COURT OF APPEALS OF VIRGINIA

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COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Annunziata and Senior Judge Coleman
Argued at Alexandria, Virginia

ROBERT McGUIRE
MEMORANDUM OPINION* BY
v. Record No. 1413-00-4 JUDGE ROSEMARIE ANNUNZIATA
DECEMBER 4, 2001
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF STAFFORD COUNTY
Ann Hunter Simpson, Judge

Wendy B. Harris, Senior Assistant Public
Defender, for appellant.

Jennifer R. Franklin, Assistant Attorney
General (Mark L. Earley, Attorney General;
Shelly R. James, Assistant Attorney General,
on brief), for appellee.

The appellant, Robert McGuire, was convicted in a bench
trial of four of nine counts of "False 911 Calls" in violation
of Code 18.2-461 and sentenced to 24 months in jail,
suspended. On appeal, he claims: 1) the evidence was
insufficient to prove he made the calls to law enforcement
dispatchers without just cause and with the intent to interfere
with their duties; and 2) the trial court erred in admitting
Commonwealth's Exhibit 1. For the reasons that follow, we
reverse the convictions.

I.
Background
A person at McGuire's address called the Stafford County
Sheriff's Department's Communications Center a total of eighteen
times between October 9 and 25, 1999. The calls were made to
the Department's non-emergency telephone line, which was staffed
by the same individuals who staffed the emergency line. As a
result, the dispatcher responding to a non-emergency call was
prevented from answering emergency calls.
Appellant stipulated that "all calls were made from
2 Mantel Court [McGuire's address], all calls were made by the
same individual, and for all calls the caller was identified as
Robert McGuire."
The trial court admitted into evidence a list prepared by
the supervisor of the communications center, Linda Goodridge,
showing the internal incident numbers, the date and time of the
calls, and the dispatcher who had answered each call. During
most of the phone calls, the dispatcher identified himself, the
date and time of the call was recorded in the transcript, the
caller identified himself as McGuire, and the call was placed
from McGuire's home address.
II.
Analysis
When the sufficiency of the evidence is challenged on
appeal, "[w]e view the evidence in the light most favorable to
the Commonwealth, granting to it all reasonable inferences
fairly deducible from the evidence." Cooper v. Commonwealth, 31
Va. App. 643, 646, 525 S.E.2d 72, 73 (2000). The appellate
court must, therefore, "discard the evidence of the accused in
conflict with that of the Commonwealth, and regard as true all
the credible evidence favorable to the Commonwealth and all fair
inferences that may be drawn therefrom." Watkins v.
Commonwealth, 26 Va. App. 335, 348, 494 S.E.2d 859, 866 (1998).
Furthermore, the trial court's factual findings will not be
disturbed unless plainly wrong or without evidence to support
them. McGee v. Commonwealth, 25 Va. App. 193, 197-98, 487
S.E.2d 259, 261 (1997) (en banc).
It is well settled that "[t]he Commonwealth has the burden
of proving beyond a reasonable doubt each and every element of
the charged crime." Adkins v. Commonwealth, 20 Va. App. 332,
342, 457 S.E.2d 382, 387 (1995) (citing Powers v. Commonwealth,
211 Va. 386, 388, 177 S.E.2d 628, 629 (1970)); accord In Re
Winship, 397 U.S. 358, 363 (1970). Accordingly, "the burden
[is] on the Commonwealth to prove the identity of the accused
beyond a reasonable doubt." Brickhouse v. Commonwealth, 208 Va.
533, 536, 159 S.E.2d 611, 613-14 (1968) (citing Terry v.
Commonwealth, 174 Va. 507, 516, 6 S.E.2d 673, 677 (1940));
accord Commonwealth v. Smith, 259 Va. 780, 783, 529 S.E.2d 78,
79 (2000) ("'the criminal agency of the accused [must be] proved
to the exclusion of any other rational hypothesis and to a moral
certainty'" (quoting LaPrade v. Commonwealth, 191 Va. 410, 418,
61 S.E.2d 313, 316 (1950))); Waller v. Commonwealth, 84 Va. 492,
496-97, 5 S.E. 364, 366 (1888); Crawley v. Commonwealth, 29 Va.
App. 372, 377-78, 512 S.E.2d 169, 172 (1999). The Commonwealth
may establish the identity of a speaker by circumstantial
evidence. Opanowich v. Commonwealth, 196 Va. 342, 351, 83
S.E.2d 432, 438 (1954); Bloom v. Commonwealth, 34 Va. App. 364,
369-70, 542 S.E.2d 18, 20, aff'd, __ Va. ___, ___ S.E.2d ___
(2001). However, the evidence must exclude every reasonable
hypothesis of innocence. LaPrade, 191 Va. at 418, 61 S.E.2d at
316; Barlow v. Commonwealth, 26 Va. App. 421, 429-30, 494 S.E.2d
901, 905 (1998).
Appellant's motion to strike raised the issue of the
failure to prove he made the calls. Although the judge denied
the motion, the Commonwealth failed to produce sufficient
evidence that McGuire made the calls. The evidence proved only
that the caller identified himself as McGuire and that the calls
came from "2 Mantel Court," McGuire's home address. No
testimony established that any person recognized the voice of
the caller to be that of McGuire. Opanowich, 196 Va. at 352, 83
S.E.2d at 438 ("a witness may be permitted to identify a person
solely from having heard his voice"). As such, the evidence
does not exclude the reasonable hypothesis that someone other

than McGuire made the phone calls and does not support McGuire's
convictions beyond a reasonable doubt. We therefore reverse.
Reversed and dismissed.
* Pursuant to Code 17.1-413, this opinion is not
designated for publication.

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