Gordon Michael Donowa, etc. v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Fitzpatrick
Argued at Richmond, Virginia
GORDON MICHAEL DONOWA, s/k/a
GORDON MICHAEL DONAWA
MEMORANDUM OPINION * BY
v. Record No. 1579-95-2 JUDGE SAM W. COLEMAN III
MAY 28, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Robert W. Duling, Judge
Stephen T. Harper (Bradford F. Johnson;
Johnson & Walker, P.C., on brief), for
appellant.
Steven A. Witmer, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Gordon Michael Donowa was convicted in a jury trial of
committing perjury in violation of Code § 18.2-434 by testifying
falsely under oath at a prior trial. On appeal, Donowa contends
that the evidence is insufficient to prove that the statement in
his prior testimony was false, or, even if false, it was not
material to the issues at the previous trial. We hold that the
statement was material and the evidence is sufficient to support
the conviction.
First, the Commonwealth contends that the defendant is
barred from challenging the sufficiency of the evidence on appeal
because under Rule 5A:18 "[a] mere statement that the judgment or
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
award is contrary to the law and the evidence is not sufficient"
to preserve an issue for appeal.
"The primary function of Rule 5A:18 is to alert the trial
judge to possible error so that the judge may consider the issue
intelligently and take any corrective actions necessary to avoid
unnecessary appeals, reversals and mistrials." Martin v.
Commonwealth, 13 Va. App. 524, 530, 414 S.E.2d 401, 404 (1992)
(en banc). Here, the defendant informed the trial court while
the jury was deliberating that he would move to set aside the
verdict as contrary to the law and the evidence if the jury
returned a guilty verdict. After the jury rendered the verdict,
the defendant moved to set it aside, and the trial judge stated
that he "ha[d] been thinking about [the motion]," and was
"satisfied that it was strictly a jury issue involved as to the
three points set forth in the instructions." The "three points"
the judge referred to from the instructions were the three
elements required to prove perjury. The record shows that the
trial judge understood the defendant's objection and was able to
consider it intelligently in ruling that the evidence was
sufficient to support the perjury conviction.
With respect to the merits of the defendant's appeal, in
order to obtain a conviction for perjury, the Commonwealth must
prove that the defendant made a false statement under oath, that
he did so willfully, and that the statement was material to an
issue involved in the trial. Code § 18.2-434; see Holz v.
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Commonwealth, 220 Va. 876, 880-81, 263 S.E.2d 426, 428-29 (1980).
The defendant contends that the evidence is insufficient as a
matter of law to prove that he testified falsely at his previous
trial when he denied ownership of a 1986 Oldsmobile.
Alternatively, he contends that ownership of the Oldsmobile was
not material to an issue at the prior trial.
The defendant was tried on August 4, 1994 for possession of
cocaine with intent to distribute, possession of a firearm while
in possession of cocaine, and possession of a firearm after being
convicted of a felony. At that trial, the defendant testified
under oath that he was not the owner of the Oldsmobile in which
cocaine and a shotgun were found. According to the defendant,
the car belonged to his father, whose name is Gordon Milton
Donowa, and his father's name was on the car's registration.
However, at the defendant's perjury trial, Charlotte Bales,
an employee of the Department of Motor Vehicles (DMV), testified
that the application for a certificate of title for the 1986
Oldsmobile showed that "the owner is Gordon M. Donowa," and also
authenticated other DMV records which showed that the defendant's
social security number matched the number listed on the
application for a certificate of title. Officer Jonathan W.
Stanley testified that he had seen the defendant driving the
Oldsmobile on more than one occasion and that he obtained a
search warrant for the Oldsmobile in September 1993 listing the
defendant as the owner of the car after checking DMV's records
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and determining that the social security number on the
registration was the defendant's number.
"[A] perjury conviction under Code § 18.2-434 requires proof
of falsity from the testimony of at least two witnesses or other
corroborating evidence of falsity in the event the case is
supported by the testimony of only one witness." Keffer v.
Commonwealth, 12 Va. App. 545, 549, 404 S.E.2d 745, 747 (1991).
Here, Charlotte Bales' testimony proved that DMV's records listed
the defendant as the owner of the Oldsmobile, and this evidence
of ownership was corroborated by Officer Stanley's testimony that
he had witnessed the defendant driving the Oldsmobile on more
than one occasion and that he had named the defendant as the
owner in his affidavit for a search warrant after checking DMV's
records. Contrary to the defendant's assertion, the Commonwealth
was not required to produce a witness with personal knowledge of
the individual who applied for the certificate of title to the
Oldsmobile. The records of ownership with DMV are sufficient to
prove ownership of a motor vehicle. Therefore, the evidence is
sufficient to prove that the defendant owned the Oldsmobile and
willfully testified falsely under oath that he did not own the
Oldsmobile.
As to the materiality of the defendant's ownership of the
Oldsmobile, the issue at the August 1994 trial was whether the
defendant exercised dominion and control over the Oldsmobile at
the time the police searched the car and found cocaine and a
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shotgun in it. According to the defendant, the Commonwealth did
not have to prove that he owned the Oldsmobile in order to prove
possession because Officer Stanley testified that he witnessed
the defendant dealing drugs out of the car and saw him in
possession of the key to the car just prior to the search of the
car. Because Officer Stanley's testimony was sufficient to
establish possession of the car and its contents, the defendant
contends that proof of ownership of the car was not necessary to
prove possession and, therefore, it was not material.
Code § 18.2-434 does not require the Commonwealth to
establish that the false testimony was essential to the outcome
of the case in order to prove that it was material. Rather, the
testimony is material if it was "relevant in the trial of the
case, either to the main issue or some collateral issue." Holz,
220 Va. at 881, 263 S.E.2d at 429 (emphasis added). It is
well-established that ownership of an automobile is one
circumstance the fact finder may consider in determining whether
the accused possessed contraband found in the vehicle. See
Scruggs v. Commonwealth, 19 Va. App. 58, 61, 448 S.E.2d 663, 665
(1994); Burchette v. Commonwealth, 15 Va. App. 432, 435, 425
S.E.2d 81, 83 (1992). Therefore, proof of ownership of the
Oldsmobile was material to the primary issue at the defendant's
August 1994 trial.
We find the evidence sufficient to prove all of the elements
of perjury and affirm the defendant's conviction.
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Affirmed.
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