Katherine A.Wiglesworth,s/k/a K.A.Wigglesworthv CW

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Benton, Willis and Senior Judge Cole
Argued at Richmond, Virginia
KATHERINE ANN WIGLESWORTH, S/K/A
KATHERINE WIGGLESWORTH
MEMORANDUM OPINION* BY
v. 	Record No. 1291-99-2 	JUDGE JAMES W. BENTON, JR.
APRIL 11, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Thomas N. Nance, Judge
Gregory W. Franklin, Assistant Public
Defender (David J. Johnson, Public Defender,
on brief), for appellant.
Kathleen B. Martin, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
The trial judge convicted Katherine Ann Wiglesworth of escape
from the custody of a police officer in violation of Code
§ 18.2-479 and failure to appear in court in violation of Code
§ 19.2-128. 	Wiglesworth contends the evidence was insufficient to
support the escape conviction because no witness identified her as
the perpetrator of the offense. 	She also contends the evidence
failed to prove she willfully failed to appear as charged in the
indictment. 	For the reasons that follow, we affirm the conviction

for escape and reverse the conviction for failure to appear in
court.
I.
At trial, City of Richmond Police Officer Wilford Crafton
testified that when he went to a motel to investigate a complaint,
he encountered "the defendant, Katherine Wiglesworth," another
woman, and a man in a motel room. 	After Crafton checked their
identifications, he learned that Wiglesworth was wanted in Henrico
County for breaking and entering and grand larceny. 	Crafton
arrested her and notified the county police.
Henrico County Police Officer Timothy Valite testified that
when he arrived at the motel, he had "contact with the defendant,
Katherine Wiglesworth." 	Officer Valite interviewed Wiglesworth
because he had secured felony warrants the previous day charging
Wiglesworth with breaking and entering and grand larceny. 	After
her interview with Officer Valite, Wiglesworth ran as Officer
Crafton attempted to place her in the police wagon. 	Officer
Crafton chased Wiglesworth 300 yards before he caught her. 	He
then arrested her for escape in violation of Code § 18.2-479.
The record establishes that the preliminary hearing on the
charge of felony escape was set for March 27, 1998, and then
continued to April 28, 1998. 	On April 3, 1998, Wiglesworth signed
a recognizance bond requiring her to appear in the City of
Richmond General District Court for the hearing on April 28, 1998.
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Later, the grand jury indicted Wiglesworth for failing to appear
on April 28 "as required by the terms of her bail bond."
At trial the prosecutor asked Officer Crafton, "Were you
present in the general district court on April 20, 1998?" 	When
the officer answered in the affirmative, the prosecutor asked,
"Did . . . Wiglesworth appear on that day?" 	He testified, "No,
she didn't."
At the completion of the evidence, the trial judge convicted
Wiglesworth of escape from a police officer in violation of Code
§ 18.2-479 and failure to appear in court in violation of Code
§ 19.2-128. 	This appeal followed.
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). 	"In every
criminal prosecution the Commonwealth must establish beyond a
reasonable doubt all elements of the offense and that the accused
did commit it." 	Harwood v. Commonwealth, 5 Va. App. 468, 470, 364
S.E.2d 511, 512 (1988). 	The identity of the perpetrator is "an
essential element of the offense," Woodfin v. Commonwealth, 236
Va. 89, 95, 372 S.E.2d 377, 381 (1988); thus, "the Commonwealth
must prove that fact beyond a reasonable doubt." 	Crawley v.
Commonwealth, 29 Va. App. 372, 378, 512 S.E.2d 169, 172 (1999).
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At trial, the prosecutor asked Officer Crafton whether, on
the day of the investigation, he had "occasion within the City of
Richmond to come in contact with the defendant, Katherine
Wiglesworth." 	The prosecutor also asked Officer Valite whether,
on that same day, he had "occasion to come in contact with the
defendant, Katherine Wiglesworth." 	Both officers responded in the
affirmative.
Wiglesworth contends that these identifications were not
sufficient to warrant her conviction because they do not establish
that the Katherine Wiglesworth the officers arrested was the same
Katherine Wiglesworth present at trial. 	Although the record does
not reflect that either officer physically pointed a finger at the
defendant in court, we believe that act was not necessary to
identify the defendant sitting in the courtroom as the person the
officers arrested. 	The record clearly establishes that
immediately prior to the taking of evidence, the defendant
identified herself to the trial judge as "Katherine Ann
Wiglesworth." 	During their testimony, both officers said that
they detained "the defendant, Katherine Wiglesworth," and that
she was in their custody and presence when the escape and
recapture occurred.
The facts of identification in this case are strikingly
similar to the identification in Sheffey v. Commonwealth, 213 Va.
602, 604, 194 S.E.2d 897, 899 (1973), where the Supreme Court
noted the following:
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While on the witness stand, Lt. Calhoun
did not point his finger at the defendant
Sheffey and say he was the same person that
he arrested in Alexandria on May 19, 1971.
However, it is clear from his testimony that
the John Henry Sheffey then on trial was
that identical person. 	The evidence
sufficiently identifies the defendant, John
Henry Sheffey, as the person arrested and
searched by Calhoun and as the person who
had heroin in his possession as charged in
the indictment.
We hold that Wiglesworth's self identification and the
officer's testimony identifying "the defendant, Katherine
Wiglesworth," was sufficient to prove beyond a reasonable doubt
that the defendant, who was sitting in court in the officers'
presence, was the same person the officers arrested,
interviewed, and captured after her escape.
III.
The record establishes that the preliminary hearing for the
escape charge was continued from March 27, 1998, to April 28,
1998. 	No evidence proved that Wiglesworth failed to appear on
April 28, 1998, for the preliminary hearing. 	The evidence
proved only that she was not in court on April 20, 1998.
Wiglesworth moved to strike the evidence because "there was
never any evidence that she willfully failed to appear in
Court." 	Implicit in the motion is the contention that the
Commonwealth's evidence was insufficient to prove the crime with
which Wiglesworth was charged.
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"Code § 19.2-128(B) requires that the Commonwealth prove
[beyond a reasonable doubt] that the accused 'willfully' failed
to appear at trial." 	Hunter v. Commonwealth, 15 Va. App. 717,
721, 427 S.E.2d 197, 200 (1993). 	The Commonwealth's evidence
proved that Wiglesworth failed to appear on April 20, 1998, a
date upon which she was not scheduled to appear. 	That evidence
was insufficient to prove beyond a reasonable doubt that
Wiglesworth "willfully fail[ed] to appear before [the] court [on
April 28, 1998] as required" for the preliminary hearing.
Accordingly, we reverse that conviction and dismiss the
indictment.
Affirmed, in part,
and reversed and
dismissed, in part.
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