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WALDROP v. COMMONWEALTH OF VIRGINIA (59945)


WALDROP v. COMMONWEALTH
OF VIRGINIA


January 9, 1998
Record No. 970160

JOHN A. WALDROP, JR.

v.

COMMONWEALTH OF VIRGINIA

OPINION BY SENIOR JUSTICE ROSCOE B. STEPHENSON, JR.
FROM THE COURT OF APPEALS OF VIRGINIA

Present: Carrico, C.J., Compton, Lacy, Hassell, Keenan, and
Kinser, JJ., and Stephenson, Senior Justice


The sole issue in this appeal is whether the statutory
requirement that an election candidate report all campaign
"contributions" applies to money received by the
candidate after the election to defray legal expenses associated
with a recount proceeding.

I

John A. Waldrop, Jr., was charged in the Circuit Court of
Henrico County with three counts of perjury resulting from his
failure to disclose three payments he received from supporters in
connection with his 1991 election to the Board of Supervisors of
Henrico County (the Board). A jury acquitted Waldrop on one
charge, convicted him on the other two, and imposed two $2,500
fines, and the trial court entered judgment on the verdicts. The
Court of Appeals, in an opinion rendered December 17, 1996,
affirmed the judgment, Waldrop v. Commonwealth, 23
Va. App. 614, 478 S.E.2d 723 (1996), and we awarded Waldrop this
appeal.

II

The relevant facts are undisputed. On November 5, 1991,
Waldrop was re-elected to his fifth term on the Board. Due to
Waldrop’s slight margin of victory, however, his opponent
instituted a recount proceeding pursuant to former Code ?? 24.1-249 and -250
(now Code ?? 24.2-800
through -802). The recount proceeding was conducted in December
1991.

Waldrop retained Edward E. Willey, Jr., an attorney-at-law, to
represent him in the recount proceeding.[1] According
to Waldrop, Willey advised him that monies received to defray
expenses pertaining to the recount were not campaign
contributions and, therefore, were not required to be reported
under the campaign finance disclosure requirements of the former
Fair Elections Practices Act, former Code ?? 24.1-251 et seq.
(the Act).[2]

Waldrop received from Kenny Graham a check for $1,000, dated
December 2, 1991, and payable to the "John Waldrop Defense
Fund." Graham testified that the money was given to Waldrop
to defray his legal expenses related to the recount. Willey had
asked Graham for the money and told Graham how to make out the
check. Graham did not consider the check to be a "campaign
contribution."

On December 13, 1991, Waldrop received from E. Carlton Wilton,
Sr., a $500 check, payable to "John Waldrop." Wilton
testified that, after the campaign, the money had been solicited,
by someone other than Waldrop, for attorney’s fees.

Acting upon Willey’s advice, Waldrop deposited the two checks
in a personal checking account he maintained jointly with his
wife. Waldrop was using this bank account, rather than a separate
account, as his "defense fund."

Willey’s legal fees for representing Waldrop in the recount
proceeding were $10,000. On November 24, 1991, pursuant to
Willey’s request, Waldrop paid Willey $1,000 in cash. Waldrop
reimbursed himself therefor by keeping the $1,000 he had received
from Graham. Using the money he had received from Wilton, Waldrop
made other cash payments to Willey for out-of-pocket expenses. On
December 24, 1991, Waldrop gave Willey a check for $9,000 and
received a receipt from Willey showing that Waldrop had paid
$10,000 for professional services rendered.

On January 15, 1992, Waldrop filed his campaign finance
disclosure form for the period November 26 through December 31,
1991, as required by the Act (the Report). The Report, in
Schedule A, required Waldrop to list all
"contributions" over $100. By his signature on the
Report, Waldrop affirmed that, "[u]nder penalty of
perjury," he had examined the Report and that, "to the
best of [his] knowledge and belief, it [was] true, correct and
complete." Waldrop did not list the checks received from
Graham and Wilton.

III

Waldrop contends that the requirement that a candidate report
all campaign contributions does not include a requirement that he
report contributions related to a recount proceeding. Conversely,
the Attorney General contends that Waldrop was required to report
all contributions, including those received relating to the
recount.

The present case is governed by the law in effect in 1991. In
1991, the Act required a candidate to file periodic reports
disclosing "all contributions and expenditures, except the
payment of a filing fee." Former Code ?? 24.1-257.2(C) and
-258 (now Code ?? 24.2-916
and -914). The Act, however, did not expressly define the term
"contribution."

In pertinent part, former Code ? 24.1-255 (now Code ? 24.2-907) provided
that it was unlawful for a candidate to fail to report
"every . . . collection" of "money,
services, or other things of value over $100 in relation to his
candidacy." The Act, however, expressly referred to "campaign
contributions." Former Code ?? 24.1-251 and -252
(now Code ?? 24.2-900
and -903) (emphasis added). The Act also provided for the
disposition of contributions that were in excess of the amount
necessary to defray a candidate’s "campaign
expenditures." Former Code ? 24.1-258.1 (now Code ? 24.2-921) (emphasis
added).

In 1993, the Act was recodified as the Campaign Finance
Disclosure Act, Code ?? 24.2-900
et seq. (the Recodified Act). The Recodified Act
defines the term "contribution," in pertinent part, as
"money and services of any amount, and any other thing of
value over $100, given . . . to a candidate
. . . for the purpose of influencing the outcome of
an election
." Code ? 24.2-901
(emphasis added).[3]

Generally, there is a presumption that a recodified statute
does not make substantive changes in the former statute unless a
contrary intent plainly appears in the recodified statute. State
Farm Mut. Auto. Ins.
v. Major, 239 Va. 375, 378, 389
S.E.2d 307, 309 (1990); Chapman v. Richardson, 123
Va. 388, 391, 96 S.E. 776, 777 (1918). In the present case,
nothing in the Recodified Act suggests an intent to make
substantive changes in the Act. To the contrary, we are told that
"[t]he goal of [the] recodification is a clearer, more
easily understood set of election laws and the elimination of
ambiguities in the present law rather than substantive changes in
the law." Report of the Virginia Code Commission on The
Recodification of Title 24.1 of the Code of Virginia
(1993).

Analyzing the Act in the light of the Recodified Act, we
cannot say that Waldrop was required to report the Graham and
Wilton checks which Waldrop received to defray the expenses of
the recount proceeding. When those checks were delivered, the
election had been held and the campaign had been concluded.
Clearly, therefore, those contributions could not have
"influenc[ed] the outcome of [the] election."

At the very least, the Act was unclear and ambiguous with
respect to whether recount contributions had to be reported. When
a penal statute[4]
is unclear, the statute must be strictly construed against the
Commonwealth and in favor of an accused’s liberty, and the
accused is entitled to the benefit of any reasonable doubt
concerning the statute’s construction. Harward v. Commonwealth,
229 Va. 363, 365, 330 S.E.2d 89, 90 (1985); Martin v. Commonwealth,
224 Va. 298, 300-01, 295 S.E.2d 890, 892 (1982). Indeed, before
the accused can be punished, "`his case must be plainly and
unmistakably within the statute.’" Harward, 229 Va.
at 365, 330 S.E.2d at 90 (quoting United States v. Lacher,
134 U.S. 624, 628 (1890)). Additionally, in a perjury
prosecution, the Commonwealth has the burden of proving beyond a
reasonable doubt not only that the statements made under oath by
the accused were false, but also that he knew they were false
when made. Holz v. Commonwealth, 220 Va. 876, 880,
263 S.E.2d 426, 428 (1980); Rothfuss v. Commonwealth,
198 Va. 461, 466, 94 S.E.2d 532, 535 (1956).

IV

In view of the foregoing principles of law, we hold that the
Commonwealth failed to prove that Waldrop wilfully and knowingly
committed perjury. Accordingly, we will reverse the judgment of
the Court of Appeals, annul the convictions, and dismiss the
indictments.

Reversed and dismissed.

 

 

 

FOOTNOTES:

[1] At the time of Waldrop’s trial,
Willey was deceased.

[2] In 1993, the Act was recodified
in Title 24.2. 1993 Va. Acts ch. 641.

[3] Interestingly, this emphasized
language is also found in the Act. Former Code ? 24.1-255(C).

[4]
Former Code ? 24.1-279
(now Code ? 24.2-1016)
provided, in pertinent part, that "[a]ny wilfully false,
fraudulent, or misleading statement or entry made by any person
in any statement or account under oath required by [Title 24.1],
shall constitute the crime of perjury."

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