Present: All the Justices
TROY LAMONT PRESTON
OPINION BY
v. Record No. 100596 JUSTICE CYNTHIA D. KINSER
January 13, 2011
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
At a bench trial in the Circuit Court of the City of
Martinsville, Troy Lamont Preston was convicted of possession of
a firearm after having been adjudicated delinquent, as a
juvenile 14 years of age or older, of an act that would be a
violent felony if committed by an adult, in violation of Code
§ 18.2-308.2(A)(iii). 1 The dispositive question on appeal is
whether the evidence was sufficient to sustain the conviction.
Because the Commonwealth failed to prove that Preston previously
had been adjudicated delinquent of an act that would be a
violent felony if committed by an adult, but instead proved only
his prior adjudication of a non-violent felony, we will reverse
the conviction and remand for a new sentencing proceeding on the
lesser offense.
1
Preston was also convicted of driving on a suspended
license, third offense, in violation of Code § 46.2-301. That
conviction is not presently at issue in this appeal.
RELEVANT FACTS AND PROCEEDINGS 2
Responding to a "disturbance" between Preston and his
mother, a City of Martinsville police officer observed Preston
driving away in a vehicle. Following his apprehension a short
time later, police found a rifle in the front passenger seat of
the vehicle, which Preston had deserted. No one else was
observed in the vehicle. With regard to the charge under Code
§ 18.2-308.2(A)(iii), the Commonwealth introduced at trial two
exhibits to establish Preston's prior convictions.
One exhibit was an order from the Circuit Court of Henry
County, showing Preston had been convicted of grand larceny, in
violation of Code § 18.2-95. The other exhibit was a four-page
document from the City of Martinsville Juvenile and Domestic
Relations District Court. The first page was a "Petition,"
charging Preston with breaking and entering, in violation of
Code § 18.2-91, and bearing the case number JJ001539-02. 3 The
second page was Preston's request for the appointment of an
attorney. The last two pages were each titled "Record of
Proceedings." Both contained Preston's name as well as the same
case number as the one listed on the "Petition," JJ001539-02.
2
We will recite only those facts relevant to the
dispositive issue.
3
The crime of breaking and entering in violation of Code
§ 18.2-91 is classified as a "violent felony" in Code § 17.1-
805(C).
2
One page, dated March 22, 1995, indicated under the heading
"Disposition" that Preston was found "Guilty – disp 4-19-95
11:45 AM." The other page, dated April 19, 1995, likewise under
the heading "Disposition," showed that Preston received
"Probation, 25 hrs c.s." 4 The juvenile and domestic relations
district court judge signed both pages, but neither page
contained any information under the headings "Plea" and
"Findings of Court."
Preston objected to the introduction of the records from
the juvenile and domestic relations district court, arguing that
the document contained "no actual finding of what occurred in
the case." The circuit court overruled the objection, stating
that there was "a disposition which note[d] that [Preston] was
found guilty." At the close of the Commonwealth's evidence,
Preston moved to strike the evidence or, alternatively, to
reduce the charge. Preston argued, inter alia, that the
evidence was insufficient to prove he previously had been
adjudicated delinquent of an act that would be a violent felony
if committed by an adult. According to Preston, the juvenile
and domestic relations district court records did not show the
crime for which he had been adjudicated delinquent. The circuit
court overruled Preston's motion.
4
We presume that "c.s." refers to community service.
3
At the close of all the evidence, Preston renewed his
motion to strike the evidence, which the circuit court again
overruled. The court found Preston guilty of possession of a
firearm after having been adjudicated delinquent of an act that
would be a violent felony if committed by an adult and sentenced
him to the mandatory minimum term of incarceration for five
years. See Code § 18.2-308.2(A).
Preston appealed his conviction to the Court of Appeals of
Virginia, arguing, inter alia, that the evidence was
insufficient to sustain his conviction. In an unpublished per
curiam order, the Court of Appeals denied the petition for
appeal. Preston v. Commonwealth, Record No. 0751-09-3 (Nov. 12,
2009). The Court of Appeals concluded that the records from the
juvenile and domestic relations district court were sufficient
to prove that Preston previously had been adjudicated delinquent
of an act that would be a violent felony if committed by an
adult. Id., slip op. at 3. It pointed to the pages of the
four-page document, with the exception of the form for
requesting appointment of counsel, that referenced the same case
number as the one listed on the "Petition" charging Preston with
breaking and entering in violation of Code § 18.2-91. Id.
Finally, the Court of Appeals noted that the juvenile and
domestic relations district court judge signed the page showing
the adjudication of guilt and the page imposing probation and
4
community service. Id. On consideration by a three-judge
panel, the Court of Appeals again denied Preston's petition for
appeal. Preston v. Commonwealth, Record No. 0751-09-3 (Feb. 26,
2010). Preston now appeals to this Court.
ANALYSIS
The statute under which Preston was convicted prohibits the
knowing and intentional possession or transportation of a
firearm by "any person under the age of 29 who was adjudicated
delinquent as a juvenile 14 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." Code § 18.2-308.2(A)(iii). Any person
violating this section "who was previously convicted of a
violent felony as defined in [Code] § 17.1-805 shall be
sentenced to a mandatory minimum term of imprisonment of five
years." Code § 18.2-308.2(A). As we have explained, "the
Commonwealth is required to prove beyond a reasonable doubt that
the defendant was previously convicted of a violent felony,
designated as such under Code § 17.1-805, in order to establish
that the defendant is subject to the five-year mandatory minimum
sentence to be imposed under Code § 18.2-308.2(A)." Rawls v.
Commonwealth, 272 Va. 334, 348, 634 S.E.2d 697, 704 (2006). In
the absence of such proof, "the defendant is subject to
imprisonment for a term of between two years and five years."
Id.
5
The dispositive question in this appeal is whether the
evidence was sufficient to prove beyond a reasonable doubt that
Preston previously had been adjudicated delinquent of an act
that would be a violent felony if committed by an adult. In
answering that question, we view the evidence in the light most
favorable to the Commonwealth, the prevailing party in the trial
court. Vincent v. Commonwealth, 276 Va. 648, 652, 668 S.E.2d
137, 139 (2008). Sitting without a jury, the circuit court
acted as the fact finder in this case; thus, the court's
judgment is afforded the same weight as a jury verdict and will
not be disturbed on appeal unless it is "plainly wrong or
without evidence to support it." Code § 8.01-680; Hickson v.
Commonwealth, 258 Va. 383, 387, 520 S.E.2d 643, 645 (1999).
"However, 'it is just as obligatory upon the appellate court, to
set aside . . . the judgment of a court, when it is, in its
opinion, contrary to the law and evidence, and therefore plainly
wrong, as it is to sustain it when the reverse is true.' "
Hickson, 258 Va. at 387, 520 S.E.2d at 645 (quoting Bland v.
Commonwealth, 177 Va. 819, 821, 13 S.E.2d 317, 317 (1941)).
Although the records from the juvenile and domestic
relations district court, when read together as the Commonwealth
urges, prove the fact of a conviction, they do not show the
nature of the conviction. According to the "Petition," Preston
was charged with breaking and entering in violation of Code
6
§ 18.2-91, which if committed by an adult would be a violent
felony under Code § 17.1-805(C). And, each of the two pages
titled "Record of Proceedings" contained the same record number
as that appearing on the "Petition." The juvenile and domestic
relations district court judge signed those two pages: one
showed the guilty disposition and the other evidenced the
imposition of probation and 25 hours of community service.
The records do not, however, prove beyond a reasonable
doubt that Preston was adjudicated delinquent of breaking and
entering. As the Court recognized in Palmer v. Commonwealth,
269 Va. 203, 207, 609 S.E.2d 308, 310 (2005), "a defendant
charged with felonious conduct may be convicted of a lesser-
included offense, or the original charge may be reduced upon the
defendant's agreement to plead guilty to the reduced charge."
Because the sections titled "Plea" and "Findings of Court" are
blank on the two pages signed by the juvenile and domestic
relations district court judge, we do not know what plea Preston
entered or to what charge. And, the imposition of probation
along with community service does not necessarily mean that
Preston was adjudicated delinquent of the act of breaking and
entering. See, e.g., Code § 16.1-278.8 (discussing sentencing
options for juveniles adjudicated delinquent); see also Palmer,
269 Va. at 208, 609 S.E.2d at 310. Because the Court is "unable
to determine the nature of the delinquent act[]" for which
7
Preston was adjudicated, the Commonwealth did not meet its
burden of proving that Preston previously had been adjudicated
delinquent of an act that would be a violent felony if committed
by an adult. Palmer, 269 Va. at 208, 609 S.E.2d at 310.
Contrary to the Commonwealth's assertions, our decisions in
Palmer and Overbey v. Commonwealth, 271 Va. 231, 623 S.E.2d 904,
(2006), do not compel a different result in the case now before
us. Although all three cases have factual differences, the
cases are similar in that each lacked proof beyond a reasonable
doubt of the fact or nature of conviction. We explained in
Palmer that
[a] court may not engage in conjecture or surmise
in determining the offense for which a defendant
was convicted. Thus, when the Commonwealth seeks
to prove a prior conviction as an element of a
crime by presenting an order entered in that
prior case, the order must show that a judgment
of conviction was entered in adjudication of the
charge.
269 Va. at 207, 609 S.E.2d at 310. Because the fact finder in
the instant case was required to "engage in conjecture or
surmise" to conclude that Preston previously had been
adjudicated delinquent of an act that would be a violent felony
if committed by an adult, the evidence was insufficient as a
matter of law to sustain his conviction.
However, as the Commonwealth notes, Preston does not
dispute that he was previously convicted of a non-violent
8
felony. In addition to the juvenile and domestic relations
district court records, the Commonwealth introduced an order
showing Preston's prior conviction for grand larceny, a felony.
See Code §§ 18.2-8 and –95. In Waller v. Commonwealth, 278 Va.
731, 738, 685 S.E.2d 48, 51 (2009), the Court held that "Code
§ 18.2-308.2(A), under which [Preston] was indicted, covers both
an offense committed by a person previously convicted of a
violent felony and an offense committed by a person previously
convicted of 'any other felony.' " Although the evidence was
insufficient to prove that Preston previously had been
adjudicated delinquent of an act that would be a violent felony
if committed by an adult, the evidence was, nevertheless,
sufficient to convict Preston of the lesser offense of
possessing a firearm after having been adjudicated delinquent of
an act that would be a non-violent felony if committed by an
adult. See id. at 737-38, 685 S.E.2d at 51.
CONCLUSION
For these reasons, we will reverse the judgment of the
Court of Appeals and vacate Preston's conviction for possession
of a firearm after having been adjudicated delinquent of an act
that would be a violent felony if committed by an adult. We
will remand the case to the Court of Appeals with directions
that it remand the case to the circuit court for a new
sentencing hearing on the lesser offense of possession of a
9
firearm after having been adjudicated delinquent of an act that
would be a non-violent felony if committed by an adult. 5 See id.
at 738, 685 S.E.2d at 51; Code § 19.2-285.
Reversed, vacated and remanded.
5
This disposition is the relief requested by Preston. In
light of our holding, we do not need to address Preston's other
assignment of error.
10