                   COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Annunziata and Senior Judge Coleman
Argued at Alexandria, Virginia


ROBERT McGUIRE
                                         MEMORANDUM OPINION * BY
v.   Record No. 1413-00-4              JUDGE ROSEMARIE ANNUNZIATA
                                            DECEMBER 4, 2001
COMMONWEALTH OF VIRGINIA


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

          Wendy B. Harris, Senior Assistant Public
          Defender, for appellant.

          Jennifer R. Franklin, Assistant Attorney
          General (Mark L. Earley, Attorney General;
          Shelly R. James, Assistant Attorney General,
          on brief), for appellee.


     The appellant, Robert McGuire, was convicted in a bench

trial of four of nine counts of "False 911 Calls" in violation of

Code § 18.2-461 and sentenced to 24 months in jail, suspended.

On appeal, he claims:   1) the evidence was insufficient to prove

he made the calls to law enforcement dispatchers without just

cause and with the intent to interfere with their duties; and 2)

the trial court erred in admitting   Commonwealth's Exhibit 1.

For the reasons that follow, we reverse the convictions.




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
                                  I.

                           Background

     A person at McGuire's address called the Stafford County

Sheriff's Department's Communications Center a total of eighteen

times between October 9 and 25, 1999.     The calls were made to the

Department's non-emergency telephone line, which was staffed by

the same individuals who staffed the emergency line.    As a

result, the dispatcher responding to a non-emergency call was

prevented from answering emergency calls.
     Appellant stipulated that "all calls were made from

2 Mantel Court [McGuire's address], all calls were made by the

same individual, and for all calls the caller was identified as

Robert McGuire."

     The trial court admitted into evidence a list prepared by

the supervisor of the communications center, Linda Goodridge,

showing the internal incident numbers, the date and time of the

calls, and the dispatcher who had answered each call.    During

most of the phone calls, the dispatcher identified himself, the

date and time of the call was recorded in the transcript, the

caller identified himself as McGuire, and the call was placed

from McGuire's home address.
                                 II.

                               Analysis

     When the sufficiency of the evidence is challenged on

appeal, "[w]e view the evidence in the light most favorable to

the Commonwealth, granting to it all reasonable inferences fairly

deducible from the evidence."    Cooper v. Commonwealth, 31 Va.

App. 643, 646, 525 S.E.2d 72, 73 (2000).    The appellate court


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must, therefore, "discard the evidence of the accused in conflict

with that of the Commonwealth, and regard as true all the

credible evidence favorable to the Commonwealth and all fair

inferences that may be drawn therefrom."       Watkins v.

Commonwealth, 26 Va. App. 335, 348, 494 S.E.2d 859, 866 (1998).

Furthermore, the trial court's factual findings will not be

disturbed unless plainly wrong or without evidence to support

them.     McGee v. Commonwealth, 25 Va. App. 193, 197-98, 487 S.E.2d

259, 261 (1997) (en banc).

        It is well settled that "[t]he Commonwealth has the burden

of proving beyond a reasonable doubt each and every element of

the charged crime."     Adkins v. Commonwealth, 20 Va. App. 332,

342, 457 S.E.2d 382, 387 (1995) (citing Powers v. Commonwealth,

211 Va. 386, 388, 177 S.E.2d 628, 629 (1970)); accord In Re

Winship, 397 U.S. 358, 363 (1970).       Accordingly, "the burden

[is] on the Commonwealth to prove the identity of the accused

beyond a reasonable doubt."     Brickhouse v. Commonwealth, 208 Va.

533, 536, 159 S.E.2d 611, 613-14 (1968) (citing Terry v.

Commonwealth, 174 Va. 507, 516, 6 S.E.2d 673, 677 (1940));

accord Commonwealth v. Smith, 259 Va. 780, 783, 529 S.E.2d 78,

79 (2000) ("'the criminal agency of the accused [must be] proved

to the exclusion of any other rational hypothesis and to a moral

certainty'" (quoting LaPrade v. Commonwealth, 191 Va. 410, 418,

61 S.E.2d 313, 316 (1950))); Waller v. Commonwealth, 84 Va. 492,

496-97, 5 S.E. 364, 366 (1888); Crawley v. Commonwealth, 29 Va.

App. 372, 377-78, 512 S.E.2d 169, 172 (1999).      The Commonwealth

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may establish the identity of a speaker by circumstantial

evidence.   Opanowich v. Commonwealth, 196 Va. 342, 351, 83

S.E.2d 432, 438 (1954); Bloom v. Commonwealth, 34 Va. App. 364,

369-70, 542 S.E.2d 18, 20, aff'd, __ Va. ___, ___ S.E.2d ___

(2001).   However, the evidence must exclude every reasonable

hypothesis of innocence.   LaPrade, 191 Va. at 418, 61 S.E.2d at

316; Barlow v. Commonwealth, 26 Va. App. 421, 429-30, 494 S.E.2d

901, 905 (1998).

     Appellant's motion to strike raised the issue of the

failure to prove he made the calls.    Although the judge denied

the motion, the Commonwealth failed to produce sufficient

evidence that McGuire made the calls.    The evidence proved only

that the caller identified himself as McGuire and that the calls

came from "2 Mantel Court," McGuire's home address.    No

testimony established that any person recognized the voice of

the caller to be that of McGuire.     Opanowich, 196 Va. at 352, 83

S.E.2d at 438 ("a witness may be permitted to identify a person

solely from having heard his voice").    As such, the evidence

does not exclude the reasonable hypothesis that someone other




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than McGuire made the phone calls and does not support McGuire's

convictions beyond a reasonable doubt.   We therefore reverse.

                                         Reversed and dismissed.




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