COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Alston and Senior Judge Clements 

Argued at Richmond, Virginia 

WILLIS ALFRED BRAILEY 

 OPINION BY 

v. Record No. 2353-08-2 JUDGE ROSSIE D. ALSTON, JR. 

DECEMBER 22, 2009 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF HENRICO COUNTY 

L.A. Harris, Jr., Judge 

 David B. Hargett (Hargett Law, PLC, on brief), for appellant. 

 Eugene Murphy, Senior Assistant Attorney General (William C. 

 Mims, Attorney General, on brief), for appellee. 

 Willis Alfred Brailey (appellant) appeals his convictions of eight counts of preparing a false 

tax return, in violation of Code § 58.1-348.1.1

 Appellant first contends the trial court abused its 

discretion in denying his motion for a continuance to obtain new counsel. Appellant further 

contends the evidence was insufficient to support his convictions of preparing false tax returns. For 

the reasons stated, we affirm the convictions. 

BACKGROUND 

 On appeal, we view the evidence and all reasonable inferences flowing therefrom in the 

light most favorable to the prevailing party in the trial court. Commonwealth v. Hudson, 265 Va. 

 1 Code § 58.1-348.1 provides, 

Any income tax preparer, as defined in [Code] § 58.1-302, who 

knowingly and willfully aids or assists in, counsels or advises the 

preparation or presentation of a return, affidavit, claim or other 

document required by this chapter that he knows is fraudulent or 

false as to any material matter, is guilty of a Class 6 felony. 
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505, 514, 578 S.E.2d 781, 786 (2003). So viewed, the evidence established that from June 1989 to 

November 2000, appellant worked for the Virginia Department of Taxation (Department) as a tax 

collections representative. Appellant’s job was to ensure compliance and the proper resolution of 

delinquent tax liabilities, and in doing so, to review state tax returns. 

 After leaving his job with the Department, appellant began preparing tax returns for 

individuals. In 2005 and 2006, appellant prepared federal and state tax returns for several 

individuals, including Keith W. (Keith), Crystal W. (Crystal), Terrence W. (Terrence), Devon J. 

(Devon), Keith B. (Keith B.), Kareem M. (Kareem), and James K. (James). 

 In early 2006, Keith contacted appellant about preparing Keith’s 2005 tax returns. 

Appellant agreed to prepare the returns in exchange for $200 in cash. Keith told appellant that he 

was married, that he was a truck driver, and that he made charitable contributions in the amount of 

$500. He provided appellant with his W-2 form, but did not give appellant any other information. 

Appellant also spoke to Crystal, Keith’s wife. She told appellant that she was married but wanted to 

file her taxes as head of household. Appellant prepared the returns. He filed Keith’s and Crystal’s 

state tax returns separately, indicating on each return that the individual was single. Keith’s return 

included itemized deductions for mileage and charitable contributions. Crystal’s deductions were 

not itemized. The Department determined that both returns were improperly prepared because 

married couples may not file under single status and one spouse may not itemize deductions, while 

the other does not. The Department disallowed Keith’s mileage deduction and a portion of his 

charitable contributions. After proper calculation, the Department determined that Keith owed an 

additional $1,235. Crystal owed an additional $159. 

 In March 2006, appellant prepared Terrence’s 2005 tax returns in exchange for $350 in 

cash. Appellant asked for Terrence’s birth date, his wife’s birth date, and the make, model, and year 

of his car. Terrence gave him this information, along with his W-2 form, his mortgage forms, and 
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receipts from church donations. Terrence supplied no other information, and appellant prepared the 

returns. Terrence’s state tax return included itemized deductions of $49,389, including business 

operating expenses, business losses, and mileage deductions, none of which Terrence supplied to 

appellant. The Department disallowed a substantial portion of Terrence’s deductions and 

determined that he owed an additional $928. 

 In February 2006 and 2007, appellant prepared Devon’s tax returns in exchange for $325 in 

cash. Devon told appellant that he drove his company truck approximately 2000-2500 miles per 

week. Devon also gave appellant his W-2 form, but provided appellant with no other information. 

Devon waited while appellant prepared his return. Devon’s state return included approximately 

$30,000 in deductions, including $18,000 in mileage deductions. Devon’s return included starting 

and ending mileage numbers for his company truck, which Devon never supplied to appellant and 

which were incorrect. The Department disallowed Devon’s mileage deductions and determined that 

he owed an additional $1,382 for 2005 and $1,392 for 2006. 

 In February 2006, appellant prepared Keith B.’s 2005 tax returns for $350 in cash. Keith B. 

gave appellant his W-2 form and his statement of mortgage interest, but he did not provide appellant 

with any other information. Keith B. waited while appellant prepared his return. Keith B.’s 2005 

state return showed $17,368 in itemized deductions, including business mileage. The Department 

disallowed most of Keith B.’s deductions, including those for business mileage, and determined that 

his adjusted gross income was $35,087, rather than $28,213, as indicated on the return. 

Accordingly, the Department determined Keith B.’s income should have been calculated in a higher 

tax bracket, resulting in a lower refund amount. 

 In early 2006, appellant prepared Kareem’s 2005 returns. Appellant told Kareem that he 

could “write off” lunches and other business expenses because Kareem was a salesman. Although 

Kareem did not supply appellant with any information other than his W-2 form, Kareem’s state 
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return included $16,000 in deductions, including business mileage. The Department disallowed 

Kareem’s deductions and determined that he owed an additional $768. 

 In February 2006, appellant prepared James’s 2005 returns for $300 in cash. James 

provided appellant with his W-2 form, a lottery receipt showing $2,600 in winnings, and a mileage 

certificate showing 90,000 miles driven on James’s company truck in 2005. James’s state return 

included $38,985 in unreimbursed business expenses, including mileage deductions. The 

Department disallowed James’s deductions and determined that he owed an additional $1,627. 

 In each case, appellant filled out all the information on the returns, but had the individual 

sign the return as “preparer.” In some cases, the individuals admitted that they were shocked or 

surprised by the amount of their return or that they didn’t know where the numbers on the returns 

came from. However, each individual signed the return. A search of appellant’s home computer 

revealed numerous copies of tax returns, including the returns for most of the above-named 

individuals. 

 In November 2007, appellant was indicted on thirteen counts of preparing false tax returns, 

in violation of Code § 58.1-348.1. At the start of trial, the Commonwealth moved to nolle prosequi

one count. Appellant then requested a continuance to obtain new counsel. Both appellant and 

his trial counsel agreed there were problems “beyond the normal realm of navigation” and that 

the two did “not see eye to eye.” Defense counsel requested an in camera discussion to avoid 

alerting the prosecutor to the reasons for new counsel. This request was accommodated, and 

counsel met with the trial judge outside the presence of the prosecutor and off the record, and 

explained the reasons for appellant’s motion. After the in camera discussion, the trial court 

denied appellant’s motion, noting for the record, that the Commonwealth had fourteen witnesses 

present, some from out of town, the case was previously continued on appellant’s motion, and 

defense counsel said he was prepared to go forward. There was nothing said on the record, by 
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either the trial judge or counsel for appellant, regarding the circumstances associated with the in 

camera discussion. 

 The Commonwealth called Keith, Crystal, Terrence, Devon, Keith B., Kareem, and 

James. They testified that they spoke with appellant about the preparation of the returns, they 

paid appellant personally, and appellant presented completed returns to them. Devon and Keith 

B. testified that they waited at appellant’s home while he prepared their returns. Appellant 

moved to strike the remaining twelve counts, arguing that none of the witnesses saw him prepare 

the returns. Appellant further argued that the evidence was insufficient to show that he willfully 

and knowingly used information that was false. The Commonwealth conceded that the evidence 

was insufficient to support four of the twelve counts. The trial court denied the motion to strike 

the remaining counts, and a jury found appellant guilty of eight counts of preparing false tax 

returns. The court sentenced appellant to forty months’ incarceration and imposed a $20,000 

fine. This appeal followed. 

ANALYSIS 

 Appellant first argues the trial court erred when it denied his motion for a continuance to 

obtain new counsel. Specifically, appellant contends the right to counsel of choice is derived 

from the Sixth Amendment to the United States Constitution and, accordingly, his constitutional 

rights were deprived when the trial court denied his motion. Appellant further argues that the 

evidence was insufficient to support his convictions because there was no evidence to show 

appellant prepared the returns or that he knew the information contained on the returns was 

fraudulent or false. 

I. Continuance to Obtain New Counsel 

 “[A]n accused’s right to be represented by counsel includes ‘not only an indigent’s right 

to have the government appoint an attorney to represent him, but also the right of any accused, if 
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he can provide counsel for himself by his own resources . . . to be represented by an attorney of 

his own choosing.’” Feigley v. Commonwealth, 16 Va. App. 717, 720, 432 S.E.2d 520, 523 

(1993) (quoting Bolden v. Commonwealth, 11 Va. App. 187, 190, 397 S.E.2d 534, 536 (1990)). 

“[T]his right is a qualified right which is limited by a ‘countervailing state interest . . . in 

proceeding with prosecutions on an orderly and expeditious basis.’” Bolden, 11 Va. App. at 190, 

397 S.E.2d at 536 (quoting Paris v. Commonwealth, 9 Va. App. 454, 460, 389 S.E.2d 718, 

721-22 (1990)). 

The decision to grant a motion for a continuance is within the 

sound discretion of the [trial] court and must be considered in view 

of the circumstances unique to each case. The [trial] court’s ruling 

on a motion for a continuance will be rejected on appeal only upon 

a showing of abuse of discretion and resulting prejudice to the 

movant. 

Haugen v. Shenandoah Valley Dep’t of Soc. Servs., 274 Va. 27, 34, 645 S.E.2d 261, 265 (2007). 

“‘In order to justify a continuance by the last minute change of counsel, exceptional 

circumstances must exist.’” Johnson v. Commonwealth, 51 Va. App. 369, 374, 657 S.E.2d 812, 

814 (2008) (quoting Feigley, 16 Va. App. at 721, 432 S.E.2d at 523). “However, ‘once a 

defendant is erroneously denied his right to counsel of choice, no additional showing of 

prejudice is required to make the violation complete.’” Id. (quoting London v. Commonwealth, 

49 Va. App. 230, 239, 638 S.E.2d 721, 725 (2006)). 

Appellant argues that we must apply the principle set out in London, and find that 

appellant was erroneously denied his right to counsel of choice; therefore, no additional showing 

of prejudice is required. However, we addressed the very same argument in Johnson and found 

that where a defendant waits until the last minute to request a continuance to obtain new counsel, 

exceptional circumstances must be shown to overcome the state’s countervailing interest in 

proceeding expeditiously. Id. In the absence of a showing of exceptional circumstances, the trial 
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court has not erroneously denied defendant his right to counsel of choice. Id. at 375, 657 S.E.2d 

at 814. 

In London, . . . we reversed a trial court’s denial of the defendant’s 

continuance motion when the defendant’s family retained a private 

attorney sixteen days before trial, the retained attorney notified the 

trial court twelve days before trial, and the trial court had granted 

no prior continuances at the defendant’s request. 49 Va. App. at 

239, 638 S.E.2d at 725. London, unlike [Johnson], did not involve 

a last minute request for a continuance, and the situation in that 

case did not require “exceptional circumstances.” 

Id. Although the defendant in Johnson retained an attorney a week prior to trial, he did not make 

a request to change attorneys until the morning of trial. Id. at 375, 657 S.E.2d at 815. The trial 

court also noted that it previously granted five continuances, at least three at defendant’s request. 

Id. Accordingly, the Court held that exceptional circumstances did not justify Johnson’s motion 

and the trial court did not abuse its discretion in denying the request. Id.

As in Johnson, appellant, in this case, waited until the day of trial to request a 

continuance for new counsel. Thus, guided by the principles outlined above, appellant must 

have presented exceptional circumstances to justify his last minute request. Appellant presented 

no “exceptional circumstances,” or for that matter, any reason whatsoever for his request. The 

record is silent on the subject, other than the general representation by appellant that he and his 

counsel were having problems “beyond the realm of normal navigation” and did “not see eye to 

eye.” Whatever specific reasons appellant had to justify the request for new counsel were 

discussed outside the presence of the prosecutor, and no reasons were proffered for the record. 

The Court “ha[s] many times pointed out that on appeal . . . the burden is on the appellant to 

present to us a sufficient record from which we can determine whether the lower court has erred 

in the respect complained of.” Justis v. Young, 202 Va. 631, 632, 119 S.E.2d 255, 256-57 

(1961). Thus, it is appellant’s burden to produce a record that includes the reasons presented to 

the trial court that justified his request for new counsel. Having failed to do so, this Court cannot 
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speculate as to what appellant might have argued before the trial court and can only view the 

facts provided in the record. 

 The trial court, privy to appellant’s reasons for the motion, addressed the state’s 

countervailing interest to proceed expeditiously. In denying appellant’s motion, the trial court 

noted that a continuance was previously granted at appellant’s request, the Commonwealth had 

fourteen witnesses present on the day of trial, and appellant’s counsel stated that he was prepared 

to go forward. Given these circumstances, we cannot say that appellant presented exceptional 

circumstances to overcome the state’s countervailing interest, justifying a last minute 

continuance request to obtain new counsel. Accordingly, the trial court did not abuse its 

discretion in denying appellant’s motion. 

II. Sufficiency of the Evidence 

 Where the sufficiency of the evidence is challenged on appeal, “we must view the 

evidence in the light most favorable to the Commonwealth, granting to it ‘all reasonable 

inferences fairly deducible therefrom.’” Startin v. Commonwealth, 54 Va. App. 778, 789, 682 

S.E.2d 115, 121 (2009) (quoting Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 

534, 537 (1975)). “We should affirm the judgment unless it appears from the evidence that the 

judgment is plainly wrong or without evidence to support it.” Higginbotham, 216 Va. at 352, 

218 S.E.2d at 537; see also Code § 8.01-680. A conviction may be based on circumstantial 

evidence and cannot be viewed in isolation. See Commonwealth v. Hudson, 265 Va. 505, 512, 

578 S.E.2d 781, 785 (2003). In a circumstantial case, the appellate court does not consider 

whether “there is some evidence to support” a reasonable hypothesis of innocence, but whether 

the fact finder, having considered all the evidence, reasonably could have rejected the 

defendant’s theory of defense and found him guilty beyond a reasonable doubt. Id. at 513, 578 

S.E.2d at 785. 
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 Code § 58.1-348.1 makes it a crime to knowingly and willfully aid or assist in, counsel or 

advise, the preparation or presentation of false tax returns, knowing them to be fraudulent or 

false. In this regard appellant first argues that the evidence was insufficient to show that he 

prepared the returns. 

 This Court has never addressed the elements of Code § 58.1-348.1; however, federal 

courts have interpreted 26 U.S.C.S. § 7206(2), a statute containing similar language and nearly 

“on-all-fours” to the provision at issue. Section 7206(2) states in relevant part, that any person 

who 

[w]illfully aids or assists in, or procures, counsels, or advises the 

preparation or presentation under, or in connection with any matter 

arising under, the internal revenue laws, of a return, affidavit, 

claim, or other document, which is fraudulent or is false as to any 

material matter, whether or not such falsity or fraud is with the 

knowledge or consent of the person authorized or required to 

present such return, affidavit, claim, or document . . . shall be 

guilty of a felony . . . . 

 “Section 7206(2) has a broad[] sweep, making all forms of willful assistance in preparing 

a false return an offense.” United States v. Shortt Accountancy Corp., 785 F.2d 1448, 1454 (9th 

Cir. 1986) (citing United States v. Haynes, 573 F.2d 236, 240 (5th Cir. 1978)). ‘“[T]he scope of 

the statute extends to all participants of a scheme[,] which results in the filing of a false return, 

whether or not those parties actually prepare it.’” United States v. Hooks, 848 F.2d 785, 791 (7th 

Cir. 1988) (quoting United States v. Siegel, 472 F. Supp. 440, 444 (N.D. Ill. 1979)). 

 The relevant language of Code § 58.1-348.1 tracks the language of the federal statute, 

and, thus, we find the interpretation of the federal statute persuasive in our analysis. Code 

§ 58.1-348.1, like the federal statute, makes it a crime to “aid,” “assist in,” “counsel,” or “advise” 

the preparation of returns. A statute “should be read to give reasonable effect to the words used 

‘and to promote the ability of the enactment to remedy the mischief at which it is directed.’” 

Mayhew v. Commonwealth, 20 Va. App. 484, 489, 458 S.E.2d 305, 307 (1995) (quoting Jones v. 
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Conwell, 227 Va. 176, 181, 314 S.E.2d 61, 64 (1984)). In providing such expansive language in 

Code § 58.1-348.1, it was clearly the legislature’s intention to criminalize all conduct related to 

the preparation of false tax returns, not simply the actions of the person preparing the return. 

Thus, we find the Commonwealth need not prove that appellant prepared the returns at issue; 

rather, the Commonwealth need only prove that appellant aided, assisted, counseled, or advised 

in the preparation of the returns. From the record, it is clear the evidence was sufficient to 

support such a finding. 

 Appellant spoke with each individual about his or her income and possible deductions. 

Appellant collected information relevant to the preparation of the returns. He asked for and 

accepted payment in cash from each individual. He delivered the prepared returns to each 

individual. Both Devon and Keith B. waited at appellant’s home while the return was prepared. 

Finally, appellant’s home computer contained copies of many of the returns. From this evidence, 

a reasonable fact finder could certainly conclude, beyond a reasonable doubt, that appellant 

knowingly and willfully aided, assisted, counseled, or advised in the preparation of the eight 

returns. 

 Appellant further argues that the evidence was insufficient to show that he knew the 

information contained on the returns was false. Specifically, appellant argues that the 

Commonwealth did not present evidence sufficient to exclude the reasonable hypothesis that he 

made mistakes on the returns. 

 Appellant contends that in every case, there was a reasonable explanation justifying a 

mistake. He argues that in Crystal’s case, she told appellant she wanted to file as head of 

household, thereby creating an inference that she was single. In addition, appellant notes that 

Devon admitted that he and appellant discussed mileage and accordingly, appellant argues he was 

simply mistaken in his mileage estimates. Furthermore, appellant notes that Kareem admitted that 
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he was a traveling salesman. Thus, appellant contends, it was reasonable for appellant to believe 

Kareem had business deductions. Finally, appellant correctly notes that James provided a mileage 

certificate, and the only false information asserted by the Commonwealth as to James was that the 

mileage numbers on the return were incorrect. Appellant contends again, he was simply mistaken 

in his mileage estimates. Appellant argues that in every other case, the individuals signed their 

returns without pointing out mistakes or questioning the numbers used by appellant. Therefore, 

appellant argues, the evidence was insufficient to prove he knew the information contained on the 

returns was fraudulent or false. 

 However, viewing the evidence in the light most favorable to the Commonwealth, as we 

must, we cannot say that appellant’s hypothesis of mistake is reasonable. Each of the 

Commonwealth’s witnesses testified that he or she gave appellant very specific information and 

that other information was included on the return that the individual did not provide. Both 

Keith’s and Crystal’s returns were filed using the single filing status, despite appellant’s 

conversation with both of them discussing the fact that the two were married. Further, appellant 

used exaggerated, if not completely made up, business expenses and mileage deductions on 

every return. Keith’s return included mileage deductions that Keith said he did not provide. 

Devon’s return contained $18,000 in mileage deductions, including starting and ending mileage 

for the year. Devon never supplied those numbers to appellant, and Devon testified that the 

numbers included on the return were, in fact, incorrect. Terrence’s return included business 

operating expenses, business losses, and mileage deductions, none of which Terrence supplied to 

appellant. Keith B.’s return contained over $17,000 in itemized deductions, including business 

mileage deductions. Again, Keith B. testified that he never supplied appellant with those numbers. 

Kareem gave appellant only his W-2 form, yet his return contained $16,000 in business deductions, 

including mileage deductions. Finally, James’s return contained almost $39,000 worth of 
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unreimbursed business expenses, including mileage deductions. Although James gave appellant a 

mileage certificate showing 90,000 miles driven that year, James also gave appellant his W-2 form, 

indicating the vehicle belonged to his company. Thus, James was not entitled to mileage 

deductions. 

 Based on the cumulative evidence, appellant cannot assert that he was mistaken about 

certain returns in which the individual did provide some of the reported deductions. See United 

States v. Hayes, 322 F.3d 792, 798 (4th Cir. 2003) (holding that repeated use of the same false 

deduction supplies evidence of appellant’s knowledge that those numbers were false). In Hayes, 

the Fourth Circuit Court of Appeals was confronted with circumstances substantially similar to 

those in the instant case. Hayes was indicted on twenty-four counts of fraudulent tax 

preparation, in violation of 26 U.S.C.S. § 7206(2). Id. at 795. Hayes’s customers testified that 

Hayes substantially overstated some of their deductions, primarily for charitable contributions 

and medical expenses. Id. at 796. Hayes denied fabricating any of the numbers used on the 

returns. Id. The witnesses testified that they provided Hayes with certain information that did 

not include medical deductions; yet in every case, the return included substantial medical 

deductions. Id. The Court held, 

[i]n light of the general reliability of business records and the 

substantial similarities between the errors on the . . . returns and 

false deductions noted on other returns prepared by Hayes, a jury 

could reasonably conclude that Hayes fabricated the incorrect 

figures on the . . . returns. Accordingly, the evidence was 

sufficient to support Hayes’ convictions. 

Id. at 799. In one case, the witness asserted that she did in fact have medical deductions of 

$13,000 for the year. Id. at 798. However, the court found the evidence sufficient to convict 

Hayes of fraudulently including a $14,000 medical deduction on her return, in part because “this 

figure . . . resemble[d] false medical deductions claimed by Hayes in other returns he prepared.” 

Id.
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 The Fourth Circuit’s reasoning in Hayes is applicable to the instant case. Based on the 

substantial similarities among the errors on all the returns and the witnesses’ testimony that they 

did not give appellant information about mileage or other business deductions, a reasonable fact 

finder could determine that appellant simply fabricated the numbers on the returns. 

 Further, appellant’s argument that the individuals signed the returns without pointing out 

mistakes in the information provides no defense. The fact that the individuals may have known 

their returns were false does not exculpate appellant under Code § 58.1-348.1. 

 Finally, and especially significant in this case, is the fact that appellant worked for the 

Department for eleven years. As a tax collections representative, his job was to review state tax 

returns and ensure both businesses and individuals complied with the requisite tax laws. In this 

capacity, a fact finder would be justified in finding it incredible that appellant did not know the 

proper method of preparing tax returns. Accordingly, we find the evidence sufficient to prove, 

beyond a reasonable doubt, that appellant knew the information included on the returns was 

fraudulent or false. 

CONCLUSION 

 For these reasons, we find the trial court did not abuse its discretion in denying 

appellant’s request for a continuance to obtain new counsel on the day of trial. Additionally, the 

evidence was sufficient to support appellant’s convictions for eight counts of preparing false tax 

returns. Accordingly, we affirm appellant’s convictions. 

Affirmed.