COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Clements and Agee Argued at Salem, Virginia
CLINTON CECIL HARDEN MEMORANDUM OPINION * BY v. Record No. 0758-00-3 JUDGE RICHARD S. BRAY JULY 17, 2001 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG William W. Sweeney, Judge
Dawn E. Wright (Amanda E. Shaw; Office of the Public Defender, on brief), for appellant.
Virginia B. Theisen, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Clinton Cecil Harden (defendant) was convicted in a bench
trial for possession of cocaine, related possession of a firearm
and possession of a firearm by a convicted felon, violations of
Code §§ 18.2-250, -308.4, and –308.2, respectively. On appeal, he
challenges only the conviction for possession of a firearm by a
convicted felon, contending the trial court erroneously granted
the Commonwealth a recess to obtain additional evidence and,
thereafter, permitted introduction of such evidence. Finding no
error, we affirm the conviction.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. The parties are fully conversant with the record, and we
recite only those facts necessary to a disposition of the appeal.
In accordance with well established principles, we review the
evidence in the light most favorable to the party prevailing
below, the Commonwealth in this instance. Watkins v.
Commonwealth, 26 Va. App. 335, 348, 494 S.E.2d 859, 866 (1998)
(citation omitted).
I.
At trial on the instant offense, the Commonwealth, seeking to
establish the requisite prior felony conviction, offered into
evidence "a certified copy of [a] conviction order," "Exhibit 1,"
which memorialized the finding, "Guilty as Charged," of the
Lynchburg Juvenile and Domestic Relations District Court (J&D
court) in an earlier felony prosecution of defendant. Defense
counsel objected, contending the order, absent the related
"disposition or sentencing order," did not properly establish "a
. . . prior conviction." Unable to produce a certified copy of
the attendant disposition order, the Commonwealth moved the court
to "adjourn . . . to allow us [the] opportunity to present [the
J&D court] dispositional order." The court granted the motion,
over defendant's objection, and the Commonwealth "rested its case
in chief[,] subject to the . . . Exhibit 1 matter." The court
then entertained defense motions to strike and recessed "to read
- 2 - the cases" and allow the Commonwealth to pursue "that other
matter."
Shortly thereafter, the proceedings reconvened and the
Commonwealth advised that "paperwork" reflecting disposition of
the J&D prosecution had not been located and elected to rely upon
the "presumption of regularity" accorded the J&D court
adjudication as proof of the prior conviction. In response,
defendant again challenged the sufficiency of the Commonwealth's
evidence to prove the prior felony conviction. Reasoning "that
Exhibit 1 . . . create[d] a prima facie factual case of the
defendant having previously been convicted of a felony," the court
pronounced defendant "guilty as charged in the indictment[]," but
expressly reserved to defendant's counsel the right "to look into
the matter further and present . . . additional evidence[] . . .
within ten days . . . ."
Later that same day, prior to entry of the order reflecting
the court's earlier ruling, counsel for defendant, the prosecutor
and the trial judge were together in chambers on an unrelated
matter, when the prosecutor was delivered a certified copy of the
elusive disposition order, which the court then admitted into
evidence, marked "Exhibit 1A." The subsequent trial order
entered by the court recited the conviction of defendant for the
subject offense but "allow[ed] defense counsel 10 days . . . to
present evidence in objection to Commonwealth's Exhibit #1 and
- 3 - #1A, at which time the court may reconsider its ruling . . . ."
In response to defendant's subsequent written objection to
"Exhibit 1A," the court noted the Commonwealth would be "allow[ed]
to formally introduce the final J&D judgment order at sentencing."
The disputed exhibit, then a part of the record, was again
received into evidence at the sentencing hearing, despite
defendant's objection, resulting in the instant appeal.
II.
As defendant correctly reminds us, the Commonwealth must
prove each element of the subject offense beyond a reasonable
doubt, including a prior felony conviction of defendant. 1 We
further acknowledge "[i]t is . . . now well established in our
jurisprudence that a 'conviction' ordinarily embraces both an
adjudication of guilt and a related sentence, thus concluding a
prosecution by final order." Webb v. Commonwealth, 31 Va. App.
466, 470, 524 S.E.2d 164, 166 (2000). Nevertheless, we do not
agree that the court erroneously granted the Commonwealth's motion
1 Code § 18.2-308.2 provides in pertinent part:
It shall be unlawful for (i) any person who has been convicted of a felony or (ii) any person under the age of twenty-nine who was found guilty as a juvenile fourteen years of age or older at the time of the offense of a delinquent act which would be a felony if committed by an adult, . . . to knowingly and intentionally possess or transport any firearm . . . .
- 4 - to recess the proceedings and, later, improperly admitted the
dispositional order, "Exhibit 1A," into evidence.
In conducting trial, "'the order of proof is a matter
within the sound discretion of the . . . court and [an
appellate] court will not reverse the judgment except in very
exceptional cases, and, unless it affirmatively appears from the
record that this discretion has been abused, [an appellate]
court will not disturb the trial court's ruling.'" Lebedun v.
Commonwealth, 27 Va. App. 697, 715, 501 S.E.2d 427, 436 (1998)
(citation omitted). Similarly, "[w]hether the Commonwealth
should be permitted to introduce evidence in chief after it has
rested is [also] a matter for the sound discretion of the trial
court, and in the absence of abuse, its judgment will not be
disturbed on appeal." Chrisman v. Commonwealth, 3 Va. App. 371,
375-76, 349 S.E.2d 899, 902 (1986). Moreover, the trial court
is expressly empowered by Code § 19.2-183(c) to "adjourn a
trial, pending before [the court], not exceeding ten days at one
time, without the consent of the accused." Code § 19.2-183(c).
Here, the court granted the Commonwealth's motion to
adjourn the proceedings to provide an opportunity to locate the
dispositional order of the J&D court. The Commonwealth then
rested, expressly reserving the right to pursue such evidence in
accordance with the ruling of the court, defense arguments to
strike the evidence were entertained, and the court recessed to
- 5 - consider the issues and permit the Commonwealth to "look into
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COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Clements and Agee Argued at Salem, Virginia
CLINTON CECIL HARDEN MEMORANDUM OPINION * BY v. Record No. 0758-00-3 JUDGE RICHARD S. BRAY JULY 17, 2001 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG William W. Sweeney, Judge
Dawn E. Wright (Amanda E. Shaw; Office of the Public Defender, on brief), for appellant.
Virginia B. Theisen, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Clinton Cecil Harden (defendant) was convicted in a bench
trial for possession of cocaine, related possession of a firearm
and possession of a firearm by a convicted felon, violations of
Code §§ 18.2-250, -308.4, and –308.2, respectively. On appeal, he
challenges only the conviction for possession of a firearm by a
convicted felon, contending the trial court erroneously granted
the Commonwealth a recess to obtain additional evidence and,
thereafter, permitted introduction of such evidence. Finding no
error, we affirm the conviction.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. The parties are fully conversant with the record, and we
recite only those facts necessary to a disposition of the appeal.
In accordance with well established principles, we review the
evidence in the light most favorable to the party prevailing
below, the Commonwealth in this instance. Watkins v.
Commonwealth, 26 Va. App. 335, 348, 494 S.E.2d 859, 866 (1998)
(citation omitted).
I.
At trial on the instant offense, the Commonwealth, seeking to
establish the requisite prior felony conviction, offered into
evidence "a certified copy of [a] conviction order," "Exhibit 1,"
which memorialized the finding, "Guilty as Charged," of the
Lynchburg Juvenile and Domestic Relations District Court (J&D
court) in an earlier felony prosecution of defendant. Defense
counsel objected, contending the order, absent the related
"disposition or sentencing order," did not properly establish "a
. . . prior conviction." Unable to produce a certified copy of
the attendant disposition order, the Commonwealth moved the court
to "adjourn . . . to allow us [the] opportunity to present [the
J&D court] dispositional order." The court granted the motion,
over defendant's objection, and the Commonwealth "rested its case
in chief[,] subject to the . . . Exhibit 1 matter." The court
then entertained defense motions to strike and recessed "to read
- 2 - the cases" and allow the Commonwealth to pursue "that other
matter."
Shortly thereafter, the proceedings reconvened and the
Commonwealth advised that "paperwork" reflecting disposition of
the J&D prosecution had not been located and elected to rely upon
the "presumption of regularity" accorded the J&D court
adjudication as proof of the prior conviction. In response,
defendant again challenged the sufficiency of the Commonwealth's
evidence to prove the prior felony conviction. Reasoning "that
Exhibit 1 . . . create[d] a prima facie factual case of the
defendant having previously been convicted of a felony," the court
pronounced defendant "guilty as charged in the indictment[]," but
expressly reserved to defendant's counsel the right "to look into
the matter further and present . . . additional evidence[] . . .
within ten days . . . ."
Later that same day, prior to entry of the order reflecting
the court's earlier ruling, counsel for defendant, the prosecutor
and the trial judge were together in chambers on an unrelated
matter, when the prosecutor was delivered a certified copy of the
elusive disposition order, which the court then admitted into
evidence, marked "Exhibit 1A." The subsequent trial order
entered by the court recited the conviction of defendant for the
subject offense but "allow[ed] defense counsel 10 days . . . to
present evidence in objection to Commonwealth's Exhibit #1 and
- 3 - #1A, at which time the court may reconsider its ruling . . . ."
In response to defendant's subsequent written objection to
"Exhibit 1A," the court noted the Commonwealth would be "allow[ed]
to formally introduce the final J&D judgment order at sentencing."
The disputed exhibit, then a part of the record, was again
received into evidence at the sentencing hearing, despite
defendant's objection, resulting in the instant appeal.
II.
As defendant correctly reminds us, the Commonwealth must
prove each element of the subject offense beyond a reasonable
doubt, including a prior felony conviction of defendant. 1 We
further acknowledge "[i]t is . . . now well established in our
jurisprudence that a 'conviction' ordinarily embraces both an
adjudication of guilt and a related sentence, thus concluding a
prosecution by final order." Webb v. Commonwealth, 31 Va. App.
466, 470, 524 S.E.2d 164, 166 (2000). Nevertheless, we do not
agree that the court erroneously granted the Commonwealth's motion
1 Code § 18.2-308.2 provides in pertinent part:
It shall be unlawful for (i) any person who has been convicted of a felony or (ii) any person under the age of twenty-nine who was found guilty as a juvenile fourteen years of age or older at the time of the offense of a delinquent act which would be a felony if committed by an adult, . . . to knowingly and intentionally possess or transport any firearm . . . .
- 4 - to recess the proceedings and, later, improperly admitted the
dispositional order, "Exhibit 1A," into evidence.
In conducting trial, "'the order of proof is a matter
within the sound discretion of the . . . court and [an
appellate] court will not reverse the judgment except in very
exceptional cases, and, unless it affirmatively appears from the
record that this discretion has been abused, [an appellate]
court will not disturb the trial court's ruling.'" Lebedun v.
Commonwealth, 27 Va. App. 697, 715, 501 S.E.2d 427, 436 (1998)
(citation omitted). Similarly, "[w]hether the Commonwealth
should be permitted to introduce evidence in chief after it has
rested is [also] a matter for the sound discretion of the trial
court, and in the absence of abuse, its judgment will not be
disturbed on appeal." Chrisman v. Commonwealth, 3 Va. App. 371,
375-76, 349 S.E.2d 899, 902 (1986). Moreover, the trial court
is expressly empowered by Code § 19.2-183(c) to "adjourn a
trial, pending before [the court], not exceeding ten days at one
time, without the consent of the accused." Code § 19.2-183(c).
Here, the court granted the Commonwealth's motion to
adjourn the proceedings to provide an opportunity to locate the
dispositional order of the J&D court. The Commonwealth then
rested, expressly reserving the right to pursue such evidence in
accordance with the ruling of the court, defense arguments to
strike the evidence were entertained, and the court recessed to
- 5 - consider the issues and permit the Commonwealth to "look into
the other matter." Reconvening, the court found defendant
"guilty," subject to the receipt and consideration of further
evidence. Later in the day, before the court had entered the
order memorializing these incidents of trial, the disputed
evidence was produced by the Commonwealth, the record reopened
by the court, and the document introduced and marked "Exhibit
1A."
Clearly, the court did not enter the trial order
adjudicating defendant guilty, which expressly referenced
"Exhibit 1A," until after the exhibit had been received into
evidence. "[A] court speaks only through its written orders.
And, 'orders speak as of the day they were entered.'" Wagner v.
Shird, 257 Va. 584, 588, 514 S.E.2d 613, 615 (1999) (citation
omitted). Thus, the court simply permitted the Commonwealth to
reopen her case-in-chief, while the proceedings remained within
the breast of the court, and introduce the exhibit. The court's
response to defendant's subsequent written objection, advising
the parties that the Commonwealth would be allowed to "formally
introduce" the exhibit at the forthcoming sentencing hearing and
attendant events confirmed the earlier ruling.
The "exercise [of judicial discretion] implies
conscientious judgment, not arbitrary action. It takes account
of the law and the particular circumstances of the case and is
- 6 - 'directed by the reason and conscience of the judge to a just
result.'" Slayton v. Commonwealth, 185 Va. 357, 367, 385 S.E.2d
479, 484 (1946) (citation omitted).
Under the instant circumstances, we find no abuse of
discretion by the court, either in recessing the proceedings or
permitting the Commonwealth to reopen her case-in-chief and
receive "Exhibit 1A" into evidence.
Accordingly, we affirm the conviction.
Affirmed.
- 7 -