                       COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Benton and Annunziata
Argued at Alexandria, Virginia


SHANNON DAVID RINGER
                                          MEMORANDUM OPINION * BY
v.   Record No. 2363-99-4CHIEF    JUDGE   JOHANNA  L.   FITZPATRICK
                                             OCTOBER 17, 2000

COMMONWEALTH OF VIRGINIA


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

          James J. Ilijevich, Senior Assistant Public
          Defender, for appellant.

          Amy L. Marshall, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellee.


     Shannon David Ringer (appellant) was convicted in a bench

trial of perjury, in violation of Code § 18.2-434.    On appeal, he

contends the evidence was insufficient to prove his guilt.   We

agree and reverse his conviction.

                                 I.

     Under familiar principles of appellate review, we examine the

evidence in the light most favorable to the Commonwealth, the

prevailing party below, granting to that evidence all reasonable

inferences fairly deducible therefrom.    See Juares v.

Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997).

     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
So viewed, the evidence established that on November 25, 1998,

Deputy Sheriff Frank Martello (Martello) issued a summons to

Heather Taylor (Taylor) for driving on a suspended license.

Martello gave her a notice of suspension on that date.

       On December 13, 1998, approximately three weeks after issuing

the summons to Taylor, Martello saw the same vehicle travelling

north on Route 17.   As the deputy followed the car, he called

dispatch to verify that the license of the suspected operator,

Heather Taylor, had been suspended.

       The car pulled into the parking lot of Alibi's Restaurant.

Martello parked his car approximately thirty feet from the other

car.    Martello waited in his car "maybe twenty seconds" until

the dispatcher confirmed Taylor's license was suspended.      He

could not see the driver's face.    However, Martello was positive

the driver was a female and she appeared to have the same "build

and stature" as Heather Taylor.    As Martello approached, the

driver got out of the car and the deputy recognized the woman as

Taylor.    After conducting several field sobriety tests, Martello

arrested Taylor for driving under the influence of alcohol.

       On February 19, 1999, Taylor appeared for a bench trial in

the Stafford County General District Court.    The district court

judge administered the oath to the witnesses, including

appellant.    Sergeant John Barham (Barham) was present at the

trial and took notes.    According to Barham, appellant testified

at Taylor's trial that he was the driver of the car on December

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13, 1998 and that Taylor did not drive that evening.     Appellant

stated that they stopped at Alibi's Restaurant to meet

appellant's roommate and Taylor was asleep in the back seat of

the car.    Appellant stayed in the bar for 20-30 minutes, and

when he came out, he saw a police officer leaving with Taylor.

Sergeant Barham was not a witness to these events, and he

primarily testified only concerning appellant's testimony at

Taylor's trial on February 19, 1999. 1

     Appellant was subsequently indicted for perjury, in

violation of Code § 18.2-434, for giving false testimony in

Taylor's DUI trial. 2   At appellant's perjury trial, Martello

testified about the factual events underlying the arrest of

Taylor, and Sergeant Barham repeated appellant's testimony that

he was the sole driver of Taylor's car on the night of December

13, 1998.    The Commonwealth also introduced a map to show that

the car traveled north on Route 17.      Appellant did not present

any evidence on his behalf.     The trial court denied appellant's

     1
       There is no evidence in the appellate record to indicate
whether Taylor was convicted of the DUI charge.
     2
         The indictment read:

                 On or about February 19, 1999, in the
            County of Stafford in the Stafford General
            District Court, Shannon David Ringer did
            unlawfully and feloniously commit perjury by
            falsely stating under oath that he was
            driving a vehicle and that Heather Taylor
            was not driving a vehicle, a material
            matter, in violation of Virginia Code
            § 18.2-434.

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motion to strike the evidence and found him guilty, stating the

following:

             The Court finds that the Commonwealth's
             evidence is credible. It is the only
             evidence before the Court at this time. The
             Court further finds that the Commonwealth
             has met its burden with regards to what is
             required to prove perjury under 18.2-434, as
             well as the case law that interprets that
             statute and provides the Court with what is
             necessary in order to prove the case of
             perjury. The Court feels that there is
             sufficient corroborative evidence to support
             the conviction.

                                  II.

     The sole issue raised in this appeal is whether there was

sufficient evidence to corroborate the testimony of Martello,

the Commonwealth's primary witness.      In order to sustain a

perjury conviction under Code § 18.2-434, the Commonwealth has

the burden of proving:    "(1) that an oath was lawfully

administered; (2) that the defendant willfully swore falsely;

and (3) that the facts to which he falsely swore were material

to a proper matter of inquiry."     Mendez v. Commonwealth, 220 Va.

97, 102, 255 S.E.2d 533, 535 (1979).     The Commonwealth bears the

burden of proving each of these elements of the offense beyond a

reasonable doubt.     See Holz v. Commonwealth, 220 Va. 876, 880,

263 S.E.2d 426, 428 (1980).

     "'[A] perjury conviction under Code § 18.2-434 requires

proof of falsity from the testimony of at least two witnesses or

other corroborating evidence of falsity in the event the case is


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supported by the testimony of only one witness.'"     Stewart v.

Commonwealth, 22 Va. App. 117, 120, 468 S.E.2d 126, 127 (1996)

(quoting Keffer v. Commonwealth, 12 Va. App. 545, 549, 404

S.E.2d 745, 747 (1991)).    "[A]lthough the corroborating evidence

'must be of a strong character, and not merely corroborative in

slight particulars,' it need not be equal in weight to the

testimony of a second witness.    Rather, the corroborating

evidence must confirm the single witness' testimony in a manner

strong enough 'to turn the scale and overcome the oath of the

[defendant] and the legal presumption of his innocence.'"        Id.

(citations omitted).

        In the instant case, Martello was the only witness who

testified that Taylor, not appellant, was driving the car on

December 13, 1998.    Thus, the Commonwealth was required to

present other corroborating evidence of falsity.

        This case is factually similar to Keffer, 12 Va. App. 545,

404 S.E.2d 745.    In Keffer, the defendant was charged with

perjury for giving false testimony at her husband's trial for

driving on a suspended license.    The defendant testified that

she was with her husband the entire day in question and that he

could not have driven a vehicle because she had the only set of

keys.    At her perjury trial, the Commonwealth called a police

officer as its sole witness.    The officer recited the

defendant's testimony that her husband was not driving and his

own testimony that the husband was driving.    Based upon this

                                 - 5 -
evidence, the trial court convicted the defendant of perjury.

See id. at 546, 404 S.E.2d at 746.     On appeal, we reversed the

defendant's conviction in Keffer, holding that "a perjury

conviction under Code § 18.2-434 requires proof of falsity from

the testimony of at least two witnesses or other corroborating

evidence of falsity in the event the case is supported by the

testimony of only one witness."   Id. at 549, 404 S.E.2d at 747.

     In the instant case, the Commonwealth failed to present

sufficient evidence corroborating the testimony of Martello that

Taylor, not appellant, was driving on December 13, 1998.    The

Commonwealth introduced into evidence a photograph, a map of the

area, Taylor's prior summons and notice of suspension.    However,

this evidence only supported Martello's recollection of the

events and did not corroborate the falsity of appellant's

testimony.   Additionally, the testimony of Sergeant Barham adds

no corroboration as he had no personal knowledge about the

events of December 13, 1998.   His testimony simply recited

appellant's prior testimony at Taylor's trial.

     The Commonwealth was required to show more than a mere

contradiction in appellant's testimony.    It was required to

prove the falsity of the statement by either two witnesses or

one witness supported by corroborating evidence.    In this case,

there were no "material and transparent deficiencies" in

appellant's testimony that would "turn the scale" in favor of

guilt, Stewart, 22 Va. App. at 121, 468 S.E.2d at 128, nor any

                               - 6 -
statement by another witness that would tend to corroborate the

falsity of the appellant's testimony.   See id. at 121, 468

S.E.2d at 127-28.   Accordingly, we hold that the evidence was

insufficient to sustain appellant's conviction of perjury.

                                         Reversed and dismissed.




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