John L. Chellman v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bray and Senior Judge Hodges
Argued at Alexandria, Virginia
JOHN L. CHELLMAN
MEMORANDUM OPINION * BY
v. Record No. 1630-95-4 JUDGE RICHARD S. BRAY
MARCH 25, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
William L. Winston, Judge
Timothy B. Hyland (Rodney G. Leffler;
Leffler, Hyland, Henshaw & Thompson, on
brief), for appellant.
Kathleen B. Martin, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
John L. Chellman (defendant) was convicted in a bench trial
for three counts of forging a public document in violation of
Code § 18.2-168. On appeal, he contends that the forged writings
were not subject to the statutory proscription and challenges the
sufficiency of the evidence to establish the conduct charged in
the indictments. We disagree and affirm the convictions.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal. 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 therefrom. See Martin v.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).
The judgment of a trial court, sitting without a jury, is
entitled to the same weight as a jury verdict and will be
disturbed only if plainly wrong or without evidence to support
it. See id. The credibility of a witness, the weight accorded
the testimony, and the inferences to be drawn from proven facts
are matters solely for the fact finder's determination. See Long
v. Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473, 476 (1989).
Code § 18.2-168 provides that, "[i]f 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, . . . he shall be guilty of a Class 4 felony."
Defendant urges that the forged praecipes lacked the requisite
"legal efficacy" because each moved the court to "enter a nolle
prosequi" without a showing of "good cause" mandated by Code
§ 19.2-265.3. See Muhammad v. Commonwealth, 13 Va. App. 194,
196, 409 S.E.2d 818, 819 (1991). He further argues that the
Commonwealth's proof must parallel the language of the
indictments, which alleged that defendant forged a "public record
and certificate, return, or attestation, of a public officer or
public employee," (emphasis added), a conjunction of conduct at
variance with the disjunctive provisions of the statute.
Where a statute enumerates several proscribed acts in the
disjunctive, using "or," the indictment properly may charge
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multiple acts or intents in the conjunctive, using "and," in the
same count. See Mitchell v. Commonwealth, 141 Va. 541, 544-45,
550-51, 127 S.E. 368, 369, 371-72 (1925) (single count of
indictment charging false entry in bank ledger with intent "to
conceal . . . , and to defraud . . . and to assist [another in]
obtain[ing] money to which he was not legally entitled"); see
also Leath v. Commonwealth, 73 Va. (32 Gratt.) 873, 874-77 (1879)
(where statute prohibited possession of specified gaming tables
or tables of "like kind" and indictment alleged possession of
enumerated tables and those of "like kind," proof of possession
of any offending table supported conviction). In such instances,
the Commonwealth need only prove a single proscribed act to
convict the accused. See Mitchell, 141 Va. at 550, 127 S.E. at
371. The inclusion of "additional unnecessary language . . . did
not invalidate the indictments." Black v. Commonwealth, 223 Va.
277, 282, 288 S.E.2d 449, 451 (1982) (surplusage not fatal,
provided "accused is given notice of the nature and character of
the offense charged").
Here, although each indictment conjunctively charged conduct
which constituted separate and distinct species of forgery
related to public documents, the Commonwealth was required to
prove only one offending act to convict under the indictment.
Thus, if the evidence sufficiently established that defendant
forged a "public record," the proof supported conviction
notwithstanding the surplusage.
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A public record is "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, 64-65 (1993) (citing Coleman v.
Commonwealth, 66 Va. (25 Gratt.) 865, 881-82 (1874)); see also
Virginia Public Records Act, 1994 Va. Acts ch. 955 (codified at
Code § 42.1-77) (defining "public record" as "recorded
information that documents a transaction or activity by or with
any public officer, agency or employee of the state government or
its political subdivisions . . . [and that is] produced,
collected, received or retained in pursuance of law or in
connection with the transaction of public business"). Therefore,
the trial court correctly concluded that each praecipe was a
forged public record, purportedly documenting the Commonwealth's
motion to nolle prosequi a pending criminal prosecution, clearly
the pursuit of "public business" by a "public officer." The
apparent legal efficacy inhered in the writing.
Accordingly, we affirm the convictions.
Affirmed.
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