                   COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Annunziata and Lemons ∗
Argued by teleconference


CHRISTOPHER J. STROPE
                                         MEMORANDUM OPINION ∗∗ BY
v.   Record No. 1549-98-4                JUDGE DONALD W. LEMONS
                                              APRIL 18, 2000
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF STAFFORD COUNTY
                 David F. Berry, Judge Designate

          Michael T. Leibig (Zwerdling, Paul, Leibig,
          Kahn, Thompson & Wolly, P.C., on briefs), for
          appellant.

          Jeffrey S. Shapiro, Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellee.


     Christopher J. Strope appeals his conviction of nine counts

of charitable contribution fraud, in violation of Code § 57-57.

On appeal, Strope contends (1) that the trial court erred by

granting the Commonwealth's motion to join his trial with a
codefendant and (2) that his conviction violates his

constitutional right to freedom of association under the First

Amendment to the United States Constitution.     Finding no error,

we affirm his convictions.


     ∗
       Justice Lemons prepared and the Court adopted the opinion
in this case prior to his investiture as a Justice of the
Supreme Court of Virginia.
     ∗∗
       Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
                         I.     BACKGROUND

     Christopher Strope was the Executive Director of the

Virginia Coalition of Police and Deputy Sheriffs ("VCOPS"), an

organization comprised of police and deputy sheriffs'

organizations and unions across the Commonwealth.     In 1995,

Strope entered into a contract retaining Atlantic Telemarketing,

Inc. ("ATI") to conduct telephone solicitations on behalf of

VCOPS.

     Between November 21 and December 1, 1996, ATI telemarketers

made several calls to Stafford County residents to solicit

donations for VCOPS using a written script approved by Strope and

the president of ATI, James Bell.    The callers claimed to be

either from the Stafford County Sheriff's Department or calling

on its behalf and said they were trying to raise money for the

families of slain officers, a battered women's shelter, a

homeless children's shelter and to purchase bulletproof vests.

Citizens were assured that their contributions would be used

solely in Stafford County.    Several suspicious residents reported

these calls to the Stafford County Sheriff's Department, which

was not part of the campaign.
     On December 2, 1996, in a telephone conversation between

Strope and Deputy Sheriff Timothy O'Leary, Strope confirmed that

ATI was currently soliciting donations for VCOPS, and assured

O'Leary that he was monitoring the callers and that they were

doing everything required of them.      Strope gave O'Leary

conflicting information as to where the collected funds were

being allocated, whether Stafford County residents were targeted

for solicitation and whether donors were to be given receipts.

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        Strope and Bell knew as early as September, 1996, that

Stafford County was an intended target of this telemarketing

campaign.      Strope and Bell knew that the solicitors were

representing themselves as being from the Stafford County

Sheriff's Department.      Similar complaints had been made in the

past.       Strope and Bell did not discipline a single caller for

making misleading statements during this campaign.       Of the

$322,000 raised by the campaign, less than 4% actually went to a

charitable purpose.
        Strope and Bell were charged with identical counts of

attempted embezzlement, conspiracy, attempted false pretenses,

attempted charitable contributions fraud, misuse of funds and

charitable contributions fraud. 1      The trial court granted the

Commonwealth's motion to join the trials of Strope and Bell.         At

trial, the Commonwealth presented evidence that Strope and Bell

worked together to prepare a script for telemarketers that was

misleading.      It also presented evidence that they were in contact

with one another regarding media coverage of incidents of

telemarketer misrepresentations.       The jury convicted both men on

the nine counts of charitable contributions fraud and acquitted

both men on the remaining charges.

                          II.   MOTION FOR JOINDER

        Code § 19.2-262.1 provides that:

               On motion of the Commonwealth, for good cause
               shown, the court shall order persons charged
               with participating in contemporaneous and
               related acts or occurrences or in a series of
        1
       The trial court sustained the defendants' motions to
strike the conspiracy charges, the attempted embezzlement
charges, and one count of attempted charitable contribution
fraud.

                                    - 3 -
             acts or occurrences constituting an offense
             or offenses, to be tried jointly unless such
             joint trial would constitute prejudice to a
             defendant. If the court finds that a joint
             trial would constitute prejudice to a
             defendant, the court shall order severance as
             to that defendant or provide such other
             relief justice requires.

We have recognized that "prejudice may result when evidence

inadmissible against a defendant, if tried alone, is admitted

against a codefendant in a joint trial."     Adkins v. Commonwealth,

24 Va. App. 159, 163, 480 S.E.2d 777, 779 (1997).    Nevertheless,

"[t]he risk of prejudice will vary with the facts in each case,

and the decision to permit a joint trial is entrusted to the

sound discretion of the trial court."     Id. (citations omitted).

     On appeal, Strope argues that a joint trial prejudiced him

because (1) it denied his right to compel his codefendant to

testify, (2) his defenses were unfairly entangled with his

codefendant's defenses, (3) the complexity of the case hindered

the jury's ability to distinguish the evidence relevant to each

defendant, (4) he and his codefendant had different degrees of

culpability and (5) he and his codefendant had "antagonistic

defenses."    At trial, however, Strope only argued that he would

be prejudiced by a joint trial because (1) evidence concerning

his codefendant would be introduced before a conspiracy was

proven, (2) two codefendants may have "antagonistic defenses"

and (3) it would allow a codefendant's statement to be

improperly admitted if it was made after completion of the

conspiracy.    Strope never argued to the trial court that he was



                                 - 4 -
prejudiced by evidence that was admitted against Bell in their

joint trial but would have been inadmissible against him if

tried alone.

        In his reply brief, appellant notes that a document

entitled "Virginia Coalition of Police and Deputy Sheriff's

Script," that was downloaded from an ATI computer drive by the

police and did not include a portion identifying the caller as a

paid solicitor, would have been inadmissible against him if his

trial had not been joined with Bell's and, since it was

prejudicial, the Commonwealth's motion for joinder should have

been denied.    At trial, however, Strope objected to this exhibit

on entirely different grounds from those he asserts on appeal.

When the Commonwealth introduced the script, Bell's counsel

stated, "I don't have an objection, but I may have."    He

explained that on March 31, 1996, the law changed and unions

were required "to comply with the provisions of the section of

the code of charitable solicitations that dealt with having the

fund raiser identify themselves [sic] as paid fund raisers

[sic]."    Since the Commonwealth was "not in a position to prove

the date on that script" and whether it was used before or after

the law change, it would be prejudicial and mislead the jury.

The Commonwealth stated that it was in a position to provide a

date.    Strope's counsel then stated that he had "an objection

also" on grounds of relevance since "of all the witnesses who

have testified, none of them have testified to receiving the

                                 - 5 -
- that this script was read to them."    The court allowed the

Commonwealth's witness to identify and authenticate the document

without admitting it into evidence.    The next day, the court

admitted the document into evidence as Commonwealth's Exhibit 14

without objection.   Accordingly, with respect to this exhibit,

the only ground that is preserved is relevance, and Strope does

not argue this ground on appeal.    Pursuant to Rule 5A:18, the

only "prejudice" argument that we may consider on appeal is that

Strope and Bell had "antagonistic defenses."

     On appeal Strope must demonstrate that "actual prejudice

would result from a joint trial."     Goodson v. Commonwealth, 22

Va. App. 61, 71, 467 S.E.2d 848, 853 (1996) (citation omitted).

"Actual prejudice results only when 'there is a serious risk that

a joint trial would compromise a specific trial right of

[defendant], or prevent the jury from making a reliable judgment

about guilt or innocence.'"   Adkins, 24 Va. App. at 163, 480

S.E.2d at 779.   "[P]rejudice does not exist merely because a
codefendant has a better chance of acquittal if tried

separately," Barnes v. Commonwealth, 22 Va. App. 406, 412-13, 470

S.E.2d 579, 582 (1996), nor does it exist because codefendants

may have positions that are hostile to one another.     See Adkins,

24 Va. App. at 163, 480 S.E.2d at 779; Goodson, 22 Va. App. at

71, 467 S.E.2d at 853.   Consequently, the fact that Strope and

Bell may have had "antagonistic defenses" is insufficient alone

to prove actual prejudice.

     Furthermore, the assertion of antagonistic defenses is

unsupported in the record of this case.    At trial, Strope argued

                               - 6 -
to the court and to the jury that the script he and Bell jointly

approved was not misleading and that the individual solicitors

who were tried separately were responsible for any

misrepresentations made to callers.      Strope never claimed that

Bell was responsible.   Bell presented the same defense.    During

closing arguments, both Bell and Strope blamed a few "renegade"

solicitors.   Accordingly, the record clearly establishes that

Strope and Bell did not use "antagonistic defenses."     The trial

court did not err by joining the trial of Strope and Bell

pursuant to Code § 19.2-262.1.




                                 - 7 -
                 III.   FREEDOM OF ASSOCIATION CLAIM

     Strope maintains that his conviction pursuant to Code

§ 57-57(L) 2 violates his right of freedom of association

protected by the First Amendment to the United States

Constitution.   Strope notes that he was found guilty only of

attempting to obtain money by misrepresentation and, according to

Strope, the only evidence supporting that charge was based on his

being associated with VCOPS.    As the Executive Director of VCOPS,

Strope was the signatory to the contract with ATI, which,

incidentally, called for honest solicitation.    Strope claims that

ATI employees violated the contract by misrepresenting

themselves.    Thus, Strope contends that his conviction violates

the First Amendment because it infringes on his freedom of

association.
     In support of his contention, Strope cites Riley v. Nat'l

Fed'n of the Blind of North Carolina, 487 U.S. 781 (1988).      In

Riley, the United States Supreme Court declared unconstitutional

a North Carolina charitable solicitations statute that defined a
prima facie "reasonable fee" that a professional fundraiser may

charge as a percentage of the funds solicited.    Id. at 785-95.

The Court held that the statute violated the First Amendment

since it sometimes required the fundraiser to rebut a prima facie

case that the solicitor's fee was unreasonable.    See id. at

793-95.

     2
       Code § 57-57(L) provides that "No person shall employ in
any solicitation or collection of contributions for a charitable
purpose any device, scheme or artifice to defraud or obtain
money or property by any misrepresentation or misleading
statement." Violation of this chapter is a misdemeanor. See
Code § 57-59.

                                - 8 -
     Here, in contrast to Riley, there was no prima facie case of

unreasonableness that appellant had to rebut; in other words,

Code § 57-57 does not shift the burden of proof to the

fundraiser.   While the jury may have considered the percentage of

the contributions that actually went toward the stated uses for

purposes of determining fraud, Code § 57-57 does not mandate such

a percentage-based inquiry, nor is fraud "presumed by a surrogate

and imprecise formula" within the statute.        Id. at 794 n.8.

Quite simply, the jury engaged in a lawful finding of fact by

considering the allocation of the solicited funds to the purposes

stated by the solicitors.
     Viewing the evidence in the light most favorable to the

Commonwealth, Strope was found guilty of misrepresentation not

merely because he entered into a contract with ATI and a few

"renegade" ATI solicitors misrepresented who they were and where

the solicited funds would be allocated.        Strope intended for

Stafford County to be a target of this telemarketing campaign.

He knew that the solicitors were misrepresenting themselves as

being from the Stafford County Sheriff's Department and that they

had been accused of similar conduct in the past.       He participated

in writing the script from which those callers read during the

campaign that misrepresented how the funds were to be allocated.

Furthermore, the evidence established that Strope's telemarketing

campaign resulted in over $322,000 in donations.       Of this money,

less than 4% was distributed to the purported charitable causes.

                            IV.   CONCLUSION

     We hold that there was no violation of Strope's right of

freedom of association under the First Amendment to the United

                                  - 9 -
States Constitution.    For the reasons stated herein, we affirm

Strope's convictions.

                                                          Affirmed.




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