Christopher James Hubbard v. Commonwealth of VA ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Elder and Annunziata
Argued at Richmond, Virginia
CHRISTOPHER JAMES HUBBARD
MEMORANDUM OPINION * BY
v. Record No. 2345-00-2 JUDGE LARRY G. ELDER
NOVEMBER 6, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF MECKLENBURG COUNTY
Leslie M. Osborn, Judge
Jennifer LeLacheur Jones, Assistant Public
Defender (Office of the Public Defender, on
brief), for appellant.
Robert H. Anderson, III, Assistant Attorney
General (Randolph A. Beales, Acting Attorney
General, on brief), for appellee.
Christopher James Hubbard (appellant) appeals from his
bench trial conviction for perjury in violation of Code
§ 18.2-434. We hold that the evidence proved his statement was
willful and was sufficiently corroborated and that the trial
court did not impermissibly shift the burden of proof to
appellant. Therefore, we affirm appellant's conviction.
When considering the sufficiency of the evidence on appeal,
we view the evidence in the light most favorable to the
Commonwealth. See Higginbotham v. Commonwealth, 216 Va. 349,
352, 218 S.E.2d 534, 537 (1975). "Circumstantial evidence is as
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
competent and is entitled to as much weight as direct evidence,
provided it is sufficiently convincing to exclude" all
reasonable hypotheses of innocence. Coleman v. Commonwealth,
226 Va. 31, 53, 307 S.E.2d 864, 876 (1983).
To establish willful falsity, 1 see Mendez v. Commonwealth,
220 Va. 97, 102, 255 S.E.2d 533, 535 (1979), the Commonwealth
must prove not only "that the statements made under oath by the
defendant were false," Holz v. Commonwealth, 220 Va. 876, 880,
263 S.E.2d 426, 428 (1980), but also that the defendant knew the
statements were false, see id., or that he should have known
they were false, Snead v. Commonwealth, 11 Va. App. 643, 646,
400 S.E.2d 806, 807 (1991) (stating that willful
"characterize[s] a thing done without ground for believing it is
lawful").
Here, the only reasonable hypothesis flowing from the
circumstantial evidence, viewed in the light most favorable to
the Commonwealth, is that when appellant testified under oath in
general district court, he knew his Integon insurance policy had
not been in effect at the time of his auto accident. Appellant
made a down payment on the Integon policy on June 11, 1999, and
agreed simultaneously to a payment schedule which required him
to make monthly payments thereafter, but appellant failed to
1
On appeal, appellant does not challenge the sufficiency of
the evidence to prove that his statement was made under oath or
that it was material to a proper matter of inquiry.
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make the July payment or any subsequent payments. As a result,
Integon cancelled his policy on July 16, 1999, and notified him
of the cancellation by letter sent to the address he provided
when he had obtained the policy only five weeks earlier.
Even assuming appellant did not receive notice of the
cancellation of his policy, he could not reasonably have
believed when he testified in general district court that his
insurance policy with Integon remained valid when the accident
occurred on September 7, 1999, after he already had failed to
make two of the monthly premium payments to which he had agreed.
Appellant's statement on September 7, 1999 that he was insured
by Geico rather than Integon further supports the conclusion
that appellant knew his policy with Integon was no longer valid
on that date. The evidence also established that appellant
never reported the accident to Integon or its agents. Thus,
when appellant testified in general district court that he was
insured by Integon on September 7, 1999, he did so "without
ground for believing [his testimony was] lawful." Snead, 11 Va.
App. at 646, 400 S.E.2d at 807.
When a perjury conviction is supported by the testimony of
only one witness, the testimony must be corroborated. Stewart
v. Commonwealth, 22 Va. App. 117, 120, 468 S.E.2d 126, 127
(1996). However, the corroborating evidence "need not be equal
in weight to the testimony of a second witness," id., as long as
the evidence confirms the single witness' testimony in a manner
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strong enough "'to turn the scale and overcome the oath of the
[defendant] and the legal presumption of his innocence,'" Keffer
v. Commonwealth, 12 Va. App. 545, 548, 404 S.E.2d 745, 746-47
(1991) (quoting Schwartz v. Commonwealth, 68 Va. (27 Gratt.)
1025, 1027 (1876)).
Here, the testimony of Insurance Agent William Wells
regarding the status of appellant's insurance coverage with
Integon as of September 7, 1999 was sufficiently corroborated by
both Integon's notification letter to appellant that his policy
had been cancelled for nonpayment, see Holz, 220 Va. at 882, 263
S.E.2d at 429, and appellant's conflicting statements regarding
the identity of his insurance carrier at the time of the
September 7, 1999 accident, see Stewart, 22 Va. App. at 121-22,
468 S.E.2d at 128. Wells testified that when appellant obtained
the policy through Wells' agency, appellant agreed to make
monthly premium payments but failed to make even the first
payment, which resulted in Integon's canceling his coverage on
July 16, 1999. Finally, appellant's statement on September 7,
1999 that he was insured by Geico further corroborated Wells'
testimony that appellant's Integon policy was not in effect on
that date and that appellant was aware of this fact.
Lastly, we reject appellant's contention that the trial
court drew an improper inference from his failure to testify
and, in effect, shifted the burden to him to prove his false
statement was not willful because he was unaware that the
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Integon policy had been cancelled. The trial court is presumed
to know the law and to apply it properly. Yarborough v.
Commonwealth, 217 Va. 971, 978, 234 S.E.2d 286, 291 (1977).
Once the Commonwealth presents a prima facie case of guilt, the
burden of production shifts to the accused to rebut that prima
facie case. See, e.g., Overstreet v. Commonwealth, 193 Va. 104,
110-11, 67 S.E.2d 875, 879 (1951). Although generally "'the
state must prove all the essential facts entering into the
description of the offense[,] . . . when a negation of a fact
lies peculiarly within the knowledge of the defendant[,] it is
incumbent on him to establish that fact.'" Mayhew v.
Commonwealth, 20 Va. App. 484, 490, 458 S.E.2d 305, 308 (1995)
(quoting State v. Williamson, 206 N.W.2d 613, 618 (Wis. 1973)).
Here, the trial court expressly acknowledged that "the
Commonwealth bears the burden" of proving appellant's false
testimony was willful. In commenting on appellant's failure to
testify, the trial court merely emphasized the fact that
appellant failed to offer any evidence to rebut the
Commonwealth's prima facie case on that element of the offense.
Had appellant testified that he was confused about his duty to
pay monthly premiums or that he did not understand any
cancellation notice he may have received, such testimony would
have provided the trial court with a basis for concluding that
appellant's false testimony was accidental rather than willful.
However, in the absence of such testimony, the trial court, as
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the finder of fact, was entitled to conclude the only hypothesis
flowing from the circumstantial evidence was that appellant was
aware of his duty to pay monthly premiums, understood his
failure to pay those premiums would void or nullify his policy,
and knew at least by the time he testified under oath in general
district court that his Integon policy was not in effect at the
time of the accident.
For these reasons, we affirm appellant's perjury
conviction.
Affirmed.
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