Bernard Lester Waller a/k/a Bernard Rease v. CW ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Annunziata and Humphreys
Argued at Richmond, Virginia
BERNARD LESTER WALLER, A/K/A
BERNARD L. REASE
MEMORANDUM OPINION * BY
v. Record No. 0934-01-2 JUDGE JAMES W. BENTON, JR.
MAY 14, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HALIFAX COUNTY
Leslie M. Osborn, Judge
Tracy L. Quackenbush (Law Offices of W.W.
Bennett, Jr., P.C., on brief), for appellant.
Leah A. Darron, Assistant Attorney General
(Randolph A. Beales, Attorney General, on
brief), for appellee.
Bernard Lester Waller appeals from a conviction of using a
false name and social security number on a voter registration
application in violation of Code § 24.2-1016. Appellant
contends the trial judge erred by (i) adversely considering his
failure to testify, (ii) improperly shifting the burden of proof
from the Commonwealth, and (iii) finding the evidence sufficient
to prove he "willfully" made a false statement. For the
following reasons, we reverse the conviction.
An indictment charged appellant with one count of
feloniously using, between May 1, 1999 and May 1, 2000, a false
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
name and social security number on a voter registration
application. The Commonwealth's evidence proved that on May 27,
1999, a social services worker interviewed a man who applied for
food stamps benefits. The social worker testified that when she
asked the man if he wanted to register to vote, he responded
affirmatively. Although the social worker saw the man sign the
name "Bernard L. Waller" on a voter registration application,
she could not identify appellant as the man she interviewed. In
accordance with the practice of the social services office, the
completed application was sent to the voter registrar's office.
The Halifax County registrar testified that she received from
social services a voter registration application bearing the
name "Bernard Lester Waller" and the social security number
"XXX-XX-XXXX." The application indicated Waller had not been
convicted of a felony. The registrar registered that person as
a voter.
Almost a year later on April 22, 2000, the registrar
received by mail a voter registration application that bore the
name "Bernard Lester Rease" and the social security number
"XXX-XX-XXXX." It indicated Rease had not been convicted of a
felony. When the registrar noticed that the application bore
the same first and middle name and address as another applicant
but indicated different social security numbers and surnames,
she reviewed the voter rolls. She then called appellant "and
asked him to confirm information on the cards so that [she]
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could get the correct social security number . . . and . . .
understand what the problem was with the name." She testified
that she did not register the second application and that
appellant never voted in an election.
Both voter registration applications were admitted as trial
exhibits. The registrar testified that each application
originally contained a detachable form on the bottom of the
application. One item of the detachable form requires the
applicant to indicate whether the applicant ever previously
registered to vote. Another item requires the applicant to
indicate whether the applicant authorizes the cancellation of
the applicant's current registration. Although the registrar
testified this latter item is used to cancel a prior
registration, she also testified "that particular [item] doesn't
[cancel anything in Virginia]." The registrar testified that
the detachable form is sent to another state if the person
indicates he or she was registered in that state or destroyed if
the person indicates no prior registration. Although neither
application contained the detachable form, the registrar could
not remember whether the forms had been mailed or destroyed.
A forensic expert testified that, based on a comparison of
a sample of appellant's known signature with the signatures on
both registration applications, it was his opinion that the same
person had signed both voter registration applications and that
the signatures matched appellant's signature exemplar. Over
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defense counsel's objection, the Commonwealth also introduced a
record of two criminal convictions from New Jersey which lists
appellant's name as "Bernard L. Rease" and indicates appellant
had been convicted of possession of cocaine in violation of New
Jersey Code § 2C:35-10A(1) and violating probation in violation
of New Jersey Code § 2C:35-10A(1). Overruling the objection,
the trial judge determined that the records were admissible to
prove appellant's motive to give false information.
After the trial judge denied appellant's motion to strike
the evidence for insufficiency, appellant's mother, Helen
Waller, testified that appellant was born in New Jersey in 1962
before she married and while she used the name "Waller." She
testified that after she married, she changed both of their
surnames to "Rease," but that when she divorced three years
later, both she and appellant resumed using the name "Waller."
She testified that appellant had used the names "Waller" and
"Rease" when he lived in New Jersey.
Appellant's mother also testified that when appellant moved
to Halifax County in 1999 he was using "Waller" as his surname.
She testified that appellant had difficulty obtaining a job in
Virginia because he did not have identification. He then
obtained a birth registration certificate from New Jersey. The
birth registration certificate, which was entered into evidence,
was issued February 8, 2000. It contains the name, "Bernard
Lester Rease," and the birth date, October 4, 1962. The birth
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registration certificate further indicates that the birth was
registered in New Jersey on October 8, 1962. The judge found
that "[t]his is not the original birth certificate . . . [but]
is a birth registration certificate issued in February of the
year 2000" and that "[i]t would incorporate any changes that
were made for all that period of time." The judge also admitted
into evidence copies of the New Jersey Code §§ 2C:1-4 and
2C:43-1, which designate crimes in New Jersey as either
"misdemeanor" or "high misdemeanor."
At the conclusion of the testimony, the trial judge ruled,
in pertinent part, as follows:
I don't think that the Commonwealth has
proven that the situation with regard to
. . . the name in and of itself is enough.
The law in Virginia in general says you can
use any name you want to as long as you
don't do it for fraudulent purposes. In and
of itself I'm not sure that that would be
enough. But I don't see any justification
for having two different social security
numbers. And to be honest with you, before
a lot of this evidence was put on I
certainly wouldn't have convicted just on
the change of the name because the man could
have changed his name. And I think it's not
unreasonable -- in my opinion it's not an
unreasonable inclination with regard to the
name. But I've heard no reasonable
explanation for giving different social
security numbers. It's not off one number.
It's an inversion. The -- we do have
admitted into evidence this other thing that
shows it was a different social security
number out of state, and I don't think I can
totally ignore that, but the -- there's been
no explanation whatever with regard to these
two social security numbers.
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Also, the evidence does not indicate
that before any criminal charges or anything
else was brought on whether he had an
opportunity to get this straight and he
didn't. I think the fact he did not do
that, nor has he testified -- given any
testimony with regard to that has some
effect, also.
The long and short of it is, I'm going
-- I'm going to find him guilty of this
based on the social security numbers,
because I think that the evidence was
sufficient.
And the fact that the term in New
Jersey does not use the word felony does not
negate Mr. Greenbacker's argument with
regard to motive.
The trial judge convicted appellant of violating Code
§ 24.2-1016.
II.
Appellant contends the trial judge "violated the Fifth
Amendment by holding the appellant's silence against him" and
also "abused his discretion by shifting the burden of proof to
the appellant." The record reflects, however, that appellant
made no objection at trial concerning either issue.
Accordingly, Rule 5A:18 bars our review of both issues.
III.
Appellant additionally contends the evidence did not prove
he acted willfully. We agree with appellant that the evidence
was insufficient to prove that element of the offense.
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The statute provides as follows:
Any willfully false material statement
or entry made by any person in any
statement, form, or report required by this
title shall constitute the crime of election
fraud and be punishable as a Class 5 felony.
Any preprinted statement, form, or report
shall include a statement of such unlawful
conduct and the penalty provided in this
section.
Code § 24.2-1016. When used in a criminal statute, "willfully"
ordinarily means "designedly, intentionally or perversely."
Lambert v. Commonwealth, 6 Va. App. 360, 363, 367 S.E.2d 745,
746 (1988). It generally means "an act done with a bad
purpose." Ellis v. Commonwealth, 29 Va. App. 548, 554, 513
S.E.2d 453, 456 (1999). Thus, we have held that when "[t]he
plain language of the statute requires that the Commonwealth
prove willfulness beyond a reasonable doubt[,] . . . [t]hat
element of the crime will not be inferred from an absence of
evidence to the contrary." Lambert, 6 Va. App. at 364, 367
S.E.2d at 747.
The trial judge found appellant "guilty . . . based on the
social security numbers." The evidence clearly established that
appellant's two applications contain different social security
numbers. The first application contained the number
"XXX-XX-XXXX," and the second contained the number
"XXX-XX-XXXX." The evidence does not prove that one of the
numbers was not appellant's social security number.
Furthermore, even if neither of the numbers was appellant's true
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social security number, the evidence leaves to speculation
whether the numbers were honest mistakes of transposition or
misstatements of facts designedly made. Although appellant
signed the first application and clearly was the source for the
information printed above his signature, the evidence does not
establish that appellant willfully acted when he gave that
number. Clearly, if appellant honestly believed he was giving
his true social security number but negligently transposed the
numbers, no conviction can be had under the statute. The
Commonwealth has the burden of proving both falsity and
willfulness under Code § 24.2-1016.
The only evidence presented by the Commonwealth concerning
the issue of intent or motive was a copy of appellant's New
Jersey conviction record. The trial judge admitted the
conviction record for the limited purpose of motive, i.e.,
whether appellant made a false statement to conceal his status
as a felon. The Commonwealth's evidence, however, did not
establish that the New Jersey conviction was a felony
conviction. The New Jersey statutes indicate that appellant's
conviction was for a "crime of the third degree," which New
Jersey law classified as a "high misdemeanor." The Commonwealth
also presented no evidence that tended to prove appellant knew
or believed the conviction was a felony offense.
We also note that no evidence concerning the detached
portion of the voter registration application was introduced.
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The evidence proved that appellant filed the second application
after the birth certificate from New Jersey was issued, which
lists his surname as "Rease." If the second application was a
correction of an improper statement in the first application, it
is reasonable to infer that appellant simply intended to correct
his prior mistake. Because no evidence concerning the detached
portion of the application was produced at trial, the trial
judge did not know whether appellant indicated on the card that
he had previously registered and that he wished to cancel the
prior registration.
In summary, the Commonwealth's evidence on the issue of
appellant's intent was insufficient to support a logical
inference that appellant's applications indicated a willful
intent to defraud or to relay erroneous information. Thus, we
hold that the evidence fails to support an inference beyond a
reasonable doubt that appellant willfully made a false statement
on the voter registration application. Accordingly, we reverse
the conviction and dismiss the indictment.
Reversed and dismissed.
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