COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, McClanahan and Senior Judge Coleman 

Argued at Richmond, Virginia 

GARRETT E. MUSHAW 

 MEMORANDUM OPINION∗

 BY 

v. Record No. 2811-04-2 JUDGE ELIZABETH A. McCLANAHAN 

 APRIL 18, 2006 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Margaret P. Spencer, Judge 

Gregory R. Sheldon (Goodwin, Sutton & DuVal, PLC, on brief), 

for appellant. 

Karri B. Atwood, Assistant Attorney General (Judith Williams 

Jagdmann, Attorney General; Paul C. Galanides, Assistant 

Attorney General, on brief), for appellee. 

The trial court convicted Garrett E. Mushaw of making a false application for public 

assistance in violation of Code § 63.2-502. He contends the evidence was insufficient to prove 

he knowingly made a false statement on his application. For the reasons that follow, we affirm 

his conviction. 

I. BACKGROUND 

We view the evidence and the reasonable inferences in the light most favorable to the 

Commonwealth. Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786, cert.

denied, 540 U.S. 972 (2003). In so doing, we “‘discard the evidence of the accused in conflict 

with that of the Commonwealth.’” Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 

759 (1980) (citation omitted). In response to emergency conditions created by Hurricane Isabel 

 ∗

 Pursuant to Code § 17.1-413, this opinion is not designated for publication. 
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on September 18, 2003, federal funds were made available to affected residents in the form of 

disaster food stamp benefits. The program was administered in Virginia by the Virginia 

Department of Social Services (“DSS”). On October 2, 2003, Mushaw applied for, and 

subsequently received, food stamp benefits under the program. At the time, Mushaw, a 

Richmond resident, was employed by DSS as an accountant in its finance department and held a 

masters degree in business administration. Following an investigation of all DSS employees 

who received those benefits, Mushaw was indicted for making a false application for benefits in 

violation of Code § 63.2-502.1

 

The Commonwealth’s position at trial was that Mushaw, inter alia, knowingly and 

falsely represented on his application that the money in his bank accounts was not available to 

him at the time he applied for benefits because of the disaster. In his defense, Mushaw denied 

knowingly making any such false representation on his application. Instead, he faulted the social 

workers, who assisted him with his application, for any incorrect information contained in the 

application. 

At trial, Brinette Jones, a social worker, explained the application process implemented at 

the DSS office in Richmond where Mushaw applied. Jones stated that social workers distributed 

application forms to those in line outside the office and then directed them in groups of thirty to 

an inside conference room. Applicants were required to bring documentation of residence, 

which the social workers reviewed while the applicants waited in line or after they entered the 

conference room. Jones initialed Mushaw’s application, verifying his identity and residency 

from his driver’s license. 

 1

 Pursuant to Code § 63.2-502, one who knowingly makes a false application for such 

benefits is guilty of perjury. 
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Inside the conference room, Jones and other social workers explained the questions on 

the application and the application process. They also answered applicants’ questions about the 

application. The applicants were to complete the application at this stage of the process. Jones 

testified that, preliminarily, every applicant needed to know the dates of the disaster benefit 

period in order to complete the application. Those dates, September 18 through October 17, 

2003, were posted on a board in the front of the conference room. Social workers also orally 

explained the benefit period to the applicants. In addition, the dates for the benefit period were 

to be inserted on the application at the top left corner in the application heading, as follows: 

“APPLICATION FOR EMERGENCY FOOD STAMPS FOR THE DISASTER BENEFIT 

PERIOD _____TO_____.” Those dates were correctly inserted in writing (“9/18 TO 10/17”) on 

Mushaw’s application. 

Following the group instruction and the applicants’ completion of the application, the 

applicants met individually with an eligibility specialist. Mushaw met with eligibility specialist 

Danette Smith. Smith testified that, in her personal interviews, she reviewed the application, 

determined eligibility, and calculated the eligible applicant’s benefits based on income, available 

monetary resources, and expenses incurred from the storm, as represented on the application by 

the applicant. Part II, question six, of the application asked, “Does your household have any 

cash or money in bank accounts that is not available for you to use because of the disaster?” 

Smith testified that, when asked about question six, she informed applicants that whatever 

money was “in [their] account at this time” was “available.” On his application, Mushaw 

answered “Yes” to question six, representing that he had money in bank accounts not available 

because of the disaster. As shown on his bank statements, however, Mushaw had several 

thousand dollars in his checking and savings accounts at the time he applied for benefits, as well 
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as the time between the onset of the benefit period and the date he applied. Smith also testified 

that Mushaw answered question six on the application—she did not answer the question for him. 

DSS Investigator Michael Rawlings questioned Mushaw about his application during the 

DSS investigation. Rawlings testified Mushaw initially explained that he declared his bank 

accounts “not available” because he did not have an ATM card and there was a “power failure” 

as a result of the storm. Mushaw conceded, however, that he “could” write checks on his 

checking account. For the period of September 12 through October 10, 2003, during which his 

balance did not fall below $4,345.78, Mushaw’s checking account statement showed that the 

bank had processed twenty-three checks written on the account. The subsequent monthly 

statement showed thirty checks written on the account. Furthermore, Mushaw admitted that the 

credit union in which he maintained his savings account, with a branch located in the building 

where he worked, was open when he returned to work on Monday, September 22, 2003, 

following the storm on the previous Thursday. 

In his testimony at trial, Mushaw did not claim that a power failure and the absence of an 

ATM card were the reasons he represented on his application that he had money in bank 

accounts not available because of the disaster. Rather, he testified that he did not read the 

application; did not understand it; and no one explained it to him. Mushaw further claimed “[he] 

didn’t know what the benefit period was.” He admitted on cross-examination, however, that as 

an accountant advising someone who was completing the application, the disaster benefit period 

would be the “first thing” he would need to know to complete it. Specifically as to his answer to 

Part II, question six, of the application, Mushaw testified that he just “answered the way [Smith] 

told [him] to answer it.” 

In Part V entitled “PENALTY WARNING,” the application states, in part, that the 

applicant “MUST NOT: GIVE FALSE INFORMATION . . . TO GET FOOD STAMP 
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BENEFITS,” and one who violates this provision “MAY BE FINED, IMPRISIONED OR 

BOTH.” Part VI of the application, entitled “CERTIFICATION AND SIGNATURE,” then 

states: 

I UNDERSTAND THE QUESTIONS ON THIS APPLICATION 

AND THE PENALTY FOR WITHHOLDING OR GIVING 

FALSE INFORMATION. MY RESIDENCE WAS WITHIN THE 

DISASTER AREA AT THE TIME THE DISASTER 

OCCURRED AND MY HOUSEHOLD IS IN NEED OF 

IMMEDIATE FOOD ASSISTANCE. THE INFORMATION I 

HAVE GIVEN IS CORRECT AND COMPLETE TO THE BEST 

OF MY KNOWLEDGE . . . . 

Mushaw signed and dated the application beneath this certification, as required on the 

application. 

 The trial court found Mushaw guilty of knowingly making a false application in violation 

of Code § 63.2-502 based on his answer to Part II, question six. In announcing the verdict, the 

court stated it did not “credit his testimony.” The court specifically concluded that “the money 

in [Mushaw’s] bank accounts was available to him” during the disaster period and, “[i]n fact, he 

was using the money;” but that he nevertheless knowingly and falsely represented otherwise on 

his application. 

II. ANALYSIS 

We reverse a trial court’s factual finding only when it is unsupported by credible 

evidence or plainly wrong. Seaton v. Commonwealth, 42 Va. App. 739, 746, 595 S.E.2d 9, 12 

(2004). Thus, the only relevant inquiry is “whether . . . any rational trier of fact could have 

found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 

U.S. 307, 319 (1979) (emphasis in original); see also Kelly v. Commonwealth, 41 Va. App. 250, 

257, 584 S.E.2d 444, 447 (2003) (en banc). 

Code § 63.2-502 provides that “[a]ny person who knowingly makes any false application 

for public assistance . . . shall be guilty of perjury and, upon conviction therefor, shall be 
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punished in accordance with the provisions of § 18.2-434.” “A well-accepted definition of 

‘knowingly’ is ‘an act . . . done voluntarily and intentionally, and not because of mistake or 

accident or other innocent reason.’” United States v. Jones, 735 F.2d 785, 789 (4th Cir. 1984) 

(citation omitted). 

In challenging his conviction on sufficiency of evidence grounds, Mushaw abandons any 

argument that his answer to Part II, question six, of the application was correct. Instead, he 

contends the Commonwealth failed to prove that he knowingly made a false application for 

benefits. More specifically, he contends that the term “available” in Part II, question six, “was 

not clearly defined either by [the social] workers or the application itself,” and that his response 

was “attributable to mistake, accident or other innocent purpose.” We disagree. 

“Guilty knowledge need not be directly proved. It may be shown by circumstances.” 

Lewis v. Commonwealth, 225 Va. 497, 503, 303 S.E.2d 890, 893 (1983) (citation and internal 

quotation marks omitted). Indeed, where “[g]uilty knowledge is an essential element of the 

offense as defined by the statute, . . . ‘absent proof of an admission against interest, such 

knowledge necessarily must be shown by circumstantial evidence.’” Spitzer v. Commonwealth, 

233 Va. 7, 9, 353 S.E.2d 711, 713 (1987) (quoting Lewis, 225 Va. at 503, 303 S.E.2d at 893) 

(internal brackets omitted); see also Parks, 221 Va. at 498, 270 S.E.2d at 759. “Circumstantial 

evidence[,] when sufficiently convincing, is entitled to the same weight as direct evidence.” 

Riner v. Commonwealth, 268 Va. 296, 303-04, 601 S.E.2d 555, 558-59 (2004) (citations 

omitted); see also Hudson, 265 Va. at 512-13, 578 S.E.2d at 785. 

Furthermore, “a fact-finder, having rejected a defendant’s attempted explanation as 

untrue,” as the trial judge did in this case, “may draw the reasonable inference that his 

explanation was made falsely in an effort to conceal his guilt. A false or evasive account is 

[thus] a circumstance . . . that a fact-finder may properly consider as evidence of guilty 
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knowledge.” Covil v. Commonwealth, 268 Va. 692, 696, 604 S.E.2d 79, 82 (2004) (citations 

omitted); see also Commonwealth v. Duncan, 267 Va. 377, 385, 593 S.E.2d 210, 215 (2004) 

(noting that the fact-finder may discount an accused's self-serving explanation as a mere effort at 

“lying to conceal his guilt”). 

Applying these standards, a rational fact finder could conclude from the evidence in this 

case that Mushaw was guilty of knowingly making a false application for benefits. The trial 

court, as trier of fact, credited the testimony of Jones, Smith and Rawlings and discredited 

Mushaw’s testimony. As such, the evidence established Mushaw was well aware that the cash in 

his bank accounts was available for his use not only at the time he applied for benefits, but 

during the entire disaster benefit period. Furthermore, the circumstantial evidence supports the 

inference that Mushaw—an accountant working for DSS in its finance department and holding 

an MBA—knew his answer to Part II, question six, of the application was false. Accordingly, 

we affirm his conviction. 

Affirmed.