Karen Watts Johnson v. Commonwealth ( 1996 )

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
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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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