Opinion
Record No. 1816-91-2
April 20, 1993
FROM THE CIRCUIT COURT OF SUSSEX COUNTY WILLIAM PARK LEMMOND, JR., JUDGE.
Lezlie Smith Green, for appellant.
Marla Lynn Graff, Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellee.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Cynthia N. Banty appeals from her convictions on two counts of grand larceny under Code §§ 63.1-124 and 124.1, and two counts of perjury under Code § 63.1-107.1. She argues that the trial court erred in holding the evidence sufficient to show that she knowingly made a false statement on her food stamp and fuel assistance applications. For the reasons set forth below, we reverse and dismiss appellant's convictions.
Appellant applied for food stamps on February 8, 1990, and fuel assistance on October 18, 1990. She represented in both applications that her husband was not living at home. On February 22, 1990, appellant told Martha Gordon, a Social Services employee, that her husband had moved out and that she was unaware of his whereabouts. At trial, she maintained that her husband did not reside with her at any time between February and October of 1990. Gordon had several follow-up conversations with appellant concerning whether appellant's husband was present in the home. When questioned on March 29, appellant reported to Gordon that "her cousin, Karl Daniels, . . . was staying with her part time" but that he was not eating there. On April 17, 1990, appellant told Gordon that Daniels was no longer staying with her.
The Commonwealth contends that the evidence contradicted appellant's assertion that her husband was not living in her home at any point during the period in question. First, it showed that appellant's husband, Glen Michael Banty, officially changed his name to Karl Daniels and was using that name between March and October of 1990. It also presented the testimony of Carolyn Rose, an "eligibility supervisor for ADC and Medicaid," who said she knew appellant and her husband and lived between appellant's home and Mr. Banty's place of employment, Dunn's Farm, during 1990. Rose testified that on two to five mornings between March and October, she saw appellant's car head toward Dunn's Farm and that on those same afternoons, she saw appellant travelling by herself toward Dunn's Farm and then travelling from Dunn's farm toward her own home accompanied by her husband.
On appeal, we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. The judgment of a trial court sitting without a jury is entitled to the same weight as a jury verdict and will not be set aside unless it appears from the evidence that the judgment is plainly wrong or without evidence to support it.
Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987) (citing Code § 8.01-680). In addition, "'[t]he finding of the judge, upon the credibility of the witnesses and the weight to be given their evidence, stands on the same footing as the verdict of a jury'" and will not be disturbed on appeal unless plainly wrong or without evidence to support it.Speight v. Commonwealth, 4 Va. App. 83, 88, 354 S.E.2d 95, 98 (1987) (quoting Lane v. Lane, 184 Va. 603, 611, 35 S.E.2d 744, 752 (1945)).
Appellant argues that the evidence that her husband lived in the home from March through October of 1990 is not sufficiently proved to support her conviction. This is not the deciding issue in this case. Even assuming arguendo that appellant's husband resided with her during the time listed in the indictments, the evidence was, nevertheless, insufficient to support appellant's convictions for making false applications for assistance under Code § 63.1-107.1. The transcript shows that appellant made her application for food stamps on February 8, 1990, and fuel assistance on October 18, 1990. Appellant stipulated that she reported on those applications that her husband was not living in her home at either time. The Commonwealth offered no evidence to prove that Mr. Banty was living in appellant's home at the time she made those applications. In addition, the indictment for falsifying the food stamp application refers to a period of time after her submission of the application on February 8, 1990 — from March 1 to August 31, 1990 — and the only evidence introduced at trial related to the time period specified in the indictment. The Commonwealth argues that we may infer Mr. Banty was present in appellant's home on February 8 and October 18 from the fact that she lied about his presence there during portions of March and April. We do not agree. The trial court properly may disregard appellant's testimony as incredible, but the record still contains no substantive evidence to show that Mr. Banty was present in appellant's household at the time she completed the food stamp and fuel assistance applications.
Although the evidence introduced at trial may have been sufficient to support a conviction for failure to report a change in circumstances under Code § 63.1-112, based on representations made in the food stamp application, appellant was neither indicted nor convicted for violating that section. Accordingly, her convictions for perjury on her applications for public assistance and larceny of the benefits must be reversed and dismissed.
Reversed and Dismissed.