McBride v. Com.

• Decision Date: 21 January 1997
• Docket Number: No. 2491-95-3,2491-95-3
• Citation: 24 Va.App. 30,480 S.E.2d 126
• Parties: Michael Caroll McBRIDE, s/k/a Michael Carroll McBride v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 126

480 S.E.2d 126

24 Va.App. 30

Michael Caroll McBRIDE, s/k/a Michael Carroll McBride v. COMMONWEALTH of Virginia.

Record No. 2491-95-3.

Court of Appeals of Virginia Salem.

Jan. 21, 1997.

Charles R. Allen, Jr., Roanoke, for appellant.

Margaret Ann B. Walker, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

Present: MOON, C.J., and ELDER and BRAY, JJ.

ELDER, Judge.

Michael Carroll McBride (appellant) appeals his conviction by the Craig County Circuit Court (trial court) of a second offense of driving under the influence. Code §§ 18.2-266, 18.2-270. He contends that he cannot be subjected to the enhanced penalty of Code § 18.2-270 because the evidence was insufficient to prove that he was previously convicted for violating Code § 18.2-266. For the reasons that follow, we reverse and remand.

I. FACTS

On March 17, 1995, appellant was arrested and charged with committing his second offense in the past ten years of driving under the influence in violation of Code § 18.2-266. Appellant was convicted as charged by the Craig County General District Court on May 23, 1995 and appealed to the Craig County Circuit Court (trial court).

At his trial on October 11, the Commonwealth attempted to prove that appellant had a previous conviction under Code § 18.2-266 by offering a certified copy of a record from the City of Roanoke General District Court (district court) regarding a trial held on August 11, 1986. The document was a warrant of arrest that charged appellant with violating Code § 18.2-266 on April 13, 1986. The second page of the warrant contained a printed form upon which the district court purportedly indicated the proceedings subsequent to appellant's arrest. This form was signed by the district court judge and indicated that appellant had pleaded not guilty. It also indicated that the district court judge had sentenced appellant to thirty days in jail, imposed a fine of $300, and suspended his driver's license for six months, all suspended on the condition that appellant enter and complete an alcohol safety action program. However, the form was left blank where it stated:

[The Accused] was TRIED and FOUND by me

[24 Va.App. 33] ___ not guilty

___ guilty as charged

___ guilty of __________

The Commonwealth offered no other evidence to prove the prior conviction.

Appellant moved to strike the Commonwealth's evidence on the ground that the Commonwealth had failed to prove a prior conviction under Code § 18.2-266. Appellant argued that the warrant pertaining to the prior proceeding did not indicate that appellant was tried and found guilty of violating Code § 18.2-266. The trial court denied appellant's motion and found him guilty of a second violation of Code § 18.2-266.

II. SUFFICIENCY OF THE EVIDENCE OF A PRIOR CONVICTION

Appellant contends that the evidence was insufficient to prove that he was previously convicted under Code § 18.2-266. We agree.

Code § 18.2-270 sets forth the penalties for a defendant convicted of driving while intoxicated or under the influence in violation of Code § 18.2-266. Code § 18.2-270 establishes an enhanced penalty for repeat offenders and states in relevant part:

Any person convicted of a second offense committed within a period of five to ten years of a first offense under § 18.2-266 shall be punishable by a fine of not less than $200 nor more than $2,500 and by confinement in jail for not less than one month nor more than one year.

As with all elements of a crime, the burden is on the Commonwealth to prove the prior conviction beyond a reasonable doubt. Commonwealth v. Ellett, 174 Va. 403, 413, 4 S.E.2d 762, 766 (1939); see James v. Commonwealth, 18 Va.App. 746, 752, 446 S.E.2d 900, 903 (1994); Dowdy v. Commonwealth, 220 Va. 114, 116, 255 S.E.2d 506, 508 (1979). While "the most efficient way to prove the prior ... conviction is to offer in evidence an authenticated copy of the prior order of conviction," Essex v. Commonwealth, 18 Va.App. 168, 171, 442 S.E.2d 707, 709 (1994), the prior conviction may be proved by any competent evidence. 39 Am.Jur.2d Habitual Criminals § 27 (1968); see Griswold v. Commonwealth, 19 Va.App. 477, 483, 453 S.E.2d 287, 290 (1995), rev'd on other grounds, 21 Va.App. 22, 25, 461 S.E.2d 411, 412 (1995) (en banc) (rev'd on other grounds, 252 Va. 113, 472 S.E.2d 789 (1996)) (stating that the mere fact that printed spaces on reverse side of warrant were not clearly marked is not determinative of whether defendant had a counseled prior conviction if the Commonwealth produces other competent evidence).

We hold that the evidence was insufficient to establish that appellant was previously convicted of violating Code § 18.2-266.

[W]hen the question of the sufficiency of the evidence is raised on appellate review, we must determine whether a reasonable fact finder could have found from the evidence before it that guilt had been proved beyond a reasonable doubt. Furthermore, when reviewing the sufficiency of the evidence, we must view the evidence in the light most favorable to the Commonwealth, granting all reasonable inferences fairly deducible from the evidence.

Crump v. Commonwealth, 20 Va.App. 609, 617, 460 S.E.2d 238, 241-42 (1995). "The judgment of a trial court sitting without a jury is entitled to the same weight as a jury verdict and will not be set aside unless it appears from the evidence that the judgment is plainly wrong or without evidence to support it." Martin v. Commonwealth, 4 Va.App. 438, 443, 358 S.E.2d 415, 418 (1987).

The evidence was insufficient to establish a prior conviction because the warrant regarding the previous proceeding did not indicate that appellant was convicted under Code § 18.2-266, and the Commonwealth offered no other competent evidence. When a court not of record tries a defendant on a criminal charge, it is required to memorialize its judgment by setting forth "[the defendant's] plea, [the court's] verdict or findings and the adjudication and sentence." Code § 19.2-307; see Bellinger v. Commonwealth, 23 Va.App. 471, 474, 477 S.E.2d 779, 780 (1996). While the warrant regarding the prior proceeding states that appellant pleaded not guilty to the charge of violating Code § 18.2-266 and that the court imposed a sentence, the warrant fails to state that the court found appellant guilty of violating Code § 18.2-266. A court speaks through its orders and those orders are presumed to accurately reflect what...