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. 

 

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

designated for publication. 

 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 
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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.