Mary Heath Carlton v Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Baker, Benton and Overton
Argued at Norfolk, Virginia
MARY HEATH CARLTON OPINION
v. 	Record No. 0135-96-1 	BY JUDGE JOSEPH E. BAKER
DECEMBER 17, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Von L. Piersall, Jr., Judge
Dianne G. Ringer, Senior Assistant Public
Defender, for appellant.
Kathleen B. Martin, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Mary Heath Carlton (appellant) appeals from her bench trial
conviction by the Circuit Court of the City of Portsmouth (trial
court) for knowingly presenting an altered lottery ticket for
payment in violation of Code § 58.1-4017. 	Appellant concedes
that the evidence was sufficient to prove she presented an
altered lottery ticket for payment. 	Thus, the sole issue on
appeal is whether the evidence proved beyond a reasonable doubt
that, at the time she collected money for the ticket, appellant
knew the ticket had been altered. 	For the reasons hereinafter
stated, we reverse the conviction.
Upon familiar principles, we consider the evidence in the
light most favorable to the Commonwealth, granting to it all
reasonable inferences fairly deducible therefrom. 	Higginbotham
v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).

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On May 11, 1995, at about 11:30 a.m., appellant redeemed a
Bingo scratch-off lottery ticket for payment at a convenience
store in Portsmouth. 	The clerk on duty, Michael Jones (Jones),
looked at the ticket, wrote "20" in the upper left corner and, in
exchange for the ticket, gave appellant twenty dollars.1 Jones
described appellant as "very excited" about her winnings but said
her behavior was not unusual. 	Jones identified appellant in
court as the person who cashed the ticket and said he remembered
her because she was the only person who redeemed a winning ticket
at that time. 	The ticket was admitted into evidence.
About thirty to sixty minutes after appellant left the
store, Jones gave the ticket to Earl Tonnesen (Tonnesen), an
investigator with the Virginia Lottery Department. 	Tonnesen was
qualified at trial as an expert regarding the altering of lottery
tickets. 	He testified that the code on the ticket which denoted
the amount to be paid on the winning ticket had been altered, and
that one of the numbers in the third game on the ticket had been
changed to create a winning ticket.
In connection with his investigation, Tonnesen interviewed
appellant on June 6, 1995; however, pursuant to appellant's
objection, the trial court ruled that because appellant had not
made a valid waiver of her Miranda rights, Tonnesen was not
permitted to relate his conversation with appellant.
1Lottery regulations do not require that tickets paying less
than fifty dollars be signed.

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When the Commonwealth rested, appellant moved to strike the
evidence, arguing that the Commonwealth had not proved beyond a
reasonable doubt that she knew the lottery ticket was altered
when she presented it for payment. 	The trial court overruled the
motion. 	Appellant presented no evidence and renewed her motion
to strike. 	The trial court again overruled the motion, holding
that the fact finder could reasonably infer from appellant's
"unexplained presentation" of the ticket that she knew it had
been altered.
The Commonwealth compares passing an altered lottery ticket
with presentation for payment of a bad check, draft, or order and
argues that Fitzgerald v. Commonwealth, 227 Va. 171, 313 S.E.2d
394 (1984), permits the fact finder to presume under the facts
before us that appellant knew the ticket had been altered. 	No
such presumption is contained in Code § 58.1-4017, and we are not
authorized to create one. 	The creation of such presumptions is
within the realm of legislative authority, not judicial.
Presenting the lottery ticket for payment may be of itself
an innocent transaction. 	To prove a violation of Code
§ 58.1-4017, the Commonwealth must establish beyond a reasonable
doubt that the accused passed the ticket with the knowledge that
it had been altered.2 Here, even the store clerk who paid the
2Code § 58.1-4017 provides, in relevant part: 	"Any person who
. . . knowingly presents for payment . . . [a] forged, altered or
. . . counterfeit lottery ticket . . . is guilty of a Class 6
felony." 	(Emphasis added).

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twenty dollars in exchange for the ticket did not observe that it
had been altered. 	Insofar as this record discloses, it required
an expert regarding altering of lottery tickets to determine that
the ticket in evidence was altered.
We compare the crime of knowingly presenting an altered
lottery ticket for payment as established by Code § 58.1-4017
with the crime of uttering a counterfeit note, a counterfeit
bill, or counterfeit money "knowing it to be so," as established
by Code § 18.2-170. 	The Supreme Court of Virginia has held that
proof of knowledge is necessary to support a conviction for
violation of the predecessor statute to Code § 18.2-170:
The passing [of] a counterfeit note . . . may
be itself a perfectly innocent transaction;
the guilt consists in passing it, knowing it
to be counterfeit. 	If no other circumstances
than those of the transaction itself are
given in evidence, it would be impossible to
ascertain whether it was passed with this
guilty knowledge, or not. . . .
Fitzgerald v. Commonwealth, 219 Va. 266, 270, 246 S.E.2d 899, 902
(1978). 	We adopt that statement as applicable to the case before
us.
For the reasons stated, we hold that the Commonwealth failed
to prove beyond a reasonable doubt that appellant passed the
lottery ticket knowing it had been altered. 	Accordingly, we
reverse the judgment of the trial court and dismiss the
indictment.
Reversed and dismissed.