                   COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Willis and Senior Judge Cole
Argued at Richmond, Virginia


KATHERINE ANN WIGLESWORTH, S/K/A
 KATHERINE WIGGLESWORTH
                                           MEMORANDUM OPINION * BY
v.   Record No. 1291-99-2                JUDGE JAMES W. BENTON, JR.
                                                APRIL 11, 2000
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                      Thomas N. Nance, Judge

          Gregory W. Franklin, Assistant Public
          Defender (David J. Johnson, Public Defender,
          on brief), for appellant.

          Kathleen B. Martin, Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellee.


     The trial judge convicted Katherine Ann Wiglesworth of escape

from the custody of a police officer in violation of Code

§ 18.2-479 and failure to appear in court in violation of Code

§ 19.2-128.   Wiglesworth contends the evidence was insufficient to

support the escape conviction because no witness identified her as

the perpetrator of the offense.    She also contends the evidence

failed to prove she willfully failed to appear as charged in the

indictment.   For the reasons that follow, we affirm the conviction




     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
for escape and reverse the conviction for failure to appear in

court.

                                 I.

     At trial, City of Richmond Police Officer Wilford Crafton

testified that when he went to a motel to investigate a complaint,

he encountered "the defendant, Katherine Wiglesworth," another

woman, and a man in a motel room.     After Crafton checked their

identifications, he learned that Wiglesworth was wanted in Henrico

County for breaking and entering and grand larceny.    Crafton

arrested her and notified the county police.

     Henrico County Police Officer Timothy Valite testified that

when he arrived at the motel, he had "contact with the defendant,

Katherine Wiglesworth."   Officer Valite interviewed Wiglesworth

because he had secured felony warrants the previous day charging

Wiglesworth with breaking and entering and grand larceny.    After

her interview with Officer Valite, Wiglesworth ran as Officer

Crafton attempted to place her in the police wagon.    Officer

Crafton chased Wiglesworth 300 yards before he caught her.    He

then arrested her for escape in violation of Code § 18.2-479.

     The record establishes that the preliminary hearing on the

charge of felony escape was set for March 27, 1998, and then

continued to April 28, 1998.   On April 3, 1998, Wiglesworth signed

a recognizance bond requiring her to appear in the City of

Richmond General District Court for the hearing on April 28, 1998.



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Later, the grand jury indicted Wiglesworth for failing to appear

on April 28 "as required by the terms of her bail bond."

     At trial the prosecutor asked Officer Crafton, "Were you

present in the general district court on April 20, 1998?"       When

the officer answered in the affirmative, the prosecutor asked,

"Did . . . Wiglesworth appear on that day?"    He testified, "No,

she didn't."

     At the completion of the evidence, the trial judge convicted

Wiglesworth of escape from a police officer in violation of Code

§ 18.2-479 and failure to appear in court in violation of Code

§ 19.2-128.    This appeal followed.

                                 II.

     "[T]he Due Process Clause protects the accused against

conviction except upon proof beyond a reasonable doubt of every

fact necessary to constitute the crime with which [the accused] is

charged."   In re Winship, 397 U.S. 358, 364 (1970).   "In every

criminal prosecution the Commonwealth must establish beyond a

reasonable doubt all elements of the offense and that the accused

did commit it."    Harwood v. Commonwealth, 5 Va. App. 468, 470, 364

S.E.2d 511, 512 (1988).   The identity of the perpetrator is "an

essential element of the offense," Woodfin v. Commonwealth, 236

Va. 89, 95, 372 S.E.2d 377, 381 (1988); thus, "the Commonwealth

must prove that fact beyond a reasonable doubt."   Crawley v.

Commonwealth, 29 Va. App. 372, 378, 512 S.E.2d 169, 172 (1999).



                                - 3 -
     At trial, the prosecutor asked Officer Crafton whether, on

the day of the investigation, he had "occasion within the City of

Richmond to come in contact with the defendant, Katherine

Wiglesworth."   The prosecutor also asked Officer Valite whether,

on that same day, he had "occasion to come in contact with the

defendant, Katherine Wiglesworth."      Both officers responded in the

affirmative.

     Wiglesworth contends that these identifications were not

sufficient to warrant her conviction because they do not establish

that the Katherine Wiglesworth the officers arrested was the same

Katherine Wiglesworth present at trial.     Although the record does

not reflect that either officer physically pointed a finger at the

defendant in court, we believe that act was not necessary to

identify the defendant sitting in the courtroom as the person the

officers arrested.    The record clearly establishes that

immediately prior to the taking of evidence, the defendant

identified herself to the trial judge as "Katherine Ann

Wiglesworth."   During their testimony, both officers said that

they detained "the defendant, Katherine Wiglesworth," and that

she was in their custody and presence when the escape and

recapture occurred.

     The facts of identification in this case are strikingly

similar to the identification in Sheffey v. Commonwealth, 213 Va.

602, 604, 194 S.E.2d 897, 899 (1973), where the Supreme Court

noted the following:

                                - 4 -
                While on the witness stand, Lt. Calhoun
             did not point his finger at the defendant
             Sheffey and say he was the same person that
             he arrested in Alexandria on May 19, 1971.
             However, it is clear from his testimony that
             the John Henry Sheffey then on trial was
             that identical person. The evidence
             sufficiently identifies the defendant, John
             Henry Sheffey, as the person arrested and
             searched by Calhoun and as the person who
             had heroin in his possession as charged in
             the indictment.

        We hold that Wiglesworth's self identification and the

officer's testimony identifying "the defendant, Katherine

Wiglesworth," was sufficient to prove beyond a reasonable doubt

that the defendant, who was sitting in court in the officers'

presence, was the same person the officers arrested,

interviewed, and captured after her escape.

                                 III.

        The record establishes that the preliminary hearing for the

escape charge was continued from March 27, 1998, to April 28,

1998.    No evidence proved that Wiglesworth failed to appear on

April 28, 1998, for the preliminary hearing.    The evidence

proved only that she was not in court on April 20, 1998.

Wiglesworth moved to strike the evidence because "there was

never any evidence that she willfully failed to appear in

Court."    Implicit in the motion is the contention that the

Commonwealth's evidence was insufficient to prove the crime with

which Wiglesworth was charged.




                                 - 5 -
     "Code § 19.2-128(B) requires that the Commonwealth prove

[beyond a reasonable doubt] that the accused 'willfully' failed

to appear at trial."   Hunter v. Commonwealth, 15 Va. App. 717,

721, 427 S.E.2d 197, 200 (1993).   The Commonwealth's evidence

proved that Wiglesworth failed to appear on April 20, 1998, a

date upon which she was not scheduled to appear.   That evidence

was insufficient to prove beyond a reasonable doubt that

Wiglesworth "willfully fail[ed] to appear before [the] court [on

April 28, 1998] as required" for the preliminary hearing.

Accordingly, we reverse that conviction and dismiss the

indictment.

                                              Affirmed, in part,
                                              and reversed and
                                              dismissed, in part.




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