842 S.E.2d 426
Va. Ct. App.2020Background
- On March 1, 2016, Karen Rompalo reviewed her Fairfax County Circuit Court divorce file in the public records room and wrote on three documents: a Commonwealth’s Motion to Quash and two court orders. Clerks observed her writing and reported it.
- The clerk’s office investigated, contacted police, and Rompalo was charged with three counts of destroying a public record under Code § 18.2-107.
- At a pretrial motion in limine Rompalo sought to prohibit witnesses from calling the records “destroyed”; the court granted the motion (apparent reciprocal effect noted).
- At the close of the Commonwealth’s case Rompalo moved to strike contending (inter alia) the Commonwealth had not shown destruction and that the statute required fraudulent intent; the court denied the motion and ruled that “fraudulently” modifies only “secrete,” not “destroy.”
- Rompalo sought to elicit testimony about RM-3 destruction forms; the court sustained Commonwealth hearsay/relevance objections. The jury convicted Rompalo on all three counts; she appealed raising sufficiency, statutory interpretation (intent), evidentiary rulings, and rejected jury instructions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence that records were "destroyed" | Evidence did not prove the documents were destroyed; motion to strike should have been granted | Evidence showed the documents lost value (could not be certified originals); sufficient for jury | Not considered on appeal — Rompalo waived by presenting her own evidence and not renewing motion to strike or moving to set aside verdict |
| Whether § 18.2-107 requires fraudulent intent to "destroy" | "Fraudulently" modifies both "secrete" and "destroy," so Commonwealth must prove fraudulent intent to destroy | "Fraudulently" applies only to "secrete;" "steal," "fraudulently secrete," and "destroy" are alternatives | Court construed statute: "fraudulently" applies only to "secrete;" general criminal intent still required, not specific fraudulent intent |
| Exclusion of testimony about RM-3 destruction forms (hearsay/relevance) | Rompalo sought to show officials filed RM-3 forms proving records were destroyed | Commonwealth objected on hearsay and relevance; court relied on earlier limine ruling about witnesses calling documents "destroyed" | Court sustained objections; Rompalo’s appellate challenge forfeited by taking inconsistent positions at trial |
| Denial of jury instructions requiring fraudulent intent to destroy | Proffered instructions would require jury to find destruction was done with fraudulent intent | Court declined instructions because statute does not require fraudulent intent for "destroy" | Court did not err in refusing those instructions; Rompalo did not waive the instructional claim but the instruction was legally incorrect |
Key Cases Cited
- Murillo-Rodriquez v. Commonwealth, 279 Va. 64 (preservation rule: if defendant presents evidence after motion to strike, must renew motion or move to set aside verdict to preserve sufficiency challenge)
- McDowell v. Commonwealth, 282 Va. 341 (defendant who offers evidence after motion to strike waives earlier motion)
- Eley v. Commonwealth, 70 Va. App. 158 (de novo review of statutory interpretation)
- Blake v. Commonwealth, 288 Va. 375 (primary objective is to give effect to legislative intent in statutory interpretation)
- Dollar Tree Stores, Inc. v. Tefft, 69 Va. App. 15 ("or" is disjunctive indicating alternatives)
- Long v. United States, 199 F.2d 717 (canons on modifier placement in series of verbs — cited for contrasting interpretive approaches)
- Johnson v. Commonwealth, 37 Va. App. 634 (specific intent is not an implicit element of every statutory crime)
- United States v. Adderly, 529 F.2d 1178 (even when specific intent is not required some culpability like knowledge or recklessness is necessary)
- Nelson v. Commonwealth, 71 Va. App. 397 (doctrine barring approbate-and-reprobate positions)