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

ALEXANDER RAY THOMPSON, S/K/A RAY ALEXANDER HUGHES MEMORANDUM OPINION * BY v. Record No . 0262-18-2 JUDGE TERESA M. CHAFIN APRIL 9, 2019 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Beverly W. Snukals, Judge Ottie E. Allgood, Jr., Assistant Public Defender, for appella nt. Leah A. Darron, Senior Assistan t Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

At the conclusion of a bench trial, the Circuit Court of the Ci ty of Richmond convicted the appellant of four counts of forgery of a public record in v iolation of Code § 18.2-168. On appeal, the appellant contends tha t the evidence presented at h is trial failed to establish that he forged the public records at i ssue. For the following reasons, we agree and reverse the appellant’s convictions. 1
I. BACKGROUND “Under well-settled principles of appellate review, we conside r the evidence presented at trial in the light most favorabl e to the Commonw ealth, the prev ailing party below[, and] accord

* Pursuant to Code § 17.1-413, this op inion is not designated fo r publication.

1 As we conclude that the eviden ce presented at the appellant’s trial failed to prove that he forged the public records at issue, we do not reach the appe llant’s second assignment of error arguing that the evidence faile d to establish his “intent to de fraud.”UNPUBLISHED- 2 - the Commonwealth the benefit of all inferences fairly deducible from the evidence.” Wilkins v. Commonwealth, 292 Va. 2, 6-7 (2016). S o viewed, the evidence i s as follows. The appellant was born in the Panama Canal Zone on October 6, 1965. The appellant’s mother, Elvira Riviere, was married to Calvin Thompson at the t ime of the appellant’s birth. Therefore, the appellant was gi ven the name “Ray Alexander Thom pson Riviere.” 2 Although the appellant was a Panamanian citizen, he grew up in both Panama and the United States, spending a signifi cant amount of time living with family members in Richmond. At some point, the appellant obta ined a driver’s license from t he Virginia Department of Motor Vehicles (“DMV”) using the name “Alexander Ray Thompson.” In 1 995, the appellant was convicted of a sex offense and s ubsequently deported. The appe llant returned to the United States shortly after his depor tation, and he registered as a se x offender as “Alexander Ray Thompson” in 2006. The appellant was arrested for illegally entering the United S tates at some point after he returned to the country follo wing his initial deportation. Thr oughout the course of lengthy legal proceedings, DNA testing confirme d that the appellant’s biologi cal father was his mother’s first husband, a United States citize n named David Hughes. While the appellant was potentially eligible for United States ci tizenship based on Hughes’s patern ity, he was nevertheless deported to Panama in 2009. When the appellant returned to P anama, he initiated court proc eedings to establish Hughes’s paternity. On April 29, 2011, a Panamanian court ente red an order declaring that Hughes was the appellant’s biological father. The same order a lso changed the appellant’s name to “Ray Alexander Hughes Riviere. ” The appellant then obtained a reissued birth certificate

2 The inclusion of “Riviere,” the surname of the appellant’s mot her, in the appellant’s name may reflect the particul ar naming convention used in Panam a. See, e.g., Santos v. Thomas, 830 F.3d 987, 990 n.1 (9th Cir. 2016).- 3 - from the Republic of Panama. L ike the April 29, 2011 court ord er, the reissued bi rth certificate stated that the appellant’s fa ther was Hughes and that his name was “Ray Alexander Hughes Riviere.” After the appe llant obtained the April 29, 2011 cour t order and the reissued birth certificate, he returned to th e United States and applied for apassport. The Department of State issued the appellant a passport i n the name of “Ray Alexander H ughes” on December 2, 2011. Upon his return to the United Sta tes, the appellant completed a series of forms in order to obtain a Virginia identificati on card and drive r’s license. On November 19, 2011, the appellant applied for an identification car d at a DMV office in Richmond. On December 29, 2011, January 3, 2012, and February 2, 2012, the appellant applied fo r a Virginia driver’s license. 3 On each of these applications, the appe llant stated that his name was “Ray Alexander Hughes” or “Ray A. Hughes” and that his da te of birth was October 6, 1965. While the appellant provided a social security number on three of the four applications, the s ocial security number that he provided did not match the social security number associated wi th the appellant’s previous driver’s license issued in the name of “Alexander Ray Thompson. ” The appellant did not complete certain portions of the applicat ions. Although the applications contained a box s tating “If your name has changed, print your former name here,” the appellant left this box bl ank on each of the applications. The appellant also failed to acknowledge that he previously he ld a Virginia driver’s license on the November 19, 2011, December 29, 2011, and January 3, 2012 applications. On the Fe bruary 2, 2012 application, however, the appellant indicated t hat he previously held “a dri ver’s license or learner’s permit from Virginia, another state, a U.S. territory or a foreign cou ntry” that had been “[l]ost.”

3 The DMV denied the December 29, 2011 and the January 3, 2012 a pplications because the appellant failed or did not c omplete certain driving exams.- 4 - Despite the omissions in the appl ications, the appellant signed each application and certified under the penalty of perjury that the information he provided i n the application was “true and
correct.” On July 8, 2016, law enforcement offi cials received a tip rega rding the appellant. A preliminary investigation based on t he tip confirmed that the a ppellant had DMV profiles in two different names: “Ray Alexande r Hughes” and “Alexander Ray Tho mpson.” When law enforcement and DMV officials interviewed the appellant on Sept ember 19, 2016, the appellant explained that he changed his na me to “Ray Alexander Hughes” inPanama in 2011 and that he no longer used the name “Alexande r Ray Thompson.” The appellan t also admitted that he completed several DMV applicatio ns using the name “Ray Alexande r Hughes” without indicating that he previo usly changed his name. The appellant was charged wit h four counts of forgery of a pub lic record based on the DMV applications that he c ompleted between November 19, 2011, a nd February 2, 2012. At his trial, the appellant testified t hat he completed the DMV applic ations using the name “Ray Alexander Hughes” because he believed that was his legal name. The appellant testified about the steps that he had taken to change his name in Panama and ex plained the circumstances surrounding the name change. He al so testified that he obtaine d a United States passport in the name of “Ray Alexander Hughes.” The appellant admitted, howeve r, that he did not list his former name on any of the DMV applications at issue. The appellant attempted to adm it a translation of the April 29 , 2011 Panamanian court order into evidence at his tria l. The Commonwealth objected to the admission of the document, arguing that it consti tuted inadmissible hearsay and that it ha d not been properly authenticated. In response to the Commonwealth’s objections, the appellant mai ntained that the order was not offered “for the truth of matter but to show . . . the impressi on on [the appellant] or his . . . good- 5 - faith belief of what was occurri ng, in terms of his name change .” The appellant also argued that the order was admissible as a “ public record.” After the appel lant testified aboutthe source of the document, he again moved to admit it into evidence “not . . . for the truth of the matter, but going to his intent to commit fraud.” The circuit court then a dmitted the translation of the April 29, 2011 order into evidence. The circuit court also admitted copies of the appell ant’s reissued birth certificate and h is passport into evidence during the tri al. The appellant moved to strike th e evidence against him at the conclusion of the Commonwealth’s case-in-chief, and he renewed his motion to stri ke after he testified in his own behalf. Citing Henry v. Co mmonwealth, 63 Va. App. 30 (2014), t he appellant maintained that the evidence did not prove that h e committed an actual forgery. While the appellant admitted that he failed to provide certai n information in the DMV applic ations, he argued that he completed the applications using his legal name, “Ray Alexander Hughes.” Therefore, the appellant contended that he did not create forged or unauthenti c documents. The Commonwealth maintained that the appellant committed forge ry when he completed the DMV applications. Although t he Commonwealth acknowledged t hat the appellant attempted to change his name in Panama, the Commonwealth emphasized that the appellant did not take any steps to legally change his name in Virginia. Consequently , the Commonwealth argued that the appellant’s name change was ineffective. As the appellant’ s name was still legally “Alexander Ray Thompson,” the Co mmonwealth contended that the a ppellant created unauthentic documents when he com pleted the DMV applications us ing the name “Ray Alexander Hughes.” After considering the parties’ arguments, the circuit court de termined that the appellant committed forgery when he completed the four DMV applications a t issue. The circuit court concluded that the appellant had not effectively changed his na me to “Ray Alexander Hughes”- 6 - and that he created unauthentic pub lic records when he complete d the DMV applications using that name. The circuit court conv icted the appellant of the ch arged forgery offenses, and this appeal followed.
II. ANALYSIS The appellant contends that th e evidence presented at his tria l failed to prove that he forged the public records at iss ue. When considering the suffi ciency of the evidence on appeal, we “‘presume the judgment of the trial court to be correct’ and reverse only if the trial court’s decision is ‘plainly wrong or w ithout evidence to support it.’” White v. Commonwealth, 68 Va. App. 111, 118 (2017) (quoting Ke lly v. Commonwealth, 41 Va. App. 250, 257 (2003) ( en banc )); see also Code § 8.01-680. “[U]nder this familiar standard of review, ‘[a]n appellate court does not ask itself whether it be lieves that the evidence at th e trial established guilt beyond a reasonable doubt.’” Dalt on v. Commonwealth, 64 Va. App. 512, 5 25 (2015) (quoting Williams v. Commonwealth, 278 Va. 190, 193 (2009)) . “Rather, the releva nt question is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (quoting Williams, 278 Va. at 193). “If there is evidentiary support for the conviction, ‘the reviewing court is not permitted to substitute its own judgment, even if its opinion might differ from the conc lusions reached by the finder of fact at the trial.’” Chavez v. Commonwealth, 69 Va. App. 149, 161 (2018) (quoting Banks v. Com monwealth, 67 Va. App. 273, 288 (2017)). The appellant acknowledges thathe failed to disclose certain information about his prior identity when he completed the D MV applications at issue. Whil e the appellant may have failed to disclose the information for afraudulent purpose (i.e., to avoid being required to register as a sex offender), the appellant arg ues that any information that h e omitted from the applications did- 7 - not affect their genuineness or authenticity. Thus, the appell ant contends that the omission of the information regarding his prior identity did not constitute for gery. The appellant also argues that h e did not complete the DMV app lications using a false or fictitious name. The appellant m aintains that he legally chang ed his name to “Ray Alexander Hughes” in Panama, and he empha sizes that the United States gov ernment recognized that “Ray Alexander Hughes” was his name w hen it issued his passport. As the appellant contends that he legally changed his name to “Ra y Alexander Hughes,” the appella nt argues that he did not create unauthentic documents when he com pleted the DMV applications us ing that name.
A. THE APPELLANT DID NOT COMMIT FORGERY WHEN HE FAILED TO DISCLOSE INFORMATION REGARD ING HIS PRIOR IDENTITY Code § 18.2-168, the statute prohi biting the forgery of public records, states, If any person forge a public recor d, or certificate, return, or attestation, of any public officer or public employee, in relat ion to any matter wherein such certifi cate, return, or attestation maybe received as legal proof, or utte r, or attempt to employ as true , such forged record, certificate, ret urn, or attestation, knowing the same to be forged, he shall be guilty of a Class 4 felony. Although Code § 18.2-168 prohibits the forgery of public record s, it does not provide a definition of the term “forgery.” In general, forgery has beendefined as “the false making or materially altering with int ent to defraud, of any writing whic h, if genuine, might apparently be of legal efficacy, or the foundati on of legal liability.” Henr y, 63 Va. App. at 38 (quoting Rodriquez v. Commonw ealth, 50 Va. App. 667, 671 (2007)). “[I]n criminal cases the great weight of authority holds false statements in . . . otherwise valid instruments not to be forge ry within its common law or un explained meaning.” Id. at 39 (quoting United States v . Jones, 553 F.2d 351, 355 (4th Cir. 19 77)). “[W]here the ‘falsity lies in the representation of facts, not i n the genuineness of executio n,’ it is not forgery.” Id. at 38 (quoting Gilbert v. United S tates, 370 U.S. 650, 658 (1962)).- 8 - Falsifying the genuineness of a doc ument is so critical to the offense of forgery that when a pe rson writes a letter or comple tes a loan application or other instrum ent and signs it with his own name, he is not guilty of forgery be cause a false statement is contained therein, even if he kne w it was false and acted with intent to defraud. Id. at 39 (quoting Vizcarr a-Ayala v. Mukasey, 514 F.3d 870, 875 (9th Cir. 2008)). This Court addressed a forgery c ase involving a simple misrepre sentation of fact in Henry. In that case, Henry made false statements regarding his real estate assets in two financial statements when he applied for indigent defense services. Id. at 35-36. Despite these misrepresentations, Henry signed his legal name, “William Lloyd Henry,” on the financial statements and certified that the information he provided was “ correct to the best of [his] knowledge.” Id. Henry was convict ed of two counts of forgery of a public record based on the inaccurate financial statements, and he appealed his conviction s to this Court. Id. at 34. This Court reversed Henry’s f orgery convictions, concluding th at the financial statements at issue were not forgeries merely because they contained misre presentations of fact. See id. at 41-42. This Court noted that “in or der for Henry’s forgery con viction[s] to be upheld, the Commonwealth was required to prov e that Henry’s conduct with re spect to the financial statements altered the genuine ness and authenticity of those do cuments, making them not in fact what they purported to be. ” Id. at 40. This Court then explained, The documents purported to be financial statements for William Lloyd Henry and remained financial statements for William Lloyd Henry despite Henry’s alleged mis representations about his real estate assets. Although the financial statements ultimately contained “a lie” (because the full extent of Henry’s real esta te assets was omitted), the material character of the documents themselves was not forged or alter ed; they remained authentic— the lie was not “about the document itself.” Id. at 41-42 (quoting 3 Wayne R. LaFave, Substantive Criminal Law § 19.7(j)(5) (2d ed . 2003)).- 9 - Henry illustrates that a misrep resentation or false statement must affect the genuineness or authenticity of a document in or der for the document to cons titute a forgery. A mere misrepresentation of fact in a document may not support a forge ry conviction when the alleged forger signs his or her legal name to the document, see id. at 41-42, even when the misrepresentation itself was ma de with fraudulent intent. See id. at 39. In the present case, the appellant misrepresented facts i n the DMV applications at issue when he failed to indicate that he previously changed his name and held a Virginia driver’s lic ense. Although the appellant may have made these misrepresent ations with a fraudulent intent , these misrepresentations, standing alone, were insuffici ent to support his forgery convic tions. See id. at 41-42.
B. THE APPELLANT DID NOT COMPLETE THE DMV APPLICATIONS USING A FALSE OR FICTITIOUS NAME Though a mere misrepresentati on of fact in a public record may not support a forgery conviction, the creation of a doc ument using a false name const itutes forgery. See Rodriquez, 50 Va. App. at 671-72. “[W]hile a pers on may adopt any name he ma y choose so long as it was done for an honest purpose, under th e broad definition of forge ry the crime is committed by signing an assumed name, or a ficti tious name, for a dishonest purpose and with intent to defraud.” Moore v. Commonwealth, 207 Va. 838, 841 (1967). “Si gning one’s own name with the intent that the writing be r eceived as written by another p erson, or impersonating another in the signature of an instrument , or signing in such a way as to make the writing purport to be that of another, are all acts of f orgery.” Rodriquez, 50 Va. App. a t 672 (quoting United States v. Price, 655 F.2d 958, 960 (9th Cir. 1981)). In Rodriquez, this Court addresse d a forgery case where a defen dant used the name of another individual to create publ ic records. Rodriquez provide d his brother’s name and identifying information to a po lice officer who was issuing tra ffic summonses to him. Id. at 670. In turn, the police officer issu ed the summonses in the name of Rodiquez’s brother rather than in- 10 - the name of Rodriquez. Id. Rodr iquez, however, illegibly sign ed his own name on the summonses rather than his brothe r’s name. Id. Rodriquez was e ventually convicted of two counts of forging a public reco rd based on his actions. Id. at 669. This Court affirmed Rodriquez’s convictions, concluding that he forged the summonses “by providing false information t o the [police] officer as he p repared the documents.” Id. at 671-72. This Court noted that Rodr iquez “provided false and fr audulent information in order to create summonses that were entirely fraudulent and not authentic .” Id. at 672 n.2 (emphasis added). Thus, “[t]he summonses t hemselves were ‘lies.’” Id. When addressing Rodriquez in Henry, this Court aptly explaine d that the false information pr ovided by Rodriquez transformed the summonses at issue “into s omething other than what they pur ported to be—the documents purported to be summonses for Rodr iquez but were forged to be s ummonses for Rodriquez’s brother.” Henry, 63 Va. App. at 40. Pursuant to Rodriquez, the appell ant in the present case commi tted forgery if he completed the DMV applications a t issue using a false or fictit ious name. The creation of a document using a false name aff ects the genuineness of the docu ment by altering what the document “purports to be,” and therefore, constitutes forgery. See Rodriquez, 50 Va. App. at 671-72. The appellant would have c reated documents that purpor ted to be something other than what they actually were if he com pleted the DMV applications us ing the name “Ray Alexander Hughes” when they were truly DMV a pplications for “Alexander Ra y Thompson.” While the evidence presented in this case established that the appellant had DMV profiles as both “Ray Alexander Hughes” and “Alexander Ray Thompson,” it failed to establish that “Alexander Ray Thompson” was the appellant’s name when he compl eted the DMV applications at issue. Although the appellant admitted that he did not chan ge his name in Virginia pursuant to- 11 - Code § 8.01-217, he testified that he changed his name to “Ray Alexander Hughes” in Panama in 2011. The appellant also presented substantial documentary evi dence supporting this claim. The appellant’s United States passport indicated that his name was “Ray Alexander Hughes.” In general, a passpor t is “[a] formal document certif ying a person’s identity and citizenship so that the person ma y travel to and from a foreign country.” Passport, Black’s Law Dictionary (10th ed. 2014). “A pass port is the universally acc epted evidence of a person’s identity and nationality.” Id. ( quoting Burdick H. Brittin, In ternational Law for Seagoing Officers 183 (4th ed. 1981)). “As a travel control document, apassport is both proof of identity and proof of allegiance to the U nited States.” Haig v. Agee, 4 53 U.S. 280, 293 (1981); see also United States v. Laub, 385 U.S. 475, 481 (1967) (“A passport is a document identifying a citizen.”). The United States government defines a passport as “any travel document issued by competent authority showing the be arer’s origin, identity, and nationality if any, which is valid for the admission of the bearer i nto a foreign country.” 8 U.S .C. § 1101(30). Similarly, federal regulations define a passport as “a travel document regardless of format issued under the authority of the Secretary of Sta te attesting to the identity a nd nationality of the bearer.” 22 C.F.R. § 51.1. Under the Virginia N otary Act, passports are ac cepted as “satisfactory evidence of identity.” Code § 47.1-2. Although the Commonwealth maintaine d that the appellant’s attem pt to change his name was ineffective, the appellant’s passport certif ied that his na me was “Ray Alexander Hughes.” While the Commonwealth suggested t hat the appellant may have wi thheld certain information when he obtained his passport, t he Commonwealth did not present any evidence to establish that the appellant’s passport was inva lid. Therefore, the appellant did not commit forgery when he completed the DMV applications at issue.- 12 - III. CONCLUSION In summary, we conclude that th e evidence failed to support the appellant’s forgery convictions. The misrepresenta tions regarding the appellant’s previous identity did not affect the genuineness or authenticity of t he DMV applications, and the ev idence failed to prove that the appellant completed the DMV app lications using a false or ficti tious name. Accordingly, we reverse and dismiss the appellant’s convictions. Reversed and dismissed.