                   COURT OF APPEALS OF VIRGINIA


Present:  Chief Judge Fitzpatrick, Judge Annunziata and
          Senior Judge Coleman
Argued at Richmond, Virginia


RONALD OLIVER SHEPPARD
                                          MEMORANDUM OPINION * BY
v.   Record No. 0204-01-2               JUDGE ROSEMARIE ANNUNZIATA
                                             FEBRUARY 26, 2002
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                     William R. Shelton, Judge

           Graham C. Daniels (Todd M. Ritter; Daniels &
           Morgan, on brief), for appellant.

           Leah A. Darron, Assistant Attorney General
           (Randolph A. Beales, Attorney General, on
           brief), for appellee.


     Ronald Oliver Sheppard was convicted in a bench trial of

uttering a forged instrument in violation of Code § 18.2-172 and

sentenced to serve five years in prison, four years suspended. 1

On appeal, he contends the evidence was insufficient to prove

his guilt beyond a reasonable doubt.   For the reasons that

follow, we reverse the conviction and dismiss the indictment.

     According to well established principles, we review the

evidence and all inferences that may be drawn from it, in the


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     1
       The trial judge found Sheppard not guilty of attempting to
obtain money by false pretenses, in violation of Code
§ 18.2-178.
light most favorable to the party prevailing below, the

Commonwealth.   See Cooper v. Commonwealth, 31 Va. App. 643, 646,

525 S.E.2d 72, 73 (2000).   So viewed, the evidence shows that

Sheppard went to the Rack and Sack grocery store on April 24,

2000 on Midlothian Turnpike in Chesterfield County and attempted

to cash a check.   The check purported to be drawn on the Bank of

America account of Regency Square Mall and to have been signed

by its Vice President-Treasurer and was made out to "Omar

Phelps."   In an effort to cash the check, Sheppard presented a

forged driver's license issued in the name of "Omar Montel

Phelps," but bearing Sheppard's photograph.

     In accordance with store procedure, a store employee called

Gerald Franklin, the store's loss prevention manager, to verify

whether the check "was . . . good or bad."    Franklin telephoned

Bank of America, the bank upon which the check had been written,

and conveyed the information about the check that had been

provided by the employee.   As a result of the conversation,

Franklin advised Sheppard that the store would not cash the

check.   Sheppard was detained, and the police were contacted.

After receiving his Miranda rights, he told the police that a

man named "Big . . . gave him the check and made the [driver's

license] for him," shortly before he entered the store.   At

trial, the Commonwealth did not present any witness from Regency

Square Mall to prove that the signature on the check was false

or that it had been fraudulently made to Omar Phelps.

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     Sheppard claims on appeal that the Commonwealth failed to

prove beyond a reasonable doubt that the check was a forgery, a

necessary element of the crime.   See In re Winship, 397 U.S.

358, 364 (1970) (holding that due process requires the

prosecution to prove beyond a reasonable doubt every element

necessary to establish the crime charged); Stokes v. Warden,

Powhatan Correctional Center, 226 Va. 111, 117, 306 S.E.2d 882,

885 (1983).   We agree.

     Code § 18.2-172 provides, in pertinent part:

           If any person forge any writing . . . to the
           prejudice of another’s right, or utter, or
           attempt to employ as true, such forged
           writing, knowing it to be forged, he shall
           be guilty of a Class 5 felony.

     Uttering, an independent criminal offense, is "an assertion

by word or action that a writing known to be forged is good and

valid."   Bateman v. Commonwealth, 205 Va. 595, 600, 139 S.E.2d

102, 106 (1964).   A conviction for uttering, therefore, must be

predicated on proof that the instrument employed was forged.

See id.   A writing is forged if it was "false[ly] ma[de] or

materially alter[ed] with intent to defraud . . . [and] if

genuine, might apparently be of legal efficacy, or the

foundation of legal liability."   Fitzgerald v. Commonwealth, 227

Va. 171, 173, 313 S.E.2d 394, 395 (1984) (citations omitted).

     The evidence does not show that the check was forged.     At

best, the evidence shows that Sheppard attempted to pass the

check, that the check was made payable to Omar Phelps, and that

                               - 3 -
the defendant falsely represented that he was Omar Phelps in

attempting to cash the check.    No evidence concerning the

purported making of the check or the absence of authority to

make or alter the check was admitted at trial.     See Lewis v.

Commonwealth, 213 Va. 156, 156-57, 191 S.E.2d 232, 233 (1972)

(holding that lack of authority is an essential element of

forgery, which the Commonwealth must prove beyond a reasonable

doubt).

     The Commonwealth argues, however, that the trier of fact

reasonably inferred that Sheppard himself forged the check

because Sheppard possessed a forged license in the name of Omar

Phelps, which he obtained from "Big" who also supplied him with

the check bearing that name.    However, where the Commonwealth

proceeds by circumstantial evidence, the conviction will be

sustained only "'if the evidence excludes every reasonable

hypothesis of innocence.'"     McNair v. Commonwealth, 31 Va. App.

76, 86, 521 S.E.2d 303, 308 (1999) (quoting Higginbotham v.

Commonwealth, 216 Va. 349, 353, 218 S.E.2d 534, 537 (1975)).

Because the evidence proves only that Sheppard did not legally

have the right to cash the check, it is equally likely that it

was a valid check that was stolen as it is that it was forged.

Therefore, to sustain Sheppard's conviction, the Commonwealth

must exclude the reasonable hypothesis that the check was

stolen, but not forged.   See Hamilton v. Commonwealth, 16 Va.

App. 751, 755, 433 S.E.2d 27, 29 (1993).    The Commonwealth,

                                 - 4 -
however, failed to present any evidence excluding this

reasonable hypothesis of innocence.

     Because there is no evidence in the record to exclude the

hypothesis that the check was stolen, or to support the trial

court's determination that the check was a forgery, we reverse

Sheppard's conviction and dismiss the indictment.   See McGee v.

Commonwealth, 25 Va. App. 193, 197-98, 487 S.E.2d 259, 261

(1997) (en banc).



                                          Reversed and dismissed.




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