COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Frank and Senior Judge Bray
Argued at Chesapeake, Virginia
MARTIN LEVETTE HINES
OPINION BY
v. Record No. 0481-02-1 JUDGE ROBERT P. FRANK
FEBRUARY 25, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Patricia L. West, Judge
David Michael Good for appellant.
Jennifer R. Franklin, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
Martin Levette Hines (appellant) was convicted in a bench
trial of five counts of forging a public record, in violation of
Code § 18.2-168. On appeal, he contends the trial court erred
in convicting him of five counts of the offense when only one
offense was committed. For the reasons stated below, we affirm
the judgments of the trial court.
BACKGROUND
The facts are not in controversy. On March 11, 2000, after
observing a car force other vehicles off the road, Virginia
Beach Police Officer Eric Livingston activated his emergency
equipment and pursued the offending car. Committing additional
traffic offenses, the car accelerated and then drove down a dead
end street. At this point, the driver jumped out and attempted
to flee. The officers caught the driver and escorted him back
to their police car.
Appellant, the driver, did not have any identification.
Officer Livingston asked for his name. Appellant said he was
"Antoine Fernando Hines," in actuality, the name of his brother.
Appellant also gave his brother's birthday and social security
number. Livingston checked the name, birth date, and social
security number. He discovered "Antoine Fernando Hines" had
only a learner's permit for driving.
Based on this information and his observations of
appellant's driving, Officer Livingston prepared five separate
summonses for failure to have the vehicle's registration,
driving down the center line of the road, driving on the
shoulder, disregarding a red light, and driving with a learner's
permit without a licensed driver. The officer took appellant to
the magistrate, where appellant falsely signed each summons with
"Antoine Hines."
Appellant testified his true name was Martin Levette Hines,
and his birthday was actually January 31, 1971. He knew
outstanding arrest warrants under the name of Martin Hines were
on file at the time the police attempted to stop him. He
acknowledged he had a brother named Antoine Fernando Hines, but
denied providing the officer with Antoine's birthday and social
security number. Appellant admitted signing each summons with
his brother's name.
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In his closing argument, appellant argued only one crime
occurred with only one intent: to avoid the outstanding
warrants. Appellant asked the trial court to strike all but one
charge of forging a public record. The trial court declined to
do so.
ANALYSIS
Appellant asserts the trial court erred in convicting him
of five counts of forging public documents. He maintains Code
§ 18.2-168 should be interpreted to allow only one conviction
under the facts of this case. In support of this argument,
appellant asks us to extend the underlying rationale of the
"single larceny doctrine" to non-larceny offenses. He contends
that, in signing the five summonses, he acted pursuant to a
"single impulse and in execution of a general fraudulent
scheme," citing Richardson v. Commonwealth, 25 Va. App. 491, 496,
489 S.E.2d 697, 700 (1997) (en banc). While appellant correctly
states the "single larceny doctrine," that doctrine has no
applicability to non-larceny cases.
Although appellant contends "Virginia case law is replete
with cases extending the single larceny doctrine to other than
larceny-based offenses," we find no such cases, and he cites
none. Recently, the Supreme Court of Virginia was invited to
extend the "single larceny doctrine" to multiple counts of
shooting at an occupied vehicle and discharging a firearm while
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in a motor vehicle. In Stephens v. Commonwealth, the Court
stated:
In Holly's Case, [113 Va. 769, 75 S.E. 88
(1912),] we stated the following rule: "The
theft of several articles at one and the
same time constitutes an indivisible
offense, and a conviction or acquittal of
any one or more of them is a bar to a
subsequent prosecution for the larceny of
the others." Id. at 772, 75 S.E. at 89.
This rule is not applicable here because it
"applies only to a case involving multiple
larceny prosecutions predicated upon the
theft of multiple articles stolen
contemporaneously." Jones v. Commonwealth,
218 Va. 757, 761, 240 S.E.2d 658, 661, cert.
denied, 439 U.S. 892 (1978).
263 Va. 58, 63, 557 S.E.2d 227, 230 (2002). We do not find the
"single larceny doctrine" has been broadly applied in Virginia.
Appellant asks us to consider a federal appellate opinion,
Thomas v. Kerby, 44 F.3d 884 (10th Cir. 1995), which applied New
Mexico's single larceny doctrine to multiple convictions for
forgery and uttering. "Significantly," however, the New Mexico
courts had applied this doctrine more broadly than the Virginia
courts have. See id. at 887-88. The federal court also noted a
"basic similarity between larceny . . . and the taking of funds
by transfer of a forged or worthless instrument" when it
extended New Mexico's single larceny rule. Id. at 888 n.3.
Forgery of a public document and larceny, however, do not
exhibit the same similarity.
Larceny involves the loss of property. See Jones v.
Commonwealth, 3 Va. App. 295, 300-01, 349 S.E.2d 414, 417-18
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(1986) (explaining the gravamen of the crime of larceny is the
taking of property from its owner). See, e.g., Quidley v.
Commonwealth, 221 Va. 963, 966, 275 S.E.2d 622, 624-25 (1981)
(noting the gravamen of theft by fraud "is the obtainment of
ownership of property," although ultimate loss "is immaterial").
In contrast, the Supreme Court of Virginia concluded, after an
extensive review of the history of the common law offenses of
forging a public document and forging private papers, that actual
prejudice to the public's ownership rights is not a necessary
element of the crime of forging a public document. Campbell v.
Commonwealth, 246 Va. 174, 179-82, 431 S.E.2d 648, 651-53 (1993).
The Court noted:
"At Common Law the Counterfeiting a Matter
of Record is Forgery; for since the Law
gives the highest Credit to all Records, it
cannot but be of the utmost ill Consequence
to the Publik to have them either forged or
falsified." 2 Matthew Bacon, Abridgment
*568 (1786). The common-law crime of
forgery of public records, a capital offense
in England, was augmented by statutes
punishing the lesser offense of forgery of
certain private documents. See, e.g., An
Act Concerning Counterfeit Letters or Privy
Tokens to Receive Money or Goods in Others
Men's Names, 1541-42, 33 Hen. VIII, ch. 1
(Eng.). Unlike the crime of forgery of
public records in which "ill Consequence to
the Publik" was conclusively presumed, and
unlike the common-law crime of forgery of
private papers in which proof of potential
harm or prejudice to another was required,
conviction of the several statutory offenses
generally required proof of actual harm or
prejudice to the rights of another person.
See 1 Hawkins at 263 n. 1; 2 Bacon at *568.
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Id. at 179-80, 431 S.E.2d at 651 (emphasis in original). The
Court further reviewed the legislative history and the scheme of
the Virginia forgery statutes and concluded "that harm or
prejudice to the right of another person has never been and is
not now an element of the crime of forgery of public records in
this Commonwealth." Id. at 184, 431 S.E.2d at 654.
As the crime of forgery of a public document does not
require personal loss of ownership, appellant's comparison to
larceny is inapposite. Therefore, we will not extend the single
larceny doctrine to cases involving Code § 18.2-168.
Additionally, the language and structure of the Code prove
the legislature intended to allow multiple forgery convictions
in situations such as the one before us. Code § 18.2-168
states:
If any person forge a public record, or
certificate, return, or attestation, of any
public officer or public employee, in
relation to any matter wherein such
certificate, return, or attestation may be
received as legal proof, or utter, or
attempt to employ as true, such forged
record, certificate, return, or attestation,
knowing the same to be forged, he shall be
guilty of a Class 4 felony.
(Emphasis added.) While criminal statutes must be construed
strictly against the Commonwealth and in favor of the accused,
Johnson v. Commonwealth, 211 Va. 815, 819, 180 S.E.2d 661, 664
(1971), when the language of a statute is clear and unambiguous,
a court will give the statute its plain meaning, Tross v.
Commonwealth, 21 Va. App. 362, 377-78, 464 S.E.2d 523, 530
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(1995). We also note, "The legislature in its discretion may
determine the appropriate 'unit of prosecution' and set the
penalty for separate violations." Jordan v. Commonwealth, 2 Va.
App. 590, 594, 347 S.E.2d 152, 154 (1986). An analysis of the
concept of "a public record" and a summons 1 proves the
legislature intended to allow multiple prosecutions for
contemporaneous forgeries of such documents.
At common law, a public record was "a written memorial,
intended to serve as evidence of something written, said or done,
made by a public officer authorized to make it." Reid v.
Commonwealth, 16 Va. App. 468, 470, 431 S.E.2d 63, 64 (1993)
(citing Coleman v. Commonwealth, 66 Va. (25 Gratt.) 865, 881-82
(1874)). Under the Virginia Public Records Act, a public record
is defined as:
recorded information that documents a
transaction or activity by or with any
public officer, agency or employee of the
state government or its political
subdivisions. Regardless of physical form
or characteristic, the recorded information
is a public record if it is produced,
collected, received or retained in pursuance
of law or in connection with the transaction
of public business.
Code § 42.1-77.
A summons is one type of public record. An officer takes
the name and address of a person who has committed a crime and
"issue[s] a summons . . . to appear at a time and place to be
specified in such summons." Code § 19.2-74(A)(1), (2). See also
Rule 7C:3(d) (defining a summons). The person then gives "his
1
Appellant does not argue a summons is not a public record.
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written promise to appear at such time and place" before the
officer releases him from custody. Code § 19.2-74(A)(1), (2).
"Any person refusing to give such written promise to appear under
the provisions of [Code § 19.2-74] shall be taken immediately by
the arresting or other police officer before a magistrate or
other issuing authority having jurisdiction . . . ." Code
§ 19.2-74(A)(3).
A summons becomes the charging document on which a general
district court tries an accused. Code § 16.1-129. If the
accused "willfully violates his written promise to appear" in
court, given when he signed the summons, he can be convicted for
failure to appear under Code § 19.2-128, "regardless of the
disposition of, and in addition to, the charge upon which he was
originally arrested." Code § 19.2-74(A)(3). See also Rule
7C:3(b).
Given this statutory scheme, each signed summons clearly can
constitute a separate offense under Code § 18.2-168. In this
case, each summons related to a different violation of the
traffic code. Each summons was a promise by appellant to appear
in court on one of the infractions. Each failure to appear on
any summons is a separate offense. Code § 19.2-74(A)(3). Each
infraction listed on the separate summonses could have been tried
separately. Rule 7C:4(c). Fees are collected on each conviction
from each summons. Code § 17.1-275(A)(11). The clerk of the
general district court must send an abstract of the record for
each infraction to the Division of Motor Vehicles. Code
§ 46.2-383.
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The Code does not treat five summonses, issued at the same
time, as one "public document." Each summons has a separate
existence with separate consequences and effects. Additionally,
Code § 18.2-168 plainly states a person is guilty if he forges
"a public record," not public records generally.
We conclude the trial court did not err in convicting
appellant of five separate counts of forging a public record.
Each summons constituted a separate public record.
Affirmed.
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