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Mitchell v. Commonwealth

Court of Appeals of Virginia. Argued at Richmond, Virginia
Jun 7, 1994
Record No. 2528-92-2 (Va. Ct. App. Jun. 7, 1994)

Opinion

Record No. 2528-92-2

Decided: June 7, 1994

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY, John F. Daffron, Jr., Judge

Affirmed.

John N. Clifford (Clifford Duke, on brief), for appellant.

Donald R. Curry, Senior Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

Present: Chief Judge Moon, Judge Fitzpatrick and Retired Judge Hodges


MEMORANDUM OPINION

Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.


Beverly Anne Mitchell (appellant) appeals her conviction for forgery in violation of Code Sec. 18.2-168. She argues that the evidence was insufficient to show prejudice to the rights of another. We disagree and affirm the conviction.

BACKGROUND

Appellant was arrested on an unrelated charge on June 14, 1992. Upon her arrest, she told Officer Shipman of the Chesterfield County Police that her name was Deborah Underwood. She also gave Officer Shipman Ms. Underwood's home address, social security number and date of birth. On the same day, appellant signed a financial statement form, under oath before a magistrate, as "Anna Underwood."

The form was a financial statement completed for the purpose of determining eligibility for indigent defense services.

Anna Underwood testified that she met appellant several years ago while in the penitentiary, and that she had previously shared an apartment with appellant. Upon learning that appellant had used her name when arrested, Ms. Underwood called the Chesterfield County Jail and was informed that "Anna Underwood" was "in jail." At the time appellant signed Ms. Underwood's name to the financial form, Ms. Underwood was on parole. Ms. Underwood testified that if she had been "arrested for anything, misdemeanor or felony, [her] parole would be revoked" and she would have to "go back to the penitentiary to do all of [her] time." She had "five or six years" to serve if she were found to have violated her parole.

SUFFICIENCY OF THE EVIDENCE

"When considering the sufficiency of the evidence on appeal of a criminal conviction, we must view all the evidence in the light most favorable to the Commonwealth and accord to the evidence all reasonable inferences fairly deducible therefrom. The jury's verdict will not be disturbed on appeal unless it is plainly wrong or without evidence to support it." Traverso v. Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988) (citations omitted); see also Derr v. Commonwealth, 242 Va. 413, 424, 410 S.E.2d 662, 668 (1991). Further, " '[i]f there is evidence to sustain the verdict, [an appellate court] should not overrule it and substitute its own judgment, even if its opinion might differ from that of the jury.' " George v. Commonwealth, 242 Va. 264, 278, 411 S.E.2d 12, 20 (1991), cert. denied, 112 S.Ct. 1591 (1992) (citation omitted).

Forgery is " 'the false making or materially altering with intent to defraud, of any writing, which, if genuine, might apparently be of legal efficacy, or the foundation of legal liability.' " Fitzgerald v. Commonwealth, 227 Va. 171, 173, 313 S.E.2d 394, 395 (1984) (quoting Bullock v. Commonwealth, 205 Va. 558, 561, 138 S.E.2d 261, 263 (1964), cert. denied, 382 U.S. 927 (1965)). "[A]n instrument is one of legal efficacy, within the rules relating to forgery, where by any possibility it may operate to the injury of another." Gordon v. Commonwealth, 100 Va. 825, 829, 41 S.E. 746, 748 (1902). To sustain a conviction for forgery in violation of Code Sec. 18.2-172, the Commonwealth must prove that the accused falsely made or materially altered a writing, without the authority to do so, and did so to the prejudice of another's right. Code Sec. 18.2-172.

Conceding that she did not have the authority to sign Ms. Underwood's name to the financial statement form, and that she signed Ms. Underwood's name with the intent to defraud, appellant contends that the Commonwealth failed to prove that when she signed the form, she did so "to the prejudice of another's right." We disagree.

Code Sec. 18.2-172 does not require that the Commonwealth prove beyond a reasonable doubt that someone, in fact, was prejudiced by appellant's conduct. Rather, a conviction may be sustained where the evidence shows the possibility that the forged instrument may operate to the prejudice of another's right. Muhammad v. Commonwealth, 13 Va. App. 194, 196-97, 409 S.E.2d 818, 819-20 (1991); Gordon, 100 Va. at 829, 41 S.E. at 748.

Appellant's execution of the form created a possibility of prejudice to Ms. Underwood, who was on parole at the time. If Ms. Underwood's parole officer had been informed that "Anna Underwood" had been arrested, the prejudice to Ms. Underwood would have been indisputable. Additionally, appellant's false execution of the form created the possibility of prejudice to the Commonwealth. Appellant created a possibility that the wrong person would be tried, convicted, and punished for her criminal offense. Accordingly, we cannot say the jury's verdict was plainly wrong or without evidence to support it and, therefore, we affirm the conviction.

Affirmed.


Summaries of

Mitchell v. Commonwealth

Court of Appeals of Virginia. Argued at Richmond, Virginia
Jun 7, 1994
Record No. 2528-92-2 (Va. Ct. App. Jun. 7, 1994)
Case details for

Mitchell v. Commonwealth

Case Details

Full title:BEVERLY ANNE MITCHELL v. COMMONWEALTH OF VIRGINIA

Court:Court of Appeals of Virginia. Argued at Richmond, Virginia

Date published: Jun 7, 1994

Citations

Record No. 2528-92-2 (Va. Ct. App. Jun. 7, 1994)