                  COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Annunziata and Humphreys
Argued at Richmond, Virginia


BERNARD LESTER WALLER, A/K/A
 BERNARD L. REASE
                                         MEMORANDUM OPINION * BY
v.   Record No. 0934-01-2              JUDGE JAMES W. BENTON, JR.
                                              MAY 14, 2002
COMMONWEALTH OF VIRGINIA


             FROM THE CIRCUIT COURT OF HALIFAX COUNTY
                     Leslie M. Osborn, Judge

          Tracy L. Quackenbush (Law Offices of W.W.
          Bennett, Jr., P.C., on brief), for appellant.

          Leah A. Darron, Assistant Attorney General
          (Randolph A. Beales, Attorney General, on
          brief), for appellee.


     Bernard Lester Waller appeals from a conviction of using a

false name and social security number on a voter registration

application in violation of Code § 24.2-1016.    Appellant

contends the trial judge erred by (i) adversely considering his

failure to testify, (ii) improperly shifting the burden of proof

from the Commonwealth, and (iii) finding the evidence sufficient

to prove he "willfully" made a false statement.    For the

following reasons, we reverse the conviction.

     An indictment charged appellant with one count of

feloniously using, between May 1, 1999 and May 1, 2000, a false

     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
name and social security number on a voter registration

application.   The Commonwealth's evidence proved that on May 27,

1999, a social services worker interviewed a man who applied for

food stamps benefits.    The social worker testified that when she

asked the man if he wanted to register to vote, he responded

affirmatively.   Although the social worker saw the man sign the

name "Bernard L. Waller" on a voter registration application,

she could not identify appellant as the man she interviewed.      In

accordance with the practice of the social services office, the

completed application was sent to the voter registrar's office.

The Halifax County registrar testified that she received from

social services a voter registration application bearing the

name "Bernard Lester Waller" and the social security number

"XXX-XX-XXXX."   The application indicated Waller had not been

convicted of a felony.   The registrar registered that person as

a voter.

     Almost a year later on April 22, 2000, the registrar

received by mail a voter registration application that bore the

name "Bernard Lester Rease" and the social security number

"XXX-XX-XXXX."   It indicated Rease had not been convicted of a

felony.    When the registrar noticed that the application bore

the same first and middle name and address as another applicant

but indicated different social security numbers and surnames,

she reviewed the voter rolls.   She then called appellant "and

asked him to confirm information on the cards so that [she]

                                - 2 -
could get the correct social security number . . . and . . .

understand what the problem was with the name."   She testified

that she did not register the second application and that

appellant never voted in an election.

     Both voter registration applications were admitted as trial

exhibits.   The registrar testified that each application

originally contained a detachable form on the bottom of the

application.   One item of the detachable form requires the

applicant to indicate whether the applicant ever previously

registered to vote.   Another item requires the applicant to

indicate whether the applicant authorizes the cancellation of

the applicant's current registration.   Although the registrar

testified this latter item is used to cancel a prior

registration, she also testified "that particular [item] doesn't

[cancel anything in Virginia]."   The registrar testified that

the detachable form is sent to another state if the person

indicates he or she was registered in that state or destroyed if

the person indicates no prior registration.   Although neither

application contained the detachable form, the registrar could

not remember whether the forms had been mailed or destroyed.

     A forensic expert testified that, based on a comparison of

a sample of appellant's known signature with the signatures on

both registration applications, it was his opinion that the same

person had signed both voter registration applications and that

the signatures matched appellant's signature exemplar.   Over

                               - 3 -
defense counsel's objection, the Commonwealth also introduced a

record of two criminal convictions from New Jersey which lists

appellant's name as "Bernard L. Rease" and indicates appellant

had been convicted of possession of cocaine in violation of New

Jersey Code § 2C:35-10A(1) and violating probation in violation

of New Jersey Code § 2C:35-10A(1).     Overruling the objection,

the trial judge determined that the records were admissible to

prove appellant's motive to give false information.

     After the trial judge denied appellant's motion to strike

the evidence for insufficiency, appellant's mother, Helen

Waller, testified that appellant was born in New Jersey in 1962

before she married and while she used the name "Waller."      She

testified that after she married, she changed both of their

surnames to "Rease," but that when she divorced three years

later, both she and appellant resumed using the name "Waller."

She testified that appellant had used the names "Waller" and

"Rease" when he lived in New Jersey.

     Appellant's mother also testified that when appellant moved

to Halifax County in 1999 he was using "Waller" as his surname.

She testified that appellant had difficulty obtaining a job in

Virginia because he did not have identification.    He then

obtained a birth registration certificate from New Jersey.     The

birth registration certificate, which was entered into evidence,

was issued February 8, 2000.   It contains the name, "Bernard

Lester Rease," and the birth date, October 4, 1962.    The birth

                               - 4 -
registration certificate further indicates that the birth was

registered in New Jersey on October 8, 1962.   The judge found

that "[t]his is not the original birth certificate . . . [but]

is a birth registration certificate issued in February of the

year 2000" and that "[i]t would incorporate any changes that

were made for all that period of time."   The judge also admitted

into evidence copies of the New Jersey Code §§ 2C:1-4 and

2C:43-1, which designate crimes in New Jersey as either

"misdemeanor" or "high misdemeanor."

     At the conclusion of the testimony, the trial judge ruled,

in pertinent part, as follows:

               I don't think that the Commonwealth has
          proven that the situation with regard to
          . . . the name in and of itself is enough.
          The law in Virginia in general says you can
          use any name you want to as long as you
          don't do it for fraudulent purposes. In and
          of itself I'm not sure that that would be
          enough. But I don't see any justification
          for having two different social security
          numbers. And to be honest with you, before
          a lot of this evidence was put on I
          certainly wouldn't have convicted just on
          the change of the name because the man could
          have changed his name. And I think it's not
          unreasonable -- in my opinion it's not an
          unreasonable inclination with regard to the
          name. But I've heard no reasonable
          explanation for giving different social
          security numbers. It's not off one number.
          It's an inversion. The -- we do have
          admitted into evidence this other thing that
          shows it was a different social security
          number out of state, and I don't think I can
          totally ignore that, but the -- there's been
          no explanation whatever with regard to these
          two social security numbers.


                                 - 5 -
               Also, the evidence does not indicate
          that before any criminal charges or anything
          else was brought on whether he had an
          opportunity to get this straight and he
          didn't. I think the fact he did not do
          that, nor has he testified -- given any
          testimony with regard to that has some
          effect, also.

               The long and short of it is, I'm going
          -- I'm going to find him guilty of this
          based on the social security numbers,
          because I think that the evidence was
          sufficient.

               And the fact that the term in New
          Jersey does not use the word felony does not
          negate Mr. Greenbacker's argument with
          regard to motive.

The trial judge convicted appellant of violating Code

§ 24.2-1016.

                                II.

     Appellant contends the trial judge "violated the Fifth

Amendment by holding the appellant's silence against him" and

also "abused his discretion by shifting the burden of proof to

the appellant."   The record reflects, however, that appellant

made no objection at trial concerning either issue.

Accordingly, Rule 5A:18 bars our review of both issues.

                               III.

     Appellant additionally contends the evidence did not prove

he acted willfully.   We agree with appellant that the evidence

was insufficient to prove that element of the offense.




                               - 6 -
     The statute provides as follows:

                 Any willfully false material statement
            or entry made by any person in any
            statement, form, or report required by this
            title shall constitute the crime of election
            fraud and be punishable as a Class 5 felony.
            Any preprinted statement, form, or report
            shall include a statement of such unlawful
            conduct and the penalty provided in this
            section.

Code § 24.2-1016.    When used in a criminal statute, "willfully"

ordinarily means "designedly, intentionally or perversely."

Lambert v. Commonwealth, 6 Va. App. 360, 363, 367 S.E.2d 745,

746 (1988).    It generally means "an act done with a bad

purpose."     Ellis v. Commonwealth, 29 Va. App. 548, 554, 513

S.E.2d 453, 456 (1999).    Thus, we have held that when "[t]he

plain language of the statute requires that the Commonwealth

prove willfulness beyond a reasonable doubt[,] . . . [t]hat

element of the crime will not be inferred from an absence of

evidence to the contrary."     Lambert, 6 Va. App. at 364, 367

S.E.2d at 747.

     The trial judge found appellant "guilty . . . based on the

social security numbers."    The evidence clearly established that

appellant's two applications contain different social security

numbers.    The first application contained the number

"XXX-XX-XXXX," and the second contained the number

"XXX-XX-XXXX."    The evidence does not prove that one of the

numbers was not appellant's social security number.

Furthermore, even if neither of the numbers was appellant's true

                                 - 7 -
social security number, the evidence leaves to speculation

whether the numbers were honest mistakes of transposition or

misstatements of facts designedly made.   Although appellant

signed the first application and clearly was the source for the

information printed above his signature, the evidence does not

establish that appellant willfully acted when he gave that

number.   Clearly, if appellant honestly believed he was giving

his true social security number but negligently transposed the

numbers, no conviction can be had under the statute.    The

Commonwealth has the burden of proving both falsity and

willfulness under Code § 24.2-1016.

     The only evidence presented by the Commonwealth concerning

the issue of intent or motive was a copy of appellant's New

Jersey conviction record.   The trial judge admitted the

conviction record for the limited purpose of motive, i.e.,

whether appellant made a false statement to conceal his status

as a felon.   The Commonwealth's evidence, however, did not

establish that the New Jersey conviction was a felony

conviction.   The New Jersey statutes indicate that appellant's

conviction was for a "crime of the third degree," which New

Jersey law classified as a "high misdemeanor."   The Commonwealth

also presented no evidence that tended to prove appellant knew

or believed the conviction was a felony offense.

     We also note that no evidence concerning the detached

portion of the voter registration application was introduced.

                               - 8 -
The evidence proved that appellant filed the second application

after the birth certificate from New Jersey was issued, which

lists his surname as "Rease."   If the second application was a

correction of an improper statement in the first application, it

is reasonable to infer that appellant simply intended to correct

his prior mistake.    Because no evidence concerning the detached

portion of the application was produced at trial, the trial

judge did not know whether appellant indicated on the card that

he had previously registered and that he wished to cancel the

prior registration.

     In summary, the Commonwealth's evidence on the issue of

appellant's intent was insufficient to support a logical

inference that appellant's applications indicated a willful

intent to defraud or to relay erroneous information.   Thus, we

hold that the evidence fails to support an inference beyond a

reasonable doubt that appellant willfully made a false statement

on the voter registration application.   Accordingly, we reverse

the conviction and dismiss the indictment.

                                          Reversed and dismissed.




                                - 9 -
