COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judge McClanahan and Senior Judge Fitzpatrick
Argued at Richmond, Virginia
BRANDEN SHAWNE GHEE, S/K/A
BRANDON GHEE
MEMORANDUM OPINION* BY
v. Record No. 1565-05-2 JUDGE JOHANNA L. FITZPATRICK
OCTOBER 24, 2006
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Frederick G. Rockwell, III, Judge
Gregory P. Sheldon (Ken Lammers, Jr., on brief), for appellant.
Michael T. Judge, Senior Assistant Attorney General (Robert F.
McDonnell, Attorney General, on brief), for appellee.
Branden Shawne Ghee, appellant, appeals a conviction for possession of a firearm after
having been found guilty of an offense which would be a felony if committed by an adult when he
was fourteen years of age or older in violation of Code § 18.2-308.2. On appeal, he contends (1) the
evidence was insufficient to prove his juvenile adjudication was a prior conviction for the
purposes of Code § 18.2-308.2; and (2) the trial court erred by sentencing him pursuant to the
mandatory punishment provision of Code § 18.2-308.2 because the provision applies to
convictions, not juvenile adjudications. For the reasons that follow, we affirm the conviction.
Background
“Under familiar principles of appellate review, we examine the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible
therefrom.” Slade v. Commonwealth, 43 Va. App. 61, 64, 596 S.E.2d 90, 92 (2004).
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
On January 6, 2005, appellant was a passenger in a car stopped by Officer Edwardo
Martinez. Appellant admitted that a shotgun found in the vehicle belonged to him, and he was
charged with a violation of Code § 18.2-308.2. Martinez testified that at the time of the stop, he
ran a “criminal history” on appellant that “came back that [appellant] was a convicted felon.”
The trial court admitted into evidence Commonwealth’s Exhibit 2, which contained
several documents related to an offense committed by appellant on May 23, 2003. The first
document was a petition from the Chesterfield Juvenile and Domestic Relations District Court,
dated June 11, 2003, charging that on May 23, 2003, appellant “unlawfully and feloniously
assault[ed] and batter[ed]” an officer in violation of Code § 18.2-57(C). Attached to Exhibit 2
was an adjudication order dated October 9, 2003, which showed appellant pled guilty to charge
“(12) A&B/Policeman” and was found guilty of that offense. A disposition order dated March 9,
2004, referenced charge “(12) A&B” and stated that appellant was sentenced to serve six months
in jail, with all but three weekends of the time suspended. The order also noted that appellant
was eighteen years old at the time of sentencing.
Appellant offered into evidence a disposition notice dated March 9, 2004. This notice
referenced an offense date of May 23, 2003, Case No. JJ03733-12-00, and identified the charge
as “A&B/Police Officer,” citing Code § 18.2-57(C). This document also indicated the offense
was a felony.
As rebuttal evidence, the Commonwealth called Duncan Minton, Assistant
Commonwealth’s Attorney, to testify concerning appellant’s charge of assault and battery of a
police officer. Minton testified that he prosecuted appellant on this charge of assault and battery
on a police officer in the juvenile and domestic relations district court. Minton stated that
appellant pled guilty to “the felony charge of assault on a police officer.” Minton testified that
he was at the disposition hearing and his notes did not reflect any change in the charge from a
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felony to a misdemeanor. Additionally, the supervisor of juvenile probation testified that
appellant’s file did not contain any notation that the felony charge for assault and battery of a
police officer was changed or reduced.
Appellant made a motion to strike the charge on the ground that the Commonwealth
failed to prove he was a felon within the meaning of Code § 18.2-308.2 because the disposition
order reflected only a charge of “assault and battery” without indicating that the charge was a
felony. The trial court overruled the motion to strike.
Analysis
I.
“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 v.
Commonwealth, 269 Va. 203, 207, 609 S.E.2d 308, 310 (2005) (citations omitted). Appellant
relies on Palmer to support his argument. In Palmer, the Court held, “the Commonwealth did not
present sufficient evidence in the circuit court to establish that Palmer previously had been
convicted of a delinquent act that would have been a felony if committed by an adult.” Id. at
208, 609 S.E.2d at 310. In Palmer, the evidence consisted of four petitions and four
accompanying dispositional orders from the juvenile and domestic relations district court. “Two
of the petitions alleged that Palmer committed the delinquent act of grand larceny, in violation of
Code § 18.2-95. The other two petitions alleged that Palmer committed the delinquent act of
burglary with the intent to commit larceny, in violation of Code § 18.2-91.” Id. at 205, 609
S.E.2d at 309. No evidence was presented other than the juvenile court orders.
Palmer is clearly distinguishable from the instant case. Here, several documents were
admitted into evidence, which when read together, show the nature of the delinquent act for
which appellant was sentenced. The documents reflect that appellant pled guilty to a felony
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charge of violating Code § 18.2-57(C), was found guilty of the charge, and was sentenced for
this offense, which would have been a felony if committed by an adult.
Appellant focuses only on the disposition order. He argues that because the disposition
order references “A&B,” which could possibly designate a misdemeanor charge, the evidence
failed to show appellant had committed an offense that would be a felony if committed by an
adult. However, the complete reference to the charge in the disposition order is “(12) A&B.”
The adjudication order cited a charge “(12) A&B/Policeman,” and the disposition notice cited a
Case No. JJ003733-12-00, identifying the charge as “A&B/Police Officer,” and stating this was a
violation of Code § 18.2-57(C), a felony. These documents, when read together, indicate that the
charge referenced in the disposition order, “(12) A&B,” was a reference to appellant’s Case No.
JJ003733-12-00, a charge for a violation of Code § 18.2-57(C).
The underlying petition charged that appellant “unlawfully and feloniously assault[ed]
and batter[ed]” an officer in violation of Code § 18.2-57(C). (Emphasis added). A violation of
Code § 18.2-57(C) is an offense which would be a felony if committed by an adult.1
Furthermore, the Commonwealth introduced evidence from both the assistant Commonwealth’s
attorney who prosecuted the case and the supervisor of juvenile probation who testified that
appellant’s charge for a violation of Code § 18.2-57(C) was never reduced from a felony.
A “prior conviction may be proved by any competent evidence.” McBride v.
Commonwealth, 24 Va. App. 30, 34, 480 S.E.2d 126, 128 (1997). From the evidence presented,
the jury could conclude beyond a reasonable doubt that appellant had been found guilty of an
offense which would be a felony if committed by an adult when he was fourteen years of age or
older. It is in the “province of the jury to determine what inferences are to be drawn from proved
1
Code § 18.2-57(C) provides in pertinent part: “[I]f any person commits an assault or an
assault and battery against another knowing or having reason to know that such other person is
. . . a law-enforcement officer . . . such person is guilty of a Class 6 felony . . . .”
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facts, provided the inferences are reasonably related to those facts.” Inge v. Commonwealth, 217
Va. 360, 366, 228 S.E.2d 563, 568 (1976). Accordingly, the evidence was sufficient to establish
that appellant violated Code § 18.2-308.2.
II.
Appellant next argues the trial court erred by sentencing him pursuant to the mandatory
punishment provision of Code § 18.2-308.2 because it does not apply to adjudications of
delinquency.2
Our decision in Carter v. Commonwealth, 38 Va. App. 116, 562 S.E.2d 331 (2002),
controls the disposition of this issue. In Carter, the defendant argued the mandatory sentencing
provision of Code § 18.2-308.2 was not implicated by a prior “juvenile adjudication.” Carter, 38
Va. App. at 123, 562 S.E.2d at 334. However, we held:
[I]n fashioning a statute to protect the public from the threat of
dangerously armed felons, the legislature expressly included within
the statutory proscription all persons previously “found guilty,”
while juveniles, of a “delinquent act,” deemed felonious.
Subsequent reference in Code § 18.2-308.2(A) to “conviction or
adjudication” simply recognizes terms that sometimes differentiate
determinations of guilt in juvenile and adult prosecutions. Thus,
2
The applicable provisions of Code § 18.2-308.2 state:
A. It shall be unlawful for (i) any person who has been convicted
of a felony; (ii) any person adjudicated delinquent, on or after July
1, 2005, as a juvenile 14 years of age or older at the time of the
offense of murder in violation of § 18.2-31 or 18.2-32, kidnapping
in violation of § 18.2-47, robbery by the threat or presentation of
firearms in violation of § 18.2-58, or rape in violation of
§ 18.2-61; or (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 . . . . Any person who violates this section
by knowingly and intentionally possessing . . . any firearm and
who was previously convicted of any other felony within the prior
10 years shall be sentenced to a mandatory minimum term of
imprisonment of two years.
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the inclusive language, “any person,” which appears in the
punishment provisions of the statute, clearly embraces anyone
found in violation of the prohibition. Contrary to defendant’s
argument, the statutory language promotes inclusion, not
exclusion.
Id. at 125, 562 S.E.2d at 335 (footnote omitted).
The Court also noted that its holding comports with the legislature’s use of the term
“conviction” in other statutes.
[T]reatment of juvenile “adjudications” as convictions for purposes
of sentencing considerations comports with [many] statutes that
address the issue. See, e.g. Code § 17.1-805(B)(1) (“For purposes
of [sentencing guidelines], previous convictions shall include prior
adult convictions and juvenile convictions and adjudications of
delinquency based on an offense which would have been at the
time of conviction a felony if committed by an adult . . . .”); Code
§ 19.2-295.1 (stating that for purposes of sentencing, “defendant’s
prior criminal convictions . . . include[ ] adult convictions and
juvenile convictions and adjudications of delinquency” (emphasis
added)).
Id. at 125-26, 562 S.E.2d at 335-36.
The General Assembly has not rejected or modified this interpretation of Code
§ 18.2-308.2. “‘Under these circumstances, the construction given to the statute is presumed to
be sanctioned by the legislature and therefore becomes obligatory upon the courts.’” Cochran v.
Commonwealth, 258 Va. 604, 607, 521 S.E.2d 287, 289 (1999) (quoting Vansant and Gusler,
Inc. v. Washington, 245 Va. 356, 361, 429 S.E.2d 31, 33-34 (1993)). Therefore, appellant’s
argument is without merit.
Accordingly, we affirm appellant’s conviction and mandatory punishment imposed in
accord with Code § 18.2-308.2.
Affirmed.
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