COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Humphreys and Huff
PUBLISHED
Argued at Chesapeake, Virginia
JAYQUANE D. PERRY
OPINION BY
v. Record No. 2171-11-1 JUDGE GLEN A. HUFF
MARCH 5, 2013
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
John C. Morrison, Jr., Judge Designate
J. Barry McCracken, Assistant Public Defender (Office of the Public
Defender, on brief), for appellant.
Aaron J. Campbell, Assistant Attorney General (Kenneth T.
Cuccinelli, II, Attorney General, on brief), for appellee.
Jayquane D. Perry (“appellant”) appeals his conviction of possession of a firearm after
having been adjudicated delinquent of an act which would be a felony if committed by an adult,
in violation of Code § 18.2-308.2. Following a jury trial in the Circuit Court of the City of
Norfolk (“trial court”), appellant was sentenced to five years in prison. On appeal, appellant
contends that the trial court erred in 1) admitting into evidence an exhibit reflecting his
adjudicatory hearing in the Norfolk Juvenile and Domestic Relations District Court (“JDR
court”) for a previous violation of Code § 18.2-308.2, when such document did not constitute an
adjudication of delinquency and thus had no tendency to prove guilt; and 2) denying the motions
to strike, when the evidence did not establish that he had a prior adjudication of delinquency and
that the instrument was a firearm. For the following reasons, we affirm the trial court’s
judgment.
I. BACKGROUND
On appeal, “‘we consider the evidence and all reasonable inferences flowing from that
evidence in the light most favorable to the Commonwealth, the prevailing party at trial.’”
Williams v. Commonwealth, 49 Va. App. 439, 442, 642 S.E.2d 295, 296 (2007) (en banc)
(quoting Jackson v. Commonwealth, 267 Va. 666, 672, 594 S.E.2d 595, 598 (2004)). So viewed,
the evidence is as follows.
On October 2, 2010, police officers were dispatched to an apartment building in Norfolk
after receiving a telephone call about narcotics usage and trespassing on those premises. Officer
John Thomas (“Thomas”) and Officer Laura Mason (“Mason”), both with the Norfolk Police
Department, parked outside of the building and approached the front door. The door was
standing open, and the officers “smelled the strong odor of burnt marijuana coming from the
stairwell” inside.
As Thomas crossed the threshold of the building, he observed a man “standing in the
middle of the doorway counting money,” as well as several other individuals sitting on the stairs.
Thomas “asked everybody to exit the stairwell,” after which the individuals filed out of the
building onto the sidewalk. Once they had congregated outside, Thomas and Mason started to
explain to them why they were investigating the area. Before they could finish, Thomas
observed one of the individuals, later identified as appellant, sprint away from the building area.
Mason tried unsuccessfully to activate her taser on appellant as he ran by her.
As appellant crossed a nearby street, Thomas “saw a revolver, a firearm fall from the
right side of his body from under the T-shirt . . . into the middle of the street.” Thomas also
“heard the metal hit the asphalt,” then moments later saw the revolver “spinning in the middle of
the street.” Thomas later testified at appellant’s jury trial that he had received special training in
firearms and that the instrument in question was a Smith & Wesson revolver. Thomas also
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testified with regard to the general characteristics of revolvers. In particular, Thomas stated that
“[a]t the time the trigger is pulled, the firing pin is going to hit the strike plate on the round
which then sends the round out of the barrel by force.”
Mason did not see the firearm fall from appellant’s clothing, but heard “a loud clang” as
appellant ran and observed a firearm spinning in the middle of the street. Mason recorded the
location of the firearm, then secured the firearm and took it into police custody. As part of this
process, Mason removed six rounds of ammunition from the loaded revolver.
Officer Christopher Doukas (“Doukas”), with the Norfolk Police Department, responded
to the scene just as appellant started running away from the group of individuals assembled near
Mason and Thomas. Doukas immediately began pursuing appellant. As appellant crossed the
street, Doukas “heard a loud metal clank on the pavement,” but he never saw any object on the
street as he ran after appellant. Doukas took appellant into custody shortly thereafter.
In order to establish at trial that appellant had a prior adjudication of delinquency, the
Commonwealth introduced as an exhibit a document showing appellant’s adjudication in the
JDR court for another violation of the same Code provision. The document was titled “order”;
stated that the type of case was a felony violation of Code § 18.2-308.2(A) and that the type of
hearing was an adjudicatory hearing; indicated that appellant had pleaded guilty and that the JDR
court had found him guilty, as well as the judge’s notation that “[h]e is a convicted felon”;
ordered that appellant be remanded to “NDH” and that a social history be prepared; and was
date-stamped and signed by the judge.
Appellant objected to the admission of the document into evidence on the basis that the
document did not show a final conviction. Specifically, appellant argued that “in order to have it
appropriately to the jury, it has to be evidence of finality. The documentation that they have in
the exhibit [is] itself listed as adjudicatory, [whereas] I believe that there has to be something that
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suggests disposition. Adjudicatory indicates there are a number [of] options.” The trial court
overruled the objection and admitted the exhibit into evidence, finding that it constituted a “final
adjudication of guilt.”
At the conclusion of all of the evidence, appellant made a motion to strike on the basis
that the Commonwealth had not proved his prior adjudication of delinquency. Appellant also
argued the evidence was insufficient to establish that he possessed the instrument or that the
instrument was in fact a firearm, specifically alleging that Thomas’s testimony was inadequate to
establish this fact. The trial court denied the motion and convicted appellant of violating Code
§ 18.2-308.2. This appeal followed.
II. ANALYSIS
A. Admissibility of the Evidence of the Prior Adjudication of Delinquency
On appeal, appellant first contends that the trial court erred in admitting into evidence an
exhibit reflecting his juvenile adjudication for a previous violation of Code § 18.2-308.2, as such
exhibit was inadequate to prove his prior adjudication of delinquency. Specifically, appellant
argues that the exhibit did “not constitute a final conviction order,” but rather was “merely a
record of an adjudicatory hearing establishing [his] plea and the [JDR court’s] initial acceptance
of that plea.”
“‘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.’” Bell v.
Commonwealth, 49 Va. App. 570, 576, 643 S.E.2d 497, 500 (2007) (quoting Blain v.
Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988)). “This standard, if nothing
else, means that the trial judge’s ‘ruling will not be reversed simply because an appellate court
disagrees.’” Thomas v. Commonwealth, 44 Va. App. 741, 753, 607 S.E.2d 738, 743 (2005)
(quoting Henry J. Friendly, Indiscretion about Discretion, 31 Emory L.J. 747, 754 (1982)). “The
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proponent of the evidence bears the burden of establishing[,] by a preponderance of the evidence,
the facts necessary to support its admissibility.” Id.
“‘It is a fundamental principle of jurisprudence that evidence which is not relevant is not
admissible.’” McMillan v. Commonwealth, 277 Va. 11, 22, 671 S.E.2d 396, 401 (2009)
(quoting Davis v. Marshall Homes, 265 Va. 159, 166, 576 S.E.2d 504, 507 (2003)). “‘Evidence
is relevant if it tends to prove or disprove, or is pertinent to, matters in issue.’” Id. (quoting
McCloud v. Commonwealth, 269 Va. 242, 257, 609 S.E.2d 16, 24 (2005)).
“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.”
Id. (quoting Smith v. Commonwealth, 223 Va. 721, 723, 292 S.E.2d 362, 363 (1982)).
Appellant asserts that the only evidence relevant to prove a prior adjudication of
delinquency is a final judgment order as defined by Code § 19.2-307. Such a judgment order
“shall set forth the plea, the verdict or findings and the adjudication and sentence.” Code
§ 19.2-307. The element of proof required by Code § 18.2-308.2(A)(iii), however, is an
adjudication of delinquency “of a delinquent act which would be a felony if committed by an
adult.” 1
1
Code § 18.2-308.2(A) provides, in relevant part, that
[i]t shall be unlawful for . . . (iii) 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 . . . to knowingly and
intentionally possess or transport any firearm or ammunition for a
firearm . . . .
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The evidence in this case was an exhibit that the Commonwealth asserted was an
adjudication of delinquency under Code § 18.2-308.2(A)(iii). The document was titled “order,”
and described the proceeding as an adjudicatory hearing based on the felony charge of violating
Code § 18.2-308.2(A). The document also established that appellant pleaded guilty to the charge
and that the JDR court found appellant guilty following his plea of guilty. It further indicated
that appellant should be remanded to the “NDH” and that a social history should be prepared.
The document was date-stamped and signed by the JDR court judge and also provided that the
matter was continued until a later date, ostensibly for the purpose of reaching a disposition at that
time. Based on the foregoing, the document in question plainly evidenced an adjudication of
delinquency under Code § 18.2-308.2(A)(iii), upon which a judgment of conviction was found. 2
Based on this determination, it follows that the adjudication order was relevant to the
matter of whether appellant had a prior adjudication of delinquency. The order in question
indicated not only that appellant pleaded guilty to a felony charge, but also that the JDR court
accepted his guilty plea. In sum, the order directly related to the charged offense and tended to
prove that appellant had, in fact, satisfied the requisite element of a prior adjudication of
delinquency. Accordingly, the trial court did not abuse its discretion in admitting the order into
evidence.
2
The Supreme Court stated in Palmer v. Commonwealth, 269 Va. 203, 609 S.E.2d 308
(2005), that Code § 19.2-307 requires judgment orders to “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.” Palmer, 269 Va. at 207, 609 S.E.2d at 310 (emphasis added). However, to the extent
the Court in Palmer purported to impose this as a requirement for admissibility or sufficiency, it
is dicta because in Palmer, the records reflected the sentence, and it was the adjudication that was
missing. In the instant case, by contrast, the order reflects the adjudication but not the sentence.
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B. Sufficiency of the Evidence to Prove the Prior Adjudication of Delinquency
Appellant also contends the evidence was insufficient to support his conviction on the
basis that the Commonwealth neither proved the requisite prior adjudication of delinquency nor
established that the instrument was a firearm within the meaning of Code § 18.2-308.2.
“When considering on appeal the sufficiency of the evidence presented below, we
‘presume the judgment of the trial court to be correct’ and reverse only if the trial court’s
decision is ‘plainly wrong or without evidence to support it.’” Wood v. Commonwealth, 57
Va. App. 286, 296, 701 S.E.2d 810, 815 (2010) (quoting Davis v. Commonwealth, 39 Va. App.
96, 99, 570 S.E.2d 875, 876-77 (2002)). Under this standard, the relevant inquiry is whether
“any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979).
Moreover, “[t]here is no distinction in the law between the weight or value to be given to
either direct or circumstantial evidence.” Commonwealth v. Hudson, 265 Va. 505, 512, 578
S.E.2d 781, 785 (2003). “‘While no single piece of evidence may be sufficient, the combined
force of many concurrent and related circumstances, each insufficient in itself, may lead a
reasonable mind irresistibly to a conclusion.’” Id. at 514, 578 S.E.2d at 786 (quoting Derr v.
Commonwealth, 242 Va. 413, 425, 410 S.E.2d 662, 669 (1991)).
1. Prior Adjudication of Delinquency
First, appellant argues that the evidence is insufficient to sustain the conviction on the
basis that the Commonwealth did not prove the prior adjudication of delinquency. Appellant
relies on the same argument he made for the inadmissibility of the exhibit, namely that it “was
not evidence of a final conviction since it did not reflect the final disposition of the case.” Thus,
appellant essentially limits his challenge on the sufficiency of the evidence to the argument that
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the trial court relied on improperly admitted evidence to satisfy an essential element for
conviction.
“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.” Palmer, 269 Va.
at 207, 609 S.E.2d at 310. “Prior convictions may be proved by any competent evidence.” Perez
v. Commonwealth, 274 Va. 724, 730, 652 S.E.2d 95, 98 (2007) (citing 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)). “[W]hen 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.” Palmer, 269 Va. at 207, 609 S.E.2d at
310.
As noted above, the document constituted an adjudication of delinquency under
Code § 18.2-308.2(A)(iii) and was properly admitted into evidence. Although the disposition
order itself was not admitted, the record does not indicate that appellant’s conviction changed at
any time following the adjudication hearing and finding of guilt. 3 Therefore, the trial court did
not err in finding the evidence sufficient to prove appellant’s prior adjudication of delinquency.
3
Appellant argues that Code § 16.1-278.8(A)(5) permits the dismissal of charges after an
adjudicatory hearing under certain conditions and that this fact, combined with the absence of a
sentencing order, prevents a finding that appellant had a prior adjudication of delinquency.
Code § 16.1-278.8(A)(5) does provide that a juvenile court may “defer disposition . . . for a
specific period of time” based upon certain conditions and then dismiss the proceedings “[u]pon
fulfillment of the terms and conditions.” It specifically states, however, that the juvenile court
may do so only “[w]ithout entering a judgment of guilty” and that “[d]ischarge and dismissal
under these provisions shall be without adjudication of guilt.” Code § 16.1-278.8(A)(5)
(emphases added). Here, by contrast, the JDR court records make clear that an adjudication of
guilt was made. Thus, the outcome put forth by appellant under this statute is not available in the
present case.
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2. Firearm
Second, appellant argues the evidence is insufficient to sustain his conviction on the basis
that the Commonwealth did not prove the instrument was a firearm. Specifically, he contends
that the evidence admitted at trial, in this case the instrument itself as well as the testimony of the
responding officers, did not establish that the instrument satisfied the requirements of
Code § 18.2-308.2.
“Code § 18.2-308.2 provides no express definition of the term ‘firearm.’” Armstrong v.
Commonwealth, 263 Va. 573, 583, 562 S.E.2d 139, 145 (2002). It is settled, however, that “in
order to sustain a conviction for possessing a firearm in violation of Code § 18.2-308.2, the
evidence need show only that a person subject to the provisions of that statute possessed an
instrument which was designed, made, and intended to expel a projectile by means of an
explosion.” Id. at 584, 562 S.E.2d at 145. “It is not necessary that the Commonwealth prove the
instrument was ‘operable,’ ‘capable’ of being fired, or had the ‘actual capacity to do serious
harm.’” Id.
In considering the entire record in this case, the evidence was sufficient to prove that
appellant possessed a firearm. Thomas testified that he had received training on firearms and
that the instrument in question was a “Smith & Wesson revolver.” Thomas stated that revolvers
operate such that “[a]t the time the trigger is pulled, the firing pin is going to hit the strike plate
on the round which then sends the round out of the barrel by force.” Mason’s testimony also
indicated that the instrument was loaded in that she removed six rounds of ammunition when she
retrieved the instrument from the street. Moreover, the firearm itself was admitted into evidence
at trial, and thus was available for examination by the jury. For these reasons, a rational trier of
fact could find beyond a reasonable doubt that the instrument was “designed, made, and intended
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to expel a projectile by means of an explosion.” Id. Thus, the trial court did not err in finding
the evidence sufficient to sustain appellant’s conviction under Code § 18.2-308.2.
III. CONCLUSION
For the foregoing reasons, we hold that the trial court did not err in admitting the
evidence pertaining to appellant’s juvenile adjudication for the purpose of establishing
appellant’s prior adjudication of delinquency. We also hold that the trial court did not err in
finding the evidence sufficient to prove appellant’s prior adjudication of delinquency and
establish that the instrument in this case was a firearm. Accordingly, we affirm the trial court’s
judgment.
Affirmed.
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