Terry Jansen Forney v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: June 22, 1999
• Docket: 0978984
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judge Lemons and Senior Judge Duff Argued at Alexandria, Virginia

TERRY JANSEN FORNEY MEMORANDUM OPINION * BY v. Record No. 0978-98-4 JUDGE DONALD W. LEMONS JUNE 22, 1999 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF SHENANDOAH COUNTY John J. McGrath, Jr., Judge

Elwood Earl Sanders, Jr., Appellate Defender (Public Defender Commission of Virginia, on briefs), for appellant.

Ruth M. McKeaney, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Terry Jansen Forney was convicted of driving after having

been declared an habitual offender in violation of Code

§ 46.2-357(1), and four counts of forging a public document in

violation of Code § 18.2-168. On appeal, he argues that the

trial court erroneously admitted evidence of a prior conviction

for driving after having been adjudged an habitual offender,

that the admission of such evidence violated the rule against

the admission of evidence of prior crimes, and that the court

erred in denying Forney’s motion to strike.

*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. I. BACKGROUND

On May 19, 1997, Warden Jeffrey Allen Larson of the

Virginia Game and Inland Fisheries was patrolling the Elizabeth

Furnace area of Shenandoah County, checking fishing licenses,

when he noticed Terry Jansen Forney fishing in a stream. Larson

testified that he approached Forney and his two companions and

asked to see their fishing licenses. Forney denied that he was

fishing, but Larson told Forney that he was going to issue him

summonses for fishing without a license. Forney went to his car

and presented Larson with his driver’s license which indicated

that he was “Gregory Lewis.” Larson further testified that

Forney told him that the address on the license was correct.

Forney was given three summonses related to fishing without a

license, and he signed each one with the name “Gregory Lewis.”

Larson stated that Forney and his companions entered the car and

Forney got into the driver’s seat and drove away.

On June 24, 1997 Forney appeared and pled no contest in the

name of “Gregory Lewis” to the charges of fishing without a

license and paid fines in the General District Court of

Shenandoah County. Deputy Clerk Linda Sue Hawkins testified

that Forney signed a payment agreement with the name “Gregory

Lewis.” Both Larson and Hawkins identified Forney as the man

they had witnessed sign his name as “Gregory Lewis.”

Larson later learned Forney’s true identity and checked his

driving record which revealed that Forney was listed as an

- 2 - habitual offender. Forney was then charged with operating an

automobile after having been adjudged an habitual offender, as

well as with four counts of forgery. At trial, the

Commonwealth’s Attorney sought to introduce two orders

convicting Forney of driving after being declared an habitual

offender in Bristol, Virginia, and Winchester, Virginia. The

trial court excluded the order from Winchester because of

confusion of the dates listed on the document. The order from

Bristol was initially excluded, but the court ultimately

admitted it for the limited purpose of determining whether

Forney had notice of his adjudication as an habitual offender.

II. EVIDENCE OF PRIOR CONVICTION

On appeal, Forney argues that the court erred in admitting

evidence of a prior conviction for driving after having been

adjudicated an habitual offender for purposes of proving

knowledge of his prior adjudication. Forney contends that he

was convicted in his absence and there was no evidence that he

had been made aware of his conviction by the general district

court.

“The admissibility of evidence is within the broad

discretion of the trial court, and a ruling will not be

disturbed on appeal in the absence of an abuse of discretion.”

Brown v. Commonwealth, 21 Va. App. 552, 555, 466 S.E.2d 116, 117

(1996) (citations omitted). “Evidence of other crimes or bad

acts is inadmissible if it is offered merely to show that the

- 3 - defendant is likely to have committed the crime charged.” Goins

v. Commonwealth, 251 Va. 442, 462, 470 S.E.2d 114, 127, cert.

denied, 519 U.S. 887 (1996). However, “[e]vidence of other

crimes is admissible if it tends to prove any fact in issue,

even though it also tends to show the defendant guilty of

another crime.” Bullock v. Commonwealth, 27 Va. App. 255, 260,

498 S.E.2d 433, 435 (1998). “[E]vidence of other crimes is

[also] properly received if it is relevant and probative of an

issue on trial, such as an element of the offense charged or the

required predicate for enhanced punishment.” Pittman v.

Commonwealth, 17 Va. App. 33, 35, 434 S.E.2d 694, 695 (1993).

Forney was charged with driving after having been

adjudicated an habitual offender, second or subsequent offense,

see Code § 46.2-357(3), but convicted of a violation of

46.2-357(1), a misdemeanor not requiring proof of prior

conviction for the same offense. The Commonwealth was required

to prove that Forney had knowledge that he had been adjudicated

an habitual offender.

On February 6, 1996, Forney was charged on a misdemeanor

warrant with “after having been declared a habitual offender by

a court, driv[ing] a motor vehicle on the highway in a manner

which (did not) endanger the life, limb, or property of another

(the current offense being a second or subsequent violation of

this statute).” The language of the offense charged describes a

felony. However, the felony charge was erroneously written on a

- 4 - misdemeanor arrest warrant in Bristol, Virginia. Because of the

error in the 1996 warrant, the court refused to admit it as

evidence of a prior conviction. However, the court did admit

the document as evidence that Forney had knowledge that he had

been adjudicated an habitual offender. The arrest warrant,

which stated the offense charged, was served upon Forney upon

his arrest on February 6, 1996. The court instructed the jury

that it was to consider the misdemeanor warrant only for the

purpose of determining whether Forney had knowledge of his

adjudication as an habitual offender.

Whether Forney knew of his adjudication was an element of

the offense charged. “Evidence is relevant if it has any

logical tendency, however slight, to establish a fact at issue

in the case.” Ragland v. Commonwealth, 16 Va. App. 913, 918,

484 S.E.2d 675, 678 (1993). In addition, “evidence is

admissible if it tends to prove any relevant element of the

offense charged or if the evidence is connected with or leads up

to the offense for which the accused is on trial.” Woodfin v.

Commonwealth, 236 Va. 89, 95, 372 S.E.2d 377, 380 (1988)

(citations omitted). Because the arrest warrant was served on

Forney at the time of his arrest, it was relevant to the

question of Forney’s knowledge of his adjudication as an

habitual offender.

- 5 - III. PREJUDICIAL EFFECT OF PRIOR CONVICTION

Forney argues that the admission of his prior conviction as

an habitual offender was error because it created the

possibility of prejudice with respect to the forgery charges.

Forney contends that the evidence was unduly prejudicial and

that no exceptions to the general rule prohibiting the

introduction of prior crimes were applicable to the forgery

charges. Forney argues further that a limiting instruction, in

which the jury was instructed to consider evidence of the prior

conviction only for purposes of knowledge of his habitual

offender status, did not correct the error.

Forney failed to raise an objection to the admission of

evidence of his prior conviction on this ground at trial.

Therefore, we are barred from considering it on appeal. See

Rule 5A:18; Walton v. Commonwealth, 24 Va. App. 757, 485 S.E.2d

641 (1997), aff’d, 255 Va. 422, 497 S.E.2d 869 (1998).

In addition, Forney could have requested severance of the

charges prior to trial. A defendant must request separate

trials before trial begins or the defendant has waived the

issue. See Colclasure v. Commonwealth, 10 Va. App. 200, 202,

390 S.E.2d 790, 791 (1990). Forney was aware of all charges and

the respective elements of each prior to trial. Forney is

charged with the knowledge that the Commonwealth was required to

prove knowledge of his prior adjudication as an habitual

offender. If Forney believed that prejudice was likely to

- 6 - result, he should have moved to sever the charges against him.

He may not object for the first time on appeal to the

introduction of evidence necessary to prove one element of an

offense because of the possibility of prejudice on a second

charge.

IV. SUFFICIENCY OF THE EVIDENCE

Forney argues that the evidence was insufficient to sustain

his conviction for driving after having been adjudicated an

habitual offender. Forney contends that there was insufficient

evidence that he knew of his habitual offender status at the

time of his arrest.

We disagree. Where the sufficiency of the evidence is an

issue on appeal, an appellate court must view the evidence and

all reasonable inferences fairly deducible therefrom in the

light most favorable to the Commonwealth. See Cheng v.

Commonwealth, 240 Va. 26, 42, 393 S.E.2d 599, 608 (1990). We

hold that the evidence introduced at trial was sufficient to

demonstrate Forney’s knowledge that he had been adjudicated an

habitual offender. Forney was arrested on February 6, 1996 for

driving after having been declared an habitual offender. The

arrest warrant stated the charge and his status as an habitual

offender and was served on Forney and proved that Forney had

knowledge of his habitual offender status. In addition, the

fact finder was entitled to draw an inference that Forney had

misrepresented himself and used a false name because he was

- 7 - aware that he was driving in violation of his status as an

IV. CONCLUSION

Based upon the foregoing, we hold that the trial court did

not err in admitting evidence of Forney’s prior conviction for

driving after having been adjudicated an habitual offender and

that the evidence was sufficient to support his convictions.

The convictions are affirmed.

Affirmed.

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