COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Annunziata
Argued at Salem, Virginia
WILLIAM THOMAS GIBSON
MEMORANDUM OPINION * BY
v. Record No. 0130-95-3 JUDGE LARRY G. ELDER
APRIL 23, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY
William N. Alexander, II, Judge
Barbara Hudson for appellant.
Eugene Murphy, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
William Thomas Gibson (appellant) appeals his convictions
for forging a public record and uttering a forged public record,
each in violation of Code § 18.2-168. Appellant asserts that the
trial court erred in ruling that the evidence proved beyond a
reasonable doubt a violation of Code § 18.2-168. Because the
trial court did not err, we affirm appellant's convictions.
On December 30, 1993, appellant paid an unidentified woman
to sign his ex-wife's name as surety to a bail bond for his son's
release from state custody. The bond had a surety of $650
secured by property jointly owned by appellant and his ex-wife.
The document bore the signatures of appellant, appellant's son,
and the person that appellant hired to sign his ex-wife's name.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
The document also bore the signature of the magistrate who,
relying on the signatures of the sureties, admitted appellant's
son to bail. The bond was filed in the Juvenile and Domestic
Relations District Court of Pittsylvania County on January 3,
1994.
Appellant was charged with forging a public record and
uttering a forged public record, each in violation of Code
§ 18.2-168. On November 23, 1994, in a bench trial in the
Circuit Court of Pittsylvania County, appellant moved to strike
the charges. Appellant argued that the indictments should have
been brought under Code § 18.2-172, relating to forgery of
private records. The trial court overruled appellant's motion
after concluding that a bail bond is a public record. It also
ruled that the Commonwealth could have charged appellant under
the private record statute because appellant's ex-wife's rights
were prejudiced. The trial court convicted appellant of the
charged crimes. Appellant now appeals to this Court.
Appellant raises two inter-related arguments on appeal.
First, appellant asserts that a bail bond is not a public record.
Second, appellant asserts that because the forgery prejudiced
the rights of his ex-wife, instead of the rights of the
Commonwealth, he should have been charged with violating Code §
18.2-172. We disagree with both assertions.
First, we hold that a bail bond is a public record. At the
time of the offense, Code § 42.1-77 defined "public record" to
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mean:
all written books, papers, letters,
documents, photographs, tapes, microfiche,
microfilm, photostats, sound recordings,
maps, other documentary materials or
information in any recording medium
regardless of physical form or
characteristics, including electronically
recorded data, made or received in pursuance
of law or in connection with the transaction
of public business by any agency or employee
of state government or its political
subdivisions.
See Reid v. Commonwealth, 16 Va. App. 468, 470, 431 S.E.2d 63, 64
(1993)(fingerprint card is a public record). The forged bail
bond in question was approved and signed by a magistrate,
pursuant to the magistrate's duties, and resulted in the filing
of the document with the court. Upon its execution, appellant's
son was released from custody on a pending criminal matter. As
such, the bail bond fits squarely within the definition of a
public record. It is no less a public record under this
definition simply because the bail bond required the signatures
of appellant and his ex-wife to secure appellant's son's release.
Reid, 16 Va. App. at 470, 431 S.E.2d at 64. "[H]arm 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." Campbell v. Commonwealth, 246 Va, 174, 184,
431 S.E.2d 648, 654 (1993).
Second, even if the Commonwealth could have charged
appellant with private records forgery to the prejudice of his
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ex-wife's rights under Code § 18.2-172, see Linton v.
Commonwealth, 4 Va. (2 Va. Cas.) 476 (1825)(involving the forgery
of a civil bond, where the rights of third parties were
prejudiced by the defendant's alteration of the bond), it was not
required to do so. Appellant incorrectly argues that when the
"locus of harm" is upon a third party's rights, the Commonwealth
must charge a defendant with forging a private document. The
cases appellant cites in support of this flawed argument are
inapposite. In none of the cases that appellant cites was this
Court or the Supreme Court called on to decide whether the
defendant was properly charged under the public record forgery
statute as opposed to the private record forgery statute, or
vice-versa. See Hanbury v. Commonwealth, 203 Va. 182, 122 S.E.2d
911 (1961); Pope v. Commonwealth, 19 Va. App. 130, 449 S.E.2d 269
(1994); Deer v. Commonwealth, 17 Va. App. 730, 441 S.E.2d 33
(1994); Tucker v. Commonwealth, 17 Va. App. 520, 438 S.E.2d 492
(1993); Welch v. Commonwealth, 15 Va. App. 518, 425 S.E.2d 101
(1992).
Because appellant was properly charged and convicted of
forging a public document and uttering a forged public document,
we affirm his convictions.
Affirmed.
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