Boone v. Commonwealth

• Court: Supreme Court of Virginia
• Decided: April 18, 2013
• Docket: 121144
• Status: Published

Opinion

PRESENT: All the Justices

LONNIE LORENZO BOONE OPINION BY v. Record No. 121144 JUSTICE WILLIAM C. MIMS April 18, 2013 COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

In this appeal, we consider whether Code § 18.2-308.2(A)

limits the number of convictions the Commonwealth may prove in

a trial upon an indictment charging possession of a firearm by

a person previously convicted of a violent felony.

I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW

Lonnie Lorenzo Boone was indicted upon a charge of

knowingly and intentionally possessing or transporting a

firearm after having previously been convicted of a violent

felony, in violation of Code § 18.2-308.2(A). At a jury trial,

the Commonwealth offered as evidence one prior conviction for

robbery, in violation of Code § 18.2-58, and four prior

convictions for burglary, in violation of Code § 18.2-91. Each

of these offenses is a violent felony. Code § 18.2-308.2(A)

(incorporating Code § 17.1-805(C)).

Boone objected to the Commonwealth’s evidence, arguing

that the phrase “previously convicted of a violent felony” in

Code § 18.2-308.2(A) limited the Commonwealth to adducing

evidence of only one prior conviction for a violent felony. Admitting all five prior convictions into evidence, Boone

continued, would be cumulative and prejudicial. The circuit

court overruled the objection and admitted the evidence.

Thereafter, the jury returned a guilty verdict and imposed a

sentence of five years’ incarceration.

Boone appealed to the Court of Appeals, which affirmed the

circuit court’s judgment by unpublished, per curiam order.

This appeal followed.

II. ANALYSIS

The only issue is whether Code § 18.2-308.2(A) limits the

evidence the Commonwealth may adduce to prove the offense.

That is a question of statutory interpretation, which we review

de novo. Belew v. Commonwealth, 284 Va. 173, 177, 726 S.E.2d

257, 259 (2012).

Code § 18.2-308.2(A) provides that

[i]t shall be unlawful for . . . any person who has been convicted of a felony . . . to knowingly and intentionally possess or transport any firearm . . . . [A]ny person who violates this section by knowingly and intentionally possessing or transporting any firearm and who was previously convicted of a violent felony as defined in § 17.1-805 shall be sentenced to a mandatory minimum term of imprisonment of five years.

Boone contends that by using the phrase “previously

convicted of a violent felony,” the General Assembly intended

to permit the Commonwealth to adduce evidence of only one prior

2 violent felony conviction. Accordingly, he continues, the

Commonwealth was required to choose one prior conviction from

the five available. He asserts the other four convictions were

cumulative and prejudicial, and the circuit court erred in

admitting them as evidence. We disagree.

In Pittman v. Commonwealth, 17 Va. App. 33, 434 S.E.2d 694

(1993), the Court of Appeals acknowledged the Commonwealth’s

prerogative to choose what evidence to offer to the fact-finder

to meet its burden of proof. The court held that “[t]he

Commonwealth . . . is entitled to prove its case by evidence

that is relevant, competent and material. [A]n accused cannot

. . . require the Commonwealth to pick and choose among its

proofs, to elect which to present and which to forego.” Id. at

35, 434 S.E.2d at 695-96. Accordingly, where the existence of

one or more prior convictions is a necessary element to obtain

a conviction, “the Commonwealth [i]s not obliged to have faith

that the jury would be satisfied with any particular one or

more of the items of proof. Therefore, it was entitled to

utilize its entire arsenal” of prior convictions to meet its

burden. Id. at 35-36, 434 S.E.2d at 696. We agree.

Boone argues that his case is distinguishable from Pittman

because the defendant in that case was charged with felony

larceny, in violation of former Code § 18.2-104(b). Under that

statute, a person convicted of larceny after a third or

3 subsequent prior conviction for larceny was guilty of a Class 6

felony. Former Code § 18.2-104(b) (1988 Repl. vol.).

Therefore, the Commonwealth was required to prove multiple

prior convictions in Pittman. By contrast, Boone argues, the

Commonwealth was limited to proving only “a” prior violent

felony conviction in his case. This is a distinction without a

difference.

Both former Code § 18.2-104(b) and Code § 18.2-308.2(A)

establish the elements of their respective offenses. Neither

provides a rule of evidence constraining the Commonwealth’s

prerogative to prove those elements with its choice of the

available evidence. Like the phrase “a third[] or any

subsequent offense” in former Code § 18.2-104(b), the phrase

“previously convicted of a violent felony” in Code § 18.2-

308.2(A) merely sets forth an additional element the

Commonwealth is required to prove beyond a reasonable doubt to

obtain an enhanced sentence. Compare former Code § 18.2-104(b)

(elevating larceny from a Class 1 misdemeanor to a Class 6

felony when the additional element is proven) with Code § 18.2-

308.2(A) (imposing a five-year mandatory minimum sentence when

the additional element is proven). Accordingly, while the

article “a” in Code § 18.2-308.2(A) does, as Boone argues,

reflect legislative intent that proof of only one violent

felony is necessary to obtain the enhanced sentence, that

4 article does not limit the evidence the Commonwealth may adduce

to prove it.

Two considerations support this reading of the statute.

First, as noted in Pittman, the jury may not be satisfied with

the evidence of one or more of the convictions upon which the

Commonwealth relies. 17 Va. App. at 35-36, 434 S.E.2d at 696.

Second, one or more of the convictions may later be vacated by

appellate or collateral proceedings. For example, in Conley v.

Commonwealth, 284 Va. 691, 733 S.E.2d 927 (2012), the defendant

was convicted of felony third-offense driving under the

influence (“DUI”) while a petition for a writ of habeas corpus

with respect to his second DUI conviction was pending in this

Court. We granted the defendant’s petition and the second DUI

conviction thereafter was dismissed. The validity of his

felony third-offense DUI conviction therefore was in doubt and

that conviction became the subject of a petition for a writ of

actual innocence in the Court of Appeals. Id. at 692-93, 733

S.E.2d at 928.

It thus behooves the Commonwealth to create a record at

trial that will preserve the integrity of the conviction being

sought, in the event a conviction on which it relies at trial

is subsequently overturned in later appellate or collateral

proceedings. Cf. Rushing v. Commonwealth, 284 Va. 270, 277-78,

726 S.E.2d 333, 338-39 (2012) (vacating a conviction where the

5 evidence in the record was insufficient to prove a necessary

element after the exclusion of evidence improperly admitted at

trial).

This conclusion does not give the Commonwealth unfettered

license to admit every relevant conviction of a serial

criminal. To the contrary, the trial court retains its

discretion to exclude evidence as repetitious and cumulative.

See Harrison v. Commonwealth, 244 Va. 576, 585, 423 S.E.2d 160,

165 (1992). Similarly, the trial court may exclude evidence

when, in the court’s sound discretion, its prejudicial effect

substantially exceeds its probative value. Juniper v.

Commonwealth, 271 Va. 362, 412, 626 S.E.2d 383, 415 (2006);

Goins v. Commonwealth, 251 Va. 442, 461-62, 470 S.E.2d 114, 127

(1996); see also Va. R. Evid. 2:403.

Citing Old Chief v. United States, 519 U.S. 172 (1997),

Boone argues that evidence of his prior convictions was

especially prejudicial. In Old Chief, the defendant was

charged with possession of a firearm after having previously

been convicted of a felony, in violation of 18 U.S.C. §

922(g)(1). The indictment specifically charged that the

defendant had previously been convicted of assault. He moved

to exclude any evidence of the prior conviction, other than the

fact of its existence, and offered to stipulate that the prior

6 conviction was entered upon a felony charge within the meaning

of the federal statute. Id. at 174-75.

The United States refused the offered stipulation. The

federal district court acknowledged the prosecution’s

prerogative to prove its case with the evidence of its choosing

and denied the defendant’s motion. Id. at 177. He appealed to

the United States Circuit Court of Appeals for the Ninth

Circuit, which affirmed. Id.

On further appeal, however, the Supreme Court of the

United States reversed. The Court held that the fact the

prosecution was required to prove was the existence of a

conviction for a crime within the class of crimes set forth in

18 U.S.C. § 922(g)(1). Because the defendant had offered to

stipulate to that fact, the probative value of the conviction

record itself was outweighed by the substantial risk of

prejudice to the defendant. It therefore should have been

excluded under Rule 403 of the Federal Rules of Evidence. Id.

at 190-92.

The conspicuous factor distinguishing Old Chief from this

case is the absence of any offer by Boone to stipulate to the

fact that he had previously been convicted of a violent felony.

In the absence of such a stipulation, the Commonwealth retained

the burden of proving that fact beyond reasonable doubt. As

discussed above, within certain limits the Commonwealth was

7 entitled to offer whatever evidence was available in its

attempt to meet that burden.

Boone argues that, under Glover v. Commonwealth, 3 Va.

App. 152, 348 S.E.2d 434 (1986), which we summarily affirmed,

236 Va. 1, 372 S.E.2d 134 (1988) (per curiam), he was not

permitted to offer to stipulate to the fact of conviction.

However, nothing in Glover prohibits a defendant from offering

to stipulate to a fact the Commonwealth must prove at trial.

Rather, Glover merely concludes that the Commonwealth is not

required to accept such an offer if one is made. Id. at 162,

348 S.E.2d at 441. Boone made no such offer, so there was

nothing for the Commonwealth to accept or reject. *

Because Code § 18.2-308.2(A) establishes the elements of

the offense rather than a rule of evidence by which the

elements may be proven, the statute does not limit the

Commonwealth’s prerogative to meet its burden of proof using

whatever available evidence it chooses. Accordingly, the

circuit court did not abuse its discretion in admitting the

five conviction orders and the Court of Appeals did not err in

affirming Boone’s conviction and sentence. We therefore will

affirm the judgment of the Court of Appeals.

* This case therefore does not present and we do not consider the question whether Old Chief affects the continuing validity of Glover.

8 Affirmed.