                               COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, McClanahan and Senior Judge Coleman
Argued at Richmond, Virginia


GARRETT E. MUSHAW
                                                           MEMORANDUM OPINION∗ BY
v.     Record No. 2811-04-2                             JUDGE ELIZABETH A. McCLANAHAN
                                                                 APRIL 18, 2006
COMMONWEALTH OF VIRGINIA


                  FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                               Margaret P. Spencer, Judge

                  Gregory R. Sheldon (Goodwin, Sutton & DuVal, PLC, on brief),
                  for appellant.

                  Karri B. Atwood, Assistant Attorney General (Judith Williams
                  Jagdmann, Attorney General; Paul C. Galanides, Assistant
                  Attorney General, on brief), for appellee.


       The trial court convicted Garrett E. Mushaw of making a false application for public

assistance in violation of Code § 63.2-502. He contends the evidence was insufficient to prove

he knowingly made a false statement on his application. For the reasons that follow, we affirm

his conviction.

                                        I. BACKGROUND

       We view the evidence and the reasonable inferences in the light most favorable to the

Commonwealth. Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786, cert.

denied, 540 U.S. 972 (2003). In so doing, we “‘discard the evidence of the accused in conflict

with that of the Commonwealth.’” Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755,

759 (1980) (citation omitted). In response to emergency conditions created by Hurricane Isabel



       ∗
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
on September 18, 2003, federal funds were made available to affected residents in the form of

disaster food stamp benefits. The program was administered in Virginia by the Virginia

Department of Social Services (“DSS”). On October 2, 2003, Mushaw applied for, and

subsequently received, food stamp benefits under the program. At the time, Mushaw, a

Richmond resident, was employed by DSS as an accountant in its finance department and held a

masters degree in business administration. Following an investigation of all DSS employees

who received those benefits, Mushaw was indicted for making a false application for benefits in

violation of Code § 63.2-502.1

       The Commonwealth’s position at trial was that Mushaw, inter alia, knowingly and

falsely represented on his application that the money in his bank accounts was not available to

him at the time he applied for benefits because of the disaster. In his defense, Mushaw denied

knowingly making any such false representation on his application. Instead, he faulted the social

workers, who assisted him with his application, for any incorrect information contained in the

application.

       At trial, Brinette Jones, a social worker, explained the application process implemented at

the DSS office in Richmond where Mushaw applied. Jones stated that social workers distributed

application forms to those in line outside the office and then directed them in groups of thirty to

an inside conference room. Applicants were required to bring documentation of residence,

which the social workers reviewed while the applicants waited in line or after they entered the

conference room. Jones initialed Mushaw’s application, verifying his identity and residency

from his driver’s license.




       1
          Pursuant to Code § 63.2-502, one who knowingly makes a false application for such
benefits is guilty of perjury.
                                             -2-
       Inside the conference room, Jones and other social workers explained the questions on

the application and the application process. They also answered applicants’ questions about the

application. The applicants were to complete the application at this stage of the process. Jones

testified that, preliminarily, every applicant needed to know the dates of the disaster benefit

period in order to complete the application. Those dates, September 18 through October 17,

2003, were posted on a board in the front of the conference room. Social workers also orally

explained the benefit period to the applicants. In addition, the dates for the benefit period were

to be inserted on the application at the top left corner in the application heading, as follows:

“APPLICATION FOR EMERGENCY FOOD STAMPS FOR THE DISASTER BENEFIT

PERIOD _____TO_____.” Those dates were correctly inserted in writing (“9/18 TO 10/17”) on

Mushaw’s application.

       Following the group instruction and the applicants’ completion of the application, the

applicants met individually with an eligibility specialist. Mushaw met with eligibility specialist

Danette Smith. Smith testified that, in her personal interviews, she reviewed the application,

determined eligibility, and calculated the eligible applicant’s benefits based on income, available

monetary resources, and expenses incurred from the storm, as represented on the application by

the applicant. Part II, question six, of the application asked, “Does your household have any

cash or money in bank accounts that is not available for you to use because of the disaster?”

Smith testified that, when asked about question six, she informed applicants that whatever

money was “in [their] account at this time” was “available.” On his application, Mushaw

answered “Yes” to question six, representing that he had money in bank accounts not available

because of the disaster. As shown on his bank statements, however, Mushaw had several

thousand dollars in his checking and savings accounts at the time he applied for benefits, as well




                                                -3-
as the time between the onset of the benefit period and the date he applied. Smith also testified

that Mushaw answered question six on the application—she did not answer the question for him.

       DSS Investigator Michael Rawlings questioned Mushaw about his application during the

DSS investigation. Rawlings testified Mushaw initially explained that he declared his bank

accounts “not available” because he did not have an ATM card and there was a “power failure”

as a result of the storm. Mushaw conceded, however, that he “could” write checks on his

checking account. For the period of September 12 through October 10, 2003, during which his

balance did not fall below $4,345.78, Mushaw’s checking account statement showed that the

bank had processed twenty-three checks written on the account. The subsequent monthly

statement showed thirty checks written on the account. Furthermore, Mushaw admitted that the

credit union in which he maintained his savings account, with a branch located in the building

where he worked, was open when he returned to work on Monday, September 22, 2003,

following the storm on the previous Thursday.

       In his testimony at trial, Mushaw did not claim that a power failure and the absence of an

ATM card were the reasons he represented on his application that he had money in bank

accounts not available because of the disaster. Rather, he testified that he did not read the

application; did not understand it; and no one explained it to him. Mushaw further claimed “[he]

didn’t know what the benefit period was.” He admitted on cross-examination, however, that as

an accountant advising someone who was completing the application, the disaster benefit period

would be the “first thing” he would need to know to complete it. Specifically as to his answer to

Part II, question six, of the application, Mushaw testified that he just “answered the way [Smith]

told [him] to answer it.”

       In Part V entitled “PENALTY WARNING,” the application states, in part, that the

applicant “MUST NOT: GIVE FALSE INFORMATION . . . TO GET FOOD STAMP

                                                -4-
BENEFITS,” and one who violates this provision “MAY BE FINED, IMPRISIONED OR

BOTH.” Part VI of the application, entitled “CERTIFICATION AND SIGNATURE,” then

states:

                 I UNDERSTAND THE QUESTIONS ON THIS APPLICATION
                 AND THE PENALTY FOR WITHHOLDING OR GIVING
                 FALSE INFORMATION. MY RESIDENCE WAS WITHIN THE
                 DISASTER AREA AT THE TIME THE DISASTER
                 OCCURRED AND MY HOUSEHOLD IS IN NEED OF
                 IMMEDIATE FOOD ASSISTANCE. THE INFORMATION I
                 HAVE GIVEN IS CORRECT AND COMPLETE TO THE BEST
                 OF MY KNOWLEDGE . . . .

Mushaw signed and dated the application beneath this certification, as required on the

application.

          The trial court found Mushaw guilty of knowingly making a false application in violation

of Code § 63.2-502 based on his answer to Part II, question six. In announcing the verdict, the

court stated it did not “credit his testimony.” The court specifically concluded that “the money

in [Mushaw’s] bank accounts was available to him” during the disaster period and, “[i]n fact, he

was using the money;” but that he nevertheless knowingly and falsely represented otherwise on

his application.

                                           II. ANALYSIS

          We reverse a trial court’s factual finding only when it is unsupported by credible

evidence or plainly wrong. Seaton v. Commonwealth, 42 Va. App. 739, 746, 595 S.E.2d 9, 12

(2004). Thus, the only relevant inquiry is “whether . . . any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443

U.S. 307, 319 (1979) (emphasis in original); see also Kelly v. Commonwealth, 41 Va. App. 250,

257, 584 S.E.2d 444, 447 (2003) (en banc).

          Code § 63.2-502 provides that “[a]ny person who knowingly makes any false application

for public assistance . . . shall be guilty of perjury and, upon conviction therefor, shall be
                                                 -5-
punished in accordance with the provisions of § 18.2-434.” “A well-accepted definition of

‘knowingly’ is ‘an act . . . done voluntarily and intentionally, and not because of mistake or

accident or other innocent reason.’” United States v. Jones, 735 F.2d 785, 789 (4th Cir. 1984)

(citation omitted).

       In challenging his conviction on sufficiency of evidence grounds, Mushaw abandons any

argument that his answer to Part II, question six, of the application was correct. Instead, he

contends the Commonwealth failed to prove that he knowingly made a false application for

benefits. More specifically, he contends that the term “available” in Part II, question six, “was

not clearly defined either by [the social] workers or the application itself,” and that his response

was “attributable to mistake, accident or other innocent purpose.” We disagree.

       “Guilty knowledge need not be directly proved. It may be shown by circumstances.”

Lewis v. Commonwealth, 225 Va. 497, 503, 303 S.E.2d 890, 893 (1983) (citation and internal

quotation marks omitted). Indeed, where “[g]uilty knowledge is an essential element of the

offense as defined by the statute, . . . ‘absent proof of an admission against interest, such

knowledge necessarily must be shown by circumstantial evidence.’” Spitzer v. Commonwealth,

233 Va. 7, 9, 353 S.E.2d 711, 713 (1987) (quoting Lewis, 225 Va. at 503, 303 S.E.2d at 893)

(internal brackets omitted); see also Parks, 221 Va. at 498, 270 S.E.2d at 759. “Circumstantial

evidence[,] when sufficiently convincing, is entitled to the same weight as direct evidence.”

Riner v. Commonwealth, 268 Va. 296, 303-04, 601 S.E.2d 555, 558-59 (2004) (citations

omitted); see also Hudson, 265 Va. at 512-13, 578 S.E.2d at 785.

       Furthermore, “a fact-finder, having rejected a defendant’s attempted explanation as

untrue,” as the trial judge did in this case, “may draw the reasonable inference that his

explanation was made falsely in an effort to conceal his guilt. A false or evasive account is

[thus] a circumstance . . . that a fact-finder may properly consider as evidence of guilty

                                                 -6-
knowledge.” Covil v. Commonwealth, 268 Va. 692, 696, 604 S.E.2d 79, 82 (2004) (citations

omitted); see also Commonwealth v. Duncan, 267 Va. 377, 385, 593 S.E.2d 210, 215 (2004)

(noting that the fact-finder may discount an accused's self-serving explanation as a mere effort at

“lying to conceal his guilt”).

       Applying these standards, a rational fact finder could conclude from the evidence in this

case that Mushaw was guilty of knowingly making a false application for benefits. The trial

court, as trier of fact, credited the testimony of Jones, Smith and Rawlings and discredited

Mushaw’s testimony. As such, the evidence established Mushaw was well aware that the cash in

his bank accounts was available for his use not only at the time he applied for benefits, but

during the entire disaster benefit period. Furthermore, the circumstantial evidence supports the

inference that Mushaw—an accountant working for DSS in its finance department and holding

an MBA—knew his answer to Part II, question six, of the application was false. Accordingly,

we affirm his conviction.

                                                                             Affirmed.




                                               -7-
