                     COURT OF APPEALS OF VIRGINIA


Present: Judges Bray, Frank and Senior Judge Baker
Argued at Norfolk, Virginia


ANTWAN D. PERSON
                                              MEMORANDUM OPINION * BY
v.   Record No. 1897-98-1                      JUDGE ROBERT P. FRANK
                                                  AUGUST 10, 1999
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
                   Wilford Taylor, Jr., Judge

          Carter Phillips (Weisbrod & Phillips, on
          brief), for appellant.

          Ruth M. McKeaney, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellee.


     Antwan D. Person (appellant) was convicted by a jury of

breaking and entering and grand larceny.       On appeal, he argues

that the evidence was not sufficient to support the convictions.

We agree with appellant, and reverse the convictions and dismiss

the indictments.

                            I.   BACKGROUND

     According to well-settled principles of appellate review,

we consider the evidence in the light most favorable to the

Commonwealth, granting to it all reasonable inferences fairly




     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
deducible therefrom.    See Martin v. Commonwealth, 4 Va. App.

438, 443, 358 S.E.2d 415, 418 (1987).

     On March 17, 1997, James Singleton returned to his home in

Hampton and realized that his television was missing.   He

immediately went to a neighbor’s home and called the police.

Once the police arrived, he went into his house and discovered

additional missing items, including another television, a VCR

and two digital clocks.   The side garage door and the kitchen

door to the house were damaged.   Singleton provided the police

with a serial number for one of the televisions.

     Richard Reid was employed at Epstein’s Pawn Shop on March

17, 1997.   He testified that the store’s standard procedure for

purchasing items required the presenter of the items to show the

store employee two forms of identification.   One of the forms of

identification had to be a picture identification, such as a

driver’s license or state-issued identification.   The other

identification could be any secondary form of identification,

such as a Social Security card, a bank check, a vehicle

registration card or a library card.    The store employee would

enter the information from the identification into the store’s

computer, and the computer would print a purchase agreement.

The presenter of the items would then sign the print-out.

     Reid performed a transaction on March 17, 1997 for a

television and VCR.    He testified that he did not remember the

particular transaction, but his name was on the purchase

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agreement as the employee who conducted the transaction.     The

television was marked with the same serial number as one of the

televisions missing from Singleton’s home.   The purchase

agreement detailing the transaction listed the presenter of the

items as Antwan Dwayne Person.    At trial, Reid could not

identify appellant as the presenter of the television and VCR.

Reid testified that he could not remember if he followed store

procedures in conducting the transaction, but he stated that he

assumed he followed the procedures because the purchase

agreement reflected information that only would have been

obtained from the presenter’s identification.   The purchase

agreement listed information such as height, weight, eye color,

hair color and Social Security number.   Reid stated that he

would not have had such information unless it was obtained from

an identification.   On cross-examination, Reid stated that any

one with the correct forms of identification could pawn an item

at Epstein’s.

     Detective Rodney Cason of the Hampton Police Department was

assigned to the Singleton investigation.   He utilized a computer

database in which all of the items pawned in the City of Hampton

are listed.   Detective Cason located Singleton’s television and

VCR in the database by using the serial number for the

television that was provided by Singleton.   The database

indicated that a television with a matching serial number and a

VCR were pawned at the same time at Epstein’s Pawn Shop.

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Detective Cason went to Epstein’s Pawn Shop and verified the

serial number on the television.    The police then used the pawn

shop purchase agreement to obtain a signature page from the

Department of Motor Vehicles showing the photograph and

signature of Antwan D. Person.    The signature page and the

signature on the purchase agreement were submitted to the jury

for comparison.

     Person was convicted by a jury of breaking and entering and

grand larceny on July 6, 1998.

                           II.   ANALYSIS

     Appellant challenges his convictions on the sufficiency of

the evidence to prove identification.    For the following

reasons, we agree with appellant and reverse his convictions and

dismiss the indictments.

     The Supreme Court of Virginia decided two bad check cases

where the evidence as to the identity of the presenter was

challenged.   See Kayh v. Commonwealth, 219 Va. 424, 247 S.E.2d

696 (1978); Doyle v. Commonwealth, 212 Va. 677, 187 S.E.2d 201

(1972).   We find the Court’s rationale in these cases

compelling.

     In Doyle, the defendant used three checks to purchase

merchandise in the same department store on the same day.      See

Doyle, 212 Va. at 677, 187 S.E.2d at 202.    The employees who

accepted the checks could not identify the defendant as the

person who wrote or presented the checks.    See id.   However,

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each employee required the presenter of the checks to provide at

least two documents for the purpose of establishing identity.

See id.   For all three sales, the presenter of the check used a

District of Columbia driver’s license and a Washington Gas Light

Company employee identification card.    See id. at 677-78, 187

S.E.2d at 202.   Both forms of identification were issued to

David V. Doyle, and there was a photograph on each card.     See

id. at 678, 187 S.E.2d at 202.    The store employees testified

that they would not have accepted the checks without

identification or if the photograph on the identification had

been different from the presenter of the check.    See id.

      The Supreme Court held:

           To hold this evidence sufficient to
           establish the identity of the defendant as
           the person who presented the checks would
           require us to base an inference upon an
           inference. It would first require us to
           infer that the identification documents and
           photographs, which are not in evidence, were
           genuine and authentic. It would then
           require us to infer and assume that the
           defendant was the person who presented the
           checks since this person presented
           identification of the defendant. This we
           cannot do.

Id.

      In Kayh, the defendant allegedly presented two bad checks

to a Sears store.   See Kayh, 219 Va. at 425, 247 S.E.2d at 697.

The salesperson testified that before he accepted the checks he

required identification of the presenter.    See id.   He copied

the Virginia driver’s license number from the presenter’s

                                 - 5 -
identification onto the checks and compared the picture on the

identification to the presenter.     See id.   The salesperson

concluded that the presenter and the person whose photograph

appeared on the identification were the same person.      See id.

The salesperson, however, was unable to identify the defendant

as the presenter.    See id.   Additionally, there was no evidence

linking the signature on a letter allegedly signed by the

defendant to the signature of the person who presented the

checks or to the defendant’s signature on a motion filed with

the trial court.    See id. at 426, 247 S.E.2d at 697.    The Court

applied the rationale from Doyle, and held:

          While the signature Kurt Kiriluk, signed by
          defendant to his “Motion for Fast and Speedy
          Trial”, is strikingly similar to the
          signature Dyron W. Kayh, signed to the two
          checks involved and to the letter, and while
          the evidence in the case raises a strong
          suspicion that the defendant did negotiate
          the two worthless checks, the testimony is
          insufficient to establish this fact beyond a
          reasonable doubt.

Id. at 427, 247 S.E.2d at 698.

     In Crawley v. Commonwealth, 29 Va. App. 372, 512 S.E.2d 169

(1999), we held that the information on police fingerprint cards

was insufficient to prove identity.      Fingerprints taken from the

scene of a break-in matched police fingerprint cards for

          Darnell Devan Crawley, a black male 5’8”
          tall, 140 pounds, and with a tattoo on his
          right arm, a birth date of December 15,
          1968, a Social Security number of
          XXX-XX-XXXX, and an address at the time of


                                 - 6 -
            the break-in of 2828 Fairfield Avenue,
            Richmond, Virginia 23223.

Id. at 378, 512 S.E.2d at 172.

      The only evidence that linked the defendant to the crime

was that his height, gender and race matched the physical

characteristics described on the police fingerprint cards.      See

id.   We were unable to hold that the similarity between the

defendant’s name and his physical characteristics and those of

the person whose fingerprints were found at the scene of the

break-in were sufficient to establish identity.      See id. at 379,

512 S.E.2d at 172-73.

      In this case, the fact finder had before it the testimony

of Reid stating that he could not identify appellant as the

presenter of the items, but that he assumed he followed store

procedure and required two forms of identification because the

information on the purchase agreement was of the type that he

only would have obtained from an identification.     The jury also

had the signature page from the Department of Motor Vehicles and

the signature on the purchase agreement for comparison.

      Applying the Supreme Court’s rationale from Doyle and Kayh,

we find the testimony of Reid insufficient to establish

identity.   The signature page from the Department of Motor

Vehicles only proved that the same person who presented the

items at Epstein’s Pawn Shop obtained the identification from




                                 - 7 -
the Department of Motor Vehicles.   There is no evidence to prove

that appellant was that person.

     For these reasons, we hold that the evidence was

insufficient to prove that appellant was the presenter of the

stolen items.   Therefore, we reverse the convictions and dismiss

the indictments.

                                                         Reversed.




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