COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Frank and Senior Judge Baker Argued at Norfolk, Virginia
ANTWAN D. PERSON MEMORANDUM OPINION * BY v. Record No. 1897-98-1 JUDGE ROBERT P. FRANK AUGUST 10, 1999 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON Wilford Taylor, Jr., Judge
Carter Phillips (Weisbrod & Phillips, on brief), for appellant.
Ruth M. McKeaney, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Antwan D. Person (appellant) was convicted by a jury of
breaking and entering and grand larceny. On appeal, he argues
that the evidence was not sufficient to support the convictions.
We agree with appellant, and reverse the convictions and dismiss
the indictments.
I. BACKGROUND
According to well-settled principles of appellate review,
we consider the evidence in the light most favorable to the
Commonwealth, granting to it all reasonable inferences fairly
* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. deducible therefrom. See Martin v. Commonwealth, 4 Va. App.
438, 443, 358 S.E.2d 415, 418 (1987).
On March 17, 1997, James Singleton returned to his home in
Hampton and realized that his television was missing. He
immediately went to a neighbor’s home and called the police.
Once the police arrived, he went into his house and discovered
additional missing items, including another television, a VCR
and two digital clocks. The side garage door and the kitchen
door to the house were damaged. Singleton provided the police
with a serial number for one of the televisions.
Richard Reid was employed at Epstein’s Pawn Shop on March
17, 1997. He testified that the store’s standard procedure for
purchasing items required the presenter of the items to show the
store employee two forms of identification. One of the forms of
identification had to be a picture identification, such as a
driver’s license or state-issued identification. The other
identification could be any secondary form of identification,
such as a Social Security card, a bank check, a vehicle
registration card or a library card. The store employee would
enter the information from the identification into the store’s
computer, and the computer would print a purchase agreement.
The presenter of the items would then sign the print-out.
Reid performed a transaction on March 17, 1997 for a
television and VCR. He testified that he did not remember the
particular transaction, but his name was on the purchase
- 2 - agreement as the employee who conducted the transaction. The
television was marked with the same serial number as one of the
televisions missing from Singleton’s home. The purchase
agreement detailing the transaction listed the presenter of the
items as Antwan Dwayne Person. At trial, Reid could not
identify appellant as the presenter of the television and VCR.
Reid testified that he could not remember if he followed store
procedures in conducting the transaction, but he stated that he
assumed he followed the procedures because the purchase
agreement reflected information that only would have been
obtained from the presenter’s identification. The purchase
agreement listed information such as height, weight, eye color,
hair color and Social Security number. Reid stated that he
would not have had such information unless it was obtained from
an identification. On cross-examination, Reid stated that any
one with the correct forms of identification could pawn an item
at Epstein’s.
Detective Rodney Cason of the Hampton Police Department was
assigned to the Singleton investigation. He utilized a computer
database in which all of the items pawned in the City of Hampton
are listed. Detective Cason located Singleton’s television and
VCR in the database by using the serial number for the
television that was provided by Singleton. The database
indicated that a television with a matching serial number and a
VCR were pawned at the same time at Epstein’s Pawn Shop.
- 3 - Detective Cason went to Epstein’s Pawn Shop and verified the
serial number on the television. The police then used the pawn
shop purchase agreement to obtain a signature page from the
Department of Motor Vehicles showing the photograph and
signature of Antwan D. Person. The signature page and the
signature on the purchase agreement were submitted to the jury
for comparison.
Person was convicted by a jury of breaking and entering and
grand larceny on July 6, 1998.
II. ANALYSIS
Appellant challenges his convictions on the sufficiency of
the evidence to prove identification. For the following
reasons, we agree with appellant and reverse his convictions and
dismiss the indictments.
The Supreme Court of Virginia decided two bad check cases
where the evidence as to the identity of the presenter was
challenged. See Kayh v. Commonwealth, 219 Va. 424, 247 S.E.2d
696 (1978); Doyle v. Commonwealth, 212 Va. 677, 187 S.E.2d 201
(1972). We find the Court’s rationale in these cases
compelling.
In Doyle, the defendant used three checks to purchase
merchandise in the same department store on the same day. See
Doyle, 212 Va. at 677, 187 S.E.2d at 202. The employees who
accepted the checks could not identify the defendant as the
person who wrote or presented the checks. See id. However,
- 4 - each employee required the presenter of the checks to provide at
least two documents for the purpose of establishing identity.
See id. For all three sales, the presenter of the check used a
District of Columbia driver’s license and a Washington Gas Light
Company employee identification card. See id. at 677-78, 187
S.E.2d at 202. Both forms of identification were issued to
David V. Doyle, and there was a photograph on each card. See
id. at 678, 187 S.E.2d at 202. The store employees testified
that they would not have accepted the checks without
identification or if the photograph on the identification had
been different from the presenter of the check. See id.
The Supreme Court held:
To hold this evidence sufficient to establish the identity of the defendant as the person who presented the checks would require us to base an inference upon an inference. It would first require us to infer that the identification documents and photographs, which are not in evidence, were genuine and authentic. It would then require us to infer and assume that the defendant was the person who presented the checks since this person presented identification of the defendant. This we cannot do.
Id.
In Kayh, the defendant allegedly presented two bad checks
to a Sears store. See Kayh, 219 Va. at 425, 247 S.E.2d at 697.
The salesperson testified that before he accepted the checks he
required identification of the presenter. See id. He copied
the Virginia driver’s license number from the presenter’s
- 5 - identification onto the checks and compared the picture on the
identification to the presenter. See id. The salesperson
concluded that the presenter and the person whose photograph
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COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Frank and Senior Judge Baker Argued at Norfolk, Virginia
ANTWAN D. PERSON MEMORANDUM OPINION * BY v. Record No. 1897-98-1 JUDGE ROBERT P. FRANK AUGUST 10, 1999 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON Wilford Taylor, Jr., Judge
Carter Phillips (Weisbrod & Phillips, on brief), for appellant.
Ruth M. McKeaney, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Antwan D. Person (appellant) was convicted by a jury of
breaking and entering and grand larceny. On appeal, he argues
that the evidence was not sufficient to support the convictions.
We agree with appellant, and reverse the convictions and dismiss
the indictments.
I. BACKGROUND
According to well-settled principles of appellate review,
we consider the evidence in the light most favorable to the
Commonwealth, granting to it all reasonable inferences fairly
* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. deducible therefrom. See Martin v. Commonwealth, 4 Va. App.
438, 443, 358 S.E.2d 415, 418 (1987).
On March 17, 1997, James Singleton returned to his home in
Hampton and realized that his television was missing. He
immediately went to a neighbor’s home and called the police.
Once the police arrived, he went into his house and discovered
additional missing items, including another television, a VCR
and two digital clocks. The side garage door and the kitchen
door to the house were damaged. Singleton provided the police
with a serial number for one of the televisions.
Richard Reid was employed at Epstein’s Pawn Shop on March
17, 1997. He testified that the store’s standard procedure for
purchasing items required the presenter of the items to show the
store employee two forms of identification. One of the forms of
identification had to be a picture identification, such as a
driver’s license or state-issued identification. The other
identification could be any secondary form of identification,
such as a Social Security card, a bank check, a vehicle
registration card or a library card. The store employee would
enter the information from the identification into the store’s
computer, and the computer would print a purchase agreement.
The presenter of the items would then sign the print-out.
Reid performed a transaction on March 17, 1997 for a
television and VCR. He testified that he did not remember the
particular transaction, but his name was on the purchase
- 2 - agreement as the employee who conducted the transaction. The
television was marked with the same serial number as one of the
televisions missing from Singleton’s home. The purchase
agreement detailing the transaction listed the presenter of the
items as Antwan Dwayne Person. At trial, Reid could not
identify appellant as the presenter of the television and VCR.
Reid testified that he could not remember if he followed store
procedures in conducting the transaction, but he stated that he
assumed he followed the procedures because the purchase
agreement reflected information that only would have been
obtained from the presenter’s identification. The purchase
agreement listed information such as height, weight, eye color,
hair color and Social Security number. Reid stated that he
would not have had such information unless it was obtained from
an identification. On cross-examination, Reid stated that any
one with the correct forms of identification could pawn an item
at Epstein’s.
Detective Rodney Cason of the Hampton Police Department was
assigned to the Singleton investigation. He utilized a computer
database in which all of the items pawned in the City of Hampton
are listed. Detective Cason located Singleton’s television and
VCR in the database by using the serial number for the
television that was provided by Singleton. The database
indicated that a television with a matching serial number and a
VCR were pawned at the same time at Epstein’s Pawn Shop.
- 3 - Detective Cason went to Epstein’s Pawn Shop and verified the
serial number on the television. The police then used the pawn
shop purchase agreement to obtain a signature page from the
Department of Motor Vehicles showing the photograph and
signature of Antwan D. Person. The signature page and the
signature on the purchase agreement were submitted to the jury
for comparison.
Person was convicted by a jury of breaking and entering and
grand larceny on July 6, 1998.
II. ANALYSIS
Appellant challenges his convictions on the sufficiency of
the evidence to prove identification. For the following
reasons, we agree with appellant and reverse his convictions and
dismiss the indictments.
The Supreme Court of Virginia decided two bad check cases
where the evidence as to the identity of the presenter was
challenged. See Kayh v. Commonwealth, 219 Va. 424, 247 S.E.2d
696 (1978); Doyle v. Commonwealth, 212 Va. 677, 187 S.E.2d 201
(1972). We find the Court’s rationale in these cases
compelling.
In Doyle, the defendant used three checks to purchase
merchandise in the same department store on the same day. See
Doyle, 212 Va. at 677, 187 S.E.2d at 202. The employees who
accepted the checks could not identify the defendant as the
person who wrote or presented the checks. See id. However,
- 4 - each employee required the presenter of the checks to provide at
least two documents for the purpose of establishing identity.
See id. For all three sales, the presenter of the check used a
District of Columbia driver’s license and a Washington Gas Light
Company employee identification card. See id. at 677-78, 187
S.E.2d at 202. Both forms of identification were issued to
David V. Doyle, and there was a photograph on each card. See
id. at 678, 187 S.E.2d at 202. The store employees testified
that they would not have accepted the checks without
identification or if the photograph on the identification had
been different from the presenter of the check. See id.
The Supreme Court held:
To hold this evidence sufficient to establish the identity of the defendant as the person who presented the checks would require us to base an inference upon an inference. It would first require us to infer that the identification documents and photographs, which are not in evidence, were genuine and authentic. It would then require us to infer and assume that the defendant was the person who presented the checks since this person presented identification of the defendant. This we cannot do.
Id.
In Kayh, the defendant allegedly presented two bad checks
to a Sears store. See Kayh, 219 Va. at 425, 247 S.E.2d at 697.
The salesperson testified that before he accepted the checks he
required identification of the presenter. See id. He copied
the Virginia driver’s license number from the presenter’s
- 5 - identification onto the checks and compared the picture on the
identification to the presenter. See id. The salesperson
concluded that the presenter and the person whose photograph
appeared on the identification were the same person. See id.
The salesperson, however, was unable to identify the defendant
as the presenter. See id. Additionally, there was no evidence
linking the signature on a letter allegedly signed by the
defendant to the signature of the person who presented the
checks or to the defendant’s signature on a motion filed with
the trial court. See id. at 426, 247 S.E.2d at 697. The Court
applied the rationale from Doyle, and held:
While the signature Kurt Kiriluk, signed by defendant to his “Motion for Fast and Speedy Trial”, is strikingly similar to the signature Dyron W. Kayh, signed to the two checks involved and to the letter, and while the evidence in the case raises a strong suspicion that the defendant did negotiate the two worthless checks, the testimony is insufficient to establish this fact beyond a reasonable doubt.
Id. at 427, 247 S.E.2d at 698.
In Crawley v. Commonwealth, 29 Va. App. 372, 512 S.E.2d 169
(1999), we held that the information on police fingerprint cards
was insufficient to prove identity. Fingerprints taken from the
scene of a break-in matched police fingerprint cards for
Darnell Devan Crawley, a black male 5’8” tall, 140 pounds, and with a tattoo on his right arm, a birth date of December 15, 1968, a Social Security number of XXX-XX-XXXX, and an address at the time of
- 6 - the break-in of 2828 Fairfield Avenue, Richmond, Virginia 23223.
Id. at 378, 512 S.E.2d at 172.
The only evidence that linked the defendant to the crime
was that his height, gender and race matched the physical
characteristics described on the police fingerprint cards. See
id. We were unable to hold that the similarity between the
defendant’s name and his physical characteristics and those of
the person whose fingerprints were found at the scene of the
break-in were sufficient to establish identity. See id. at 379,
512 S.E.2d at 172-73.
In this case, the fact finder had before it the testimony
of Reid stating that he could not identify appellant as the
presenter of the items, but that he assumed he followed store
procedure and required two forms of identification because the
information on the purchase agreement was of the type that he
only would have obtained from an identification. The jury also
had the signature page from the Department of Motor Vehicles and
the signature on the purchase agreement for comparison.
Applying the Supreme Court’s rationale from Doyle and Kayh,
we find the testimony of Reid insufficient to establish
identity. The signature page from the Department of Motor
Vehicles only proved that the same person who presented the
items at Epstein’s Pawn Shop obtained the identification from
- 7 - the Department of Motor Vehicles. There is no evidence to prove
that appellant was that person.
For these reasons, we hold that the evidence was
insufficient to prove that appellant was the presenter of the
stolen items. Therefore, we reverse the convictions and dismiss
Reversed.
- 8 -