                        COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Annunziata and Senior Judge Coleman
Argued at Alexandria, Virginia


MICHAEL EUGENE DONATI
                                                  OPINION BY
v.   Record No. 2127-00-4                  JUDGE SAM W. COLEMAN III
                                                 MARCH 5, 2002
COMMONWEALTH OF VIRGINIA


              FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                       R. Terrence Ney, Judge

           James G. Connell, III (Devine & Connell,
           P.L.C., on briefs), for appellant.

           Leah A. Darron, Assistant Attorney General
           (Mark L. Earley, Attorney General, on brief),
           for appellee.


     Michael Eugene Donati appeals his jury trial conviction for

perjury.   He contends the trial court erred by denying his motion

to strike the evidence as insufficient to prove perjury in

violation of Code § 18.2-434.    He argues the Commonwealth failed

to prove falsity by two witnesses, or one witness supported by

significant corroborating evidence, as required by case law,

citing Schwartz v. Commonwealth, 68 Va. (27 Gratt.) 1025 (1876).

For the reasons that follow, we disagree and affirm his

conviction.

                              BACKGROUND

     On November 18, 1999, during a hearing in the Fairfax Circuit

Court to revoke Donati's probation, the Commonwealth introduced
into evidence a videotape purporting to show Donati exposing

himself and masturbating in a public building in Bethesda,

Maryland.   Security cameras in the building had recorded Donati's

activities on videotape.   The videotapes were introduced to prove

that Donati had violated the terms and conditions of his probation

by exposing himself in public in violation of the conditions that

he be of good behavior and not violate the law.   At the revocation

hearing, Donati admitted he was the man depicted on the videotape

but denied that the acts shown on the video were of him exposing

himself or masturbating.   As a result of those denials by Donati

at the revocation hearing while under oath, the Commonwealth

charged Donati with perjury.

     Viewing the evidence in the light most favorable to the

Commonwealth, Commonwealth v. Grimstead, 12 Va. App. 1066, 1067,

407 S.E.2d 47, 48 (1991), it proved that on June 22, 1999,

Detective Herbert C. Kahala observed Donati enter a business

building at 4815 Rugby Avenue in Bethesda, Maryland, wearing a

white tank top, gym shorts, and white tennis shoes.    Donati

remained in the building for fifteen to twenty minutes.

Surveillance tapes from the security system in the building

depicted Donati in a hallway with his penis exposed in a visibly

aroused state, masturbating.   The Commonwealth also introduced

still photographs of Donati produced from the videotape.




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                             ANALYSIS

               Since at least 1840, the Commonwealth
          appears to have had in force a statutory
          definition of the crime of perjury. See
          Commonwealth v. Stockley, 37 Va. (10 Leigh)
          712, 718 (1840). From that time to the
          present, the Code has provided, in effect,
          that "[i]f any person to whom an oath is
          lawfully administered on any occasion
          willfully swear falsely on such occasion
          touching any Material matter or thing, . . .
          he shall be guilty of perjury." See Code
          § 18.2-434. While the Code has never
          expressly required corroboration to sustain
          a perjury conviction, from an early date,
          our courts have imposed a corroboration
          requirement.

Keffer v. Commonwealth, 12 Va. App. 545, 547, 404 S.E.2d 745,

746 (1991) (footnote omitted).    The corroborating evidence rule

"is founded upon the idea that it is unsafe to convict in any

case where the oath of one man merely is to be weighed against

that of another."   Schwartz, 68 Va. (27 Gratt.) at 1027; accord

Stewart v. Commonwealth, 22 Va. App. 117, 120, 468 S.E.2d 126,

127 (1996); Keffer, 12 Va. App. at 548, 404 S.E.2d at 747.

"'[W]hen there is witness against witness, oath against oath,

there must be other evidence to satisfy the mind.'"    Keffer, 12

Va. App. at 548, 404 S.E.2d at 747 (quoting Swartz, 68 Va. (27

Gratt.) at 1027).   "The purpose of requiring corroborating

evidence is to 'confirm the single witness' testimony . . . .'"

Stewart, 22 Va. App. at 120, 468 S.E.2d at 127 (quoting 7

Wigmore on Evidence § 2042, at 364 (Chadbourn ed. 1978).      In

Keffer we emphasized that the corroborating evidence rule of


                                 - 3 -
"Schwartz remains in effect . . . in the event the case is

supported by the testimony of only one witness."   Keffer, 12 Va.

App. At 549, 404 S.E.2d at 747.

      We find that the rule enunciated in Schwartz and its

progeny is inapplicable in light of the facts of the case before

us.   This case does not involve the weighing of competing oaths

and is not supported by the testimony of only one witness,

circumstances which the Schwartz rule addresses.   Instead,

Donati's denials under oath that he exposed himself and

masturbated in public, acts which constituted the basis of the

perjury charge, were contradicted by the video recording of his

actions.   Thus, the jury weighed Donati's oath against

competent, authenticated, real evidence, consisting of a

videotape and photographs of the acts in which Donati denied

being engaged.   As such, the concerns of oath against oath or

one witness testifying contrary to the defendant, which were

raised in Schwartz, are not at issue here. 1

      "The credibility of the witnesses and the weight accorded

the evidence are matters solely for the fact finder who has the

opportunity to see and hear that evidence as it is presented."

Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730,

732 (1995).   The jury accepted the account of what was depicted


      1
       We do not in our ruling today overturn or modify Schwartz
and its progeny in any way. We find simply that those cases are
inapplicable.


                               - 4 -
on the videotape and found that Donati falsely testified at the

revocation hearing when he denied that he exposed himself and

masturbated.

     To support Donati's conviction, "[a]ll that was required to

be proven was that appellant, being duly under oath, willfully

swore falsely to material facts."        Sheard v. Commonwealth, 12

Va. App. 227, 233, 403 S.E.2d 178, 181 (1991).       The Commonwealth

introduced a properly authenticated videotape depicting Donati

exposing his penis and masturbating.       The Commonwealth also

presented evidence that, under oath, Donati claimed he did not

engage in that activity.   "Videotapes, like photographs, when

properly authenticated, may be admitted . . . 'as "mute,"

"silent," or "dumb" independent photographic witnesses.'"

Brooks v. Commonwealth, 15 Va. App. 407, 410, 424 S.E.2d 566,

569 (1992) (citation omitted).

          [E]ven though no human is capable of
          swearing that he personally perceived what a
          photograph [or videotape] purports to
          portray . . . there may nevertheless be good
          warrant for receiving [it] in evidence.
          Given an adequate foundation assuring the
          accuracy of the process producing it, the
          photograph [or videotape] should then be
          received as a so-called silent witness or as
          a witness which "speaks for itself."

Id. (citations omitted).   In this case, the videotape speaks for

itself and proved that Donati testified falsely under oath.        The




                                 - 5 -
evidence is sufficient, as a matter of law, to support Donati's

conviction for perjury.

                                                        Affirmed.




                              - 6 -
Benton, J., dissenting.

     The majority apparently believes that as a policy matter a

video recording is to be deemed more credible, as a matter of

law, than the testimony of the most reliable and credible human

witness.   Consequently, it has found inapplicable the long

standing rule in Schwartz v. Commonwealth, 68 Va. (27 Gratt.)

1025 (1876), requiring corroborating evidence to prove perjury.

"If [Schwartz] is to be overruled, . . . it must be expressly

overruled by the Supreme Court."   Bostic v. Commonwealth, 31 Va.

App. 632, 636, 525 S.E.2d 67, 68 (2000).   Because we are

"constrained by our previous decisions and those of the Supreme

Court," id. at 635, 525 S.E.2d at 68, I would apply the Schwartz

rule, which is clearly stated and is contrary to the majority's

holding.   Therefore, I dissent.

     "The common law crime of perjury is codified at Code

§ 18.2-434."   Williams v. Commonwealth, 8 Va. App. 336, 339, 381

S.E.2d 361, 364 (1989).   For over a century, the Supreme Court

of Virginia has recognized the following principle applicable to

that crime:

           No rule is perhaps better settled than that
           to authorize a conviction of perjury there
           must be two witnesses testifying to the
           falsity of the statement, or one witness
           with strong corroborating circumstances of
           such a character as clearly to turn the
           scale and overcome the oath of the party and
           the legal presumption of his innocence.
           This rule is founded upon the idea that it
           is unsafe to convict in any case where the
           oath of one man merely is to be weighed

                               - 7 -
          against that of another. . . . [T]he
          confirmatory evidence however must be of a
          strong character, and not merely
          corroborative in slight particulars.

Schwartz, 68 Va. (27 Gratt.) at 1027.   Elaborating further, the

Court explained that "[w]hen we speak of corroborative evidence,

we . . . mean . . . evidence aliunde, evidence which tends to

show the perjury independently."   Id. at 1032.   Indeed, we

recently applied the rule and reiterated its unambiguous command

as follows:

          We hold that the law as stated in Schwartz
          remains in effect and a perjury conviction
          under Code § 18.2-434 requires proof of
          falsity from the testimony of at least two
          witnesses or other corroborating evidence of
          falsity in the event the case is supported
          by the testimony of only one witness.

Keffer v. Commonwealth, 12 Va. App. 545, 549, 404 S.E.2d 745,

747 (1991) (emphasis added).

     The Commonwealth sought to prove that Michael Donati

committed perjury when he denied masturbating inside a building.

In its case-in-chief, the Commonwealth offered as evidence a

video, which depicted Donati inside the building.   The

photographs, which the majority identifies as part of the "real

evidence," were derived from the video recording and, thus,

constitute the same evidence as the video.   The photographs were

not independently generated by a still camera that captured

Donati's images.   "Videotapes, like photographs, when properly

authenticated, may be admitted under either of two theories:


                               - 8 -
'(1) to illustrate the testimony of a witness, and (2) as

"mute," "silent," or "dumb" independent photographic

witnesses.'"   Brooks v. Commonwealth, 15 Va. App. 407, 410, 424

S.E.2d 566, 569 (1992) (citations omitted).

     In this case, however, no witness testified concerning the

events depicted on the video recording.    The video recording

obviously was admitted into evidence as a "'"mute," "silent," or

"dumb" independent photographic'" witness.     Id.   The video

recording and the photographs, which were derived from images on

the video recording, merely provided depictions of physical

facts that presented a jury question.     See Carner, Adm'r v.

Hendrix, 205 Va. 24, 26, 135 S.E.2d 113, 115 (1964); Wilson v.

Commonwealth, 29 Va. App. 236, 240, 511 S.E.2d 426, 428 (1999).

The law does not conclusively presume a fact merely because the

Commonwealth alleges that a video recording or photograph

depicts such a fact.

     At the conclusion of the evidence, the trial judge

instructed the jury that "[t]he Commonwealth must establish the

falsity of the statement under oath by two or more witnesses, or

by one witness whose testimony is corroborated by circumstances

inconsistent with the innocence of . . . Donati and directly

intended to support the testimony of the accusing witness."

This instruction has its genesis in Schwartz, 68 Va. (27 Gratt.)

at 1027, a rule of Virginia law that is more than a century old.

Giving little deference to this rule, the majority essentially

                               - 9 -
eviscerates it, noting merely that the Commonwealth's proof in

this case was "real evidence, consisting of a videotape and

photographs."    Upon that premise, solely, the majority holds

that because the jury did not have to decide between competing

oaths of a witness and the defendant, the "corroborating

evidence" rule is inapplicable.

        This case presents no reason to deviate from the Schwartz

rule.    Even if we assume (1) that the video recording is

evidence having the dignity of a witness under oath and (2) that

the jury found the video recording to be credible evidence from

a "witness" that Donati's testimony at the revocation proceeding

was false, the issue remains, under the Schwartz rule, whether

the Commonwealth proved "other corroborating evidence of

falsity."     Keffer, 12 Va. App. at 549, 404 S.E.2d at 747.   See

also Schwartz, 68 Va. (27 Gratt.) at 1032 (holding that

corroborating evidence means "evidence aliunde, evidence which

tends to show the perjury independently").    The only other

evidence that remotely bears on this issue was the detective's

testimony that he saw Donati enter the building and later leave

it.   The fact that Donati was in the building was undisputed.

The detective's testimony does not tend to prove in any manner

what Donati did inside the building, which is the subject of

Donati's testimony that the Commonwealth alleges to be perjury.

        Under the common law, perjury has always been difficult to

prove because of this stringent proof requirement.    Citing "the

                                - 10 -
two-witness rule, under which 'the uncorroborated oath of one

witness is not enough to establish the falsity of the testimony

of the accused,'" Dunn v. United States, 442 U.S. 100, 108 n.6

(1979) (citation omitted), the United States Supreme Court noted

that "the strict common law requirements for establishing

falsity . . . often [makes] prosecution for false statements

exceptionally difficult."     Id. at 108.

     As Wigmore notes, "there may be reasons of policy, founded

on experience . . . , sufficient to justify [the rule's]

maintenance."   7 Wigmore on Evidence § 2041, at 361 (Chadbourn

ed. 1978).   "[W]hen we consider the very peculiar nature of this

offense, and that every person who appears as a witness in a

court of justice is liable to be accused of it by those against

whom his evidence tells, . . . we shall see that the obligation

of protecting witnesses from oppression, or annoyance, by

charges, or threats of charges of having borne false testimony,

is far paramount to that of giving even perjury its deserts."

Id. (citation omitted).     "The rule may originally have stemmed

from quite different reasoning, but implicit in its evolution

and continued vitality has been the fear that the innocent

witnesses might be unduly harassed or convicted in perjury

prosecutions if a less stringent rule were adopted."     Weiler v.

United States, 323 U.S. 606, 609 (1945).     I believe that this

common law rule, which is long standing in Virginia, cannot be



                                - 11 -
discarded merely upon a conclusion that Schwartz and similar

"cases are simply inapplicable" to the facts of this case.

     For these reasons, I would hold that the Commonwealth

failed to introduce corroborating evidence of the videotape and,

for that reason, under Schwartz, the evidence was insufficient

to prove beyond a reasonable doubt perjury.   I would reverse the

conviction.




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