                   COURT OF APPEALS OF VIRGINIA


Present: Judges Coleman, Bray and Bumgardner
Argued at Chesapeake, Virginia


DONAVON T. WATKINS, S/K/A
 DONOVAN T. WATKINS
                                           MEMORANDUM OPINION * BY
v.   Record No. 1975-99-1                   JUDGE RICHARD S. BRAY
                                                APRIL 4, 2000
COMMONWEALTH OF VIRGINIA


        FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
                      Robert W. Curran, Judge

          Michael P. Jones for appellant.

          Jeffrey S. Shapiro, Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellee.


     Donovan T. Watkins (defendant) was convicted in a bench trial

of grand larceny in violation of Code § 18.2-95.    On appeal, he

argues that the evidence was insufficient to support the

conviction.   We agree and reverse the trial court.

     The parties are fully conversant with the record, and this

memorandum opinion recites only those facts necessary to a

disposition of the appeal.

     "On appeal, 'we review the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom.'"    Archer v. Commonwealth,


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (citation omitted).

"[T]he decision of a trial court sitting without a jury is

afforded the same weight as a jury's verdict and will not be

disturbed unless plainly wrong or without evidence to support it."

Armstrong v. Commonwealth, 29 Va. App. 102, 113, 510 S.E.2d 247,

252 (1999); see also Code § 8.01-680.

        "The Commonwealth always bears the burden of proving guilt

beyond a reasonable doubt."    Tyler v. Commonwealth, 254 Va. 162,

166, 487 S.E.2d 221, 223 (1997).    "When the evidence is wholly

circumstantial, as here, '[a]ll necessary circumstances proved

must be consistent with guilt and inconsistent with innocence and

exclude every reasonable hypothesis of innocence.'"    Granger v.

Commonwealth, 20 Va. App. 576, 577, 459 S.E.2d 106, 106 (1995)

(citation omitted).    The Commonwealth must "prove beyond a

reasonable doubt that motive, time, place, means and conduct

concur in pointing out the accused as the perpetrator of the

crime."    Inge v. Commonwealth, 217 Va. 360, 366, 228 S.E.2d 563,

568 (1976).    Reliance upon fingerprint evidence to identify an

accused as the criminal agent does not lessen this burden of

proof.    See Tyler, 254 Va. at 166, 487 S.E.2d at 223.

        On the morning of February 25, 1999, Kenneth Geigan noticed

the driver's door of his automobile, then parked in the driveway,

ajar.    Upon further inspection, he discovered a pistol, checkbook,

and "between $600 and $700" cash missing from the "glove



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compartment."    Newport News police were notified and, during the

ensuing investigation, Officer Keith Young "lifted approximately

eight to ten . . . latent prints" from the exterior of the

vehicle.     The resulting "fingerprint cards" were examined by

Detective L.G. Roberts, "an expert in the field of fingerprint

analysis."    Roberts testified that three distinct fingerprint

"lifts" taken from the driver's door matched defendant's "number

six finger" and opined, "with all certainty," that defendant's

"left thumb touched [Geigan's] vehicle three different times," at

an unknown time and place.

     Following arrest, defendant denied knowledge of the offense,

declaring that he had "never seen" or "touched" Geigan's car or

visited his neighborhood.    Geigan testified that he "usually"

drove his car "anywhere . . . in . . . Newport News [he] may need

to go."

     It is well established that a fingerprint is "'an unforgeable

signature,'" a "scientific method of identification."    Turner v.

Commonwealth, 218 Va. 141, 146, 235 S.E.2d 357, 360 (1977)

(citation omitted).    "[F]ingerprint[s] found at the scene of the

crime may be sufficient under the circumstances to show [an

accused] was there at some time," but "in order to show defendant

was the criminal agent, such evidence must be coupled with

evidence of other circumstances tending to reasonably exclude the




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hypothesis that the print was impressed at a time other than that

of the crime."   Id.

     The requisite "other circumstances" "need not be

circumstances completely independent of the fingerprint, and may

properly include circumstances such as the location of the print,

the character of the place or premises where it was found and the

accessibility of the general public to the object on which the

print was impressed."   Avent v. Commonwealth, 209 Va. 474, 479,

164 S.E.2d 655, 659 (1968).   Thus, "attendant circumstances with

respect to the print may show that [defendant] was at the scene of

the crime at the time it was committed.    If they do so show, it is

a rational inference, consistent with the rule of law both as to

fingerprints and circumstantial evidence, that the accused was the

criminal agent."   Id. at 480, 164 S.E.2d at 659.

     Here, the evidence established that Geigan regularly drove

the automobile "anywhere" in Newport News.   Hence, the

fingerprints on the vehicle simply proved that defendant had

previously touched the doorframe at an unspecified time and

location, under unknown circumstances.    Such evidence clearly does

not reasonably exclude the hypothesis that defendant had innocent

contact with the vehicle while parked in a public area or as a

result of other circumstances unrelated to the instant offense.

Defendant's inability to remember having seen or touched the car

is not inconsistent with innocence.    A person does not notice or



                               - 4 -
recall every automobile inadvertently touched, anywhere and at

anytime.   Thus, the circumstantial evidence before the trial

court, while casting strong suspicion upon defendant, was

insufficient to establish his guilt beyond a reasonable doubt.

     We acknowledge numerous decisions by both the Supreme Court

and this Court affirming convictions which relied upon fingerprint

evidence to prove criminal agency.     However, unlike the instant

record, the evidence in each instance established the requisite

"other circumstances" sufficient to support the convictions.    See,

e.g., Tyler, 254 Va. at 167, 487 S.E.2d at 224 (fingerprints of

accused found on both sides of broken glass of store window,

together with evidence that burglar had "pulled . . . fragments

out of the window frame"); Ricks v. Commonwealth, 218 Va. 523,

524, 237 S.E.2d 810, 811 (1977) (fingerprint of accused on "jar"

of stolen pennies, located inside private residence, the "scene of

the crime"); Avent, 209 Va. at 475, 164 S.E.2d at 655

(fingerprints of accused found on glass of broken window, located

"7 feet from the ground or street level," inside store); see also

Turner, 218 Va. 141, 235 S.E.2d 357; Parrish v. Commonwealth, 17

Va. App. 361, 437 S.E.2d 215 (1993); compare Granger, 20 Va. App.

at 577, 459 S.E.2d at 106 (fingerprints of accused on whiskey

bottle failed to exclude hypothesis that he handled it for an

"innocent purpose").




                               - 5 -
     Accordingly, we find the evidence insufficient to support the

conviction and reverse the trial court.

                                      Reversed and final judgment.




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