Appeals Court Affirms Perjury Conviction Despite It Recognizing the Lack of Any Supporting Evidence

In a case that the Court of Appeals of Virginia itself calls “particularly troublesome,” the Court affirmed a Perjury conviction of a man in a case where the Court itself noted that the evidence on the record was insufficient for the conviction.  Really.

In this case, Stephen Sutphin was convicted at trial of Perjury and sentenced to four months of active jail time.  He appealed, arguing that the Commonwealth failed to prove some key Common Law elements of the offense.  The appellate court agreed.  So, why wasn’t this case reversed and dismissed?  Unfortunately, neither the prosecutor nor Mr. Sutphin’s lawyer realized that he was being tried for “Conflicting Testimony” under Virginia Code sec. 18.2-435 and not “Common Law Perjury.”   Apparently, no one looked at the Indictment!  The statutory offense, for which Mr. Sutphin was on trial, didn’t include the Common Law elements that he raised on appeal as a defense.

However — and this is where things get really weird — the appellate court noticed that there was insufficient evidence for a conviction even under the actually charged statutory offense!  So, why wasn’t this case reversed and dismissed?  Unfortunately, thinking he was appealing a Perjury conviction, Mr. Sutphin only appealed based on the Common Law deficiencies.  However, for appeals, one must ask the Court for the specific relief he seeks.  In this instance, Mr. Sutphin asked for his conviction to be dismissed because not all the elements of the uncharged crime were proven.  He didn’t ask for his conviction to be dismissed because not all of the elements of the charged crime were proven.

Mr. Sutphin could have asked for an “ends of justice” exception to this harsh rule, but he needed to ask for that, too.  Unsurprisingly, he failed to do so being unaware that he was convicted of a crime different from the one of which he erroneously thought he had been convicted.

Therefore, a man is in jail right now, convicted of a crime that the Commonwealth failed to prove according to an appellate court.

The case is Sutphin v. Commonwealth, Record No. 1376-11-2 (December 18, 2012).


May Law are Virginia criminal defense attorneys.  For more information on Virginia criminal law and procedure, click here.   We handle Perjury cases in addition to all other criminal allegations.

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