No Waiver of Jury Trial

Defendant is entitled to reversal of his bench trial conviction for forgery of a public record and remand for a jury trial, the Court of Appeals says; defendant did not waive his right to a jury trial guaranteed by the Constitution of Virginia, art. I, § 8.

Defendant talked with a resort area property owner about building a home and the owner decided to proceed.  Defendant’s subcontractor was a licensed contractor and considered working jointly with defendant on the project but ultimately only laid footers. Defendant applied for a building permit showing both his and the subcontractor’s name. A permit was issued and sent to subcontractor who had the permit rescinded. Defendant secured a new permit signed by the subcontractor listing the subcontractor as the contractor.

A grand jury indicted defendant on three charges and returned a true bill on construction fraud and larceny by false pretenses.  A third charge for forgery of a public record was brought by direct indictment.  A scheduling order set the true bill charges for a bench trial. The trial court continued the forgery charge to be heard with the others and denied defendant’s request on the day of trial for a jury trial on the forgery charge.  The trial court relied on Cokes v. Commonwealth, 280 Va. 92 (2010), dealing with withdrawal of a jury trial waiver permitted under Rule 3A:13(b).  Defendant was convicted only of the forgery offense, a Class 4 felony under § 18.2-168.

On appeal, defendant argues the trial court erred in denying him a jury trial and finding sufficient evidence to convict of forgery of public records.  Although the record evidence was sufficient for conviction, we reverse and remand for a jury trial on the forgery offense guaranteed by the Constitution of Virginia, art. I, § 8.  The trial court erred in relying on Cokes; that case dealt with waiver but defendant here never waived his right to a jury trial on the forgery charge.  We review sufficiency of evidence under a deferential standard and the record evidence is sufficient for conviction on the forgery charge:  The subcontractor testified he never gave permission for the use of his license number, he had the first permit rescinded and defendant admits using the subcontractor’s license number on the first permit.  However, defendant is entitled to have a jury trial and the case is remanded for a new trial.

Williams v. Commonwealth (Humphreys) No. 0715-11-3, Nov. 29, 2011; Nelson Cir. Ct. (Gamble) Daniel L. Rutherford for appellant; Craig W. Stallard, AAG. VLW 011-7-374(UP), 5 pp.