COURT OF APPEALS OF VIRGINIA 

Present: Judges Coleman, Elder and Senior Judge Cole 

Argued at Richmond, Virginia 

JOHN A. WALDROP, JR. 

 OPINION BY 

v. Record No. 1343-95-2 JUDGE LARRY G. ELDER 

 DECEMBER 17, 1996 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF HENRICO COUNTY 

James M. Lumpkin, Judge Designate 

 Anthony F. Troy (Claudia T. Salomon; Michael 

Morchower; Christopher C. Booberg; Mays & 

Valentine; Morchower, Luxton & Whaley, on 

briefs), for appellant. 

 Kathleen B. Martin, Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 John A. Waldrop (appellant) appeals his conviction of two 

counts of perjury for making a false statement in a campaign 

finance report. He contends that the trial court erred in 

denying his motion for a mistrial because the Commonwealth's 

attorney during his opening statement commented on Waldrop's 

Fifth Amendment right to remain silent. He also contends that 

the evidence was insufficient to support his convictions for 

perjury because (1) his campaign finance report listed all 

contributions as required by law; (2) the Commonwealth failed to 

prove that he was under oath when he made the alleged 

misstatements; and (3) if he made a misstatement, the evidence 

failed to prove that it was willful. For the reasons that 

follow, we affirm. 
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 I. 

 FACTS 

 In November, 1991, appellant was re-elected to his fifth 

term on the Henrico County Board of Supervisors. Due to 

appellant's slight margin of victory, his opponent filed a 

petition for a recount. Code § 24.1-249 (1985). Appellant hired 

an attorney to represent him in the recount proceeding. 

 In December, 1991, appellant received three checks from 

supporters intended to defray the cost of the recount proceeding. 

 Appellant accepted a check from a business owned by a supporter, 

Kenny Graham, in the amount of $1,000 on December 2. On 

December 13, another business owned by a supporter of appellant, 

E. Carlton Wilton, Sr., issued him a check in the amount of $500. 

 Appellant deposited these two checks into his personal checking 

account, which he testified was also his "defense fund." On 

December 19, appellant received a check from a third supporter, 

Henry Wilton, for $750, which he deposited into the separate 

checking account that he had previously designated for his 

campaign funds. 

 On January 15, 1992, appellant filed his report of candidate 

campaign contributions and expenditures (report) as required by 

the Fair Election Practices Act (Act).1 Code § 24.1-247.2(C) 

 1 The Fair Elections Practices Act was amended and 

recodified in 1993 and is now called the Campaign Finance 

Disclosure Act. Code § 24.2-900, et seq. (1993, Supp. 1996); 

1993 Va. Acts 812, 872. 
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(1985, Supp. 1991). In schedule A of the report, appellant was 

required to list all "contributions over $100." While this list 

included the check from Henry Wilton, it excluded the checks from 

Mr. Graham and E. Carlton Wilton, respectively. Appellant signed 

the report under an affirmation, which stated: 

 Under penalty of perjury, I declare that I 

have examined this report which covers the 

period Nov. 26, 1991 through Dec. 31, 1991, 

including its accompanying summary, 

reconciliation, schedules and statements and 

to the best of my knowledge and belief, it is 

true, correct and complete. 

The signature page of the report was notarized by Stuart 

Inglehart under a written statement that the report had been 

"[s]ubscribed and sworn to (or affirmed) before" him. 

 In April, 1995, appellant was indicted for two counts of 

perjury stemming from the two checks that he had failed to list 

as contributions in his report.2

 During the Commonwealth's 

opening statement, the Commonwealth's attorney made the following 

remarks: 

 That essentially is what I believe the 

Commonwealth's evidence will reveal. At the 

conclusion of the evidence, and let me say, 

while the Commonwealth has the burden of 

proof, and I am able to tell you what our 

evidence will be, because the defendant has 

no burden of proof he has no obligation to 

disclose to me what the defense is or what 

Mr. Waldrop's point of view on this will be, 

so I can't comment on that for you at this 

time. I am just able to tell you what I 

believe our evidence will be. I suspect -- 

and I say this by way of asking you to listen 

 2 Appellant was tried and acquitted on a third count of 

perjury regarding a check received in September, 1991. 
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closely to the evidence -- I suspect that Mr. 

Waldrop will allege that these are minor 

bookkeeping errors that were overlooked by 

him at the time, and I think that's why it's 

important for you to listen to the evidence, 

to follow the money, where it went, to see if 

this type of conduct constitutes bookkeeping 

mistakes and errors, or deliberate 

purposeful, willful conduct on his part. It 

may well be that when Mr. Morchower3

 sits 

down, the issue will have been narrowed by 

him to that particular aspect of all the 

evidence, and you will know exactly what to 

look for when you're listening to the 

testimony of the witnesses. 

Following the Commonwealth's opening statement, appellant's 

counsel moved for a mistrial, claiming that the Commonwealth's 

attorney had unconstitutionally commented on appellant's right 

not to testify at his trial. The trial court denied the motion. 

 At trial, the evidence proved that appellant failed to 

report the two checks he received for the legal expenses of the 

recount proceeding as contributions in his report of January 15, 

1992. However, the evidence is in conflict on whether appellant 

signed the report under the oath required by the Act and whether 

appellant's statement was willful. Although the record proved 

appellant signed the report "under penalty of perjury" and that 

the report reflected that it was signed and affirmed before a 

notary, appellant testified that he did not read the signature 

page before he signed it and that the notary failed to administer 

an oath. Appellant also testified that he was a veteran of four 

prior elections and was familiar with the reporting requirements 

 3 Mr. Morchower was appellant's lead counsel at trial. 
 -5- 

under the Act. The notary testified that although he had asked 

appellant during the 1987 election if he had read the oath, he 

had ceased this practice in 1991. 

 Regarding the issue of willfulness, the Commonwealth's 

evidence proved that appellant received and deposited the checks 

from Mr. Graham and E. Carlton Wilton and then did not report the 

checks as contributions on his report of January 15, 1992. 

Appellant testified that his attorney initially advised him that 

gifts of money intended to defray the cost of the recount 

proceeding were not campaign contributions and could be deposited 

into his personal account. Appellant also testified that later, 

sometime between December 25, 1991 and mid-January, 1992, he 

learned during a conference call with the secretary of the State 

Board of Elections that he was required to treat monetary gifts 

relating to his recount expenses as campaign contributions. The 

former secretary testified that he could not remember speaking 

with appellant during this period. 

 Following the Commonwealth's case-in-chief and again at the 

conclusion of the evidence, appellant moved to strike the 

evidence. The trial court denied the motion and the jury found 

appellant guilty of two counts of perjury. Following his 

conviction, appellant filed a motion to set aside the verdict on 

the ground that money received for a recount proceeding cannot be 

construed as a "campaign contribution" that a candidate must 

report. The trial court denied this motion. 
 -6- 

 II. 

 COMMENT IN OPENING STATEMENT ON FIFTH AMENDMENT RIGHTS 

 Appellant contends that the trial court erred when it denied 

his motion for a mistrial because the Commonwealth's attorney's 

comments in his opening statement violated his Fifth Amendment 

right to remain silent by compelling him to testify at his trial. 

 We disagree. 

 It is well established that any comment made by a 

Commonwealth's attorney "referring to the defendant's election 

not to testify is a violation of his rights against 

self-incrimination" guaranteed by the Fifth Amendment of the 

United States Constitution. Johnson v. Commonwealth, 236 Va. 48, 

50, 372 S.E.2d 134, 136 (1988) (citing Griffin v. California, 380 

U.S. 609, 615, 85 S.Ct. 1229, 1233, 14 L.Ed.2d 106 (1965)). In 

addition, the accused's right to remain silent at trial prohibits 

"the prosecutor's use of any language or device which compels a 

defendant to testify," including those made in opening 

statements. State v. Pierce, 231 Neb. 966, 978, 439 N.W.2d 435, 

444 (1989); see State v. Turner, 433 A.2d 397, 401 (Me. 1981); 

Clark v. State, 256 Ark. 658, 661, 509 S.W.2d 812, 815 (1974) 

(stating that pre-evidentiary coercion is just as forbidden as 

post-evidentiary comment). 

 In determining whether a comment relating to an accused's 

failure to testify is constitutionally forbidden, the test is 

whether, in the circumstances of the particular case, the 
 -7- 

language used was either (1) manifestly intended to comment on 

the failure of the accused to testify, or (2) of such character 

that the jury would naturally and necessarily take it to be such 

a comment. Johnson, 236 Va. at 50, 372 S.E.2d at 136 (citing 

Hines v. Commonwealth, 217 Va. 905, 907, 234 S.E.2d, 262, 263 

(1977)). "When comments relating to an accused's opportunity to 

testify are followed by his actual testimony, the relevant 

inquiry is whether his testimony in effect was coerced or 

compelled by the prior comment." United States v. Corleo, 576 

F.2d 846, 850 (10th Cir. 1978), cert. denied, 439 U.S. 850, 99 

S. Ct. 153, 58 L.E.2d 152 (1978). One factor of particular 

concern in pre-testimony comments is whether the Commonwealth's 

attorney challenged the jury to observe whether or not the 

accused testified. Pierce, 231 Neb. at 978, 439 N.W.2d at 444 

(citing Coleman v. The State, 111 Ind. 563, 566, 13 N.E. 100, 101 

(1887)). 

 In this case, we hold that the comments of the 

Commonwealth's attorney did not violate appellant's Fifth 

Amendment right not to testify. The Commonwealth's attorney said 

that he was unsure of "Mr. Waldrop's point of view" but that he 

suspected that "Mr. Waldrop will allege that these are minor 

bookkeeping errors that were overlooked by him" and that Mr. 

Morchower, appellant's attorney, may narrow the issue to "that 

particular aspect of all the evidence" by the time he "sits 

down." When viewed in context, the Commonwealth's attorney's 
 -8- 

comments were neither manifestly intended nor likely to be taken 

by the jury as a comment on appellant's right to remain silent. 

Immediately after appellant made his motion for a mistrial, the 

Commonwealth's attorney explained to the court that he was 

"referring to a defense in the matter" and did not intend to 

represent to the jury that appellant would testify. 

 In addition, the character of the statement was such that 

the jury would have understood it as a comment on the 

Commonwealth's case and the issues involved and not as a comment 

on whether appellant would testify. The Commonwealth's attorney 

stated that appellant had no obligation to disclose his "point of 

view" and that he was in no position to comment on the substance 

of appellant's defense. He then stated that he "suspected" 

appellant would assert as a defense that the false statement on 

his report was not willful because it resulted from an 

inadvertent bookkeeping error. These statements were a comment 

on the nature of the Commonwealth's evidence offered to prove the 

"willfulness" element of its case rather than comments on the 

meaning of appellant's subsequent decision whether to testify. 

We find no indication in the record that the purpose or effect of 

the Commonwealth's attorney's comment was to coerce appellant to 

testify. The statement neither raised the expectation in the 

jury's mind that appellant would testify nor challenged the jury 

to notice and possibly draw an inference from whether or not 

appellant testified. 
 -9- 

 

 III. 

CAMPAIGN CONTRIBUTIONS UNDER THE 

FAIR ELECTIONS PRACTICES ACT 

 Appellant was convicted under Code § 24.1-279, a statute 

that expanded the crime of perjury under Code § 18.2-434 to 

include willfully false statements made while under oath in 

reports required by Virginia election laws.4

 Appellant's perjury 

conviction was based on his omission of Mr. Graham's and E. 

Carlton Wilton's checks from a report requiring the disclosure of 

all contributions to his campaign. That report was signified as 

"true, correct and complete." Appellant contends that the 

evidence fails as a matter of law to prove a violation of the Act 

because money given to defray the cost of a recount proceeding is 

not a contribution within the meaning of the reporting 

requirements. Appellant argues that recount money is not a 

"campaign" contribution because a person defending a recount 

proceeding is no longer a "candidate" and because a recount 

proceeding is not an "election." We disagree. 

 We hold that money received after an election that is 

intended to defray the expenses of a recount proceeding was a 

 4 In 1991, Code § 24.1-279 stated: 

 Any wilfully false, fraudulent, or misleading statement 

or entry made by any person in any statement or account 

under oath required by this title shall constitute the 

crime of perjury, and be punishable as such according 

to the laws of this Commonwealth. 

(1985) (amended and recodified at Code § 24.2-1016 (1993)). 
 -10- 

 

"contribution" under the 1991 version of the Act.5

 In 1991, the 

Act required candidates for local office to periodically file 

reports with the local electoral board listing all contributions 

and expenditures. Code §§ 24.1-257.2(C), -258 (Supp. 1991). 

Regarding contributions, the Act required candidates to report 

every collection or receipt of "money, services or other things 

of value over $100 in relation to his candidacy." Code 

§ 24.1-255(B) (Supp. 1991).6 

 We hold that recount money in excess of $100 was a 

contribution under the Act in 1991 because it was money received 

by a candidate "in relation to his candidacy." Under Virginia 

election law, a recount proceeding is literally an extension of 

the election process. The Act defined a candidate as "any person 

who seeks or campaigns for any office of the Commonwealth or any 

of its governmental units in a primary, general, or special 

election by the people." Code § 24.1-1(2) (Supp. 1991). A 

candidate is elected when the local electoral board determines 

which person received the highest number of votes and the 

secretary issues a certificate of election. Code §§ 24.1-146 

 5 Code § 24.1-251-263.1 (1985, Supp. 1991). See supra 

note 1. 

 6 The relevant part of Code § 24.1-255(B) stated: 

 It shall be unlawful for any candidate, or anyone . . . 

collecting, receiving . . . money, services or other 

things of value over $100 in relation to his candidacy, 

to fail to report every such collection, receipt . . . 

as required herein and in this chapter. 
 -11- 

(Supp. 1991), -148 (1985), -151 (1985). However, in close races, 

the losing candidate may appeal the determination of the 

electoral board by filing a petition for a recount in circuit 

court. Code §§ 24.1-148 (1985), -249(B) (1985). Following the 

court-supervised recount, the circuit court declares the final 

winner of the election. Code § 24.1-250(C), (G) (1985). Thus, 

the recount is a necessary and integral part of the election. A 

person defending a recount is a candidate because he or she is 

still "seeking" election. Code § 24.1-1(2). Because a recount 

proceeding is directly related to a person's candidacy, recount 

money in excess of $100 given to a candidate following election 

day is a "contribution" under the Act. Therefore, we hold that 

money received to defend a recount is a contribution made to a 

candidate in relation to his candidacy. 

 IV. 

 UNDER OATH 

 Appellant contends that the evidence at trial was 

insufficient to prove that he was under oath when he signed his 

report. We disagree. 

 When considering the sufficiency of the evidence on appeal 

to support a criminal conviction, this Court views the evidence 

in the light most favorable to the Commonwealth. Higginbotham v. 

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). On 

review, this Court does not substitute its judgment for that of 

the trier of fact. Cable v. Commonwealth, 243 Va. 236, 239, 415 
 -12- 

S.E.2d 218, 220 (1992). Instead, the jury's verdict will not be 

set aside unless it appears that it is plainly wrong or without 

supporting evidence. Code § 8.01-680; Traverso v. Commonwealth, 

6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988). 

 In a prosecution under Code § 24.1-279, the Commonwealth had 

the burden of proving that appellant was "under oath," which in 

1991 entailed swearing or affirming the oath printed on the 

report before a notary public. Relying on Mendez v. 

Commonwealth, appellant contends that his perjury conviction 

cannot be sustained because the evidence failed to prove that he 

and the notary strictly complied with the formal requirements of 

an administered oath. 220 Va. 97, 225 S.E.2d 533 (1979). We 

disagree. 

 We agree with appellant that Code § 24.1-279 required an 

administered oath;7 however, appellant misstates both the holding 

of Mendez and the law regarding the requirements of the oath 

element in a perjury prosecution. In Mendez, the defendant 

agreed to make an affidavit stating that he had never possessed 

marijuana as a condition of receiving a polygraph examination 

regarding a pending charge for possession of the drug. Id. at 

 

 7 In 1993, the General Assembly amended and recodified this 

section to eliminate the requirement of an administered oath. 

Code § 24.2-1016. See Virginia Code Comm'n, Report on the 

Recodification of Title 21 of the Code of Virginia 166, Sen. 

Doc. 25, (1993). In its present form, this section punishes any 

willfully false material statement made on a campaign finance 

report. Id. In addition, the General Assembly changed the 

offense punished under this section from perjury to election 

fraud. Id. 
 -13- 

101, S.E.2d at 535. Although the affidavit was voluntarily given 

and was not required by law, it was signed and acknowledged 

before a general district court clerk. Id. The defendant was 

convicted of perjury after he "failed" his polygraph test. Id.

at 101-02, S.E.2d at 535. The Virginia Supreme Court reversed 

the conviction, holding that the oath taken by the defendant was 

not "lawfully" administered because it was a gratuitous oath that 

was beyond the statutory authority of the general district court 

clerk to administer. Id. at 102, S.E.2d at 535. 

 Although Mendez stands for the proposition that a person 

commits perjury only if the oath he or she breached was 

acknowledged before a person with the legal authority to 

administer the oath, it says nothing about the form the oath must 

take. Instead, in a prosecution for perjury, no particular form 

of oath is necessary, and an oath is "sufficient to form the 

basis of a charge of perjury when there is some form of 

unequivocal and present act, in the presence of an officer 

authorized to administer the oath, whereby the [accused] 

consciously takes on himself the obligation of the oath."8

 60A 

Am. Jur. 2d Perjury § 10 (1988); see also 70 C.J.S. Perjury § 27 

(1987). Proof that a written oath was signed and acknowledged 

before a notary public is sufficient to prove that a person 

 

 8 Contrary to the assertion of appellant in his brief, the 

jury instruction given by the trial court regarding the oath 

element followed this language and was a correct statement of the 

law. 
 -14- 

swears under penalty of perjury to the truth of his campaign 

report. Moreover, the evidence is sufficient to prove that 

appellant knew the content of the oath he signed. 

 Appellant was a veteran of five election campaigns and was 

familiar with the procedures required under Virginia election 

law. Prior to the report in question, he had previously signed 

and filed reports in both the 1991 election and the 1987 election 

that were notarized by the same notary public. This notary 

public testified that during the election in 1987 he asked 

appellant if he had read the affirmation before he signed it "the 

first couple of times" he notarized a report. Although the 

notary did not verbally administer an oath to appellant when he 

signed his report of January 15, 1992, evidence proves that 

appellant was aware when he signed the oath that he was swearing 

and affirming the correctness and completeness of his report 

"under penalty of perjury" and that he consciously undertook this 

obligation when he signed the document in the presence of this 

notary. 

 V. 

 WILLFULNESS 

 We also disagree with appellant's contention that the 

evidence was not sufficient to prove that the omission and 

misstatement on his report were willfully made. In a prosecution 

for perjury, the Commonwealth must prove beyond a reasonable 

doubt that the accused willfully swore falsely. Holz v. 
 -15- 

Commonwealth, 220 Va. 876, 880, 263 S.E.2d 426, 428 (1980). When 

used in a criminal statute, "willfully" ordinarily means 

"designedly, intentionally or perversely." Lambert v. 

Commonwealth, 6 Va. App. 360, 363, 367 S.E.2d 745, 746 (1988). 

Willfulness may be proved by circumstantial evidence. Id. 

However, an allegedly perjurious statement "will not sustain a 

charge of perjury when . . . the accused swears to the statement 

in reliance on his attorney's advice and in the belief that his 

attorney has correctly advised him as a matter of law." 

60A Am. Jur. 2d Perjury § 114. 

 We hold that the evidence was sufficient to prove that 

appellant willfully filed his false report. The Commonwealth's 

evidence proved that appellant, an experienced candidate familiar 

with the reporting mandates of Virginia election law, received 

money following the November election that was intended to defray 

the cost of the recount proceeding and then failed to include 

this money in his report of contributions that he signed under 

oath. From these circumstances, a reasonable juror could infer 

that appellant intentionally did not disclose this money as a 

contribution in his report and willfully swore falsely that his 

report was complete. 

 Appellant argues that the evidence is insufficient because 

he testified that his omission of the recount money from his 

report was based on the legal advice of his attorney that recount 

money was not a contribution within the meaning of the reporting 
 -16- 

requirements. Appellant testified that he acted on this legal 

advice when he deposited the checks from Mr. Graham and E. 

Carlton Wilton into his personal account in December, 1991. 

However, appellant also testified that during a conference call 

with the secretary of the State Board of Elections that occurred 

between December 25, 1991 and mid-January, 1992 he learned that 

he was required to include recount money in his report. 

Appellant filed his report under oath on January 15, 1992 and his 

report listed as a contribution the check he received from Henry 

Wilton on December 19. Based on these facts, a reasonable fact 

finder could conclude that appellant was not relying on the legal 

advice of his attorney when he signed his report in mid-January, 

1992 and that he willfully misstated that his report was "true, 

correct and complete." 

 In light of the foregoing reasons, we affirm the conviction 

of two counts of perjury. 

Affirmed.