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. 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.

 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. 
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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