003, were posted on a board in the front of the conference room. Social workers also orally
explained the benefit period to the applicants. In addition, the dates for the benefit period were
to be inserted on the application at the top left corner in the application heading, as follows:
“APPLICATION FOR EMERGENCY FOOD STAMPS FOR THE DISASTER BENEFIT
PERIOD _____TO_____.” Those dates were correctly inserted in writing (“9/18 TO 10/17”) on
Mushaw’s application.
Following the group instruction and the applicants’ completion of the application, the
applicants met individually with an eligibility specialist. Mushaw met with eligibility specialist
Danette Smith. Smith testified that, in her personal interviews, she reviewed the application,
determined eligibility, and calculated the eligible applicant’s benefits based on income, available
monetary resources, and expenses incurred from the storm, as represented on the application by
the applicant. Part II, question six, of the application asked, “Does your household have any
cash or money in bank accounts that is not available for you to use because of the disaster?”
Smith testified that, when asked about question six, she informed applicants that whatever
money was “in [their] account at this time” was “available.” On his application, Mushaw
answered “Yes” to question six, representing that he had money in bank accounts not available
because of the disaster. As shown on his bank statements, however, Mushaw had several
thousand dollars in his checking and savings accounts at the time he applied for benefits, as well
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as the time between the onset of the benefit period and the date he applied. Smith also testified
that Mushaw answered question six on the application—she did not answer the question for him.
DSS Investigator Michael Rawlings questioned Mushaw about his application during the
DSS investigation. Rawlings testified Mushaw initially explained that he declared his bank
accounts “not available” because he did not have an ATM card and there was a “power failure”
as a result of the storm. Mushaw conceded, however, that he “could” write checks on his
checking account. For the period of September 12 through October 10, 2003, during which his
balance did not fall below $4,345.78, Mushaw’s checking account statement showed that the
bank had processed twenty-three checks written on the account. The subsequent monthly
statement showed thirty checks written on the account. Furthermore, Mushaw admitted that the
credit union in which he maintained his savings account, with a branch located in the building
where he worked, was open when he returned to work on Monday, September 22, 2003,
following the storm on the previous Thursday.
In his testimony at trial, Mushaw did not claim that a power failure and the absence of an
ATM card were the reasons he represented on his application that he had money in bank
accounts not available because of the disaster. Rather, he testified that he did not read the
application; did not understand it; and no one explained it to him. Mushaw further claimed “[he]
didn’t know what the benefit period was.” He admitted on cross-examination, however, that as
an accountant advising someone who was completing the application, the disaster benefit period
would be the “first thing” he would need to know to complete it. Specifically as to his answer to
Part II, question six, of the application, Mushaw testified that he just “answered the way [Smith]
told [him] to answer it.”
In Part V entitled “PENALTY WARNING,” the application states, in part, that the
applicant “MUST NOT: GIVE FALSE INFORMATION . . . TO GET FOOD STAMP
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BENEFITS,” and one who violates this provision “MAY BE FINED, IMPRISIONED OR
BOTH.” Part VI of the application, entitled “CERTIFICATION AND SIGNATURE,” then
states:
I UNDERSTAND THE QUESTIONS ON THIS APPLICATION
AND THE PENALTY FOR WITHHOLDING OR GIVING
FALSE INFORMATION. MY RESIDENCE WAS WITHIN THE
DISASTER AREA AT THE TIME THE DISASTER
OCCURRED AND MY HOUSEHOLD IS IN NEED OF
IMMEDIATE FOOD ASSISTANCE. THE INFORMATION I
HAVE GIVEN IS CORRECT AND COMPLETE TO THE BEST
OF MY KNOWLEDGE . . . .
Mushaw signed and dated the application beneath this certification, as required on the
application.
The trial court found Mushaw guilty of knowingly making a false application in violation
of Code § 63.2-502 based on his answer to Part II, question six. In announcing the verdict, the
court stated it did not “credit his testimony.” The court specifically concluded that “the money
in [Mushaw’s] bank accounts was available to him” during the disaster period and, “[i]n fact, he
was using the money;” but that he nevertheless knowingly and falsely represented otherwise on
his application.
II. ANALYSIS
We reverse a trial court’s factual finding only when it is unsupported by credible
evidence or plainly wrong. Seaton v. Commonwealth, 42 Va. App. 739, 746, 595 S.E.2d 9, 12
(2004). Thus, the only relevant inquiry is “whether . . . any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443
U.S. 307, 319 (1979) (emphasis in original); see also Kelly v. Commonwealth, 41 Va. App. 250,
257, 584 S.E.2d 444, 447 (2003) (en banc).
Code § 63.2-502 provides that “[a]ny person who knowingly makes any false application
for public assistance . . . shall be guilty of perjury and, upon conviction therefor, shall be
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punished in accordance with the provisions of § 18.2-434.” “A well-accepted definition of
‘knowingly’ is ‘an act . . . done voluntarily and intentionally, and not because of mistake or
accident or other innocent reason.’” United States v. Jones, 735 F.2d 785, 789 (4th Cir. 1984)
(citation omitted).
In challenging his conviction on sufficiency of evidence grounds, Mushaw abandons any
argument that his answer to Part II, question six, of the application was correct. Instead, he
contends the Commonwealth failed to prove that he knowingly made a false application for
benefits. More specifically, he contends that the term “available” in Part II, question six, “was
not clearly defined either by [the social] workers or the application itself,” and that his response
was “attributable to mistake, accident or other innocent purpose.” We disagree.
“Guilty knowledge need not be directly proved. It may be shown by circumstances.”
Lewis v. Commonwealth, 225 Va. 497, 503, 303 S.E.2d 890, 893 (1983) (citation and internal
quotation marks omitted). Indeed, where “[g]uilty knowledge is an essential element of the
offense as defined by the statute, . . . ‘absent proof of an admission against interest, such
knowledge necessarily must be shown by circumstantial evidence.’” Spitzer v. Commonwealth,
233 Va. 7, 9, 353 S.E.2d 711, 713 (1987) (quoting Lewis, 225 Va. at 503, 303 S.E.2d at 893)
(internal brackets omitted); see also Parks, 221 Va. at 498, 270 S.E.2d at 759. “Circumstantial
evidence[,] when sufficiently convincing, is entitled to the same weight as direct evidence.”
Riner v. Commonwealth, 268 Va. 296, 303-04, 601 S.E.2d 555, 558-59 (2004) (citations
omitted); see also Hudson, 265 Va. at 512-13, 578 S.E.2d at 785.
Furthermore, “a fact-finder, having rejected a defendant’s attempted explanation as
untrue,” as the trial judge did in this case, “may draw the reasonable inference that his
explanation was made falsely in an effort to conceal his guilt. A false or evasive account is
[thus] a circumstance . . . that a fact-finder may properly consider as evidence of guilty
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knowledge.” Covil v. Commonwealth, 268 Va. 692, 696, 604 S.E.2d 79, 82 (2004) (citations
omitted); see also Commonwealth v. Duncan, 267 Va. 377, 385, 593 S.E.2d 210, 215 (2004)
(noting that the fact-finder may discount an accused's self-serving explanation as a mere effort at
“lying to conceal his guilt”).
Applying these standards, a rational fact finder could conclude from the evidence in this
case that Mushaw was guilty of knowingly making a false application for benefits. The trial
court, as trier of fact, credited the testimony of Jones, Smith and Rawlings and discredited
Mushaw’s testimony. As such, the evidence established Mushaw was well aware that the cash in
his bank accounts was available for his use not only at the time he applied for benefits, but
during the entire disaster benefit period. Furthermore, the circumstantial evidence supports the
inference that Mushaw—an accountant working for DSS in its finance department and holding
an MBA—knew his answer to Part II, question six, of the application was false. Accordingly,
we affirm his conviction.
Affirmed.
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