                     COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judges Coleman and Fitzpatrick
Argued at Salem, Virginia


KAREN WATTS JOHNSON

v.   Record No. 0703-94-3               MEMORANDUM OPINION *
                                            PER CURIAM
COMMONWEALTH OF VIRGINIA                 JANUARY 30, 1996

               FROM THE CIRCUIT COURT OF CAMPBELL COUNTY
                     J. Samuel Johnston, Jr., Judge

          John R. Alford (Mark J. Peake; Caskie &
          Frost, on briefs), for appellant.
          John H. McLees, Jr., Assistant Attorney
          General (James S. Gilmore, III, Attorney
          General, on brief), for appellee.


     Karen Watts Johnson appeals her convictions of hit and run,

with personal injury resulting, and improper driving.      Mrs.

Johnson argues that the Commonwealth failed to prove the charges

beyond a reasonable doubt.    We agree, and reverse the

convictions.

     On March 19, 1993, at approximately 12:40 p.m., an accident

occurred that involved four vehicles.     The first vehicle came to

a stop, and then the second and third vehicles stopped as well.

The fourth car, allegedly driven by Mrs. Johnson, did not stop

and ran into the rear of the third vehicle.     That vehicle then

collided with the second, and the second with the first.       The

driver of the fourth vehicle left the scene of the accident.         The

first three vehicles were significantly damaged, and the driver

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
of the second vehicle had to seek medical attention.

       The driver of the third vehicle, Rose Marie Burnette, was

the only one who saw the driver of the fourth vehicle.     She

described the driver as a female with shoulder length hair that

was either medium brown or sandy brown-blond in color and who did

not wear glasses.   She testified that the car that hit her was

red, but could not provide any other information about the car.

       The car that hit the rear bumper of Mrs. Burnette's car left

an impression in the shape of the top portion of a license tag.

The tops of the characters embossed on that tag were visible.

The police determined combinations of characters that might have

made those impressions.   They then ran DMV checks in the local

area to find license plates with those combinations of

characters.   They did not run checks statewide; the officer

testified that this "would have been impossible because there

were so many different combinations."
       The police checked two or three license tags in the local

area and found that "they did not match."   They then went to Mrs.

Johnson's house, located between five and seven miles from the

scene of the accident, to check her vehicle.   The vehicle was

red.   The front tag had a hole in it between the "g" and the "i"

in "Virginia."   The passenger side headlight was out of

adjustment, there were two scrape marks under the car, and the

mounting bracket for the tag was loose and broken.

       The Commonwealth presented two sets of forensic evidence to

support their case against Mrs. Johnson.    First, they presented a

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lab analysis comparing paint from Mrs. Johnson's car to red paint

left on the rear of Mrs. Burnette's car.    The lab report stated

that the paints "matched in colors, types, textures, and layer

sequence and were similar in inorganic compositions.    These

paints could have had a common origin."

     The Commonwealth also presented testimony from a forensic

impressions examiner, Mark Hallett.     Hallett made life-size

photographs of the license tag and the bumper, using intensive

lighting to make the impressions show very clearly.    He then made

a polyurethane impression of the tag, laminated it, and placed it

over the photograph of the bumper for comparison.    Hallett

testified that the characters on the tag fit over the partial

impression of characters on the bumper.
     After examining the license plate, Hallett determined that

it had been damaged by an impact that caused it to bend over the

bolt on the mounting bracket.   He testified that the angle of the

bumper receiving the impression fit with the license plate as it

was bent.   He also testified that the partial character

impressions on the bumper matched up with those on the tag, and

that when this was done, the impression left by the mounting bolt

on the tag matched an impression left on the bumper.    However,

Hallett also testified that the partial character impressions on

the bumper could have been made by different combinations of

letters and numbers than those on Mrs. Johnson's tag.

     Mrs. Johnson testified that on the day in question, she had

worked third shift and then took her son to school at 8:00 a.m.,

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ran other errands, and returned home by 9:30 or 10:00 a.m.    She

testified that at noon, approximately the time of the accident,

she was watching a basketball game with her husband and a friend.

She did not leave the house until it was time for her to work at

5:00 p.m.

     Mrs. Johnson's next door neighbor, Mrs. Cumby, testified

that she saw Mrs. Johnson's car outside her house at

approximately 12:30 p.m.   She noticed the car because it was

unusual for Mrs. Johnson to be home during the day, and she

remembered that particular day because she had been ill.    Mrs.

Cumby had not met Mrs. Johnson at the time of the accident.
     Both Mrs. Johnson's husband and the Johnsons' friend, James

Jones, testified that they were watching the "March Madness"

basketball games at the Johnsons' house on the day in question.

They watched the Wake Forest game, which was on at midday, and

then the Virginia game.    They testified that while they were

watching, Mrs. Johnson watched also and did not leave the house.

     Mrs. Johnson testified that her license plate was damaged

when her great uncle, who had since died, backed up into her car

in the church parking lot.   Her mother testified that she was in

the parking lot at the time and heard the crash.   Mrs. Johnson

testified that she did not know where the two scrape marks on her

bumper came from or why one of her headlights was out of

alignment.

     On appeal, the evidence is viewed in the light most

favorable to the Commonwealth, granting it all reasonable

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inferences fairly deducible therefrom.   The verdict of the jury

will not be disturbed unless it is plainly wrong or without

evidence to support it.   Higginbotham v. Commonwealth, 216 Va.

349, 352, 218 S.E.2d 534, 537 (1975).

     Whether a conviction is supported by evidence sufficient to

prove guilt beyond a reasonable doubt is not a question of fact

but one of law.   A conviction based upon a mere suspicion or

probability of guilt, however strong, cannot stand.   Bridgeman v.
Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598, 601 (1986).

The evidence relied on by the Commonwealth must exclude all

reasonable conclusions inconsistent with that of guilt.      Sutphin

v. Commonwealth, 1 Va. App. 241, 248, 337 S.E.2d 897, 900 (1985).

     Mrs. Burnette's description of the driver and the car were

very general in nature and, with respect to the driver's hair

color, inconsistent.   The bulk of the Commonwealth's case

consisted of physical evidence, presented by forensic examiners

employed by the Commonwealth.   The major portion of that evidence

concerned matching characteristics of Mrs. Johnson's license tag

and impressions left on Mrs. Burnette's bumper.

     Although Hallett testified it was "highly unlikely" that

something other than Mrs. Johnson's tag had made the impressions,

he also acknowledged that other combinations of letters and

numbers could have left the partial character impressions on the

bumper.   The police acknowledged that in identifying license tags

that might have left the impressions, they checked only "local"

tags (the "local" area was not defined) because there would have
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been far too many to check statewide.   Even if the police

identified all potential combinations locally, a claim they did

not make, by their own admission there were likely numerous other

tags in the state that could have left the impressions.

Moreover, none of the testimony excluded the possibility that one

of these tags, mounted with the same sort of bracket and bolt

assembly as Mrs. Johnson's tag, could have made the impressions

found on Mrs. Burnette's bumper.
       Similarly, the paint evidence did not exclude reasonable

possibilities other than guilt.    The comparative analysis did not

positively identify the two paint samples as coming from an

identical source, but merely proved that such a possibility

existed.   Without expert testimony which explained the

probability of two paint samples possessing similar properties,

the jury had no standard to evaluate the weight or significance

of such evidence.    See Sutphin, 1 Va. App. at 247, 337 S.E.2d at

900.

       A criminal defendant is entitled to the benefit of a

reasonable doubt arising from the evidence of the Commonwealth as

well as his own evidence.    Bridgeman, 3 Va. App. at 528, 351

S.E.2d at 602.   Although the circumstantial evidence may have

shown that Mrs. Johnson's car could have been, or probably was,

the car involved in the accident, suspicion or probability of

guilt is not sufficient to sustain a conviction.    Boothe v.
Commonwealth, 4 Va. App. 484, 492, 358 S.E.2d 740, 745 (1987).

Taken as a whole, the Commonwealth's evidence did not exclude

                                - 6 -
reasonable hypotheses of Mrs. Johnson's innocence, and indeed

raised reasonable doubt as to her guilt.     See also Allen v.

Commonwealth, 211 Va. 805, 180 S.E.2d 513 (1971) and Whitlow v.

Commonwealth, 198 Va. 165, 93 S.E.2d 127 (1956).    In both of

these hit and run cases, the Supreme Court set aside jury

verdicts based on circumstantial evidence, holding that the

circumstances did not warrant a finding of guilt beyond a

reasonable doubt.   The same is true here.
     We agree with the trial judge, who stated at several points

throughout the trial that the evidence was weak and that he could

not convict based on the evidence presented.    A conviction cannot

be sustained if no rational trier of fact could find guilt beyond

a reasonable doubt.   See Jackson v. Virginia, 443 U.S. 307

(1989).   We find that the evidence, as a matter of law did not

meet the Jackson standard.   Therefore, we reverse the

convictions.

                                                     Reversed.




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