COURT OF APPEALS OF VIRGINIA
Present: Judges Kelsey, Petty and Senior Judge Clements
Argued at Alexandria, Virginia
WARREN NICHOLAS ELEM, JR.
OPINION BY
v. Record No. 2771-08-4 JUDGE JEAN HARRISON CLEMENTS
OCTOBER 13, 2009
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
William T. Newman, Jr., Judge
Matthew T. Foley, Deputy Public Defender (Charles Burnham,
Assistant Public Defender, on brief), for appellant.
Robert H. Anderson, III, Senior Assistant Attorney General
(William C. Mims, Attorney General, on brief), for appellee.
A jury convicted Warren Nicholas Elem, Jr. (Elem) of felony petit larceny pursuant to
Code §§ 18.2-96 and 18.2-104. 1 He argues the trial court erred in denying his motion to
bifurcate the guilt phase of his trial. Elem moved to bifurcate the guilt phase so that the jury
would not be aware of his prior larceny convictions until it determined whether he was guilty of
petit larceny. Pursuant to Elem’s motion, if the jury determined that he was guilty of petit
larceny, the Commonwealth would then present evidence of his prior larceny offenses and the
jury would determine if the Commonwealth proved the prior larceny offenses. In denying
Elem’s motion, the trial court stated that there was no authority for such a procedure and that it
was for the legislature to change the manner of proof in recidivist crimes.
1
Elem was also convicted of resisting arrest, and he claims no error related to this
conviction.
On appeal, Elem argues the trial court incorrectly decided that it lacked authority to
bifurcate the guilt phase because the statutes do not prohibit such a procedure. Elem also argues
the trial court abused its discretion in refusing to bifurcate the guilt phase of his trial because
informing the jury of his prior larceny convictions prior to the jury determining his guilt of the
present larceny charge undoubtedly caused him great prejudice. We disagree with Elem, and
affirm.
The facts of the petit larceny are not in dispute. Elem was accused of stealing a wallet
and indicted for felony petit larceny due to nine prior larceny convictions. 2 In this case, the trial
court’s decision denying Elem’s request for a bifurcated trial during the guilt phase is an issue of
statutory interpretation, which we review de novo on appeal. Young v. Commonwealth, 273 Va.
528, 533, 643 S.E.2d 491, 493 (2007).
In Brown v. Commonwealth, 226 Va. 56, 307 S.E.2d 239 (1983), the defendant was
charged with felony petit larceny, and she requested a bifurcated trial to prevent evidence of her
prior larceny convictions until after the jury determined her guilt or innocence. Id. at 58-59, 307
S.E.2d at 240. Although we note that Brown challenged her conviction on due process grounds, 3
in affirming her conviction, the Supreme Court found
Brown sought a bifurcated trial, but there is no statutory
authorization for such a procedure in this case. Bifurcated trials
have been provided by statute only in capital murder cases, Code
§ 19.2-264.3, and in certain traffic cases, [former] Code
§ 46.1-347.2 [now Code § 46.2-943]. There may be sound
arguments for the extension of such trials to other offenses in
2
Pursuant to Code § 18.2-104, when an individual is convicted of larceny, third or
subsequent offense, the crime is elevated to a Class 6 felony, even if the underlying offense is a
misdemeanor.
3
Elem does not raise any due process challenge to the trial court’s denial of his motion.
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Virginia, but these arguments should be addressed to the General
Assembly.
Id. at 59, 307 S.E.2d at 241.
In 1994, subsequent to the Brown decision, the General Assembly enacted Code
§ 19.2-295.1. 4 In enacting this provision, “the General Assembly created two distinct stages of
all felony and Class 1 misdemeanor trials - the guilt phase and the punishment phase.” Ford v.
Commonwealth, 48 Va. App. 262, 268, 630 S.E.2d 332, 336 (2006). “When the General
Assembly acts in an area in which one of its appellate courts already has spoken, it is presumed
to know the law as the court has stated it and to acquiesce therein, and if the legislature intends to
countermand such appellate decision it must do so explicitly.” Weathers v. Commonwealth, 262
Va. 803, 805, 553 S.E.2d 729, 730 (2001). 5 “Courts cannot ‘add language to the statute the
General Assembly has not seen fit to include.’” Washington v. Commonwealth, 272 Va. 449,
459, 634 S.E.2d 310, 316 (2006) (quoting Holsapple v. Commonwealth, 266 Va. 593, 599, 587
S.E.2d 561, 564-65 (2003)).
When the legislature enacted and amended Code § 19.2-295.1, it was well aware of the
appellate decisions concerning the manner of proof of the prior convictions for recidivist
offenses, but it chose not to create a separate bifurcated procedure of the guilt phase for these
offenses. See Washington, 272 Va. at 459, 634 S.E.2d at 316 (finding that the Supreme Court
4
Code § 19.2-295.1 provides in part:
In cases of trial by jury, upon a finding that the defendant is guilty
of a felony or a Class 1 misdemeanor, or upon a finding in the trial
de novo of an appealed misdemeanor conviction that the defendant
is guilty of a Class 1 misdemeanor, a separate proceeding limited
to the ascertainment of punishment shall be held as soon as
practicable before the same jury.
5
Code § 19.2-295.1 was amended by the legislature in 2007, 2001, 1996, and 1995.
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“has repeatedly held that the prior convictions of a criminal defendant facing trial as a recidivist
may be introduced and proved at the guilt phase of the trial on the principal offense”). It is
settled under Virginia law that the potential prejudice that appellant contends would arise from
the introduction of his prior convictions prior to the point at which the jury decides whether he
was guilty of petit larceny can be sufficiently solved by an appropriate limiting instruction to the
jury. Id. at 460, 634 S.E.2d at 317. In this case, the trial court gave such an instruction.
Thus, we hold that the trial court did not err in finding that it was for the legislature to
determine the manner of proof of prior conviction for the underlying charge and in denying
Elem’s motion to bifurcate the guilt phase of his trial. Since the trial court did not err in denying
Elem’s motion, the trial court did not abuse its discretion in failing to bifurcate the guilt phase of
Elem’s trial. Accordingly, we affirm Elem’s conviction for felony petit larceny in violation of
Code §§ 18.2-96 and 18.2-104.
Affirmed.
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