Earl Antonio Hill v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Elder and Fitzpatrick
Argued at Richmond, Virginia
EARL ANTONIO HILL
v. Record No. 1696-94-2 MEMORANDUM OPINION *
BY JUDGE SAM W. COLEMAN III
COMMONWEALTH OF VIRGINIA JANUARY 30, 1996
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Robert W. Duling, Judge
John B. Mann (Levit & Mann, on briefs), for
appellant.
Thomas C. Daniel, Assistant Attorney General
(James S. Gilmore, III, Attorney General;
Monica S. McElyea, Assistant Attorney General,
on brief), for appellee.
Earl Antonio Hill was convicted in a bench trial of forging
and uttering a Virginia Uniform Summons in violation of Code
§ 18.2-168. Hill contends that the trial court erred by
overruling his motion to strike the evidence. Because the
evidence was insufficient to prove that the name the defendant
adopted was fictitious or assumed, we reverse the defendant's
convictions and dismiss the charges.
"Forgery is 'the false making or materially altering with
intent to defraud, of any writing which, if genuine, might
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
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apparently be of legal efficacy, or the foundation of legal
liability.'" Ramsey v. Commonwealth, 2 Va. App. 265, 269, 343
S.E.2d 465, 468 (1986) (quoting Bullock v. Commonwealth, 205 Va.
558, 561, 138 S.E.2d 261, 263 (1964)). Uttering is "an assertion
by word or action that a writing known to be forged is good and
valid." Bateman v. Commonwealth, 205 Va. 595, 600, 139 S.E.2d
102, 106 (1964). "[W]hile a person may adopt any name he may
choose so long as it was done for an honest purpose, under the
broad definition of forgery the crime is committed by signing an
assumed name, or a fictitious name, for a dishonest purpose and
with intent to defraud." Moore v. Commonwealth, 207 Va. 838,
841, 153 S.E.2d 231, 234 (1967).
The sole issue on appeal is whether the evidence was
sufficient to prove that the defendant adopted a fictitious or
assumed name. In a bench trial, the presentation of evidence
begins when the Commonwealth introduces its testimonial or
documentary evidence. Cf. Greenwalt v. Commonwealth, 224 Va.
498, 500-01, 297 S.E.2d 709, 710 (1982) (holding that jeopardy
attaches "when the trial has reached the stage where the
Commonwealth begins to introduce its testimony"). The only
indication on the record that the defendant's real name is Earl
Hill rather than Dexter Anderson is the defendant's unsworn
response at arraignment to the trial court's request that he
state his name.
Evidence is testimony or exhibits admitted during trial
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under oath or the stipulations or avowals of counsel.
Arraignment is not part of the evidentiary proceeding; rather,
"[i]t shall consist of reading to the accused the charge on which
he will be tried and calling on him to plead thereto." Code
§ 19.2-254. Therefore, the defendant's statement at arraignment
was not evidence that the trial court could consider in
determining whether the defendant adopted "Dexter Anderson" as a
fictitious or assumed name.
The Commonwealth contends that even if the defendant's
statement at arraignment was not evidence properly before the
trial court, the trial judge was entitled to rely on knowledge
obtained in his judicial capacity. 1 However, "the individual and
extra judicial knowledge on the part of a judge will not dispense
with proof of facts not judicially cognizable, and cannot be
resorted to for the purpose of supplementing the record."
Darnell v. Barker, 179 Va. 86, 93, 18 S.E.2d 271, 275 (1942).
Generally, courts may take judicial notice of matters that are
"common knowledge," or that may be ascertained by reference to
reliable sources. See Ryan v, Commonwealth, 219 Va. 439, 445-46,
247 S.E.2d 698, 703 (1978); Lassen v. Lassen, 8 Va. App. 502,
507, 383 S.E.2d 471, 474 (1989); 2 Charles E. Friend, The Law of
1
The Commonwealth did not prove during the trial that the
defendant had stated at arraignment that he is Earl Hill or that
his real name is other than Dexter Anderson.
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Evidence in Virginia § 19-2, at 260 (4th ed. 1993). The
defendant's identity does not qualify under either category as a
fact that may be judicially noticed. 2
"It is elementary that the burden is on the Commonwealth to
prove every essential element of the offense beyond a reasonable
doubt." Dowdy v. Commonwealth, 220 Va. 114, 116, 255 S.E.2d 506,
508 (1979) (quoting Powers v. Commonwealth, 211 Va. 386, 388, 177
S.E.2d 628, 629 (1970)). Although the failure to introduce
evidence showing that the defendant's real name was Earl Hill may
have been a mere oversight on the Commonwealth's part,
nonetheless the evidence is insufficient to support the
defendant's convictions because proof that Dexter Anderson was a
fictitious or assumed name was an essential element of the crimes
2
Furthermore, it does not appear from the record that the
Commonwealth asked the court to take judicial notice of the
defendant's identity or that the trial court held that it was
taking judicial notice of his identity. See State Farm Mutual
Automobile Ins. Co. v. Powell, 227 Va. 492, 497, 318 S.E.2d 393,
395 (1984) (stating that the defendant "had no prior opportunity
to be heard either to dispute the ``facts' or to object to the
court's action"); 2 Charles E. Friend, The Law of Evidence in
Virginia § 19-17, at 289 (stating that "it appears that counsel
should make a formal request that judicial notice be taken of a
particular matter").
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of forgery and uttering. See Moore, 207 Va. at 841, 153 S.E.2d
at 233-34. Accordingly, we reverse the defendant's convictions
and dismiss the charges.
Reversed and dismissed.
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