COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Annunziata and Overton
Argued at Richmond, Virginia
KELLY YVETTE TIMBERS
OPINION BY
v. Record No. 1702-97-2 JUDGE ROSEMARIE ANNUNZIATA
AUGUST 18, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF MADISON COUNTY
Lloyd C. Sullenberger, Judge
Diana H. Wheeler for appellant.
Marla Graff Decker, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Kelly Yvette Timbers (appellant) was convicted of two counts
of forgery. In this appeal, she challenges the trial court's
admission into evidence of statements she made to a deputy
sheriff while she was incarcerated in a Madison County holding
cell. She contends the statements were obtained in violation of
Miranda v. Arizona, 384 U.S. 436 (1966), and that the statements
were the unlawful fruit of an earlier detention in violation of
the Fourth Amendment. She also contends the evidence was
insufficient to support her convictions for forgery. We hold
that law enforcement authorities violated appellant's Miranda
rights to obtain her statement, and we reverse her convictions
for forgery.
On November 15, 1996, law enforcement authorities executed a
search warrant at an apartment complex in Madison County. In
addition to searching appellant's apartment, law enforcement
authorities searched the apartment of John Johnson. Johnson
owned a blue Lincoln Town Car which he sometimes loaned out in
trade for crack cocaine. During the execution of the search
warrant, an officer saw the blue Lincoln enter the area of the
apartment building.
The Lincoln then left the area of the apartment building and
drove away. An officer of the Virginia State Police stopped the
Lincoln because he was instructed to do so by an undisclosed
person on his radio. During a search of the Lincoln, law
enforcement officers found a small packet of cocaine in the car,
and a Madison County deputy arrested appellant, who was the
driver, and the other occupant of the car.
At the sheriff's office, Deputy Robert MacFall asked
appellant for identifying information, including her name, date
of birth, and Social Security number. Appellant told MacFall
that her name was Gwendolyn Ann Timbers. After appellant was
fingerprinted, she signed the fingerprint card and a Central
Criminal Records Exchange (CCRE) form with the name, "Gwendy
Timbers." MacFall prepared and served appellant with a warrant
for possession of cocaine.
Between a half-hour and an hour after appellant's booking,
while appellant was in the holding cell at the sheriff's office,
a woman came into the lobby of the sheriff's office and asked to
give MacFall an item of clothing for Kelly Timbers. MacFall
testified that, after this exchange, he immediately went "to the
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holding cell where we had Ms. Timbers and questioned her as to
what her real identity was." When asked to specify his actions,
MacFall testified as follows: "I went to the holding cell door,
I called her by the name of Kelly Timbers and she looked at me.
And I told her if she was Kelly Timbers, that she needed to come
forth with that information." MacFall testified that he did not
directly ask appellant if her name was Kelly.
Appellant acknowledged that she was actually Kelly Timbers.
Appellant was not advised of her Miranda rights at any point
prior to this acknowledgement. The deputy charged appellant with
one count of forgery for the fingerprint card, one count of
forgery for the CCRE card, and one count of giving false
information to a police officer, in addition to possession of
cocaine.
Appellant moved to suppress the cocaine on the basis that no
reasonable suspicion supported the stop of the Lincoln, and moved
to suppress the fingerprint cards and the statement she made in
the holding cell that she was in fact Kelly Timbers on the basis
that these statements were fruits of the unlawful stop. After a
hearing, the trial court granted the motion to suppress the
cocaine on the basis that no evidence established that the person
who ordered the Lincoln stopped had reasonable suspicion to
justify the stop. The court denied the motion to suppress the
fingerprint cards and statement, reasoning that "there is a new
act occurring here and this is not a fruit of the poisonous
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tree."
On the basis of evidence introduced in the first suppression
hearing, appellant filed a motion to suppress her statements to
the deputy on the basis that the statements were obtained in
violation of her Miranda rights. At a hearing on appellant's
second motion, appellant testified that MacFall approached the
holding cell where she was incarcerated, asked if she was Kelly
Timbers, and told her that he knew she was Kelly Timbers, so she
might as well admit it. She testified that MacFall left for five
to ten minutes, then returned and told her that someone had come
to the office and said that appellant's name was Kelly.
According to appellant, MacFall told her that someone was going
to retrieve a picture of appellant, so appellant should admit
that her name was Kelly. Appellant testified that MacFall left
again, returned, and told her that they would not press charges
if she admitted her name was Kelly. Appellant testified that she
admitted her identity at this point.
The court denied appellant's motion to suppress her
statements. The court found MacFall's testimony to be credible
and found that the sequence of events was not as appellant
described. The court specifically found as follows: "Certainly
the defendant was in custody, but what occurred was not
interrogation." After a trial without a jury, the court found
appellant not guilty of providing false information to a police
officer, but found her guilty of both counts of forgery.
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I.
Miranda
Appellant contends her statement in the holding cell that
she was in fact Kelly Timbers was obtained in violation of
Miranda v. Arizona, 384 U.S. 436 (1966). We are bound by the
trial court's findings of historical fact unless those findings
are plainly wrong or without evidence to support them. See,
e.g., McGee v. Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d
259, 261 (1997) (en banc) (citing Ornelas v. United States, 517
U.S. 690, 699 (1996)). We review de novo questions of law and
the trial court's application of defined legal standards to the
particular facts of a case. See, e.g., Quinn v. Commonwealth, 25
Va. App. 702, 712-13, 492 S.E.2d 470, 475-76 (1997) (citing
cases) (holding that whether a person has invoked her Miranda
right to counsel and whether she has waived that right are
reviewed de novo); McGee, 25 Va. App. at 198, 487 S.E.2d at 261
(1997) (citing cases) (holding that issue of whether seizure
occurred is reviewed de novo); Shears v. Commonwealth, 23 Va.
App. 394, 398, 477 S.E.2d 309, 311 (1996) (citing Ornelas, 517
U.S. at 699) (holding that determinations of reasonable suspicion
and probable cause are reviewed de novo); Watson v. Commonwealth,
19 Va. App. 659, 663, 454 S.E.2d 358, 361 (1995) (citing Wilson
v. Commonwealth, 13 Va. App. 549, 551, 413 S.E.2d 655, 656 (1992)
(holding that issue of whether a seizure continues or has abated
is reviewed de novo).
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"[T]he prosecution may not use statements, whether
exculpatory or inculpatory, stemming from custodial interrogation
of the defendant unless it demonstrates the use of procedural
safeguards effective to secure the privilege against
self-incrimination," commonly known as Miranda warnings.
Miranda, 384 U.S. at 444. "Failure to give Miranda warnings
prior to custodial interrogation requires suppression of any
illegally obtained statements." Blain v. Commonwealth, 7 Va.
App. 10, 13, 371 S.E.2d 838, 840 (1988) (citing Miranda, 384 U.S.
at 479). "Before Miranda is triggered, however, an individual
must be both in 'custody' and subjected to 'interrogation.'" Id.
The Commonwealth concedes that appellant was not
administered Miranda warnings at any point prior to her
statement. Similarly, the Commonwealth conceded in the trial
court that appellant was in custody at the time of the statement
and is bound by that concession here. See, e.g., Johnson v.
Commonwealth, 26 Va. App. 674, 683, 496 S.E.2d 143, 147 (1998)
(citing Manns v. Commonwealth, 13 Va. App. 677, 679-80, 414
S.E.2d 613, 615 (1992)). Initially, we must determine whether
appellant was subjected to interrogation, i.e., "express
questioning or its functional equivalent." See Rhode Island v.
Innis, 446 U.S. 291, 300-01 (1980). The Commonwealth also argues
that MacFall's statements to appellant fall under a "routine
booking question" exception to Miranda, and that, even if
appellant's statements were obtained in violation of Miranda, the
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exclusionary rule should not apply because the Commonwealth would
have inevitably discovered the evidence. Finally, the
Commonwealth argues that the admission of appellant's statements
was harmless error.
A.
Functional Equivalent of Questioning
After hearing evidence that appellant's name was Kelly
Timbers rather than Gwendolyn Timbers, MacFall called appellant
by the name Kelly Timbers and told her that, if she was Kelly
Timbers, she needed to come forth with that information. MacFall
did not expressly question appellant. For Miranda purposes,
however, interrogation also includes the functional equivalent of
questioning. Innis, 446 U.S. at 300-01.
The Supreme Court has defined the functional equivalent of
questioning as "any words or actions on the part of the police
. . . that the police should know are reasonably likely to elicit
an incriminating response from the suspect." Innis, 446 U.S. at
301; see also Pennsylvania v. Muniz, 496 U.S. 582, 600-01 (1990)
(citing Innis, 446 U.S. at 301); Arizona v. Mauro, 481 U.S. 520,
526-27 (1987) (citing Innis, 446 U.S. at 301). The Supreme Court
indicated that whether a practice "is designed to elicit an
incriminating response" is a factor in determining whether the
practice is "reasonably likely" to elicit an incriminating
response. Innis, 446 U.S. at 301-02 n.7.
Virginia courts have formulated and applied the Innis
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standard in several ways. In applying the Innis standard,
Virginia courts have discussed (1) the subjective intent of the
police, see, e.g., Wright v. Commonwealth, 2 Va. App. 743, 746,
348 S.E.2d 9, 12 (1986) (noting "the total absence of any
evidence that the questioning here was intended or designed to
produce an incriminating response"), (2) the objective likelihood
of self-incrimination, see, e.g., Riddick v. Commonwealth, 22 Va.
App. 136, 145, 468 S.E.2d 135, 139 (1996) (citing Innis, 446 U.S.
at 301) (explaining that "police activities reasonably incidental
to arrest and custody . . . are unlikely to elicit an
'incriminating response'"), and (3) an objective evaluation of
the manifestation of the officer's intent. See, e.g., Blain, 7
Va. App. at 15, 371 S.E.2d at 841 (interpreting the Innis
standard to require "a determination whether an objective
observer would view an officer's words or actions as designed to
elicit an incriminating response").
An interpretation of the "reasonably likely to elicit an
incriminating response" test as purely objective would require a
case-by-case evaluation of how likely a defendant is to respond
to a given statement by police. See Wayne R. LaFave & Jerold H.
Israel, Criminal Procedure § 6.7(a) (1984). A requirement of
actual proof that "questioning . . . was intended or designed to
produce an incriminating response," Wright, 2 Va. App. at 746,
348 S.E.2d at 12, on the other hand, is contrary to the Supreme
Court's admonition that the definition of interrogation "focuses
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primarily upon the perceptions of the suspect, rather than the
intent of the police." Innis, 446 U.S. at 301.
Although Virginia courts have articulated the requirements
of the Innis standard in several ways, we are bound by the
interpretation of Innis outlined in Blain, 7 Va. App. at 15, 371
S.E.2d at 841. See Johnson v. Commonwealth, 252 Va. 425, 430,
478 S.E.2d 539, 541 (1996) (holding that a decision by one panel
of this Court is binding on a subsequent panel unless overruled
by this Court sitting en banc or the Supreme Court of Virginia).
In Blain, we held: "We interpret the Innis standard as
requiring a determination of whether an objective observer would
view an officer's words or actions as designed to elicit an
incriminating response." 7 Va. App. at 15, 371 S.E.2d at 841.
Although other Virginia cases have applied the Innis test as
either purely subjective or purely objective, Blain contains the
only square holding on the issue. The Blain interpretation is
also "consistent with the result reached in Innis, 'will not be
difficult to apply' because it is an objective test which does
not require a determination of the actual perception of the
suspect, but yet is 'fully responsive to the concerns of the
Miranda decision' because it identified the situation in which
the subject 'will experience the "functional equivalent" of
direct questioning' by concluding that the police are trying to
get him to make an incriminating response." LaFave & Israel,
supra, at § 6.7(a) (quoting Welsh S. White, Interrogation Without
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Questions: Rhode Island v. Innis and United States v. Henry, 78
Mich. L. Rev. 1209, 1236 (1980)).
Applying this standard, we hold that MacFall's statements to
appellant constituted interrogation. After learning that
appellant's real name was probably Kelly Timbers rather than
Gwendolyn Timbers, MacFall went to the holding cell door and
called appellant by the name Kelly Timbers. In the first
testimony he gave on the issue, MacFall described this exchange
as "question[ing] her as to what her real identity was." After
appellant looked at MacFall, MacFall told her that if she was
Kelly Timbers, she needed to admit that fact. MacFall testified
that in response to these statements, appellant "came clean to me
and said that she was actually Kelly Yvette Timbers." A
reasonable observer would view MacFall's statements as designed
to elicit appellant's incriminating statement that she was, in
fact, Kelly Timbers.
B.
Routine Booking Question Exception
The Commonwealth argues that Miranda warnings were
unnecessary because MacFall's interrogation of appellant was an
attempt to obtain accurate booking information pursuant to arrest
and custody. In Innis, the Supreme Court of the United States
defined the functional equivalent of interrogation as "any words
or actions on the part of the police (other than those normally
attendant to arrest and custody) that the police should know are
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reasonably likely to elicit an incriminating response from the
suspect." Innis, 446 U.S. at 301.
Applying this definition, we held in Wright, 2 Va. App. at
746, 348 S.E.2d at 12, that the police need not administer
Miranda warnings prior to obtaining biographical information for
a fingerprint card. In so holding, we reasoned as follows:
Under the facts presented here, we believe
that [the defendant's] statement concerning
his address [made on a fingerprint card] was
obtained as a result of conduct normally
attendant to arrest and custody. We also
note the total absence of any evidence that
the questioning here was intended or designed
to produce an incriminating response. For
these reasons, Miranda warnings were
unnecessary.
Id. As previously discussed, we adopted an interpretation of the
Innis standard in Blain, 7 Va. App. at 15, 371 S.E.2d at 841,
which governs our inquiry in this case: "whether an objective
observer would view an officer's words or actions as designed to
elicit an incriminating response."
In Muniz, 496 U.S. at 601 (plurality opinion) (quoting Brief
of the United States as Amicus Curiae 12 (quoting United States
v. Horton, 873 F.2d 180, 181 n.2 (8th Cir. 1989))), a
four-justice plurality of the Supreme Court 1 reiterated the Innis
1
Four justices found it "unnecessary to determine whether the
questions fall within the 'routine booking question' exception to
Miranda" recognized by the plurality. Id. at 608 (Rehnquist,
C.J., concurring in part, concurring in the result in part, and
dissenting in part). The ninth justice rejected the "routine
booking question" exception on the basis that the exception
"would necessitate difficult, time-consuming litigation over
whether particular questions asked during booking are 'routine,'
whether they are necessary to secure biographical information,
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"reasonably likely to elicit an incriminating response" standard,
but wrote that the answers to biographical questions asked during
booking "fall within a 'routine booking question' exception which
exempts from Miranda's coverage questions to secure the
'"biographical data necessary to complete booking or pretrial
services."'" In a footnote, the plurality wrote: "As amicus
United States explains, 'recognizing a "booking exception" to
Miranda does not mean, of course, that any question asked during
the booking process falls within that exception. Without
obtaining a waiver of the suspect's Miranda rights, the police
may not ask questions, even during booking, that are designed to
elicit incriminatory admissions.'" Id. at 602 n.14 (plurality
opinion) (quoting Brief for the United States as Amicus Curiae).
No Virginia court has addressed the viability or scope of a
routine booking question exception in Virginia subsequent to
Muniz. Assuming without deciding that a routine booking question
exception exists in Virginia, MacFall's interrogation of
appellant does not fall within the exception. Most importantly,
MacFall did not confront appellant in the holding cell to clarify
an ambiguity in her statements made during booking; rather, he
sought to investigate what he believed to be false information.
In addition, MacFall's statement that if appellant had given a
whether that information is itself necessary for recordkeeping
purposes, and whether the questions are--despite their routine
nature--designed to elicit incriminating testimony." Id. at 608
(Marshall, J., concurring in part and dissenting in part).
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false name, she needed to come forward with that information, can
hardly be considered a routine booking question. Finally,
MacFall's interrogation of appellant does not fall under a
routine booking question because, under the standard in Blain, 7
Va. App. at 15, 371 S.E.2d at 841, a reasonable observer would
view MacFall's statements as designed to elicit appellant's
incriminating statement that she was, in fact, Kelly Timbers.
C.
Inevitable Discovery
The Commonwealth argues that, notwithstanding a violation of
Miranda, we should not apply the exclusionary rule in this case
because the police inevitably would have discovered appellant's
true identity. In Nix v. Williams, 467 U.S. 431, 447 (1984), the
Supreme Court of the United States held that "if the government
can prove that the evidence [obtained by illegal means] would
have been obtained inevitably and, therefore, would have been
admitted regardless of any overreaching by the police, there is
no rational basis to keep that evidence from the jury." We have
explained the requirements of the inevitable discovery doctrine:
the inevitable discovery exception requires
that the prosecution show: "(1) a reasonable
probability that the evidence in question
would have been discovered by lawful means
but for the police misconduct; (2) that the
leads making the discovery inevitable were
possessed by the police at the time of the
misconduct, and (3) that the police also
prior to the misconduct were actively
pursuing the alternative line of
investigation."
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Walls v. Commonwealth, 2 Va. App. 639, 656, 347 S.E.2d 175, 185
(1986) (quoting United States v. Cherry, 759 F.2d 1196, 1204 (5th
Cir. 1985)).
Specifically, the Commonwealth argues that because the
police had appellant's fingerprints, they would have inevitably
discovered appellant's true identity. No Virginia court has
applied the inevitable discovery doctrine outside of the
derivative "fruit of the poisonous tree" context. Furthermore,
no Virginia court has applied the inevitable discovery doctrine
to the suppression of a statement obtained in violation of
Miranda. See Keeter v. Commonwealth, 222 Va. 134, 140 & n.2, 278
S.E.2d 841, 845 & n.2 (1981) (noting in dicta that evidence
seized after assumed illegal entry was not "fruit of the
poisonous tree" because search warrant was in process of
preparation); Warlick v. Commonwealth, 215 Va. 263, 266, 208
S.E.2d 746, 748 (1974) (explaining that inevitable discovery is
an exception to the "fruit of the poisonous tree" doctrine);
Commonwealth v. Ealy, 12 Va. App. 744, 758, 407 S.E.2d 681, 690
(1991) (holding that consent to search a garage was fruit of
illegal search, and rejecting claim that police would have
inevitably searched the garage); Walls, 2 Va. App. at 656-57, 347
S.E.2d at 185 (holding that consent to search a trailer was fruit
of illegal entry, and rejecting claim that police would have
inevitably searched the trailer).
Assuming without deciding that inevitable discovery analysis
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applies in the context of a statement directly obtained in
violation of Miranda, the Commonwealth has not carried its burden
to prove the three Walls factors. The Commonwealth did not argue
the inevitable discovery doctrine to the trial court. In
addition, the Commonwealth did not present evidence at the
hearing that the police were actively pursuing any alternative
line of investigation into appellant's identity. The court
specifically found credible MacFall's denial that he had told
appellant he had sent an officer to Culpeper, Virginia, to obtain
a photograph of her; this action was the only alternative line of
investigation mentioned. Most importantly, the Commonwealth
never presented any evidence that the police fingerprint cards
would have established appellant's identity. We will not exempt
the violation of appellant's Miranda rights from the exclusionary
rule under these circumstances.
D.
Harmless Error
Finally, the Commonwealth argues that the Miranda error, if
any, was harmless. A violation of Miranda is subject to review
for harmless error. Pearson v. Commonwealth, 221 Va. 936, 945,
275 S.E.2d 893, 899 (1981). In Virginia, constitutional error
"is harmless only when the reviewing court is 'able to declare a
belief that it was harmless beyond a reasonable doubt.'"
Lavinder v. Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d 910,
911 (1991) (en banc) (quoting Chapman v. California, 386 U.S. 18,
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24 (1967)).
We cannot say the trial court's error in admitting
appellant's admission that she was Kelly Timbers rather than
Gwendolyn Timbers was harmless. Appellant's admission to MacFall
was the most important evidence admitted at appellant's trial for
forgery on the issue of whether appellant's signature as Gwendy
Timbers was, in fact, false. The only other evidence admitted at
trial on the issue was MacFall's testimony that a person came
into the sheriff's office and asked for Kelly Timbers. Without
testimony as to appellant's admission, there would have been
little evidence of the falsity of appellant's signature. Under
these circumstances, we cannot declare a belief that the error,
if any, was harmless beyond a reasonable doubt. Lavinder, 12 Va.
App. at 1005, 407 S.E.2d at 911 (citing Chapman, 386 U.S. at 24).
Therefore, we reverse appellant's convictions because of the
violation of her Miranda rights. Given our disposition of this
issue, we need not reach appellant's argument that her statement
to MacFall was the fruit of her illegal arrest. Notwithstanding
the fact that we reverse for a Miranda violation, however, we
address appellant's sufficiency of the evidence argument because
the Commonwealth would be barred on double jeopardy grounds from
retrying appellant if we were to reverse for insufficiency of the
evidence. See, e.g., Burks v. United States, 437 U.S. 1, 18
(1978).
II.
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Sufficiency of the Evidence
Appellant argues the evidence was insufficient to support
her convictions for forgery because no evidence at trial proved
that "Gwendy Timbers" was not her usual signature. "When the
sufficiency of the evidence is challenged on appeal, we must
determine whether the evidence, viewed in the light most
favorable to the Commonwealth, and the reasonable inferences
fairly deducible from that evidence, prove every essential
element of the offense beyond a reasonable doubt." Stevenson v.
Commonwealth, 27 Va. App. 453, 459, 499 S.E.2d 580, 583 (1998)
(citing cases), reh'g en banc granted, __ Va. App. __, __ S.E.2d
__ (July 21, 1998). "We will not disturb a jury's verdict unless
it is plainly wrong or without evidence to support it." Id.
(citing George v. Commonwealth, 242 Va. 264, 278, 411 S.E.2d 12,
20 (1991)).
Code § 18.2-172, codifying the common law crime of forgery,
provides that "[i]f any person forge any writing, . . . to the
prejudice of another's right, . . . [she] shall be guilty of a
Class 5 felony." Under the common law, forgery "is defined as
'the false making or materially altering with intent to defraud,
or any writing which, if genuine, might apparently be of legal
efficacy, or the foundation of legal liability.'" Fitzgerald v.
Commonwealth, 227 Va. 171, 173-74, 313 S.E.2d 394, 395 (1984)
(quoting Bullock v. Commonwealth, 205 Va. 558, 561, 138 S.E.2d
261, 263 (1964)).
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Essentially, appellant argues that the evidence was
insufficient to prove that her signature, "Gwendy Timbers," was
false. We hold that the evidence was sufficient to support an
inference that appellant's signature was false.
While being fingerprinted, appellant told MacFall that her
name was Gwendolyn Ann Timbers. Appellant signed the fingerprint
card bearing the name Gwendolyn Ann Timbers with the signature,
"Gwendy Timbers." The trial court was entitled to reasonably
infer that "Gwendy" was a short form of "Gwendolyn." A woman
brought clothing for appellant while appellant was incarcerated
and referred to appellant as "Kelly." The trial court was
entitled to infer from this evidence that appellant was commonly
known as "Kelly" rather than "Gwendy." Finally, when confronted
by MacFall, appellant admitted she was Kelly Timbers and not
Gwendolyn Timbers. Cf. Lockhart v. Nelson, 488 U.S. 33, 41
(1988) (holding that reviewing court should consider all admitted
evidence, including illegally admitted evidence, in assessing the
sufficiency of the evidence to support a conviction). Given this
evidence, the court was entitled to reasonably infer that
appellant falsely signed the name "Gwendy" in conjunction with
her provision of the false name "Gwendolyn." See Reid v.
Commonwealth, 16 Va. App. 468, 471-72, 431 S.E.2d 63, 65 (1993)
(approving inference that defendant signed false name). The
evidence, along with the reasonable inferences deducible
therefrom, was sufficient to support appellant's convictions.
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We reverse and remand for a new trial, if the Commonwealth
be so advised.
Reversed and remanded.
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