COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Haley and Senior Judge Annunziata 

Argued at Alexandria, Virginia 

DEVAN ELISA KOCH 

 MEMORANDUM OPINION*

 BY 

v. Record No. 3078-05-4 JUDGE ROSEMARIE ANNUNZIATA 

 JANUARY 9, 2007 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF FAUQUIER COUNTY 

Jeffrey W. Parker, Judge 

 S. Jane Chittom, Appellate Defender (Catherine E. P. Haas, Assistant 

Appellate Defender; Virginia Indigent Defense Commission, on 

brief), for appellant. 

 Karri B. Atwood, Assistant Attorney General (Robert F. McDonnell, 

Attorney General, on brief), for appellee. 

 A jury convicted Devan Elisa Koch (Koch) of forgery and uttering of a public record in 

violation of Code § 18.2-168. On appeal, Koch contends the evidence was insufficient to prove the 

community service attendance sheet she was charged with altering was a public record within the 

meaning of Code § 18.2-168. Koch also contends the trial court erred in admitting into evidence a 

document providing Koch with notice that the community service attendance sheet was a public 

record. Finding no error, we affirm Koch’s convictions. 

FACTS

 Under familiar principles of appellate review, we examine the evidence in the light most 

favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible 

 *

 Pursuant to Code § 17.1-413, this opinion is not designated for publication. 
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therefrom. See Haskins v. Commonwealth, 31 Va. App. 145, 149-50, 521 S.E.2d 777, 779 

(1999). 

 As a condition of Koch’s probation following a conviction in Fauquier County General 

District Court, she was ordered to perform twenty-four hours of community service. Stephanie 

Adams, a probation officer employed by the Fauquier County Office of Adult Court Services, 

was assigned to supervise Koch in her probation.1 As a part of her duties, Adams was 

responsible for reporting Koch’s compliance with the conditions of her probation to the 

sentencing court. 

Adams provided Koch with a community service attendance sheet for purposes of 

documenting Koch’s performance of her community service hours. Adams explained to Koch 

that she would be assigned to various sites to perform her hours of service. The supervisor of 

each site was to sign the attendance sheet and record the date and hours Koch worked. Koch 

signed a notice acknowledging that she was not to write upon the attendance sheet. Adams 

testified that the attendance sheet could be used as evidence to prove to the court that a 

probationer had not completed the required hours of community service. 

Commonwealth’s Exhibit 3 was admitted as evidence of the written notice Koch received 

advising her that she was not to write on the community service attendance sheet. Koch had 

signed and dated the notice. The notice included the following statement: 

The community service log sheet is considered a public record. 

Forgery of the log sheet is a Class 4 felony which could result in a 

sentence of up to ten years imprisonment. Forgery of the log sheet 

will be prosecuted. You should not write on the log sheet under 

any circumstances. 

 1

 The trial court took judicial notice that Fauquier County was a political subdivision of 

the Commonwealth. 
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 Referring to the excerpt noted above, the trial court provided the following instruction to 

the jury: 

The only reason this statement is being admitted along with the 

other statements is to show that the defendant was placed on notice 

as to this issue. That does not mean that, as a matter of law, that 

the court is instructing you that the community service log sheet is 

considered a public record. That, apparently, is at issue in this 

case. 

 What that sentence simply states is what is contained here 

on this – on this overall Exhibit No. 3 itself and is a notice that was 

given to the defendant, along with all the other statements that 

were on this document, and it is not entitled to any more weight 

than any of the other statements on this document. 

 Adams referred Koch to Crockett Park to perform community service. Crockett Park was 

a recreational facility maintained by the Fauquier County Department of Parks and Recreation. 

 On August 30, 2004, Koch gave Adams a community service attendance sheet indicating 

she performed community service hours at Crockett Park on July 15, August 16, and August 22, 

2004. The attendance sheet indicated Koch had worked sufficient hours to complete her required 

community service. However, Michael Hanson, the supervisor at Crockett Park, had no record 

showing that Koch worked at the park on the latter two dates. According to the attendance sheet 

Koch gave Adams, Erin Moore was the Crockett Park employee who signed the sheet to verify 

Koch’s work hours on the three dates. However, Moore was not working at Crockett Park at the 

times Koch allegedly signed out on August 16 and 22. Furthermore, Moore testified that she did 

not sign Koch’s attendance sheet on August 16 or 22. 

FORGERY AND UTTERING OF A PUBLIC RECORD

Code § 18.2-168 provides: 

If any person forge a public record, 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 
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forged record, certificate, return, or attestation, knowing the same 

to be forged, he shall be guilty of a Class 4 felony. 

 Koch contends the evidence failed to prove that the community service attendance sheet 

was a public record for purposes of Code § 18.2-168. “In 1874, in its only opinion on the 

subject, the Virginia Supreme Court defined a public record as a written memorial, intended to 

serve as evidence of something written, said or done, made by a public officer authorized to 

make it.” Reid v. Commonwealth, 16 Va. App. 468, 470, 431 S.E.2d 63, 64 (1993) (citing 

Coleman v. Commonwealth, 66 Va. (25 Gratt.) 865, 881-82 (1874)). The General Assembly 

later expanded the definition of “public record” by statute. Code § 42.1-77 provides in pertinent 

part: 

“Public record” . . . means recorded information that documents a 

transaction or activity by or with any public officer, agency or 

employee of an agency. Regardless of physical form or 

characteristic, the recorded information is a public record if it is 

produced, collected, received or retained in pursuance of law or in 

connection with the transaction of public business. The medium 

upon which such information is recorded has no bearing on the 

determination of whether the recording is a public record. 

This Court has applied the statutory definition in cases involving forgery of a public record. See

Hines v. Commonwealth, 39 Va. App. 752, 758, 576 S.E.2d 781, 784 (2003) (finding a criminal 

summons to be a public record); Reid, 16 Va. App. at 470, 431 S.E.2d at 64 (finding fingerprint 

card prepared by the police pursuant to statutory requirement to be a public record). 

 As a probation officer and employee of Fauquier County, Adams was a public officer or 

public employee. In the course of her duties, she provided Koch with the community service 

attendance sheet for purposes of documenting the completion of Koch’s required hours of 

community service. Adams testified that a community service attendance sheet could be used to 

prove whether a probationer had performed the required community service ordered by the court. 

Koch was not permitted to make entries upon the attendance sheet herself. Yet, she falsified the 
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attendance sheet to indicate she had completed her required community service hours at Crockett 

Park. Koch gave the document to Adams as proof she had satisfied one of the conditions of her 

probation. 

 The evidence proved that the attendance sheet was a document containing information 

Adams collected pursuant to the duties required of her by Fauquier County. Accordingly, the 

evidence was sufficient to prove beyond a reasonable doubt that the attendance sheet was a 

public record for purposes of Code § 18.2-168 and that Koch was guilty of the charged offenses.2

 

ADMISSION OF COMMUNITY SERVICE ATTENDANCE SHEET

Koch contends the trial court erred in admitting Exhibit 3 because it included “a legal 

conclusion that a community service log is a public record.” She contends that the admission of 

the notice relieved the Commonwealth from its burden of proving an essential element of the 

offense. We disagree with Koch’s contentions for the reasons that follow. 

The admissibility of evidence is within the broad discretion 

of the trial court, and a ruling will not be disturbed on appeal in the 

absence of an abuse of discretion. Evidence is admissible if it 

tends to prove a matter that is properly at issue in the case and if its 

probative value outweighs policy considerations. 

Blain v. Commonwealth, 7 Va. App. 10, 16-17, 371 S.E.2d 838, 842 (1988) (citations omitted). 

Upon the admission of Exhibit 3, the trial court gave a cautionary instruction that the jury 

should not conclude the attendance sheet was a public record based upon the statement contained 

in the notice. Unless the record proves otherwise, “[j]uries are presumed to follow prompt 

cautionary instructions regarding the limitations placed upon evidence.” Burley v. 

Commonwealth, 29 Va. App. 140, 147, 510 S.E.2d 265, 269 (1999). See also LeVasseur v. 

Commonwealth, 225 Va. 564, 589, 304 S.E.2d 644, 657 (1983). The record contains no 

 2

 In light of this conclusion, we need not address the Commonwealth’s alternative 

argument that the attendance sheet constituted an attestation of a public employee, as set forth in 

Code § 18.2-168. 
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evidence the jury failed to follow the trial court’s cautionary instruction. Accordingly, we cannot 

say the trial court abused its discretion in admitting Exhibit 3. 

CONCLUSION

 We find no error in the rulings of the trial court that Koch challenges on appeal. 

Accordingly, Koch’s convictions are affirmed. 

 Affirmed. 
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Benton, J., dissenting.

 The trial judge convicted Devan Elisa Koch on indictments that charged she forged and 

uttered a public record in violation of Code § 18.2-168. This statute provides the following: 

 If any person forge a public record, 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. 

The Virginia Public Record Act defines a public record as follows: 

 “Public record” means recorded information that 

documents a transaction or activity by or with any public officer, 

agency or employee of an agency. Regardless of physical form or 

characteristic, the recorded information is a public record if it is 

produced, collected, received or retained in pursuance of law or in 

connection with the transaction of public business. The medium 

upon which such information is recorded has no bearing on the 

determination of whether the recording is a public record. 

Code § 42.1-77. I would hold that the form used in this case does not satisfy this statutory 

definition, and, therefore, I would reverse the conviction. 

I. 

 A judge convicted Koch of a misdemeanor and required her to perform twenty-four hours 

of community service as a condition of supervised probation. Koch’s probation officer gave her 

a form styled “community service attendance sheet,” which contained in column form a “log” for 

documenting her hours of community service. The probation officer testified: 

The purpose of the log sheet is to have the defendant take to the 

community service site to have the hours documented, at which 

point we use that document in the file as proof or evidence that the 

hours have been completed for us to communicate to the judge at 

the end of the probation that the hours have been done and 

verified. 

Not every piece of paper prepared by a public employee or to be signed by a public 

employee is public record. A penal statute “cannot be extended by implication or construction, 
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or be made to embrace cases which are not within their letter and spirit.” Berry v. City of 

Chesapeake, 209 Va. 525, 526, 165 S.E.2d 291, 292 (1969). 

The record clearly establishes that this form was not a public record. It was not 

“produced, collected, received or retained in pursuance of law.” Code § 42.1-77. The form was 

not created, approved, or ordered by a court. The probation officer testified the form is not 

ordinarily submitted to the court that ordered the probation. Rather, the form is a handy means 

of documenting the probationer’s service so that the probation officer might later inform the 

court whether a person has successfully performed community service. Thus, for example, when 

Koch did not perform her community service, the probation officer filed in the court that ordered 

the probation “a letter summarizing [Koch’s] compliance with probation,” but the probation 

officer did not file the form in the court. In short, the form was an internal document produced 

and used solely for the convenience of the probation officers to aid in monitoring the activities of 

persons performing community service. It was not a creature of law in any sense. 

 Likewise, the form was not produced or used in transaction of public business. The 

probation officer testified this form was not available for use or inspection by the public. Its sole 

purpose was to aid the probation officer in her duties of monitoring Koch’s community service 

activity. 

 For these reasons, I would hold the evidence was insufficient to support the conviction. 

II. 

I would also hold the trial judge erred by admitting in evidence a notice the probation 

officer required Koch to sign. 

 During the direct examination by the prosecutor, the probation officer testified about 

instructions she gave Koch regarding “how she was to go about completing that community 

service.” After the probation officer explained her instructions, the prosecutor offered into 
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evidence a written “notice” that the probation officer had required Koch to sign acknowledging 

those instructions. The notice also contained the following statements: 

The community service log sheet is considered a public record. 

Forgery of the log sheet is a Class 4 felony which could result in a 

sentence of up to ten years imprisonment. Forgery of the log sheet 

will be prosecuted. You should not write on the log sheet under 

any circumstances. 

 Koch’s attorney objected, arguing that providing these statements, particularly the first 

sentence, to the jury in an exhibit prejudiced Koch by “stating a question of law as fact.” The 

trial judge overruled the objection and denied the request to redact the statements from the 

notice. 

 This exhibit improperly informed the jury that the “log sheet is considered a public 

record.” The essential facts necessary to prove a criminal offense are the “ultimate issues to be 

resolved by the jury.” Llamera v. Commonwealth, 243 Va. 262, 265, 414 S.E.2d 597, 599 

(1992). This statement of opinion on an exhibit was highly prejudicial because it stated as an 

undisputed fact the ultimate issue to be decided by the jury. See Webb v. Commonwealth, 204 

Va. 24, 33, 129 S.E.2d 22, 33 (1963) (barring ultimate issue opinion by expert); Mitchell v. 

Commonwealth, 141 Va. 541, 565, 127 S.E. 368, 376 (1925) (barring ultimate issue opinion by 

non-expert). In essence, the statement in the exhibit, which was prepared by the probation 

office, told the jury the result it should reach. Thus, when the trial judge later instructed the jury 

at the conclusion of all the evidence about public records, this exhibit had the tendency to give 

the jury an opinion about a matter it was to decide. Similar to the general rule barring opinion 

testimony of a lay witness, the opinion expressed in this document was not competent evidence. 

See Bond v. Commonwealth, 226 Va. 534, 537-38, 311 S.E.2d 769, 771-72 (1984). I would 

hold that this unredacted exhibit, declaring the log a public record, was so prejudicial that the 

jury could not fairly consider the evidence and render a verdict. 
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 The cautionary instruction was inadequate to negate this prejudice. Indeed, the 

instruction placed the judge’s imprimatur upon the misuse of the exhibit by stating: 

 Ladies and gentlemen, I just want to point out one fact to 

you here, or one thing to bear in mind when you review this 

Exhibit No. 3. It states that the community service log sheet is 

considered a public record. The only reason this statement is being 

admitted along with the other statements is to show that the 

defendant was placed on notice as to this issue. That does not 

mean that, as a matter of law, that the court is instructing you that 

the community service log sheet is considered a public record. 

That, apparently, is at issue in this case. 

 What that sentence simply states is what is contained here 

on this -- on this overall Exhibit No. 3 itself and is a notice that 

was given to the defendant, along with all the other statements that 

were on this document, and it is not entitled to any more weight 

than any of the other statements on this document. All right? 

(Emphasis added). 

 This instruction served to buttress the improper use of the exhibit. The instruction told 

the jury that Koch had reason to know the form was a public record and that the jury could 

consider it for this proposition. Under these circumstances, the exhibit and the instruction were 

so impressive as to remain with the jurors and to influence the verdict. See Kitze v. 

Commonwealth, 246 Va. 283, 288, 435 S.E.2d 583, 586 (1993). This exhibit and the cautionary 

instruction had the effect of improperly presenting to the jury this matter as statement of opinion 

on the ultimate issue to be decided by the jury. 

III. 

 For these reasons, I would hold the trial judge erred in refusing to redact the statements 

from the exhibit. In any event, however, I would hold that the evidence was insufficient to 

support the convictions, and I would reverse the convictions.