COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Bumgardner and Frank
Argued at Chesapeake, Virginia
JOHN ANTHONY HOLMES
OPINION BY
v. Record No. 2799-02-1 JUDGE RUDOLPH BUMGARDNER, III
NOVEMBER 25, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Von L. Piersall, Jr., Judge
S. Jane Chittom, Appellate Defender (Public Defender Commission,
on briefs), for appellant.
Jennifer R. Franklin, Assistant Attorney General (Jerry W. Kilgore,
Attorney General, on brief), for appellee.
The trial court convicted John Anthony Holmes of felony domestic assault, Code
§ 18.2-57.2.1 He contends the evidence fails to prove he was the same person named in the
conviction orders used to prove his prior convictions. Finding no error, we affirm.
In ruling on the sufficiency of the evidence, “the relevant question 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.” Jackson v.
Virginia, 443 U.S. 307, 319 (1979). The trier of fact resolves conflicts in the evidence, weighs
the evidence, and draws “reasonable inferences from basic facts to ultimate facts.” Id. The trial
court has broad discretion over the admission of evidence.
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“On a third or subsequent conviction for assault and battery against a family or
household member . . . such person shall be guilty of a Class 6 felony.” Code § 18.2-57.2.
Officer Brian Davis responded to a domestic disturbance call in Portsmouth and spoke
with the victim, the defendant’s wife. He then “secured felony warrants for third offense
domestic assault and battery.” At trial, the victim identified the defendant as “John Anthony
Holmes.” The Commonwealth introduced certified copies of two domestic assault conviction
orders entered by the Circuit Court of the City of Suffolk. The orders reflected that “John
Anthony Holmes” had committed the offenses. The orders also contained the same date of birth
and social security number.
The trial court overruled the defendant’s motion to strike at the conclusion of the
Commonwealth’s evidence. It stated, “the similarity in names is sufficient at this point.” The
defendant offered no evidence that he was not the person named in the conviction orders.
The trial court’s ruling shows that it relied on the similarity of the names to establish
prima facie proof that the defendant was the person convicted in Suffolk. “Identity of names
carries with it a presumption of identity of person, the strength of which will vary according to
the circumstances.” Cook v. Commonwealth, 7 Va. App. 225, 230, 372 S.E.2d 780, 783 (1988)
(citing Blair v. Rorer’s Administrator, 135 Va. 1, 25, 116 S.E. 767, 776, cert. denied, 262 U.S.
734 (1923)). The identity of names presumption is a presumption in the sense that it is a
permissible inference. The fact finder is not required to draw the inference. Whether to draw the
inference, and if drawn, the strength to accord it will vary according to the particular
circumstances of the case. The Commonwealth’s evidence established a prima facie case, which
merely indicated some evidence created a question of fact. See Charles E. Friend, The Law of
Evidence in Virginia § 10.4, at 359-60 (6th ed. 2003).
In this case, the circumstances add to the strength of the inference. The name itself, John
Anthony Holmes, is not obviously common. The offenses were all domestic assaults, occurred
in adjacent jurisdictions, and were committed by adult males of like age. The officer
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immediately charged the defendant with a third domestic offense, presumably based on the
information provided at the scene by the victim, who was the defendant’s wife.
The issue was a “mere question of identification.” King v. Lynn, 90 Va. 345, 347, 18
S.E. 439, 440 (1893) (under recidivist statute this is a question for the jury when defendant is
silent or is mute as to whether or not he is person named in conviction orders). The evidence
raised a permissible inference, which the fact finder could accept or reject; it was not a rebuttable
presumption, which the defendant was required to refute. The defendant declined to introduce
evidence to the contrary. While the trial court was not required to find the Commonwealth
carried its burden of proof, the evidence permitted it to do so.
In Crawley v. Commonwealth, 29 Va. App. 372, 512 S.E.2d 169 (1999), the
Commonwealth attempted to prove the defendant was the burglar by matching a fingerprint card,
bearing his name and vital statistics, with fingerprints taken at the crime scene. The vital
statistics on the card matched the defendant’s characteristics, but his personal data, including a
social security number and date of birth, were not admitted at trial. This Court reversed his
conviction because no evidence proved the defendant’s name or birth date. In this case, the
Commonwealth proved the name and identity of the defendant.
Given these circumstances, a reasonable trier of fact could have concluded the defendant
was the person named in the conviction orders. Accordingly, we affirm the conviction.
Affirmed.
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