                     COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Lemons and Senior Judge Cole
Argued at Richmond, Virginia


GEORGE HENSON, JR.
                                           MEMORANDUM OPINION * BY
v.        Record No. 1741-97-2              JUDGE LARRY G. ELDER
                                              DECEMBER 22, 1998
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF GOOCHLAND COUNTY
                       Jay T. Swett, Judge
          Craig S. Cooley for appellant.

          Donald E. Jeffrey, III, Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellee.



     George Henson, Jr. (appellant) appeals from his jury trial

conviction for perjury in violation of Code § 18.2-435.      On

appeal, he contends that the evidence was insufficient to support

his conviction because it did not prove that he gave conflicting

testimony "knowingly and with the intent to testify falsely."

For the reasons that follow, we reject appellant's contentions

and affirm his conviction.

                                  I.

                                 FACTS

     Claiborne Stokes, Assistant Commonwealth's Attorney,

testified that the trial court previously had ordered appellant

to pay restitution in a case and to write letters to the Virginia

     *
      Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
Employment Commission because he was unemployed and contended his

lack of employment prevented him from paying restitution.

Appellant failed to comply with the court order, and on December

28, 1995, the trial court conducted a hearing on the matter.

Stokes testified that when appellant was asked why he had not

written the letters, appellant testified, while under oath, that

he could not read.   Based on that testimony, the trial court

dismissed the charge because the Commonwealth had not proven that

appellant was capable of writing the required letters.
     Stokes testified that in June of 1996, at a child custody

hearing, appellant, while under oath, denied testifying

previously that he could not read and said that he had testified

he could not spell well.   Stokes also stated that, after the

hearing Stokes told appellant he believed appellant had just

committed perjury.   Stokes testified that appellant responded,

"Well, it's your job to catch me."

     A deputy clerk of the Goochland County Circuit Court

testified that she recalled appellant testifying on December 28,

1995 that he could not write, that he could read only "very small

words," and that he could sign his name.   A deputy sheriff who

served as a bailiff at the December 28, 1995 hearing stated that,

on that date, appellant testified he could not read or write.

The deputy sheriff testified that, at the June 1996 hearing,

appellant denied testifying previously that he could not read and

write and said he had testified only that his spelling skills




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were poor.   Several other witnesses confirmed that appellant

testified on December 28, 1995 that he could not read or write.

                                II.

                             ANALYSIS

      Code § 18.2-435 provides, in relevant part, that
           [i]t shall . . . constitute perjury for any
           person, with the intent to testify falsely,
           to knowingly give testimony under oath as to
           any material matter or thing and subsequently
           to give conflicting testimony under oath as
           to the same matter or thing. . . . Upon the
           trial . . . , it shall be sufficient to prove
           that the defendant, knowingly and with the
           intent to testify falsely, gave . . .
           differing testimony and that the differing
           testimony was given on two separate
           occasions.


Id.   The Commonwealth need not prove which testimony was false.

See Scott v. Commonwealth, 14 Va. App. 294, 296-97, 416 S.E.2d

47, 48-49 (1992).

      Appellant's challenge to the sufficiency of the evidence is

twofold.   He contends the evidence failed to prove (1) that he

acted with the requisite intent because he could reasonably have

believed he could not read and write well enough to write

business letters but could do so well enough to care for a child

and (2) that his statements were conflicting because his literacy

could have improved between the probation violation proceeding in

which he testified that he could not read and write and the

custody proceeding six months later in which he testified that he

could.   We reject both contentions.

      When considering the sufficiency of the evidence on appeal


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in a criminal case, this Court views the evidence in the light

most favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom.   See Higginbotham v.

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).     On

review, this Court does not substitute its own judgment for that

of the trier of fact.   See Cable v. Commonwealth, 243 Va. 236,

239, 415 S.E.2d 218, 220 (1992).   The judgment will not be set

aside unless it is plainly wrong or without supporting evidence.
 See Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415,

418 (1987).

     That the giving of false testimony was intentional or

willful, like any element of a crime, may be proved by

circumstantial evidence, see Waldrop v. Commonwealth, 23 Va. App.

614, 628, 478 S.E.2d 723, 729 (1996), rev'd on other grounds, 255

Va. 210, 495 S.E.2d 822 (1998); Servis v. Commonwealth, 6 Va.

App. 507, 524, 371 S.E.2d 156, 165 (1988), such as a person's

conduct and statements, see Long v. Commonwealth, 8 Va. App. 194,

198, 379 S.E.2d 473, 476 (1989).   "Circumstantial evidence is as

competent and is entitled to as much weight as direct evidence,

provided it is sufficiently convincing to exclude every

reasonable hypothesis except that of guilt."   Coleman v.

Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983).

However, "the Commonwealth need only exclude reasonable

hypotheses of innocence that flow from the evidence, not those

that spring from the imagination of the defendant."   Hamilton v.




                               - 4 -
Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 29 (1993).

Whether a hypothesis of innocence is reasonable is a question of

fact.     See Cantrell v. Commonwealth, 7 Va. App. 269, 290, 373

S.E.2d 328, 339 (1988).

        Here, the evidence proved that appellant acted with the

requisite intent.    It did not support a finding that he

reasonably believed he could not read and write well enough to

write business letters but could do so well enough to care for a

child.    The evidence, viewed in the light most favorable to the

Commonwealth, proved that appellant knowingly and intentionally

gave false testimony regarding a material fact--his ability to

read and write in the context of obtaining employment.      He

testified in the probation violation proceeding on December 28,

1995 that he failed to comply with the court's order to write

letters seeking employment because he could not read or write.
This testimony was material to the willfulness of his failure to

comply with the court's previous order and, in fact, resulted in

the dismissal of the probation violation proceedings.    In the

child custody proceeding on June 27, 1996, again during

questioning regarding his ability to read and write in the

context of obtaining employment, he testified that he had not
denied being able to read and write in that prior proceeding and

that he could, in fact, read and write.    Once again, appellant's

testimony was material, for it bore directly on his ability to

care for the child of whom he sought custody.




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     The record contains no evidence indicating that appellant

attempted to explain or qualify his June 1996 denial by saying he

could not read and write well enough to write business letters

but, nevertheless, believed himself capable of reading and

writing well enough to care for a child.   Rather, he flatly

denied testifying in the December 1995 proceeding that he could

not read or write, contending he said only that he could not

spell well.   This explanation was at odds with both the

Commonwealth's evidence regarding appellant's December 1995

testimony and the trial court's ultimate disposition on the

probation violation.   In addition, in a conversation appellant

initiated with the Commonwealth's attorney immediately after the

June 1996 proceeding, appellant tacitly admitted the conflict in

his testimony when he said to the Commonwealth's attorney,

"[I]t's your job to catch me [for committing perjury]."
     This evidence, viewed as a whole and in the light most

favorable to the Commonwealth, was sufficient to support the

jury's finding, beyond a reasonable doubt, that appellant

knowingly and intentionally testified falsely.

     We also reject appellant's contention that an improvement in

his literacy explained the apparent conflict in his testimony and

constituted a reasonable hypothesis of innocence flowing from the

circumstantial evidence.   Code § 18.2-435 provides that, "[u]pon

the trial of [a perjury] indictment, it shall be sufficient to

prove that the defendant, knowingly and with the intent to




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testify falsely, gave . . . differing testimony and that the

differing testimony was given on two separate occasions."   Here,

the Commonwealth presented a prima facie case of conflicting

evidence by proving that appellant gave differing testimony on

two separate occasions.   Implicit in the language of the statute

is that appellant then bore the burden of producing some evidence

to show that the testimony was not, in fact, conflicting.

           "It is undoubtedly the general rule that the

           state must prove all the essential facts

           entering into the description of the offense.

            But it has been held in many cases that when

           a negation of a fact lies peculiarly within

           the knowledge of the defendant it is

           incumbent on him to establish that fact."
Mayhew v. Commonwealth, 20 Va. App. 484, 490, 458 S.E.2d 305, 308

(1995) (quoting State v. Williamson, 206 N.W.2d 613, 618 (Wis.

1973)); see Overstreet v. Commonwealth, 193 Va. 104, 110-11, 67

S.E.2d 875, 879 (1951) (discussing burden of production under

statute stating explicitly what constitutes "prima facie evidence
of intent to defraud"); see also 1 Charles E. Friend, The Law of

Evidence in Virginia § 9-5, at 317 (4th ed. 1993) (discussing

burdens of production and persuasion).   In this case, because

appellant presented no such evidence, the Commonwealth's evidence

was sufficient to prove appellant's guilt beyond a reasonable

doubt.   In addition, the evidence proving the statements




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themselves was direct rather than circumstantial, rendering

inapplicable the principle that circumstantial evidence must

exclude all reasonable hypotheses of innocence.

     For these reasons, we affirm appellant's conviction.

                                                       Affirmed.




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