                   COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Annunziata and Lemons ∗
Argued at Alexandria, Virginia


DEBRA ANN WILSON
                                         MEMORANDUM OPINION ∗∗ BY
v.   Record No. 2061-98-4                JUDGE DONALD W. LEMONS
                                               MAY 2, 2000
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
                     Frank A. Hoss, Jr., Judge

          Robert B. Beasley, Jr. (LeClair Ryan, on
          brief), for appellant.

          Eugene Murphy, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellee.


     Debra Ann Wilson appeals her conviction for election fraud

in violation of Code § 24.2-1016.   On appeal, she argues that

the evidence was insufficient to support her conviction because

it failed to prove that she made a willfully false statement on

her voter registration form and, even if the evidence did prove

that she made such a statement, it did not prove that the voter

registration form was the form required by Title 24.2.      Finding

no error, we affirm.

     ∗
       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

     In January of 1997, Wilson lived in an apartment complex on

Midsummer Lane in Woodbridge, Virginia, a residence in the 13th

State House District.   Between January 14, 1997 and June 24,

1997, Wilson received six monthly electric bills at that

residence showing usage amounts of 893 kilowatt hours, 713

hours, 822 hours, 668 hours, 674 hours and 325 hours,

respectively.   In early May, one of Wilson's children was sent

home when the school's electricity went out and the child was

seen at this residence by the property manager.    On June 19th or

20th, Wilson told the property manager that she planned to move

out that weekend and wrote him a letter dated June 20th

confirming these plans.   The property manager informed her that

there was a sixty-day notice requirement and held her

responsible for rent until July 30th.

     On April 11, 1997, Wilson signed and submitted to the

Prince William County Voter Registration Elections Office an

"Appointment of Campaign Treasurer" form in which she claimed to

be living in a townhouse on Beale Court in Dale City, Virginia,

a residence in the 51st House District.     After that office

notified her that she was registered as living in the 13th

District, Wilson signed and submitted a new voter registration

form later that day stating that she was living at the residence

in the 51st District.



                               - 2 -
     Also on April 11, 1997, Wilson applied to the Northern

Virginia Electric Cooperative for electrical service at the

Beale Court residence.   On April 14th, the home was connected

and Wilson's May electric bill for that residence showed 25

kilowatt hours used over 14 days.   Wilson's subsequent electric

bills showed usage amounts of 28 kilowatt hours in June, 27

hours in July, 240 hours in August, 48 hours in September and

509 hours in October.    Between April 16 and June 12, Wilson was

billed for using 1,000 gallons of water at this residence.

     On July 11, 1997, Wilson changed her address on her

driver's license to the Beale Court address.   Sometime after the

20th of August, Wilson and two of her three daughters used a

U-Haul truck to move their belongings to the Beale Court address

and began staying there on a nightly basis.    On August 26, 1997,

Wilson filled out transfer request forms for her children and

notified the two daughters' schools that the family was no

longer living at the Midsummer Lane address and had moved to the

Beale Court residence.

     On November 3, 1997, Wilson was indicted by a grand jury on

one count of election fraud.   At trial, an employee of the

electric company powering the Midsummer Lane residence testified

that the usage amounts shown on Wilson's electric bills between

May and late June were consistent with people living at that

location.   An employee of the electric company providing power

to the Beale Court address testified that Wilson's electric

                                - 3 -
bills between May and July showed "extremely low usage" and were

not consistent with people living at that address.      An employee

of the Virginia American Water Company testified that Wilson's

water bill for the Beale Court address showed a usage amount

inconsistent with a family of three living there.      An employee

of the Prince William County Voter Registration Elections Office

testified that the Midsummer Lane residence was located in the

13th District and that the Beale Court residence was located in

the 51st District.   On March 10, 1998, a jury convicted Wilson

of election fraud.

                        II.    ELECTION FRAUD

     A candidate for election in a primary must be qualified to

vote in the primary in which he or she seeks to be a candidate.

See Code § 24.2-519.   To be qualified to vote in the specific

primary, the person must "register to vote as provided in this

chapter" and once registered "shall be entitled to vote in the

precinct where he resides."     Code § 24.2-400.   Applicants for

registration "shall provide, subject to felony penalties for

making false statements pursuant to § 24.2-1016, the information

necessary to complete the application to register."      Code

§ 24.2-418.   "The form of the application to register shall

require the applicant to provide . . . [an] address of residence

in the precinct . . . ."      Id.   Code § 24.2-1016 provides in

pertinent part, "Any willfully false material statement or entry

made by any person in any statement, form, or report required by

                                    - 4 -
this title" constitutes "the crime of election fraud."    Pursuant

to that chapter, the State Board of Elections must provide for

the continuing operation and maintenance of a central

record-keeping system (the "Virginia Voter Registration System")

for all voters registered in the Commonwealth and, among other

things, must "provide to each general registrar, voter

registration cards for newly registered voters and for notice to

registered voters on the system of changes and corrections in

their registration records."    Code § 24.2-404.

        Plainly, pursuant to Virginia Code, a voter registration

card must be filed in order to establish the qualification to

vote.    Plainly, qualification to vote in the primary in which a

person seeks to be a candidate is necessary to qualify as a

candidate.    Therefore, a voter registration card is a

"statement, form or report required by [Title 24.2]."     Code

§ 24.2-1016.

        The form utilized by Wilson which is the subject of this

prosecution, was repeatedly referred to by witnesses and counsel

as a "Voter Registration form."    Ms. Green, who was employed by

the Prince William County Voter Registration Elections Office

testified that Wilson told her on April 11th that she had the

"form" to fill out, that Green should "make [Wilson] on [their]

books at the address that's [sic] she's currently at . . ." and

that Wilson would fill it out and get it to Green's office that

day.    Green then testified that Wilson filed the new Voter

                                 - 5 -
Registration form that day by courier.      Green stated, "we had

the whole application" and indicated that it was then made into

"what goes into the filing."    When Green was asked again whether

she received a new Voter Registration form from Wilson, she

responded, "A complete one" and "the one that I got on April

11th."   Asked if she had any other contact with Wilson after

receiving the voter registration form, Green answered, "After we

received it?    No."   Defense counsel asked Green if she spoke

with Wilson personally concerning "the form" and asked whether

Green reviewed "the form" with Wilson.      Green responded, "[N]o.

[Wilson] just said she had the form".      Defense counsel, during a

bench conference, referred to the Commonwealth's exhibits as

"the registration forms."    The Commonwealth's attorney

introduced the form into evidence as "the Voter Registration

application . . . in the attached way it came in."

     In reference to the first card she filled out, Wilson

herself stated "I filled out the card that you mail to

Richmond."   She later referred to the second card she sent as

her "registration form to vote."    She testified that the "form

that [she] signed on April 11[th]" indicated what she thought

was her home address at that time.       When asked to identify the

form, Wilson stated, "That is my voter registration

application."   She testified that it was the one she signed and

had forwarded to the Prince William registrar's office.      The



                                 - 6 -
second card is the subject of this prosecution and is identical

in form to the first.

     The evidence is sufficient to establish directly or by

inference that the "card that you mail to Richmond" and the

"registration form to vote" is the form required to be filed in

order to qualify to vote pursuant to Code §§ 24.2-400 and -404.

Furthermore, it follows from reading Code §§ 24.2-418 and -1016

together that Wilson, at the very least, made a "statement" and

that the "statement" was "required" under the relevant title.

     With respect to whether the evidence was sufficient to

demonstrate that Wilson lived in the 13th District when she

filled out the form in April stating that she lived in the 51st

District, we consider the record "'in the light most favorable

to the Commonwealth, giving it all reasonable inferences fairly

deducible therefrom.    In so doing, we must discard the evidence

of the accused in conflict with that of the Commonwealth and

regard as true all the credible evidence favorable to the

Commonwealth . . . .'"    Watkins v. Commonwealth, 26 Va. App.

335, 348, 494 S.E.2d 859, 866 (1998) (citation omitted).    The

credibility of the witnesses, the weight accorded testimony, and

the inferences to be drawn from proven facts are matters to be

determined by the fact finder.     See Long v. Commonwealth, 8 Va.

App. 194, 199, 379 S.E.2d 473, 476 (1989) (citation omitted).

     At trial, the Commonwealth introduced substantial testimony

and documentary evidence that Wilson had continued to live at

                                 - 7 -
the Midsummer Lane residence long after she stated on the voter

registration form dated April 11, 1997 that she was living at

the Beale Court address.   The evidence included records showing

electricity and water usage, records from the Department of

Motor Vehicles and school records.        Additionally, the property

manager of the Midsummer Lane residence testified that Wilson

moved out in June of 1997.    On June 19th or 20th, Wilson called

the property manager and informed him that she was moving out of

the residence that weekend.   She also confirmed her plans in a

letter dated June 20, 1997.   As a result of her late notice she

remained obligated to pay rent until July 30, 1997.       It was not

until August of 1997 that Wilson moved her belongings into her

new residence or stayed there "on a nightly basis."

Furthermore, an employee of the Prince William County Voter

Registration Elections Office testified that the residence

located on Midsummer Lane was located in the 13th State House

District and that the residence located on Beale Court was in

the 51st District.

     The evidence was sufficient to support the jury's verdict

that Wilson made "a false material statement" on the voter

registration card required to be filed by Title 24.2 in order

for her to be a candidate for office in the primary in question.

                           III.   CONCLUSION

     Because the determination of whether a voter registration

form is required by Title 24.2 is a matter of law and because

                                  - 8 -
the evidence is sufficient to establish that the form utilized

in this case was the form required by Title 24.2 and because the

evidence was sufficient to prove that Wilson made a willfully

false statement in violation of Code § 24.2-1016, we affirm the

conviction.

                                                        Affirmed.




                              - 9 -
Elder, J., dissenting.

     I have no material disagreement with the majority's legal

conclusion that the voter registration form appellant filed was

one required by Title 24.2.   Critically, however, neither the

instructions given the jury nor the evidence offered at trial

permitted the jury to conclude that the voter registration form

appellant filed was a "statement, form, or report required by

[Title 24.2]," as charged in the indictment and required by Code

§ 24.2-1016.    I would hold the evidence in this case was

insufficient to support appellant's conviction for violating

Code § 24.2-1016.   Therefore, I respectfully dissent.

     Here, the jury was instructed that it should find appellant

guilty of election fraud if the evidence proved beyond a

reasonable doubt that appellant "made a willfully false material

statement or entry" and that it was "made on a form or report

required by law."   The jury was not instructed, as required by

the statute and contained in the indictment, that the form had

to be one required by a specific law, Title 24.2.   Further, the

jury was not instructed that appellant had to be registered to

vote in the district or precinct in which she was running for

office.   Finally, the evidence did not establish either of these

requirements.

     County Voter Registration and Elections employee Donna

Green testified that her job was to confirm voter registration

information for candidates running for elected office.   On April

                               - 10 -
11, 1997, the deadline for the filing of forms for candidates

running in the June primary, Green received appellant's

appointment of campaign treasurer form.     That form indicated

appellant was filing as a candidate for the House of Delegates

in the 51st House District and listed an address on Beale Court,

which was located in the 51st House District.     However, Green

determined that appellant was not registered to vote at that

address.   Instead, she was registered to vote at an address on

Midsummer Lane, which was located in a different house district.

Upon discovering this fact, Green notified appellant that April

11, 1997, that very day, "was the final day to register, or to

change any addresses for filing for candidates" and that

appellant "should get her address correct for the file since she

was filing as a candidate in the 51st [House District]."

     Although Green suggested that appellant "should" file a new

voter registration form, no evidence established that the form

appellant filed was a "statement, form, or report required by

[Title 24.2]."    Green testified that her "duty is . . . to check

the candidate to be sure the candidate is registered to vote in

the county."     (Emphasis added).   Green did not testify that

appellant had to be registered in the house district in which

she was running.    When Green began her investigation, she found

two Debra A. Wilsons registered to vote in the county, but

neither listed a Beale Court address, so she could not determine

whether either one was appellant.     Green "needed to find out

                                - 11 -
whether or not the Debra A. Wilson filing the treasurer's form

was either of the Debra A. Wilsons registered to vote in the

county."   Prior to filing the challenged form, appellant was, in

fact, registered to vote in the county.   Language on the voter

registration form appellant filed on April 11, 1997 provided

that "[i]ntentionally making a materially false statement on

this form constitutes the crime of election fraud," but this

language fails to establish that the form was one required by

Title 24.2 or any other law.

     Further, no evidence established that the appointment of

campaign treasurer form was a form that was required to be filed

by Title 24.2.   Green testified that April 11, 1997 was the last

day for the filing of such forms for the June primary.   However,

no evidence established that filing the form was a necessity,

and language on the form itself indicated that "[a] candidate

who fails to file this form is considered his own Treasurer."

     For these reasons, I would hold the evidence was

insufficient to prove that the voter registration form on which

appellant allegedly made a willfully false statement was a form

required by Title 24.2.   I would reverse and dismiss appellant's

conviction for election fraud without reaching the issue of

whether she made a willfully false statement.   Therefore, I

dissent.




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