McMillan v. Com.

Present: Hassell, C.J., Koontz, Kinser, Lemons, Goodwyn, and
Millette, JJ., and Russell, S.J.

WILLIS ALEXANDER McMILLAN

v. Record No. 080622 OPINION BY
CHIEF JUSTICE LEROY ROUNTREE HASSELL, SR.
COMMONWEALTH OF VIRGINIA January 16, 2009

FROM THE COURT OF APPEALS OF VIRGINIA

I.

In this appeal from the Court of Appeals we consider:

whether the evidence is sufficient to prove beyond a

reasonable doubt that a defendant possessed cocaine with the

intent to distribute in violation of Code § 18.2-248; and

whether a circuit court erred by permitting the Commonwealth

to introduce in evidence an exhibit that purports to establish

that the defendant had a prior felony conviction.

II.

The defendant, Willis Alexander McMillan, was indicted by

a grand jury in the City of Hampton for the following

offenses: possession of cocaine with intent to distribute in

violation of Code § 18.2-248; possession of a firearm while in

the possession of cocaine in violation of Code § 18.2-308.4;

possession of a firearm after having previously been convicted

of a felony in violation of Code § 18.2-308.2; possession of a

concealed weapon in violation of Code § 18.2-308; and
feloniously disregarding a visible or audible signal by a law

enforcement officer in violation of Code § 46.2-817.

During a bench trial in the Circuit Court of the City of

Hampton, the defendant objected to the admission of an exhibit

that purported to show that he had been convicted of attempted

arson when he was 14 years old, in violation of Code §§ 18.2-

77 and 18.2-26. The circuit court admitted the exhibit in

evidence over the defendant’s objection. The defendant also

asserted in the circuit court that the evidence was

insufficient to establish beyond a reasonable doubt that he

had possession of cocaine and, thus, he could not be convicted

of possession with intent to distribute.

At the conclusion of the bench trial, the court found the

defendant guilty of evading and eluding a police officer in

violation of Code § 46.2-817 and fined him $100. The court

convicted the defendant of possession with intent to

distribute cocaine, possession of a firearm while possessing

drugs, possession of a firearm by a felon, and possession of a

concealed weapon.

The court fixed the defendant’s punishment as follows:

twelve years imprisonment for possession with intent to

distribute cocaine; five years imprisonment for possession of

a firearm while possessing drugs; five years imprisonment for

2
possession of a firearm by a felon; and six months

imprisonment for the possession of a concealed weapon.

The defendant appealed his convictions to the Court of

Appeals. Among other things, the defendant contended that the

circuit court erred by admitting in evidence the exhibit that

purported to demonstrate that he had a prior felony

conviction. The defendant also asserted that the evidence was

insufficient to prove that he had actual or constructive

possession of the cocaine. The Court of Appeals denied the

defendant’s petition, McMillan v. Commonwealth, Record No.

1488-07-1 (January 16, 2008), and we awarded the defendant an

appeal.

III.

Applying well-established principles of appellate review,

we will state the evidence in the light most favorable to the

Commonwealth, the prevailing party in the circuit court.

Bishop v. Commonwealth, 275 Va. 9, 11, 654 S.E.2d 906, 907

(2008); Pruitt v. Commonwealth, 274 Va. 382, 384, 650 S.E.2d

684, 684 (2007).

On June 9, 2005, Robert Bowers, a Virginia State Police

Officer, was operating a radar device, designed to measure the

speed of motor vehicles, in the city of Hampton on Interstate

64. Officer Bowers observed a car traveling east on

Interstate 64 and a license plate was not affixed to the front

3
of the car. The officer, whose police cruiser was situated on

the shoulder of the highway, drove his cruiser onto the

interstate and followed the car. Lushawn Carolina was driving

the car and the defendant was a passenger.

Carolina drove the car to an exit on Interstate 64 and

entered Rip Rap Road at a high rate of speed. Officer Bowers,

who was following Carolina’s car, activated his police

cruiser’s emergency lights in an attempt to stop Carolina’s

car. Carolina drove his car onto a residential street and he

entered the driveway of a residence. Carolina got out of his

car and began to walk to the front door of the residence.

Officer Bowers parked his police cruiser, got out of his car,

and directed Carolina to return to the car he had been

driving. Carolina complied and sat in the driver’s seat.

As Officer Bowers approached the driver’s window of

Carolina’s car, he smelled an odor of “burnt” marijuana.

After the officer asked Carolina for his driver’s license and

registration, Carolina responded that his license had been

suspended, the car belonged to his brother, and Carolina did

not have the vehicle registration card.

Bowers saw Carolina “lean[] forward as if he were about

to open [the glove compartment], but he leaned back straight

up in his seat and he didn’t open the glove compartment.”

4
Carolina presented Officer Bowers with a Virginia

identification card, but he did not have a driver’s license.

Officer Bowers asked Carolina how did he know that the

registration card was not in the glove compartment since he

had not opened it to search for the card. Carolina opened the

glove compartment and Officer Bowers saw the registration card

on top of several traffic summonses. Officer Bowers also

observed a “Crown Royal bag.” The Crown Royal bag was made of

purple cloth and had been used to package a bottle of Crown

Royal Canadian whiskey, which was not inside the bag.

Officer Bowers directed Carolina to exit his car and sit

in the police cruiser so that the officer could separate

Carolina from McMillan. Officer Bowers checked to be sure

that Carolina had no weapons on his person. Officer Bowers

and Carolina sat in the police car for about 15 minutes while

the officer prepared traffic summonses and waited for another

State police officer to arrive at the scene.

As Officer Bowers conversed with Carolina in the police

car, McMillan, who remained in the passenger seat of

Carolina’s car, began to move “around in the seat and he was

looking back in [the] direction” of the police cruiser.

Carolina told Bowers that he wanted McMillan to drive

Carolina’s car once Bowers had issued the traffic summonses.

5
 Bowers went to Carolina’s car where McMillan remained

seated. Bowers obtained McMillan’s driver’s license and

returned to his police cruiser to ascertain the status of

McMillan’s driver’s license.

Officer Bowers told Carolina that Bowers had smelled

marijuana in the car and he believed that Carolina and

McMillan had “something illegal.” Carolina repeatedly told

Officer Bowers that the officer had no reason to search the

car and could not do so.

Officer Bowers returned to Carolina’s car and gave

McMillan his driver’s license. Officer Bowers repeatedly

asked McMillan to open the glove compartment so that the

officer could determine to whom the summonses had been issued.

McMillan refused to open the glove compartment. McMillan told

Officer Bowers that he should ask Carolina to open the glove

compartment “because it wasn’t his [McMillan’s] car and he

[McMillan] didn’t have anything to do with what was in the

glove compartment.” Subsequently, Officer Bowers opened the

glove compartment, retrieved two traffic summonses and in the

process removed the “Crown Royal bag.”

Officer Bowers opened the “Crown Royal bag” and saw what

appeared to be “chunks of . . . rock cocaine.” Officer

Bowers, who was standing on the passenger side of Carolina’s

car, glanced at his police cruiser to watch Carolina.

6
McMillan, who was in the front passenger seat, “jumped out” of

the driver’s door of Carolina’s car and “ran fast.” The

police officers were unable to apprehend him. Carolina,

however, was arrested and Officer Bowers conducted a search of

the car. McMillan was arrested 12 days after he fled from

Officer Bowers.

During the search of Carolina’s car, Officer Bowers found

a loaded Smith & Wesson .40 caliber pistol under the driver’s

seat. He also found under the driver’s seat a large plastic

bag that contained a small baggie with crack cocaine residue.

Officer Bowers found a “loaded [G]lock” .40 caliber

pistol under the passenger seat where McMillan had been

sitting. The pistol was “fully loaded with 15 rounds in the

magazine and one in the chamber.” The officer also found,

behind the gun under the passenger seat, a clear plastic

baggie that contained “four other balled up baggies.”

After Officer Bowers had searched the car, he “took a

closer look inside of the Crown Royal bag that [he] had opened

earlier.” The “Crown Royal bag” contained a clear plastic

baggie and 13 individually wrapped zip-lock baggies containing

what appeared to be crack cocaine.

Officer Bowers also found a shoe box on the back

floorboard area behind Carolina’s seat. The shoe box

contained sneakers that were the same size as the shoes that

7
Carolina was wearing at that time. The shoe box contained 78

of the “same type zip-lock baggies that [Officer Bowers] had

found the crack cocaine in. They were all empty.”

Betty Jane Blankenship, a forensic scientist with the

Virginia Department of Forensic Science, testified that she

conducted DNA profiles on swabs that she obtained from

McMillan and swabs “from the grip trigger” of the pistol that

was found under the passenger seat where McMillan had been

seated. The DNA profile “from the grip trigger matched

perfectly the DNA profile of Willis McMillan.” Blankenship

gave the following testimony about the DNA profile:

“Question: And you said it was a match. And is
there a certain ratio that you use in order to
provide a Certificate of Analysis?

“Answer: Yes. We do a statistical analysis on the
DNA profile from the grips and trigger and you would
expect to find that profile once in the population
of the world.

“Question: And that’s 6 billion?

“Answer: 6 billion people at the time that I did
this certificate anyway.”

IV.
A.

McMillan asserts that the evidence was insufficient to

prove, beyond a reasonable doubt, that he possessed the

cocaine. He contends that the Commonwealth failed to prove

that he exercised dominion or control over the cocaine.

8
Continuing, he argues that the Commonwealth failed to exclude

the reasonable hypothesis of innocence that the cocaine

belonged to Carolina alone. We disagree with McMillan’s

contentions.

We have stated that “[o]n appeal, great deference is

given to the factfinder who, having seen and heard the

witnesses, assesses their credibility and weighs their

testimony. Thus, a [circuit] court’s judgment will not be

disturbed on appeal unless it is plainly wrong or without

evidence to support it.” Young v. Commonwealth, 275 Va. 587,

590-91, 659 S.E.2d 308, 310 (2008); accord Walton v.

Commonwealth, 255 Va. 422, 426, 497 S.E.2d 869, 871 (1998).

The issue that we consider, upon appellate review, is

“ ‘whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a

reasonable doubt.’ ” Maxwell v. Commonwealth, 275 Va. 437,

442, 657 S.E.2d 499, 502 (2008) (quoting Jackson v. Virginia,

443 U.S. 307, 319 (1979)).

We stated in Drew v. Commonwealth, 230 Va. 471, 473, 338

S.E.2d 844, 845 (1986) (quoting Powers v. Commonwealth, 227

Va. 474, 476, 316 S.E.2d 739, 740 (1984)), the following

principle that is pertinent here:

9
 “To support a conviction based upon constructive
possession [of illegal drugs], ‘the Commonwealth
must point to evidence of acts, statements, or
conduct of the accused or other facts or
circumstances which tend to show that the defendant
was aware of both the presence and character of the
substance and that it was subject to his dominion
and control.’ ”

When proof of constructive possession is dependent upon

circumstantial evidence, “all necessary circumstances proved

must be consistent with guilt and inconsistent with innocence

and exclude every reasonable hypothesis of innocence.”

Garland v. Commonwealth, 225 Va. 182, 184, 300 S.E.2d 783, 784

(1983) (internal quotation marks and citations omitted).

Additionally, “[w]hile a conviction may properly be based upon

circumstantial evidence . . . [t]here must be an unbroken

chain of circumstances proving the guilt of the accused to the

exclusion of any other rational hypothesis and to a moral

certainty.” Gordon v. Commonwealth, 212 Va. 298, 300, 183

S.E.2d 735, 737 (1971) (quoting Brown v. Commonwealth, 211 Va.

252, 255, 176 S.E.2d 813, 815 (1970)).

Upon application of the aforementioned principles, we

hold that the evidence in this case is sufficient to establish

beyond a reasonable doubt that McMillan had possession of the

cocaine. The defendant was a passenger in the front seat of

the car where the illegal drugs were found. A loaded pistol,

that contained his DNA material, was hidden under the

10
passenger seat where he was seated. Officer Bowers found

packaging that could be used for distribution of illegal drugs

immediately behind the defendant’s pistol. The defendant

refused to open the glove compartment where the “Crown Royal

bag” containing crack cocaine was found because McMillan said

“he didn’t have anything to do with what was in the glove

compartment.” When Officer Bowers opened the glove

compartment, inspected the “Crown Royal bag” and saw “chunks

of . . . rock cocaine,” McMillan fled. These facts are

sufficient to establish, beyond a reasonable doubt, that at a

minimum, McMillan had constructive possession of the cocaine

in the glove compartment, which was well within his reach.

B.

The trial court admitted in evidence, over McMillan’s

objection, an exhibit that included a petition filed in the

Hampton Juvenile and Domestic Relations District Court dated

September 10, 2000, and a document captioned “Office Contacts

& Court Proceedings” that contained numerous notations made by

an unknown scrivener. The Commonwealth introduced this

exhibit in evidence to establish the defendant’s prior felony

conviction.

According to the petition, R.O. Wooden, presumably an

employee of the Hampton Fire Department, stated under oath

that McMillan, who was 14 years old, “unlawfully and

11
feloniously on or about 09/10/00 attempt[ed] to maliciously

burn a dwelling house . . . in Hampton, in violation of [§§]

18.2-77 and 18.2-26 of the 1950 Code of Virginia as amended.”

The petition contained the following case number: J036646-13-

00.

The document captioned “Office Contacts & Court

Proceedings” contains the following information:

“J036646
“MCMILLAN, WILLIS ALEXANDER
“2-5-86 (age 14)

“13-00 ATTEMPT ARSON
9-10-00 18.2-77/18.2-26

“WOODEN, R.O.”

Below is the content of the document:

“OFFICE CONTACTS & COURT PROCEEDINGS / copy to:
SUMMONS ISSUED: Willis McMillan IP Deborah Curry IP
9-11-00 Def. present w/Deborah Curry his legal
custodian. Michael King appt’d. 9-25-00
for trial. LRL/bg
(Def. to remain in secure det.
Def. motion for psych. eval. granted. CA
to prepare order. bg)
9-14-00 Summ. iss. to mother & father & also
mailed. bg
9-25-00 Cont. 10-25-00 for trial on def’s
motion without objection. Atty. King
waives statutory req. for det. LRL/bg
10-25-00 Def. present w/aunt & Atty. King.
Cont. 1-3-01 for trial on joint motion.
Def. placed on outreach det. JT/bg
1-3-01 Def. present w/guardian & Atty. King.
Def. offers a plea of guilty. Waiver &
stipulation of the evid. Ct. accepts plea.
Ct. finds def. guilty. Disposition 2-26-01.
Def. released from outreach detention.
/s/ Louis R. Lerna

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 [date not legible]Order for comprehensive
psychological eval.
2-26-01 Atty. King present. Cont. 3-19-01 for
disposition at req. of P.O. LRL/bg
3-16-01 Disp. report in file. Copy to CA. bg
3-19-01 CA Rickey & Atty King present - Both Agree
with rec of P.O.
Indef. sup. prob; Δ & guardian to comply
w/all rec’s of FAP Team & Sub. Abuse
Eval- R.R. Habel”

The defendant argues the circuit court erred by admitting

the exhibit in evidence. The defendant contends that the

exhibit is not an order of conviction, but merely contains

notes and that the exhibit does not show the crime to which

McMillan tendered his plea of guilty. Continuing, the

defendant argues that because the exhibit is inadmissible, the

Commonwealth failed to establish that he had a prior felony

conviction and, thus, his conviction for possession of a

firearm by a felon must be reversed.

Responding, the Commonwealth asserts that the circuit

court did not err when it admitted the exhibit. Additionally,

the Commonwealth contends that the defendant has not

challenged the sufficiency of the evidence to support the

conviction of the charge of possession of a firearm by a

convicted felon on the basis that the predicate offense had

not been proven and, therefore, to the extent the defendant

13
raises a claim of sufficiency of the evidence, that claim is

procedurally defaulted pursuant to Rule 5:25. 1

“It is a fundamental principle of jurisprudence that

evidence which is not relevant is not admissible.” Davis v.

Marshall Homes, 265 Va. 159, 166, 576 S.E.2d 504, 507 (2003).

This Court has repeatedly held: “ ‘Evidence is relevant if it

tends to prove or disprove, or is pertinent to, matters in

issue.’ ” McCloud v. Commonwealth, 269 Va. 242, 257, 609

S.E.2d 16, 24 (2005) (quoting Clay v. Commonwealth, 262 Va.

253, 257, 546 S.E.2d 728, 730 (2001)); accord Hodges v.

Commonwealth, 272 Va. 418, 436, 634 S.E.2d 680, 690 (2006);

Barkley v. Wallace, 267 Va. 369, 373, 595 S.E.2d 271, 273

(2004); Velocity Express Mid-Atlantic v. Hugen, 266 Va. 188,

205, 585 S.E.2d 557, 566-67 (2003).

We have held that:

“Evidence which has no tendency to prove guilt, but
only serves to prejudice an accused, should be
excluded on the ground of lack of relevancy. For
evidence to be admissible it must relate and be
confined to the matters in issue and tend to prove
an offense or be pertinent thereto. Evidence of
collateral facts or those incapable of affording any
reasonable presumption or inference on matters in
issue, because too remote or irrelevant, cannot be
accepted in evidence.”

1
The Commonwealth’s claim that the defendant’s assignment
of error regarding admissibility is insufficient lacks merit.

14
Smith v. Commonwealth, 223 Va. 721, 723, 292 S.E.2d 362, 363

(1982); (quoting Bunting v. Commonwealth, 208 Va. 309, 314,

157 S.E.2d 204, 208 (1967)).

Recently, this Court considered in Palmer v.

Commonwealth, 269 Va. 203, 609 S.E.2d 308 (2005), and Overbey

v. Commonwealth, 271 Va. 231, 623 S.E.2d 904 (2006), whether

evidence of juvenile and domestic relations district court

petitions, disposition orders, and notes were sufficient to

prove that criminal defendants had been previously convicted

of prior felonies, which were necessary elements of crimes

that the Commonwealth was required to prove beyond a

reasonable doubt. Even though our decisions in Palmer and

Overbey relate to the sufficiency of the evidence to prove

prior felony convictions that were necessary elements to

sustain convictions, these cases are highly instructive for

our resolution of the present appeal.

In Palmer, this Court considered whether the evidence was

sufficient to prove that a defendant’s juvenile conviction was

for an act felonious in nature. George Palmer was indicted by

a grand jury for several charges, including two charges of

possession of a firearm when he was under the age of 29 after

having been convicted of a delinquent act that would have been

a felony if committed by an adult in violation of Code § 18.2-

308.2. Palmer, 269 Va. at 205, 609 S.E.2d at 308-09.

15
 During Palmer’s trial, the Commonwealth presented four

petitions and accompanying disposition orders from the Halifax

County Juvenile and Domestic Relations District Court as

evidence to prove that Palmer had been convicted of a

delinquent act felonious in nature. Two of the petitions

contained allegations that Palmer committed the delinquent act

of grand larceny in violation of Code § 18.2-95 and two other

petitions contained allegations that Palmer committed the

delinquent act of burglary with the intent to commit larceny

in violation of Code § 18.2-91. The juvenile and domestic

relations district court records did not contain any orders

providing an adjudication of the four charges. The

“disposition order” entered for each charge required Palmer to

pay restitution to the victim and to be committed to jail for

12 months, six months suspended, subject to two years of good

behavior. Id. at 206, 609 S.E.2d at 309.

Palmer objected to the admission of the juvenile and

domestic relations district court petitions and disposition

orders. He also made a motion to strike the evidence at the

end of the Commonwealth’s case and at the conclusion of all

the evidence. He argued that the juvenile and domestic

relations district court records did not establish a prior

conviction of a delinquent act felonious in nature. Id. at

206, 609 S.E.2d at 309.

16
 The circuit court acknowledged that the juvenile and

domestic relations district court form “is not good,” but the

court held that there was “no question” that Palmer had been

convicted of the delinquent acts as charged. The court

reasoned that Palmer could have only been committed to jail

for a time period set forth in the court documents if he had

been convicted of the delinquent acts that would have been a

felony had those acts been committed by an adult. Id.

Reversing the conviction, we stated:

“When the fact of a prior conviction is an
element of a charged offense, the burden is on the
Commonwealth to prove that prior conviction beyond a
reasonable doubt. See Moore v. Commonwealth, 254
Va. 184, 186, 491 S.E.2d 739, 740 (1997); Dowdy v.
Commonwealth, 220 Va. 114, 116, 255 S.E.2d 506, 508
(1979); McBride v. Commonwealth, 24 Va. App. 30, 33,
480 S.E.2d 126, 127 (1997); Essex v. Commonwealth,
18 Va. App. 168, 171-72, 442 S.E.2d 707, 709-10
(1994). As provided by statute, a judgment order
must reflect, among other things, the plea of the
defendant, the verdict or findings of the fact
finder, and the adjudication and sentence of the
court. Code § 19.2-307. The mere notation of a
sentence, although suggestive of a conviction, does
not establish the fact or nature of any conviction.
See McBride, 24 Va. App. at 35, 480 S.E.2d at 128;
Bellinger v. Commonwealth, 23 Va. App. 471, 475, 477
S.E.2d 779, 780-81 (1996).”

Palmer, 269 Va. at 207, 609 S.E.2d at 310 (emphasis added).

We held that a circuit court must not engage in

conjecture or surmise in determining the offense for which the

defendant was convicted. We concluded that when the

Commonwealth seeks to establish a prior conviction as an

17
element of a crime by presenting an order entered in a prior

case, the order must show a judgment of conviction was entered

in adjudication of the charge. Id. We explained the reasons

for this principle:

“First, a court’s orders are presumed to accurately
reflect what actually transpired and nothing more.
McMillion v. Dryvit Sys., 262 Va. 463, 469, 552
S.E.2d 364, 367 (2001); Waterfront Marine Constr. v.
North End 49ers, 251 Va. 417, 427 n.2, 468 S.E.2d
894, 900 n.2 (1996); Stamper v. Commonwealth, 220
Va. 260, 280-81, 257 S.E.2d 808, 822 (1979);
McBride, 24 Va. App. at 35, 480 S.E.2d at 128.
Second, as a practical matter, 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.”

Palmer, 269 Va. at 207, 609 S.E.2d at 310.

Even though we recognized in Palmer that the defendant

objected in the circuit court to the admission of the juvenile

and domestic relations district court petitions and

disposition orders, we considered the sufficiency of the

evidence, and not the admissibility of the records. We held

in Palmer that the juvenile and domestic relations district

court records failed to establish the fact or nature of

Palmer’s adjudication. We stated that we did not know if

Palmer pled guilty to four offenses that would have been

misdemeanors rather than felonies if committed by an adult.

We were unable to determine the nature of the delinquent acts

for which Palmer was sentenced by the juvenile and domestic

18
relations district court. Additionally, we concluded that the

mere notation of a sentence in a court document that is not an

order does not establish the fact or nature of a conviction,

even though that mere notation may be suggestive of a

conviction. Id. at 207-08, 609 S.E.2d at 310.

In Overbey v. Commonwealth, we considered whether

the Commonwealth established that a defendant, Robert

Overbey, III, who had been charged with possession of a

firearm by a convicted felon in violation of Code § 18.2-

308.2, had been previously convicted of a felony as

required by that statute. During Overbey’s trial on the

weapons charge, the Commonwealth introduced in evidence a

copy of a petition filed in the Hampton Juvenile and

Domestic Relations District Court. Attached to the

petition in the record were two pages of notes relating

to the proceedings in the juvenile and domestic relations

district court. Overbey, 271 Va. at 232, 623 S.E.2d at

904. Notes relating to the proceedings in Overbey v.

Commonwealth are on a form identical to the exhibit that

is the subject of the present appeal before this Court.

In Overbey, the notes indicated that Robert Overbey

was charged with two offenses when he was 17 years old,

the felony of burglary with the intent to commit larceny

and the misdemeanor of petit larceny arising out of the

19
same incident. The signature of the judge of the Hampton

Juvenile and Domestic Relations District Court appears

after each day’s entry on the notes. At the top of each

page, the burglary and larceny charges are listed, with

the respective case number of each charge. Id. at 232,

623 S.E.2d at 904-05.

An entry for notes, dated February 20, 1997, states

that the defendant is “now 18 yrs of age & atty is

prepared to proceed w/o a parent being present,” that

“plea [of] guilty [and] stip[ulated] evid[ence]

suff[icient] to convict,” and that “[b]ased on the plea

of guilty, stip[ulation] & summary of evid[ence], Ct

finds def guilty and refer for PO report.” The defendant

was sentenced pursuant to Code § 16.1-284 to 12 months in

jail, suspended for two years on the condition that he

“be of good behavior & complete 50 hours in the CDI

program.” Id. at 232-33, 623 S.E.2d at 905.

Overbey did not object to the admission of the

juvenile and domestic relations district court petition

and notes in evidence. He did, however, argue that the

notes were ambiguous and were insufficient to show that

he had been previously convicted of a felony. Id. at

233, 623 S.E.2d at 905.

20
 Both in the circuit court and on appeal in this

Court, Overbey argued that the Commonwealth failed to

establish that he had been previously convicted of a

felony as required by Code § 18.2-308.2(A)(i). Id. We

agreed with Overbey that the language in the notes was

ambiguous and that the notes were of doubtful import and

lacking in clearness and definiteness. We held that the

circuit court “had to engage in pure conjecture or

surmise to determine, as the Commonwealth contend[ed],

that the defendant pled guilty to both burglary and petit

larceny.” Id. at 234, 623 S.E.2d at 905-06. We restated

our holding in Palmer v. Commonwealth, supra, that a

“court may not engage in conjecture or surmise in

determining the offense for which a defendant was

convicted.” Overbey, 271 Va. at 234, 623 S.E.2d at 906

(quoting Palmer, 269 Va. 207, 609 S.E.2d at 310).

Implicit in our holdings in Palmer and Overbey is

the recognition that the documents upon which the

respective circuit courts relied were not orders and did

not contain language from which the finder of fact could

conclude that the respective defendants had been

convicted of a prior felony conviction. In each case,

the circuit court relied upon documents that did not

permit the finder of fact to make an inference that the

21
defendant had been convicted of a prior felony. Simply

stated, in Overbey and Palmer, the admitted evidence did

not tend to prove or disprove that the defendant had been

convicted of a prior felony, which was an element of the

charged crimes.

The exhibit from the Hampton Juvenile and Domestic

Relations District Court in the present appeal, just as

the documents in Palmer v. Commonwealth, does not contain

the findings of the fact-finder and the mere notation of

a sentence in the exhibit in the present appeal does not

establish the fact or nature of McMillan’s conviction.

The exhibit in McMillan’s appeal clearly does not contain

an order and, contrary to the assertions of the

Commonwealth in the circuit court, the exhibits cannot be

deemed to be an order. The notations on the document

captioned “Office Contacts & Court Proceedings” were made

by an unknown scrivener and facts regarding the nature or

type of conviction cannot be inferred from the notes. 2 At

best, the notes indicate that the defendant pled guilty

to an offense and that as a disposition, McMillan was

2
In Overbey, just as in this case, the petitions
filed in the juvenile and domestic relations district
court contained a case number. Likewise, the document
“Office Contacts & Court Proceedings" we described in
Overbey, just as in McMillan’s case, contains a
corresponding case number.

22
released from outreach detention. However, a finder of

fact cannot infer from the notes of the unknown scrivener

that McMillan pled guilty to, or was convicted, of a

felony.

We hold that the notations in the challenged exhibit

are not relevant because they do not tend to prove or

disprove, nor are relevant to, matters in issue,

specifically a prior felony conviction that is an element

of the crime charged against McMillan. And, as we have

already stated, evidence that is not relevant is not

admissible. The circuit court erred by admitting the

irrelevant evidence. 3 Therefore, this Court will reverse

the conviction for the violation of Code § 18.2-308.2.

V.

For the foregoing reasons, we will reverse that

portion of the judgment of the Court of Appeals that

affirmed the defendant's conviction for possession of a

firearm by a felon and we will vacate that conviction.

We will affirm that portion of the judgment of the Court

of Appeals that approved the defendant's remaining

3
In its analysis, the dissent relies upon Code § 8.01-
389. The litigants, the circuit court, and the Court of
Appeals, did not consider what application, if any, Code
§ 8.01-389 has to the admissibility of the evidence at issue
in this appeal. Thus, this Court need not, and does not,

23
convictions. We will remand this case to the Court of

Appeals with direction that the Court of Appeals remand

the case to the circuit court for a new trial if the

Commonwealth be so advised.

Affirmed in part,
reversed in part,
and remanded.

SENIOR JUSTICE RUSSELL, with whom JUSTICE KINSER and
JUSTICE LEMONS join, concurring in part and dissenting in
part.

I concur in the majority's holding that the evidence was

sufficient to support McMillan's conviction of possession with

intent to distribute cocaine. I respectfully dissent,

however, from the majority's holding that the trial court

erred in admitting in evidence the records of the Juvenile and

Domestic Relations District Court of the City of Hampton.

With respect to his conviction of possession of a firearm

after having been previously convicted of a felony, McMillan

presented two questions in his appeal to the Court of Appeals:

(1) Did the trial court err in admitting in evidence the

record of his 2001 conviction in the Juvenile and Domestic

Relations District Court (JDR court) of attempted arson of a

dwelling house? (2) Was the evidence, consisting solely of

that record, sufficient to support the firearm possession

consider what effect, if any, Code § 8.01-389 has upon the

24
conviction? McMillan abandoned the second claim in his appeal

to this Court, perhaps because he had not made that argument

at trial. Here, with respect to the firearm possession

conviction, he assigns as error only the trial court's

admission of the JDR court record in evidence. Consequently,

our consideration is confined solely to the question of

admissibility, not that of sufficiency. Rule 5:17(C).

Although evidence of prior crimes committed by the

accused is inadmissible for the general purpose of showing bad

character or a predisposition to commit the crime for which he

is on trial, where a statute makes a prior conviction an

element of the offense charged, the Commonwealth has the

burden of proving the prior conviction beyond a reasonable

doubt. The most efficient way of carrying this burden is by

an attested copy of an order of conviction, but that is not

the only method of proof available to the Commonwealth. For

this purpose, we have held, as has the Court of Appeals, that

"[p]rior convictions may be proved by any competent evidence."

Perez v. Commonwealth, 274 Va. 724, 730, 652 S.E.2d 95, 98

(2007) (emphasis added); accord McBride v. Commonwealth, 24

Va. App. 30, 34, 480 S.E.2d 126, 128 (1997). "Competent

evidence" has been defined as "that which tends to establish a

fact in issue." Weiner v. State, 348 N.W.2d 879, 883 (Neb.

admissibility of the challenged evidence.

25
1984) (emphasis added). There is no requirement that evidence

be sufficient in itself to establish proof beyond a reasonable

doubt in order to be competent and admissible.

"For many years, we have approved the principle that

every fact, however remote or insignificant, that tends to

establish a probability or improbability of a fact in issue is

admissible." Stamper v. Commonwealth, 220 Va. 260, 269, 257

S.E.2d 808, 815 (1979) (emphasis added). As the majority

opinion indicates, we have reiterated that principle in a long

series of decisions extending to the present time. In one of

these, we stated that the key to the admissibility of evidence

is its relevance to a material issue in the case. There, we

said: "Relevance exists when the evidence has a logical

tendency, however slight, to prove a fact at issue in a case."

Hodges v. Commonwealth, 272 Va. 418, 436, 634 S.E.2d 680, 690

(2006) (internal quotation marks omitted).

Applying those principles, our inquiry must be whether

the JDR court record had even a slight tendency to prove that

McMillan had been previously found guilty, as a juvenile

offender, of a crime that would have been a felony if

committed by an adult. In that connection, it is noteworthy

that McMillan does not dispute that he is the individual to

whom the JDR record relates. He does not contend that he was

convicted of any offense other than attempted arson, the

26
single charge named in the petition. It is undisputed that

attempted arson of a dwelling house, whether occupied or not,

is a felony. Code §§ 18.2-77 and 18.2-26. McMillan does not

contend that the charge was reduced to a misdemeanor or a

lesser included offense by plea bargaining or otherwise, and

any surmise on our part that such a reduction might have

occurred would be speculation unsupported by any evidence

whatever. As the majority opinion points out, a court may not

engage in conjecture or surmise in determining the offense for

which a defendant was convicted. McMillan's sole contention

on appeal is that a reader of the JDR record cannot determine

of what offense he was convicted.

The JDR court record shows McMillan's name, the charged

offense "Attempt Arson," the citations of the Code sections

making that crime a felony and the case number on every page.

The record contains the court order appointing counsel for

McMillan, which is signed "Louis R. Lerner, Judge." The page

of notes containing the entries "Def. present w/guardian &

Atty. King. Def. offers a plea of guilty. Waiver and

stipulation of the evid. Ct. accepts plea. Ct. finds def.

guilty. Disposition 2-26-01" bears the handwritten signature

"Louis R. Lerner." I find it difficult to say that those

entries have not the slightest tendency to persuade a fact-

27
finder that McMillan had a prior felony conviction and were

therefore irrelevant to this case.

The majority opinion stresses the fact that the notes in

the JDR record were made by an "unknown scrivener." The

General Assembly has resolved any concern that may arise on

that account. Code § 8.01-389 provides, in pertinent part:

A. The records of any judicial proceeding and any
other official records of any court in this
Commonwealth shall be received as prima facie
evidence provided that such records are
authenticated and certified by the clerk of the
court where preserved to be a true record.

. . . .

D. "Records" as used in this article shall be
deemed to include any memorandum, report, paper,
data compilation, or other record in any form, or
any combination thereof.

Code § 8.01-391(C) provides that a copy of any record

made by a court or clerk thereof in the performance of its

official duties "shall be admissible into evidence as the

original" if authenticated as a true copy by the clerk or

deputy clerk of the court.

The JDR court record to which McMillan objects bears the

following certificate:

Eighth Judicial District, City of Hampton
Juvenile and Domestic Relations District Court
220 North King Street
Hampton, VA 23669

I, the undersigned clerk or deputy clerk of the
above-named court, authenticate pursuant to Va. Code

28
 § 8.01-391(C) on this date that the document to
which this authentication is affixed is a true copy
of a record in the above-named court, made in the
performance of my official duties.

1-18-06 M. H. Forrest
Date Deputy Clerk

In my view, the JDR record was of the kind contemplated

by the provision of Code § 8.01-389(A), mandating that it

"shall be received as prima facie evidence." The record may

well not have been conclusive and may not have, in itself,

amounted to proof beyond a reasonable doubt, and it was surely

subject to refutation by other evidence, but those questions

are not before us. The JDR record was offered at the

beginning of the trial, before the first witness testified.

At that point, the trial court had no means of knowing what,

if any, additional evidence might be forthcoming. The court

was not, at that stage, called upon to decide the sufficiency

of the Commonwealth's case, but was confronted with a pure

question of admissibility. The trial court had no choice but

to admit the record as prima facie evidence.

The majority opinion relies on our recent decisions in

Palmer v. Commonwealth, 269 Va. 203, 609 S.E.2d 308 (2005),

and Overbey v. Commonwealth, 271 Va. 231, 623 S.E.2d 904

(2006). As the majority opinion candidly admits, however, the

issue in both Palmer and Overbey was the sufficiency of the

evidence of juvenile records to support a conviction of

29
possession of a firearm by a convicted felon. In neither case

was the admissibility of evidence an issue. Those cases,

accordingly, have no bearing on the sole question presented in

this appeal.

The majority opinion states a conclusion that those cases

do not support: "Simply stated, in Overbey and Palmer, the

admitted evidence did not tend to prove or disprove that the

defendant had been convicted of a prior felony." That is an

admissibility analysis. Because those were sufficiency cases,

they did not touch upon the question whether the evidence

"tend[ed] to prove or disprove" anything. Rather, they simply

held that the evidence, taken as a whole, did not establish

the issue beyond a reasonable doubt. In the circumstances of

the present case, that analysis was entirely within the

province of the fact-finder and is not subject to review on

appeal. Rules 5:17(C) and 5:25. If sufficiency were the

issue in the present case, my view would be quite different.

Palmer and Overbey have settled that question.

My concern with the majority opinion is that by

commingling the principles applicable to an admissibility

analysis with those applicable to a sufficiency analysis,

considerable confusion may be introduced into the law of

evidence in Virginia. For that reason, I respectfully dissent

30
in part, and would affirm the judgment of the Court of Appeals

in its entirety.

31