COURT OF APPEALS OF VIRGINIA
Present: Judges Petty, Beales and Chafin Argued at Richmond, Virginia

WILLIAM LLOYD HENRY OPINION BY v. Record No. 0631-13-2 JUDGE WILLIAM G. PETTY FEBRUARY 18, 2014 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF LOUISA COUNTY John R. Cullen, Judge Designate (Steven Shareff, on briefs), for appellant. Appellant submitting on briefs. Susan Baumgartner, Assistant Attorney Genera l (Kenneth T. Cuccinelli, II, Attorney Genera l, on brief), for appellee.
William Lloyd Henry was convicted of two c ounts of forgery of a public record, two counts of uttering a forged public record, all in violation of Code § 18.2-168, and two counts of perjury in violation of Code § 19.2-161. On appeal, Henry argues that the trial court erred in overruling his motion to strike the forgery and uttering charges on the gr ound of insufficient evidence. For the following reasons, we agree with Henry and reverse the forgery and uttering convictions. Henry also argues th at the trial court erred in ove rruling his motion to strike the perjury charges on the ground that the Commonwealth failed to pr ove that his real estate was readily convertible into cash pursuant to C ode § 19.2-159. As discussed below, Code § 19.2-159 does not require that real estate be readily convertible into cas h; thus, Henry’s second assignment of error fails, and we affirm his convictions for misdemeanor perjury.PUBLISHED- 2 - I. B ACKGROUND “On appeal, ‘we review the ev idence in the light most fa vorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom.’” Archer v. Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quo ting Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987)). At the conclusion of a bench trial, Henry was convicted of two c ounts of forgery of a public record, two counts of uttering a forged pub lic record, and two counts of perjury. The convictions stem from informati on Henry provided to a court clerk to determine his eligibility for indigent defense services. Du ring two meetings with the cler k, Henry stood on one side of the window while the clerk stood on the other side of the window and asked the questions to fill out the financial statements of indigency. 1 On a form dated May 6, 2011, the clerk recorded that Henry was receiving SNAP 2 assistance, that he was unemployed, and that he had no assets. Under the assets section of the form, the clerk placed a ze ro on the line for cash on hand, bank accounts, any other assets, r eal estate, motor vehicles, and other personal property. 3 The clerk passed the completed form under the window, a nd Henry signed and dated it. Above the signature line, the form contained the following: “This statement is made under oath. Any false statement may constitute a viol ation of law under Virginia Code § 19.2-161 and be subject to criminal penalty, including incarcer ation. I hereby state that the above information is correct to

1 Although the clerk did not recall Henry’s answer s specifically, the cl erk testified as to the general procedure followed. Henry does not c ontest the accuracy of th e responses recorded by the clerk.

2 SNAP stands for “Supplemental Nutrition Assistance Program.”

3 Henry was indicted on nineteen counts stemming from six different financial statements. On defense motion, the court struck all the charges except for a forgery, an uttering, and a perjury charge for the May 6, 2011 and Ja nuary 6, 2012 financial statements. The court concluded that the lack of specific informati on entered on the “real estate” line on the other financial statements raised a question as to wh ether Henry was specifically asked about the real estate.- 3 - the best of my knowledge.” In reference to the question regarding real es tate, the clerk testified that she always asks someone “if they own a home or are buying a home.” On January 6, 2012, Henry, again seeking a court-appointed counsel, approached the same clerk that filled out the May 6, 2011 form. On the January 6, 2012 fo rm, the clerk recorded that Henry was receiving SNAP assistance and that he was unemployed. The clerk recorded “rental property 500/mo” on the “other income sources” line. Twenty dollars, listed as “cash on hand,” was the only entry other than zero in the assets section of the form, which, like the May 6, 2011 form, allowed entries for cash on hand, bank acc ounts, any other assets, real estate, motor vehicles, and other personal prope rty. Henry once again signed th e form under oath, after which the clerk signed as well. In spite of Henry’s representation to the cl erk that he owned no r eal estate, Henry was gifted a parcel of real estate on September 10, 1992 from his parent s. The custodian for the land records in Louisa County testified that there was no record of this parcel having been transferred out of Henry’s ownership prior to June 26, 2012, th e date that Henry gifted the land to someone else.
II. A NALYSIS Henry notes two errors in the trial court’s deci sion. First, Henry argue s that the trial court erred in overruling his motion to strike charges of forgery a nd uttering because the alleged misrepresentation on the indigency form did not constitute a forgery. Second, Henry argues that the trial court erred in overruli ng his motion to strike the perjur y charges on the ground that the Commonwealth failed to prove that his real esta te was readily convertible into cash pursuant to Code § 19.2-159. For the following reasons, we reve rse the forgery and u ttering convictions and affirm the two perjury convictions.- 4 - “‘When reviewing the sufficiency of the ev idence to support a c onviction, [this] Court will affirm the judgment unless the judgment is plainly wrong or without evidence to support it.’” Mayfield v. Commonwealth, 59 Va . App. 839, 850, 722 S.E.2d 689, 695 (2012) (quoting Bolden v. Commonwealth, 275 Va. 144, 148, 654 S.E.2d 584, 586 (2008)). In our review, we have “a duty to examine all the evidence that te nds to support the convict ion.” Bolden, 275 Va. at 147, 654 S.E.2d at 586. Accordingly, “[w]e ‘mus t discard all evidence of the accused that conflicts with that of the Commonw ealth and regard as true all credible evidence favorable to the Commonwealth and all fair inferences reasona bly deducible therefrom.’” Holcomb v. Commonwealth, 58 Va. App. 339, 346, 709 S. E.2d 711, 714 (2011) (quoting Lea v. Commonwealth, 16 Va. App. 300, 303, 429 S.E.2d 477, 479 (1993)). Moreover, “[a]n appellate court does not ‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonab le doubt.’” Williams v. Commonwealth, 278 Va. 190, 193, 677 S.E.2d 280, 282 (2009) (quoting Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). “Rather, the relevant question is whether ‘ any rational trier of fact could have found the essential elements of the crime beyond a reasonab le doubt.’” Id. (quoting Jackson, 443 U.S. at 319). “‘This familiar standard gives full play to th e responsibility of the tr ier of fact fairly to resolve conflicts in the testimony, to weigh the ev idence, and to draw reasonable inferences from basic facts to ultimate facts.’” Brown v. Commonwealth, 56 Va. App. 178, 185, 692 S.E.2d 271, 274 (2010) (quoting Jackson, 443 U.S. at 319).
A. Forgery Henry was charged with forging public records in violati on of Code § 18.2-168, 4 which

states:

4 Henry was also convicted for two counts of uttering a forged public record in violation of the same code section. Because we conclude that his actions did not constitute a forgery, we must, of necessity, reverse Henry’s convi ctions for uttering a forged record.- 5 - If any person forge a public reco rd, or certificate, return, or attestation, of any public officer or public employee, in relation to any matter wherein such certificate, return, or attestation may be received as legal proof, or utter, or attempt to employ as true, such forged record, certificate, return, or attestation, knowing the same to be forged, he shall be guilty of a Class 4 felony. “Forgery is a common law crime in Virginia. It is defined as ‘the false making or materially altering with intent to defraud, of a ny writing which, if genuine , might apparently be of legal efficacy, or the foundation of lega l liability.’” Rodriquez v. Commonwealth, 50 Va. App. 667, 671, 653 S.E.2d 296, 298 (2007) (quo ting Fitzgerald v. Commonwealth, 227 Va. 171, 173-74, 313 S.E.2d 394, 395 (1984)). “At common law, to constitute a forgery, there must be a false making with the intent to defraud.” Id. at 673, 653 S.E.2d at 299. 5 However, “[w]here the ‘falsity lies in the re presentation of facts, not in the genuineness of execution,’ it is not forger y.” Gilbert v. United States , 370 U.S. 650, 658 (1962) (quoting Marteney v. United States, 216 F.2d 760, 763-64 (10th Ci r. 1954)). Furthermore, “[f]orgery is a crime aimed primarily at safeguarding confiden ce in the genuineness of documents relied upon in commercial and business activity. Though a fo rgery, like false pretenses, requires a lie, it must be a lie about the document itself: the lie mu st relate to the genuineness of the document.” 3 Wayne R. LaFave, Substantive Criminal Law § 19.7(j)(5) (2d ed. 2003) (footnotes omitted). Falsifying the genuineness of a doc ument is so critical to the offense of forgery that “when a person writes a letter or completes a loan application or other instru ment and signs it with his own name, he is not guilty of forgery because a false statement is contained therein, even if he knew it was false and acted with intent to defraud.” Vizcarra-Ayala v. Mukasey, 541 F.3d 870, 875 (9th Ci r. 2008) (quoting 4 Wharton’s Criminal Law § 487 (15th ed.)). In fact, “‘[i]n criminal cases the great weight of authority holds false

5 We note that a prosecution for forgery unde r Code § 18.2-168 does not require proof of prejudice to another’s rights. See Ca mpbell v. Commonwealth, 246 Va. 174, 431 S.E.2d 648 (1993) (holding that actual harm or prejudice to the rights of a nother was not an element of the crime of forgery of public records at Eng lish common law or in this Commonwealth).- 6 - statements in or fraudulent execu tion of otherwise valid instrument s not to be forgery within its common law or unexplained meaning.’” United States v. Jones, 553 F.2d 351, 355 (4th Cir. 1977) (quoting First National Bank of South Carolina v. Glens Falls Ins. Co., 304 F.2d 866, 870 n.1 (4th Cir. 1962)). Both Henry and the Commonwealth rely on th is Court’s opinion in Rodriquez for the resolution of this case. In Rodriquez, a police officer initiated a traffi c stop of Rodriquez’s vehicle because it had expired plates. Rodr iquez, 50 Va. App. at 670, 653 S.E.2d at 298. Rodriquez did not have an operator’s license in his possession. Id. In preparing two summonses, the officer asked Rodriquez for hi s identifying information and the defendant responded with that of his brother rather than hims elf. Id. Rodriquez then illegibly signed his own name on the summonses. Id. Consequent ly, Rodriquez was convicted of two counts of forgery and two counts of uttering a forged publ ic document, both under Code § 18.2-168. Id. at 669, 653 S.E.2d at 297. This Court upheld the convi ctions, reasoning that “[a]lthough Rodriquez did not personally write the false information, he provided the inform ation to [the officer] as he created the documents and, in doing so, Rodrique z engaged in the ‘false making’ of the two public documents.” Id. at 672, 653 S.E.2d at 298. Henry argues that the crux of th e issue is that a document is not “falsely made” merely because it contains misrepresentat ions of fact within it. Henry distinguishes this case from Rodriquez by noting that the summonses created in Rodriquez were entirely false documents. Henry points to Brown v. Commonwealt h, 56 Va. App. 178, 188, 692 S.E.2d 271, 276 (2010) (reversing the conviction because “nothing in the record suggests that the [documents] were anything other than what they purported to be”), for the proposition that th e gravamen of forgery is the want of genuineness or authenticity in a document. Henry also points to this Court’s footnote in Rodriquez distinguis hing the summonses in Rodri quez from “tax rolls [that]- 7 - contained false and fraudulent entries [where] this false information did not alter the authenticity of the tax rolls” and noting that the summonses were “entirely fr audulent” and “themselves were ‘lies.’” Rodriquez, 50 Va. App. at 672 n.2, 653 S. E.2d at 299 n.2. Thus, Henry contends that his actions were not forgery because the financial stat ements the clerk filled out and he signed were still financial statements, even if they were fi nancial statements contai ning a lie. According to Henry, the document must purport to be something that it is not for a forgery conviction to be upheld. The Commonwealth argues that “[t]he true gravamen of § 18.2-168 . . . is injecting fabricated or false informati on into the public record, where it may be acted upon.” Thus, according to the Commonwealth, “Henry’s falsificati on was just that: a lie entered into the public record to obtain appointed counsel rather than having to use his ow n assets to hire counsel.” We agree with Henry that in order for He nry’s forgery conviction to be upheld, the Commonwealth was required to prove that He nry’s conduct with respect to the financial statements altered the genuineness and auth enticity of those documents, making them not in fact what they purported to be . In Rodriquez, this Court held that the summonses were forged because the false identifying information that R odriquez provided in their making transformed them into something other than what they purported to be—the documents purported to be summonses for Rodriquez but were forged to be summonses for Rodriquez’s brother. Rodriquez, 50 Va. App. at 670, 653 S.E.2d at 298. Indeed, “R odriquez provided false and fraudulent information in orde r to create summonses that were entirely fraudulent and not authentic . The summonses themselves were ‘lie s.’” Id. at 672 n.2, 653 S.E.2d at 299 n.2 (emphasis added). Based on this conclusion, we distinguished the holding in Maryland v. Reese, 388 A.2d 122, 127 (Md. 1978), where the Maryland Cour t of Appeals concluded that a false entry in a county tax roll did not constitute a fo rgery because “a document is not considered false- 8 - for purposes of the law of forgery merely because it contains a false statement of fact.” The distinction we noted in Rodriquez is not applicable to the facts be fore us. Like the tax rolls in Reese, and unlike the summonses in Rodriquez, Henry’s statement of indigency “merely . . . contain[ed] a false statement of fact.” Id. T hus, this case is not controlled by our holding in Rodriquez. Moreover, in Brown, we cited Rodriquez to support our conclusion that forgery was not present because nothing in the reco rd suggested that the document s in that case were “anything other than what they purported to be.” Brown, 56 Va. App. at 188, 692 S.E.2d at 276. There, the documents in question were vouchers that were “issued improperly because the underlying reservations were not paid for.” Id. at 182, 692 S.E.2d at 273. Like the financial statements here, the vouchers in Brown were issued under th e correct names and the material nature of the vouchers themselves was not altered. Id. at 188, 692 S.E.2d at 276. 6 Here, unlike the summonses in Rodriquez, the documents in question were in fact what they purported to be. The documents purported to be financial statements for William Lloyd Henry and remained financial statements fo r William Lloyd Henry despite Henry’s alleged misrepresentations about his real estate asse ts. Although the financial statements ultimately contained “a lie” (because the full extent of Henry’ s real estate assets was omitted), the material character of the documents themselves was not fo rged or altered; they remained authentic—the lie was not “about the document itself.” See 3 LaFave, supra, § 19.7(j) (5). As we noted, “[w]here the ‘falsity lies in the representation of facts, not in the genui neness of execution,’ it is not forgery.” Gilbert, 370 U.S. at 658 (quoting Marteney, 2 16 F.2d at 763-64).

6 In a review of published decisions to date addressing the merits of a forgery charge under Code § 18.2-168, Rodriquez is the only decisi on in which a forgery conviction was upheld when the defendant actually signed his own name to the document in question, but, even then, we recognized that the signature was intentiona lly illegible.- 9 - Therefore, because Henry’s conduct did not amount to a false making of the financial statements sufficient to alter their material natu re—making them something other than what they purported to be—we hold that the trial court er red in overruling Henry’s motion to strike the forgery charges. Furthermore, because there can be no uttering when the document that is the basis of the charge was not a forgery, Brow n, 56 Va. App. at 189, 692 S.E.2d at 276-77, Henry’s convictions for uttering mu st also be reversed. B. Perjury Henry appeals his convictions for perj ury under Code § 19.2-161 based on the false statements in his financial statements to determine indigency. Code § 19.2-161 states, “Any person charged with a misdemeanor punishable by confinement in ja il who shall falsely swear or who shall execute the statemen t provided for in § 19.2-159 knowing such statement to be false shall be guilty of a Class 1 misdemeanor.” In determining an accused’s indige ncy, Code § 19.2-159 requires “a thorough examination of the financial resources of the accused.” Among other things, the court should give consideration to the following: All assets of the accused which ar e convertible into cash within a reasonable period of time without causing substantial hardship or jeopardizing the ability of the accused to maintain home and employment. Assets shall include all cash on hand as well as in checking and savings accounts, stocks, bonds, certificates of deposit, and tax refunds. All personal property owned by the accused which is readily convertible into cash shall be considered, except property exempt from att achment. Any real estate owned by the accused shall be considered in terms of the amounts which could be raised by a loan on the property. . . . Code § 19.2-159(B)(2). Henry contends that by failing to pro duce evidence of a clea r title search, the Commonwealth did not meet its burden of proof th at the real estate he owned, and omitted from his financial statements, was read ily convertible to cash. Accord ingly, Henry asserts that Smith- 10 - v. Commonwealth, 12 Va. App. 60 6, 405 S.E.2d 626 (1991), merits reversal of his convictions for perjury. We disagree. Although Smith concerned an appellant’s conviction for perjury under Code § 19.2-161 based on his negative response in an indigency statement, the assets in question in that case were items of personal property, not real estate. S ee id. at 609, 405 S.E.2d at 628; see also Black’s Law Dictionary 1337 (9th ed. 2009) (defining pers onal property as “[a]ny movable or intangible thing that is subject to ownershi p and not classified as real prope rty” and real pr operty as “land and anything growing on, attached to, or erected on it”). In Smith, the defendant was convicted of perjury for stating under oath on his financial statement to determine eligibility for indigent defense services that he did not own a motor vehicle. Smith, 12 Va. App. at 607-08, 405 S.E.2d at 627. This Court reversed the conviction because the record established that Smith’s car had been confiscated (and ultimately never released to him) at the time he signed the indigency statement and that he never he ld the title to a dirt bike. Id. at 608-09, 405 S.E.2d at 627-28. Thus, the items were not “readily convertible to cash” within the mean ing of Code § 19.2-159 at the time Smith signed the indigency statement. Id. Here, not only is the asset in question real estate, but the evidence in this case established that Henry held title to the property at the time he signed the financial st atements asserting that he did not own real estate assets. Indeed, Henr y received the property as a gift from his parents on September 10, 1992, and the custodian for the la nd records in Louisa County testified that there was no record of this parcel having been transferred out of Henry’ s ownership before he signed the financial statements in question. Furthermore, Code § 19.2-159 makes clear that a ll assets readily convert ible to cash must be considered on the financial statement but “real estate owned by the accused shall be considered in terms of the amounts which could be raised by a loan on the property.” Thus, a- 11 - plain reading of the statute de monstrates, contrary to Henry’ s assertion, that there is no requirement that real estate li sted on the financial statement (a nd considered by the court) be readily convertible to cash. See Appalach ian Power Co. v. State Corp. Comm’n, 284 Va. 695, 706, 733 S.E.2d 250, 256 (2012) (“When a statute is unambiguous, we must apply the plain meaning of that language.”). Instead, the only requ irement is that the real estate be “considered in terms of the amounts which could be raised by a loan on the property.” 7 Therefore, because Code § 19.2-159 does not require that real estate be readily convertible into cash, Henry’s sec ond assignment of error fails. Accordingly, we affirm Henry’s convictions for perjury under Code § 19.2-159 becau se the record establishes that Henry owned real estate at the time that he sign ed under oath that he did not.
III. C ONCLUSION For the foregoing reasons, we reverse the forg ery and uttering convictions and affirm the two perjury convictions. Affirmed in part; reversed and dismissed in part.

7 The Commonwealth entered into evidence at trial the Louisa County Assessor’s Office field data sheet, which establis hed that the home Henry owned had a total assessed value of $156,400. Further, there was testimo ny that there was no transfer of the property prior to the date of the offenses. Thus, it was reasonable fo r the trial court to conclude that there was sufficient equity in the home to allow Henry to secure a loan against the property.