COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Elder and Senior Judge Coleman Argued by teleconference
ERIC CHRISTOPHER MOSS MEMORANDUM OPINION * BY v. Record No. 1320-02-3 CHIEF JUDGE JOHANNA L. FITZPATRICK APRIL 22, 2003 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF AMHERST COUNTY J. Michael Gamble, Judge B. Leigh Drewry, Jr. (Cunningham & Drewry, on brief), for appellant.
Margaret W. Reed, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
Eric Christopher Moss (appellant) appeals from a judgment of
the trial court revoking one year of his previously suspended
sentence. The sole issue raised on appeal is whether the evidence
established his identity at the revocation hearing. Finding no
error, we affirm.
I. BACKGROUND
Under familiar principles of appellate review, we examine
the evidence in the light most favorable to the Commonwealth,
the prevailing party below, granting to that evidence all
reasonable inferences fairly deducible therefrom. See Juares v.
Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997).
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. On April 12, 1994 appellant was found guilty of robbery,
attempted robbery and two counts of felonious use of a firearm.
He was sentenced to 28 years with 20 years suspended and placed on
supervised probation for five years from the date of his release.
On July 12, 1999 appellant violated the terms of his probation and
the trial court revoked 4 years of the previously suspended
sentences and re-suspended 16 years with ten years supervised
probation from his date of release from confinement.
On February 26, 2001, appellant was placed on Home Electric
Monitoring (HEM) because of his poor compliance with the
conditions of his probation. He was told that if he "deliberately
damaged, forcibly removed or absconded with the HEM transmitter
and tether, . . . [it] would be a felony offense . . . ."
Appellant absconded, and the theft of the HEM transmitter was the
basis for the grand larceny conviction that triggered the instant
revocation proceeding. On March 25, 2002, appellant appeared in person with counsel
before the Circuit Court of the City of Lynchburg and pled guilty
to grand larceny, in violation of Code § 18.2-95 and was sentenced
to 5 years incarceration. Further "[t]he Court [suspended] 4
years of the aforesaid sentence, leaving 1 year of active time,
and . . . order[ed] that 6 months of that active time . . . run
concurrently with the time the [appellant] serves on his parole
violation." Appellant also received an additional 18 months of
supervised probation upon his release.
The Commonwealth requested issuance of a Rule to Show Cause
based on the new grand larceny conviction and the Rule issued on
March 30, 2002. Appellant was personally served on April 4, 2002
- 2 - by the sheriff's department at the Blue Ridge Regional Jail in
Lynchburg where he was incarcerated on the grand larceny
conviction.
On April 11, 2002, appellant appeared before the trial judge 1
in the Circuit Court for the County of Amherst to appoint counsel
for his revocation hearing. The following colloquy occurred:
THE COURT: You're Mr. Moss, is that right?
[APPELLANT]: Yes, sir.
* * * * * * *
THE COURT: Okay, I'm going to reappoint Mr. Drewry and I'm going to set this hearing on May 6th at two in the afternoon.
[APPELLANT]: Okay.
THE COURT: And I'll let him know that you are going to be over at the Blue Ridge Regional jail and he'll come over there and talk to you.
1 Judge Gamble presided at the hearing on April 11, 2002 and the hearing on May 6, 2002.
- 3 - He appointed counsel and issued a transportation order to bring
appellant to court in Amherst for the hearing on May 6, 2002.
At the revocation hearing on May 6, 2002, the trial judge
stated: "I have the motion to revoke the suspended sentence of
Mr. Moss. . . . Is the defendant ready?" Counsel for appellant
stated, "Yes, Your Honor." The Commonwealth's sole witness was
probation officer Brian Loomis. The Commonwealth asked Loomis:
"The gentleman over here in the orange suit is Mr. Moss, the
defendant?" Loomis replied: "I believe that to be him." Loomis
later qualified his answer by stating that he only knew of the
defendant by the information provided in the probation violation
notice. It was undisputed that the facts proved a probation
violation; however, appellant moved to strike the evidence as to
proof of a violation on the ground that the Commonwealth failed to
identify him as the probationer. The trial judge overruled
appellant's motion stating "that's going to be an affirmative
defense." Appellant presented no evidence, and the trial court
found him in violation of the conditions of his probation. The
trial court revoked a year of the previously suspended time to be
served consecutively to any other sentence imposed.
II. ANALYSIS
Appellant contends that the trial court erred in denying his
motion to strike because appellant was never adequately identified
as Eric Christopher Moss. We disagree.
"Both the United States Supreme Court and [the Virginia
Supreme] Court have previously indicated probation revocation
hearings are not a stage of criminal prosecution and therefore a
- 4 - probationer is not entitled to the same due process protections
afforded a defendant in a criminal prosecution." Davis v.
Commonwealth, 12 Va. App. 81, 84, 402 S.E.2d 684, 686 (1991).
"Specifically, the United States Supreme Court has stated
that in revocation hearings formal procedures and rules of
evidence are not employed, and that the process of revocation
hearings should be flexible enough to consider evidence . . . that
would not be admissible in an adversary criminal trial." Id. at
84, 402 S.E.2d at 686 (internal quotations and citations omitted).
"A probation violation is not itself a criminal conviction.
It is, however, a continuation and part of the sentencing
process imposed for a criminal conviction . . . ." Merritt v.
Commonwealth, 32 Va. App. 506, 509, 528 S.E.2d 743, 744 (2000).
"Circumstantial evidence is as competent and is entitled to
as much weight as direct evidence, provided it is sufficiently
convincing to exclude every reasonable hypothesis except that of
guilt." Taylor v. Commonwealth, 33 Va. App. 735, 737, 536
S.E.2d 922, 923 (2000) (internal quotations omitted).
Each piece of circumstantial evidence is not viewed
separately. "'While no single piece of evidence may be
sufficient, the "combined force of many concurrent and related
circumstances, each insufficient in itself, may lead a
reasonable mind irresistibly to a conclusion."'" Derr v.
Commonwealth, 242 Va. 413, 425, 410 S.E.2d 662, 669 (1991)
(quoting Stamper v. Commonwealth, 220 Va. 260, 273, 257 S.E.2d
- 5 - 808, 818 (1979) (quoting Karnes v.
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COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Elder and Senior Judge Coleman Argued by teleconference
ERIC CHRISTOPHER MOSS MEMORANDUM OPINION * BY v. Record No. 1320-02-3 CHIEF JUDGE JOHANNA L. FITZPATRICK APRIL 22, 2003 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF AMHERST COUNTY J. Michael Gamble, Judge B. Leigh Drewry, Jr. (Cunningham & Drewry, on brief), for appellant.
Margaret W. Reed, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
Eric Christopher Moss (appellant) appeals from a judgment of
the trial court revoking one year of his previously suspended
sentence. The sole issue raised on appeal is whether the evidence
established his identity at the revocation hearing. Finding no
error, we affirm.
I. BACKGROUND
Under familiar principles of appellate review, we examine
the evidence in the light most favorable to the Commonwealth,
the prevailing party below, granting to that evidence all
reasonable inferences fairly deducible therefrom. See Juares v.
Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997).
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. On April 12, 1994 appellant was found guilty of robbery,
attempted robbery and two counts of felonious use of a firearm.
He was sentenced to 28 years with 20 years suspended and placed on
supervised probation for five years from the date of his release.
On July 12, 1999 appellant violated the terms of his probation and
the trial court revoked 4 years of the previously suspended
sentences and re-suspended 16 years with ten years supervised
probation from his date of release from confinement.
On February 26, 2001, appellant was placed on Home Electric
Monitoring (HEM) because of his poor compliance with the
conditions of his probation. He was told that if he "deliberately
damaged, forcibly removed or absconded with the HEM transmitter
and tether, . . . [it] would be a felony offense . . . ."
Appellant absconded, and the theft of the HEM transmitter was the
basis for the grand larceny conviction that triggered the instant
revocation proceeding. On March 25, 2002, appellant appeared in person with counsel
before the Circuit Court of the City of Lynchburg and pled guilty
to grand larceny, in violation of Code § 18.2-95 and was sentenced
to 5 years incarceration. Further "[t]he Court [suspended] 4
years of the aforesaid sentence, leaving 1 year of active time,
and . . . order[ed] that 6 months of that active time . . . run
concurrently with the time the [appellant] serves on his parole
violation." Appellant also received an additional 18 months of
supervised probation upon his release.
The Commonwealth requested issuance of a Rule to Show Cause
based on the new grand larceny conviction and the Rule issued on
March 30, 2002. Appellant was personally served on April 4, 2002
- 2 - by the sheriff's department at the Blue Ridge Regional Jail in
Lynchburg where he was incarcerated on the grand larceny
conviction.
On April 11, 2002, appellant appeared before the trial judge 1
in the Circuit Court for the County of Amherst to appoint counsel
for his revocation hearing. The following colloquy occurred:
THE COURT: You're Mr. Moss, is that right?
[APPELLANT]: Yes, sir.
* * * * * * *
THE COURT: Okay, I'm going to reappoint Mr. Drewry and I'm going to set this hearing on May 6th at two in the afternoon.
[APPELLANT]: Okay.
THE COURT: And I'll let him know that you are going to be over at the Blue Ridge Regional jail and he'll come over there and talk to you.
1 Judge Gamble presided at the hearing on April 11, 2002 and the hearing on May 6, 2002.
- 3 - He appointed counsel and issued a transportation order to bring
appellant to court in Amherst for the hearing on May 6, 2002.
At the revocation hearing on May 6, 2002, the trial judge
stated: "I have the motion to revoke the suspended sentence of
Mr. Moss. . . . Is the defendant ready?" Counsel for appellant
stated, "Yes, Your Honor." The Commonwealth's sole witness was
probation officer Brian Loomis. The Commonwealth asked Loomis:
"The gentleman over here in the orange suit is Mr. Moss, the
defendant?" Loomis replied: "I believe that to be him." Loomis
later qualified his answer by stating that he only knew of the
defendant by the information provided in the probation violation
notice. It was undisputed that the facts proved a probation
violation; however, appellant moved to strike the evidence as to
proof of a violation on the ground that the Commonwealth failed to
identify him as the probationer. The trial judge overruled
appellant's motion stating "that's going to be an affirmative
defense." Appellant presented no evidence, and the trial court
found him in violation of the conditions of his probation. The
trial court revoked a year of the previously suspended time to be
served consecutively to any other sentence imposed.
II. ANALYSIS
Appellant contends that the trial court erred in denying his
motion to strike because appellant was never adequately identified
as Eric Christopher Moss. We disagree.
"Both the United States Supreme Court and [the Virginia
Supreme] Court have previously indicated probation revocation
hearings are not a stage of criminal prosecution and therefore a
- 4 - probationer is not entitled to the same due process protections
afforded a defendant in a criminal prosecution." Davis v.
Commonwealth, 12 Va. App. 81, 84, 402 S.E.2d 684, 686 (1991).
"Specifically, the United States Supreme Court has stated
that in revocation hearings formal procedures and rules of
evidence are not employed, and that the process of revocation
hearings should be flexible enough to consider evidence . . . that
would not be admissible in an adversary criminal trial." Id. at
84, 402 S.E.2d at 686 (internal quotations and citations omitted).
"A probation violation is not itself a criminal conviction.
It is, however, a continuation and part of the sentencing
process imposed for a criminal conviction . . . ." Merritt v.
Commonwealth, 32 Va. App. 506, 509, 528 S.E.2d 743, 744 (2000).
"Circumstantial evidence is as competent and is entitled to
as much weight as direct evidence, provided it is sufficiently
convincing to exclude every reasonable hypothesis except that of
guilt." Taylor v. Commonwealth, 33 Va. App. 735, 737, 536
S.E.2d 922, 923 (2000) (internal quotations omitted).
Each piece of circumstantial evidence is not viewed
separately. "'While no single piece of evidence may be
sufficient, the "combined force of many concurrent and related
circumstances, each insufficient in itself, may lead a
reasonable mind irresistibly to a conclusion."'" Derr v.
Commonwealth, 242 Va. 413, 425, 410 S.E.2d 662, 669 (1991)
(quoting Stamper v. Commonwealth, 220 Va. 260, 273, 257 S.E.2d
- 5 - 808, 818 (1979) (quoting Karnes v. Commonwealth, 125 Va. 758,
764, 99 S.E. 562, 564 (1919))).
The Commonwealth concedes that it must prove the identity of
the probationer. However, they argue, and we agree, that this
fact, like any other, may be proved using circumstantial
evidence. We hold that the evidence in the record when
considered as a whole, supports the trial court's finding that
the Commonwealth sufficiently identified appellant as the
probationer.
Appellant accepted service of the Rule to Show Cause when
he was incarcerated on the underlying grand larceny charge. He
was transported from the Blue Ridge Regional Jail to the Amherst
County Circuit Court and appeared before the same trial judge
for both hearings in this case. The trial judge was familiar
with appellant who admitted to being Eric Christopher Moss at
the first hearing. The trial judge authorized the
transportation order to bring Eric Christopher Moss who appeared
at the April 11, 2002 hearing to the May 6, 2002 hearing. The
sheriff's office produced appellant pursuant to that order. In
the absence of clear evidence to the contrary, courts may
presume that public officers have properly discharged their
official duties. Smith v. Commonwealth, 219 Va. 554, 559, 248
S.E.2d 805, 808 (1978). Thus, the circumstantial evidence even
without the direct identification by the probation officer
established appellant's identity. The circumstantial evidence
- 6 - is unrebutted and supports the trial court's determination that
appellant was sufficiently identified as the person charged with
the probation violation. 2
Accordingly, we affirm the judgment of the trial court.
Affirmed.
2 Appellant argues that the trial court erroneously required him to affirmatively prove he was not the probationer. However, we do not reach this issue as the unrebutted evidence sufficiently supported the trial court's finding.
- 7 -