COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Elder and Senior Judge Cole 

Argued at Richmond, Virginia 

MALCOLM TERRELL BISHOP, S/K/A 

 MALCOLM BISHOP, A/K/A RICHARD SANDERS 

 MEMORANDUM OPINION* BY 

v. Record No. 2397-95-2 JUDGE MARVIN F. COLE 

 JUNE 10, 1997 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Walter W. Stout, III, Judge 

 Patricia P. Nagel, Assistant Public Defender 

(David J. Johnson, Public Defender, on 

brief), for appellant. 

 Monica S. McElyea, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

brief), for appellee. 

 

 Malcolm Terrell Bishop (defendant) was indicted on three 

charges of forging a public document in violation of Code 

§ 18.2-168 based upon his signing the name "Richard Sanders" on 

three Virginia Uniform Summonses. The defendant was convicted on 

all three indictments. He contends that: (1) the evidence was 

insufficient to sustain his convictions because the Commonwealth 

failed to establish that he is Malcolm Bishop; and (2) the court 

erred in admitting evidence of the fingerprint card, the arrest 

sheet and his photograph because they constituted inadmissible 

hearsay evidence. 

 During the arraignment, the defendant objected to 

 

 *Pursuant to Code § 17-116.010, this opinion is not 

designated for publication. 
 2 

identifying himself and suggested that the court needed to 

establish that he was in fact the person charged in the 

indictments without getting into the merits of the case. Without 

objection, the name of the defendant on the indictments was 

amended to include Malcolm Terrell Bishop, Richard Saunders, 

Richard Sanders, Tyrone Booker and Malcolm Booker. The defendant 

admitted that he was the person named in the indictments. 

Facts

 On May 15, 1995, Officers Wooten, Baskette, and Mark were on 

routine patrol when they observed the defendant backing his car 

down the street to a stop sign. They stopped the defendant for a 

driving violation. Officer Baskette approached him and asked for 

a driver's license. Because defendant was unable to produce one, 

he was asked to step out of the car for operating a motor vehicle 

without an operator's license. 

 The defendant was asked what his name was, his date of 

birth, and his Social Security number. He stated his name was 

Richard Saunders, date of birth January 2, 1973. He was asked 

how old he was and he stated he was 23. When told that he should 

only be 22, according to the information he had given, he said, 

"[W]ell, that's not me, I'll tell you the truth, my name is 

Richard Sanders, my date of birth is 12/10/73. I still don't 

know my social security number." This information was run 

through the Division of Motor Vehicles and no further information 

was found there. When asked if he had a driver's license, the 
 3 

defendant said "Well, maybe." 

 At the police station, Officer Wooten filled out three 

Virginia Uniform Summonses for the traffic offenses. He warned 

the defendant if he lied and signed the summonses in the wrong 

name, he would be charged with forgery. The defendant signed 

each form in Wooten's presence. The defendant was also charged 

with reckless driving. Officer Baskette filled out the arrest 

sheet for this misdemeanor. Wooten testified that he was 

present, went to the magistrate's office, and observed the 

defendant place his thumb print on the arrest sheet. 

 Officer Wooten testified that there came a point in time 

when he found that the defendant was using the name of Malcolm 

Bishop. He was charged with a parole violation, and the papers 

for the violation had already been executed upon him. Based on 

this information, Wooten obtained warrants for forgery based upon 

the defendant's signature on the three Virginia Uniform 

Summonses. At trial, Wooten identified the defendant as the 

person who signed the traffic summonses in his presence. 

 Detective David S. Tweedie, a detective in the Forensic Unit 

of the Richmond Police Department, qualified as an expert in 

fingerprint analysis. The forensic unit is the custodian of all 

mug shot records and fingerprint records of all arrestees in the 

City of Richmond. He testified that the forensic unit maintained 

a fingerprint card in the name of Malcolm Terrell Bishop dated 

November 16, 1993, date of birth August 10, 1975. He testified 
 4 

that the unit did not have a fingerprint card under the name of 

Richard Saunders. Tweedie received the Sanders arrest sheet 

containing Sanders' thumb print. Tweedie compared this print 

with the prints in the fingerprint records and found it identical 

with the fingerprint of Malcolm Terrell Bishop. He testified 

that since no two people have the same fingerprints, he concluded 

that Bishop and Sanders were the same person. Therefore, the 

person who placed his fingerprint on the Bishop card in the 

forensic unit's files was the same person who placed his 

fingerprint on the arrest sheet. At trial, the Commonwealth's 

attorney and defense counsel stipulated that if fingerprints were 

taken on that day, the print on the arrest sheet and the 

fingerprints on the fingerprint card would match. 

 The evidence disclosed that arrest sheets customarily are 

prepared by police officers on the street. Here, Detective 

Wooten was present when the defendant's arrest sheet was prepared 

and he saw the defendant place his thumb print on it. He 

identified the arrest sheet at trial. 

 II. Sufficiency of the Evidence

 The defendant contends that the Commonwealth failed to 

establish whether his true identify was Malcolm Bishop or Richard 

Sanders. He asserts that the evidence only showed that on a 

prior occasion, he used the name Malcolm Bishop. He claims that 

when he was previously arrested, he gave the name of Malcolm 

Bishop and his name may actually have been Richard Sanders. 
 5 

Therefore, the evidence was insufficient as a matter of law to 

show that by signing the three summonses as Richard Sanders he 

committed forgeries. If the defendant is Richard Sanders, then 

the evidence is insufficient to convict him of forgery. 

 The Commonwealth asserts that the fingerprint card in the 

forensic unit records establishes that the name "Malcolm Terrell 

Bishop" matched the thumb print on Richard Sanders' arrest sheet. 

 At the time of his arrest, the defendant gave the name of 

"Richard Saunders." After realizing that the birth date he gave 

did not match the age he claimed to be, the defendant changed his 

story and told the police he was "Richard Sanders." The 

Commonwealth contends that the defendant falsely signed the three 

summonses as "Richard Sanders" in order to mislead the police 

because he was wanted for a parole violation under the name of 

"Malcolm Bishop"; that he lied to the police about his name and 

age; and he previously admitted to law enforcement officials that 

his name was "Malcolm Terrell Bishop." Therefore, the trial 

court's finding of fact was not plainly wrong and was sufficient 

to support the convictions of forgery and should not be disturbed 

on appeal. 

 "On appeal, we review the evidence in the light most 

favorable to the Commonwealth, granting to it all reasonable 

inferences fairly deducible therefrom." Martin v. Commonwealth, 

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

 "'In testing the credibility and weight to be 

ascribed in the evidence, we must give the 

trial courts and juries the wide discretion 
 6 

to which a living record, as distinguished 

from a printed record, logically entitles 

them. The living record contains many 

guideposts to the truth which are not in the 

printed record; not having seen them 

ourselves, we should give great weight to the 

conclusions of those who have seen and heard 

them.'" 

Nicholas v. Commonwealth, 15 Va. App. 188, 194, 422 S.E.2d 790, 

794 (1992) (citations omitted). It is within the fact finder's 

discretion to determine whether the testimony of witnesses is 

credible. See Fordham v. Commonwealth, 13 Va. App. 235, 239, 409 

S.E.2d 829, 831 (1991). 

 The issue is not a matter of degree when the law says that 

it is for the fact finder to judge the credibility of witnesses. 

 If the witness states facts which, if true, are sufficient to 

support the decision, then the fact that the witness' credit is 

impeached by contradictory statements affects only the witness' 

credibility; contrary statements go to the weight and sufficiency 

of the testimony. If the fact finder sees fit to base the 

decision upon that testimony, there can be no relief in the 

appellate court. See Simpson v. Commonwealth, 199 Va. 549, 

557-58, 100 S.E.2d 701, 707 (1957). 

 In this case, the trial judge made the following findings: 

 The proof offered by the Commonwealth 

suggests from the officers that in their 

presence Richard Sanders signed three 

Virginia Uniform Summons, there's no contest 

to that. He previously and in the records of 

the . . . police department had a fingerprint 

card in the name of Malcolm Terrell Bishop, 

which matches, according to the testimony, 

exactly the fingerprint on the arrest card, 

which the officers also saw taken at the time 
 7 

of the arrest at the police station. That 

leads to a photograph, which the Court will 

indicate it has looked at and if it's not Mr. 

Bishop or Mr. Sanders then I would be very 

surprised. It seems to match exactly the 

defendant. He also gave to the officer an 

improper name [Saunders], an improper birth 

date. When caught doing that he changed the 

name [Sanders] slightly and changed the birth 

date to a different birth date than Malcolm 

Terrell Bishop. The indication to the Court 

is that he has attempted to through [sic] 

[throw] off the police about who he is by his 

signing that. It was done so improperly and 

as part of this offense and it meets the 

requirements of this offense. 

 The record establishes that the defendant had a motive to 

fabricate his name and age when he discussed the traffic 

infraction and reckless driving charge with the police on May 15, 

1995. A person's motive or reason for committing a crime can 

generally be shown in order to explain why the offense was 

committed. See Williams v. Commonwealth, 208 Va. 724, 730, 160 

S.E.2d 781, 785 (1968). He had facing him a parole violation. 

The papers on the violation had already been served upon him. 

The judge, in this case, was entitled to conclude from the 

evidence that the defendant was being less than straight-forward 

with the police because further charges would be detrimental at 

the parole hearing. Thus, he had a motive to give a false name 

and age in order that the violations would not be discovered. 

 In Reid v. Commonwealth, 16 Va. App. 468, 471, 431 S.E.2d 

63, 65 (1993), the defendant had been fingerprinted five times 

previously under the name of Dexter Reid. When arrested, he gave 

the name "Gary Shaw," but misspelled "Gary" as "Gray." Id. We 
 8 

found this evidence clearly sufficient to convict for forgery. 

 We find that the trial court's findings of fact are 

supported by credible evidence beyond a reasonable doubt and are 

not plainly wrong. 

 II. 

 "Hearsay evidence is defined as a spoken or written 

out-of-court declaration or nonverbal assertion offered in court 

to prove the truth of the matter asserted therein." Arnold v. 

Commonwealth, 4 Va. App. 275, 279-80, 356 S.E.2d 847, 850 (1987). 

 The business records exception allows 

introduction into evidence of regular 

business entries of persons, other than the 

parties, where the entrant is unavailable to 

testify at trial and where the 

trustworthiness of the entries are 

established by showing the regularity of 

preparation of the records and the fact that 

they are relied upon in the transaction of 

business by those for whom they are kept. 

Hooker v. Commonwealth, 14 Va. App. 454, 456, 418 S.E.2d 343, 344 

(1992). 

 The fingerprint card, arrest sheet and photograph were 

properly admitted as business records exceptions to the hearsay 

rule. The evidence showed that when a person is arrested, he is 

fingerprinted and photographed, usually by the Sheriff's 

Department. The fingerprint cards and photographs are then 

transferred to and kept at the forensic unit. Detective Tweedie 

testified that the fingerprint card and photograph of Malcolm 

Terrell Bishop were maintained in the forensic unit. The 

forensic unit regularly relies on these records in order to 
 9 

conduct its regular business of fingerprint analysis and records 

maintenance. Therefore, appellant's fingerprint card and 

photograph were properly admitted into evidence under the 

business records exception to the hearsay rule. 

 The evidence also showed that police officers prepare arrest 

sheets upon making an arrest. The arrestee's thumb print is 

included on the arrest sheet. Depending on the seriousness of 

the offense, all ten fingerprints may be taken after the arrest 

sheet is completed. Officer Wooten was present when appellant's 

arrest sheet was prepared and appellant's thumb print was taken. 

 This arrest sheet was prepared and maintained in the ordinary 

course of police business and qualifies as a business record 

exception to the hearsay rule. The arrest sheet was properly 

admitted into evidence. 

 For these reasons, the trial court's judgment is affirmed. 

 Affirmed.
 10 

Benton, J., dissenting. 

 To prove forgery under Code § 18.2-168, the Commonwealth 

must prove beyond a reasonable doubt that the defendant's 

signature was false and that he acted with the intent to defraud. 

See Reid v. Commonwealth, 16 Va. App. 468, 471, 431 S.E.2d 63, 

65 (1993). Because the Commonwealth failed to prove that the 

signature "Richard Sanders" was false, I would reverse the 

conviction. Accordingly, I dissent. 

 I. 

 The indictments charged that on May 15, 1995 the defendant 

forged three public records. The evidence at trial proved that 

on May 15, 1995, the defendant was stopped by Officer Wooten for 

traffic violations. When the defendant stated that he did not 

have a driver's license, Wooten asked defendant for his name, 

Social Security number, and date of birth. Wooten testified that 

the defendant "stated his name was Richard Saunders, date of 

birth January 2, 1973." The defendant said he did not know his 

Social Security number. Wooten asked the defendant how old he 

was, and defendant said he was 23. Wooten informed the defendant 

that based on the date of birth he had just given, the defendant 

should only be 22 years old. In response, the defendant said, 

"I'll tell you the truth, my name is Richard Sanders, my date of 

birth is 12/10/73." Wooten then informed the defendant that he 

was issuing summonses and warned the defendant that if he signed 

a false name on the summonses, the defendant would be charged 
 11 

with forgery. The defendant signed his name as "Richard Sanders" 

on three summonses. Each summons charged a separate motor 

vehicle equipment violation. 

 After the defendant was arrested, Wooten took the 

defendant's fingerprints. David S. Tweedie, a detective in the 

forensic unit, testified that the fingerprints the defendant gave 

in Wooten's presence were identical to other fingerprints listed 

under the name "Malcolm Terrell Bishop." The fingerprints on the 

card with the name Bishop were taken on November 16, 1993. 

Tweedie testified that the same person gave both sets of 

fingerprints. 

 II. 

 "[T]he Due Process Clause protects the accused against 

conviction except upon proof beyond a reasonable doubt of every 

fact necessary to constitute the crime with which [the accused] 

is charged." In re Winship, 397 U.S. 358, 364 (1970). 

 It is not sufficient to create a 

suspicion or probability of guilt, but the 

evidence must establish guilt of the accused 

beyond a reasonable doubt. It must exclude 

every reasonable hypothesis except that of 

guilt. The guilt of the party is not to be 

inferred because the facts are consistent 

with his guilt, but they must be inconsistent 

with his innocence. 

Allen v. Commonwealth, 211 Va. 805, 808, 180 S.E.2d 513, 515 

(1971). "'[W]here a fact is equally susceptible of two 

interpretations one of which is consistent with the innocence of 

the accused, [the trier of fact] cannot arbitrarily adopt that 
 12 

interpretation which incriminates him.'" Corbett v. 

Commonwealth, 210 Va. 304, 307, 171 S.E.2d 251, 253 (1969) 

(citation omitted). 

 The evidence failed to prove the defendant's true identity 

beyond a reasonable doubt. At most, the Commonwealth proved that 

the defendant has used in the past the name "Malcolm Terrell 

Bishop." However, no evidence proved that the defendant's true 

name is not "Richard Sanders." 

 The fact that a fingerprint card matching the defendant's 

fingerprints contained the signature of "Malcolm Terrell Bishop" 

as the name of the person fingerprinted does not prove that the 

defendant's true identity is "Malcolm Terrell Bishop." Indeed, 

Detective Tweedie testified as follows: 

 [If] [a] person comes to us . . . for the 

first time as John Doe, he will be carried in 

the police department as John Doe forever. 

If he comes in subsequently with another name 

all of those names are added as alias[es], 

even if it's maintained somewhere along the 

way that one of those subsequent names is 

actually the given name. We carry one name 

throughout as being the name of the person as 

they came through the first time. 

 Tweedie's testimony reveals that, regardless of the 

individual's true identity, the name the individual gives during 

his first arrest will be the name used to classify all of that 

individual's fingerprints. Thus, the defendant's 1993 

fingerprints established, at most, that the defendant told the 

police in 1993 that his name was "Malcolm Terrell Bishop." That 

evidence did not establish that defendant's true identity is 
 13 

"Malcolm Terrell Bishop." 

 Furthermore, the indictment in this case did not charge that 

the defendant signed his name as Bishop in 1993 and Sanders in 

1995, and, thereby, did forge one of the two documents. By 

charging that the defendant forged a public document on May 15, 

1995, the Commonwealth undertook to prove that the defendant's 

name was not "Richard Sanders." The proof failed. Indeed, the 

Commonwealth failed to exclude the reasonable hypothesis that the 

defendant's name is in fact "Richard Sanders." 

 The evidence in this case is much less probative than the 

evidence this Court found sufficient in Reid, 16 Va. App. at 

471-72, 431 S.E.2d at 65. In Reid, the evidence proved that the 

accused had signed his name as Dexter Reid five times in the 

past. See id. at 471, 432 S.E.2d at 65. The evidence also 

showed that the defendant in Reid misspelled the name he orally 

gave to the police. See id. Unlike Reid, the evidence in this 

case proved that the defendant had signed "Malcolm Terrell 

Bishop" only once. In addition, although the officer testified 

that the defendant initially pronounced his name "Saunders," the 

defendant did not misspell "Sanders," the name the defendant 

later told the officers was his true name. 

 The indictment charged that the defendant forged public 

records on May 15, 1995. Thus, proof that "Richard Sanders" was 

a fictitious or assumed name was an essential element of the 

offense charged in this case. See Bullock v. Commonwealth, 205 
 14 

Va. 558, 560-61, 138 S.E.2d 261, 263 (1967). The evidence in the 

record was insufficient to prove beyond a reasonable doubt that 

essential element. 

 For these reasons, I would reverse the conviction. 

Accordingly, I dissent.