Present: Hassell, C.J., Keenan, Koontz, Kinser, Lemons, and
Agee, JJ., and Lacy, S.J.
SAMUEL ALVARO PEREZ
v. Record No. 062231 OPINION BY JUSTICE DONALD W. LEMONS
November 2, 2007
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal, we consider whether an undated order
purporting to be a juvenile adjudication is sufficient to
support the defendant’s conviction for possession of a firearm
after having been convicted of a violent felony. For the
reasons stated below, the judgment of the Court of Appeals
will be affirmed.
I. Facts and Proceedings Below
On September 14, 2004, at around 12:36 am, Stafford
County Sheriff’s Deputy Chad Oxley (“Oxley”) initiated a
traffic stop of a 1990 Toyota because the license plates were
not illuminated. The driver would not stop the car, and
during the pursuit Oxley noticed “furtive movements” by the
occupants. Eventually, the car stopped. The driver of the
car was Samuel Perez, but he identified himself to Oxley as
Adris Tabibi.
After issuing a summons for the infraction, Oxley asked
Perez for permission to search him and the car. Perez agreed.
The occupants of the car stepped out. Oxley observed a loaded
revolver under the driver’s seat, with the barrel facing
forward and the handle facing towards the rear of the car.
Upon completion of a criminal history check on “Adris
Tabibi,” Oxley determined that Tabibi had three prior felony
convictions. Based on that information, Oxley arrested Perez
for possession of a firearm by a convicted felon. Later,
while under oath before a magistrate, Perez admitted that his
name was Samuel Perez, not Adris Tabibi.
Upon determining that Perez had prior adjudications in
the juvenile court for offenses that would have been felonies
if he had been an adult, Perez was charged with, among other
things, possession of a concealed weapon after having been
convicted of a felony and possession of a firearm after having
been convicted of a felony, in violation of Code § 18.2-308.2.
At trial in the Circuit Court of Stafford County on March 3,
2005, the Commonwealth introduced into evidence two petitions
from the “Woodbridge Juvenile and Domestic Relations District
Court,”1 and a disposition order entered by the Fairfax County
Juvenile and Domestic Relations District Court.2 The record
1
The parties agree that no such court exists, and that
the petitions were filed in the Prince William County Juvenile
and Domestic Relations District Court. Furthermore, Perez
does not attach any legal significance to the misnomer.
2
Apparently, after adjudication, the disposition of the
charges was transferred to the Fairfax County Juvenile and
Domestic Relations District Court. Such a transfer is
authorized by Code § 16.1-243(B)(1).
2
from the trial court indicates that all three documents were
admitted into evidence.
The petitions charged Perez with grand larceny and
burglary on June 4, 2001. Both petitions read that the
child’s name is “Perez, Samuel A.” and that his date of birth
is “11/07/85.” His age at the time of offenses is listed as
“15 yrs.” The petition charging burglary lists two different
case numbers: “74509-03-00” and “JJ305461-12-01.” The
petition charging larceny also lists two different case
numbers: “074509-02-00” and “JJ305461-11-01.”
The disposition order shows the defendant’s name as
“Samuel A. Perez.” It lists the type of case as “felony.”
The findings of the court read “child has been found guilty of
2 counts – B&E + Larceny.” The court orders that “child be
committed to D.J.J.” The order has the case number “074509-
02-00” crossed out. Written above that, not crossed out, is
the case number “JJ305461 11-01” with “12-01” written directly
under “11-01.” The order is signed by the judge, but the line
for “Date” is blank.
Based in part on this evidence, the jury found Perez
guilty of “carrying a concealed weapon after having been
convicted of a violent felony” and “possessing or transporting
a firearm after having been convicted of a violent felony.”
On appeal, the Court of Appeals affirmed in part and reversed
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in part, finding that Perez’s convictions for possession of a
firearm and possession of a concealed weapon were predicated
on the same act, and that the convictions violated the Double
Jeopardy Clause of the Fifth Amendment. The Court of Appeals
held by order dated October 3, 2006:
For reasons stated in writing and
filed with the record, the Court is of
opinion that there is error in part in the
judgment appealed from. As the
Commonwealth concedes the dual convictions
violate the Double Jeopardy Clause of the
Fifth Amendment, one of appellant’s two
convictions for possession of a firearm
after having been convicted of a felony is
reversed, the indictment with regard
thereto is dismissed, and this matter is
remanded to the trial court to modify its
sentencing order accordingly.
Appellant’s remaining conviction of
possession of a firearm after having been
convicted of a felony is affirmed.
The Court of Appeals held that the evidence, including the
undated order, was sufficient to establish the fact of Perez’s
prior convictions. Perez v. Commonwealth, Record No. 1431-05-
4, slip op. at 2-4 (October 3, 2006).
We awarded Perez an appeal upon one assignment of error:
“An undated order purporting to be a predicate juvenile
adjudication is insufficient to support convictions of felony
possession of a firearm and felony possession of a concealed
firearm.”
II. Analysis
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The standard of review in this case is well-established:
When analyzing a challenge to the sufficiency
of the evidence, this Court reviews the
evidence in the light most favorable to the
prevailing party at trial and considers any
reasonable inferences from the facts proved.
The judgment of the trial court will only be
reversed upon a showing that it “is plainly
wrong or without evidence to support it.”
Wilson v. Commonwealth, 272 Va. 19, 27, 630 S.E.2d 326, 330
(2006) (quoting Code § 8.01-680) (internal citation omitted).
“[W]hen 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." Overbey v.
Commonwealth, 271 Va. 231, 234, 623 S.E.2d 904, 905 (2006)
(quoting Palmer v. Commonwealth, 269 Va. 203, 207, 609 S.E.2d
308, 310 (2005)). Perez argues that the undated order from the
Fairfax County Juvenile and Domestic Relations Court was
insufficient to prove an element of the offense, namely,
Perez’s prior conviction for an offense that would be a felony
if committed by an adult.
“A court may not engage in conjecture or surmise in
determining the offense for which a defendant was convicted.”
Palmer, 269 Va. at 207, 609 S.E.2d at 310; Overbey, 271 Va. at
234, 623 S.E.2d at 905. In this case, unlike Palmer or
Overbey, the fact finder did not have to engage in conjecture
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or surmise to find the fact of Perez’s prior conviction beyond
a reasonable doubt.
In Palmer, as in this case, the defendant was charged with
possession of a firearm after having been convicted of a
delinquent act as a juvenile that would have been a felony if
committed by an adult. Palmer, 269 Va. at 205, 609 S.E.2d at
308. To prove the previous conviction, the Commonwealth
presented four petitions and accompanying dispositions from the
Halifax County Juvenile and Domestic Relations District Court.
Two of the petitions alleged that the defendant committed grand
larceny; two alleged that the defendant committed burglary.
Id., 609 S.E.2d at 309. The record from the juvenile court did
not contain any orders providing an adjudication of the
charges, but the “disposition order” entered for each charge
ordered Palmer to pay restitution and be committed to jail for
twelve months, six of which were suspended. Id. at 206, 609
S.E.2d at 309. The trial court found that based on the
disposition order, there was no question that Palmer had been
convicted of the delinquent acts charged. The Court of Appeals
refused Palmer’s petition for appeal. On appeal, we reversed,
holding that the notation of a sentence was suggestive of a
conviction, but did not establish the fact or nature of the
conviction. Id. at 208, 609 S.E.2d at 310. The Commonwealth’s
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evidence was not sufficient to establish the prior felony
conviction. Id., 609 S.E.2d at 310-11.
Similarly, in Overbey, the defendant was charged with
possession of a firearm by a convicted felon. Overbey, 271 Va.
at 232, 623 S.E.2d at 904. The Commonwealth introduced as
evidence a copy of a petition from the Hampton Juvenile and
Domestic Relations District Court, with two pages of notes
relating to the proceedings in the juvenile court attached.
Id. The notes showed that Overbey was charged with burglary
and petit larceny. An entry in the notes read “based on the
plea of guilty, stipulation & summary of evidence, Ct finds def
guilty and refer for PO report.” Id. at 233, 623 S.E.2d at
905. This Court held that the language of the entry was
ambiguous. The language could be understood to mean that
Overbey pled guilty to burglary, petit larceny, or both. The
trial court necessarily had to engage in conjecture and surmise
to find that he pled guilty to both. Id. at 234, 623 S.E.2d at
905-06. We held, therefore, that the trial court erred in
concluding that the Commonwealth proved the element of a prior
felony conviction beyond a reasonable doubt. Id., 623 S.E.2d
at 906.
Unlike Palmer and Overbey, the fact finder in this case
did not need to engage in conjecture or surmise to find beyond
a reasonable doubt that Perez was convicted of a felonious act
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prior to September 14, 2004, the date of the possession offense
charged. Prior convictions may be proved by any competent
evidence. Palmer, 269 Va. at 207, 609 S.E.2d at 310; McBride
v. Commonwealth, 24 Va. App. 30, 34, 480 S.E.2d 126, 128
(1997). The two petitions from the juvenile court are adequate
proof of the charges. The undated order is adequate proof of
conviction of the charges. The case numbers that appear on the
petitions and order, as well as the consistent charges and name
of the defendant, show that the order is proof of the judgment
of conviction in adjudication of the charges in the two
petitions. Unlike Palmer and Overbey, the disposition order in
this case makes it absolutely clear that a determination of
guilt was made for specific offenses. The disposition order
states “child has been found guilty of 2 counts – B&E +
Larceny.”
Perez’s birth date is listed on the two petitions as
“11/07/85.” The petitions also show that he was 15 years old
at the time the burglary and larceny occurred. Additionally,
the order by itself shows that Perez was a “child” at the time
he was convicted, and that he was committed to “D.J.J.”
(Department of Juvenile Justice). Under Code § 16.1-228,
“child” or “juvenile” means a person less than 18 years of age.
A person can be committed to D.J.J. only if he or she is a
juvenile eleven years or older. Code § 16.1-278.7. It is
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therefore clear from the face of the petitions and order that
Perez was a child under age 18 when he was convicted for the
felonies of breaking and entering and larceny.
It is undisputed that the possession offense occurred on
September 14, 2004. The jury could have reasonably concluded
from the evidence presented that Perez was convicted of an act
that would have been a felony if committed by an adult, and
that his conviction occurred before the date of the incident in
question. No conjecture or surmise is required to reach this
conclusion. The totality of the Commonwealth’s evidence was
sufficient to support Perez’s conviction of felony possession
of a firearm.
III. Conclusion
The judgment of the Court of Appeals will be affirmed.
Affirmed.
JUSTICE KOONTZ, dissenting.
I respectfully dissent. In this case, the Commonwealth
had the burden to prove beyond a reasonable doubt that Samuel
Alvaro Perez was previously convicted for an offense that
would be a felony if committed by an adult in order to convict
him of possession of a firearm after having been convicted of
a felony. See Overbey v. Commonwealth, 271 Va. 231, 234, 623
S.E.2d 904, 905 (2006). In this context, proof beyond a
reasonable doubt of this element of the charged offense is
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entirely inconsistent with the application of conjecture or
surmise to determine the sufficiency of the Commonwealth’s
evidence to meet its burden of proof. See Palmer v.
Commonwealth, 269 Va. 203, 207, 609 S.E.2d 308, 310 (2005).
In my view, even when the Commonwealth’s evidence in support
of Perez’s alleged prior felony convictions is considered in
the light most favorable to the Commonwealth, that evidence is
insufficient as a matter of law to support the judgment of the
trial court and the judgment of the Court of Appeals affirming
that judgment. Code § 8.01-680.
Initially, it is to be noted that there is no “Woodbridge
Juvenile and Domestic Relations District Court” and there was
no such court on June 4, 2001, when the two petitions charging
Perez with burglary and grand larceny were purportedly filed
in that “court.” Perhaps these petitions were actually filed
in the Prince William County Juvenile and Domestic Relations
District Court. Conjecture, surmise, and the apparent
agreement by the parties noted by the majority would support
that conclusion even though the record evidence before the
trial court does not. Perhaps, however, this glaring error
was discovered by the appropriate court and the petitions were
dismissed. In any event, there is no adjudicatory order
regarding those petitions entered by either the “Woodbridge”
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court or the Prince William County court in the record.
Perhaps such an order was entered; perhaps it was not.
Nevertheless, without an evidentiary basis, the
Commonwealth presented what purports to be a dispositional
order entered on some unknown date, because it is not dated,
by the Fairfax County Juvenile and Domestic Relations District
Court. There is no explanation in the record of the evidence
before the trial court for the jurisdiction of this juvenile
court in this matter. Assuming that Perez resided in Fairfax
County at the time, Code § 16.1-243(B)(1) would have permitted
the transfer of the case to the Fairfax County court “only
after adjudication in [the] delinquency proceedings.”
Moreover, this purported order does not reflect the basis
upon which the Fairfax County court found that “[Perez] has
been found guilty of 2 counts – B & E + larceny.” As
previously noted, there is no adjudicatory order in the record
entered by any juvenile court. Perhaps the “Woodbridge” court
or the Prince William County court made such an adjudication.
Clearly the defective petitions are not self-executing
adjudications of guilt. Perhaps the Fairfax County court upon
reflection recognized the defect in the petitions and did not
date the dispositional order so that it would not be effective
until the matter was considered further and resolved. Without
conjecture or surmise, all that can be reasonably gleaned from
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the Commonwealth’s evidence is that the petitions and the
dispositional order pertain to felonies alleged to have been
committed by Perez prior to his possession of a firearm on
September 14, 2004. That evidence, however, falls far short
of proof beyond a reasonable doubt that Perez was actually
convicted of those felonies.
The majority does not reach the issue whether an undated
order is a valid order, and as far as I can determine we have
not previously addressed that issue in prior decisions.
Because the absence of a date on the pertinent order in this
case may have been intentional for a number of reasons and,
thus, not intended to be a final order, I need not address the
issue in detail here. Suffice it to say, that in my view an
undated order is not a valid order because such an order
leaves to conjecture and surmise when, if at all, it is
intended to be effective.
For these reasons, I would hold that the judgment of the
Circuit Court of Stafford County was in error as a matter of
law and, accordingly, I would reverse the judgment of the
Court of Appeals affirming that judgment.
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