COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Frank and Senior Judge Hodges
Argued at Richmond, Virginia
MARGARET REA BRIGHT
OPINION BY
v. Record No. 1064-98-2 JUDGE WILLIAM H. HODGES
FEBRUARY 8, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF MADISON COUNTY
Lloyd C. Sullenberger, Judge
Stephen C. Harris for appellant.
Jeffrey S. Shapiro, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Margaret Rea Bright, appellant, was convicted of possessing
cocaine with the intent to distribute, a second or subsequent
offense, and with possessing a firearm while in possession of
cocaine. On appeal, she contends the trial court erred "when it
allowed the Commonwealth to prove the existence of a prior offense
of possession with intent to distribute cocaine by using solely a
jury verdict without the Court having pronounced final judgment
and having sentenced the defendant." Bright also argues that the
trial judge erred in refusing to strike a juror for cause and in
refusing to strike the evidence.
We agree that the trial judge's evidentiary ruling was
erroneous. We also find that the error was not harmless.
Accordingly, we reverse her convictions.
THE APRIL 1997 PREDICATE OFFENSE
On January 28, 1998, a Madison County jury found appellant
guilty of possessing cocaine on April 14, 1997, with the intent to
distribute it. On that same date, the jury recommended
punishment. The trial judge "entered judgment on the verdict of
guilty" but ordered that "imposition of sentence be deferred while
the Probation Officer prepares a presentence report." Sentencing
was scheduled for April 8, 1998.
THE MAY 1997 SUBSEQUENT OFFENSE
On May 16, 1997, police officers arrested appellant and
charged her with possessing cocaine with intent to distribute and
with possessing a firearm while possessing cocaine. On February
11, 1998, the parties appeared before the trial court "to
reschedule" the trial of the May 16, 1997 charges. Also before
the trial court at that February 1998 hearing was the
Commonwealth's motion to amend the indictment on the May 16, 1997
charges to reflect that this was appellant's "second or subsequent
violation." That motion was filed on January 29, 1998, the day
after the jury rendered its verdict on the April 1997 charge.
Defense counsel pointed out that a presentence report was
being prepared for a future sentencing hearing yet to be
scheduled. Therefore, he objected to the Commonwealth using a
non-final conviction to amend the indictment.
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The Commonwealth argued that the prior offense was
established by the January 28, 1998 order finding appellant
guilty of distributing cocaine.
The trial judge granted the Commonwealth's motion to amend
the indictment "to allege a second or subsequent offense." He
based his decision on prior case law approving enhanced
punishment where two distribution convictions are obtained in a
single trial.
On April 1, 1998, trial commenced on the May 16, 1997
charges. After selecting a jury, the trial judge excused the
jurors and heard arguments relating to the admissibility of
certain items of evidence. Defense counsel asked the trial
court to prohibit the Commonwealth from using the prior
"incomplete" and non-final conviction for enhancement purposes.
Relying on the same case law it used to uphold amendment of
the indictment, the trial court ruled that an incomplete prior
conviction was admissible.
Consequently, over appellant's continuing objection, the
trial court admitted into evidence a certified copy of the
January 28, 1998 jury verdict. The trial judge redacted the
portion of the January 28, 1998 order indicating the jury's
recommended punishment and admitted the prior conviction order
into evidence. The jury found appellant guilty of possessing
cocaine with intent to distribute, a second or subsequent
offense, and of the attendant firearm offense.
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DISCUSSION
A jury's verdict is "not a final conviction without the
entry of the sentencing order and, therefore," it cannot "be
used to establish [a] predicate first offense." Batts v.
Commonwealth, 30 Va. App. 1, 12, 515 S.E.2d 307, 313 (1999).
Quoting Ramdass v. Commonwealth, 248 Va. 518, 520, 450 S.E.2d
360, 361 (1994), we noted the Supreme Court's directive that
"'[j]udgment had not been entered on that verdict; therefore, it
cannot be considered as a conviction under [the applicable Code
provision].'" Batts, 30 Va. App. at 12, 515 S.E.2d at 313.
Moreover, we have held that "'[a] guilty verdict is not a
conviction until a final order of judgment has been entered.'"
Id. (quoting Miller v. Commonwealth, 22 Va. App. 497, 500 n.3, 471
S.E.2d 780, 781 n.3 (1996)).
Here, the trial judge admitted an order of conviction during
the guilt phase of appellant's trial. That order was not final
because the jury's sentence had not been imposed and a final order
had not yet been entered. Accordingly, the trial judge erred in
admitting it into evidence at trial. Cf. Dowell v. Commonwealth,
12 Va. App. 1145, 408 S.E.2d 263 (1991) (holding that the trial
court erred in allowing defendant to be impeached by jury's
verdict of guilty for which defendant had not been sentenced and
for which no final order had been entered), aff'd on reh'g en
banc, 14 Va. App. 58, 414 S.E.2d 440 (1992).
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A non-constitutional error is harmless if "it plainly
appears from the record and the evidence given at trial that the
error did not affect the verdict." Lavinder v. Commonwealth, 12
Va. App. 1003, 1005, 407 S.E.2d 910, 911 (1991) (en banc). "An
error does not affect a verdict if a reviewing court can
conclude, without usurping the [trial court's] fact finding
function, that, had the error not occurred, the verdict would
have been the same." Id.
We distinguish this case from Mason v. Commonwealth, 16 Va.
App. 260, 262-63, 430 S.E.2d 543, 544 (1993). In Mason, a jury
convicted Mason in a single trial of two separate counts of
distributing cocaine in violation of Code § 18.2-248. As a
result, Mason received an enhanced punishment for the second or
subsequent offense. We held that "an enhanced punishment may be
applied where there are multiple convictions for separate
offenses in a simultaneous prosecution." Id. at 262-63, 430
S.E.2d at 544. Implicit in that holding is that each offense
must be and was sufficiently proved by competent evidence. In
Mason, there was no argument raised about the quality of the
evidence to prove each offense; therefore, by sufficiently
establishing each offense, the Commonwealth necessarily proved
the second or subsequent offense. Here, and in Batts, the
Commonwealth attempted to prove a prior conviction with a
non-final order that "could not be used to establish the
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predicate first offense." Batts, 30 Va. App. at 12, 515 S.E.2d
at 313.
During the guilt phase of this trial, the jury was provided
testimonial and documentary evidence that appellant had been
found guilty by a jury of the same type of offense. Appellant
was one of many people in the house at which drugs were found.
We cannot say that evidence of the recent prior trial did not
affect the jury's verdict. Accordingly, we reverse the
convictions.
SUFFICIENCY OF THE EVIDENCE AND
REFUSAL TO STRIKE JUROR FOR CAUSE
"Because we reverse and remand for evidentiary reasons, we
do not address" whether there was sufficient evidence of intent
to distribute. Warmouth v. Commonwealth, 29 Va. App. 476, 480
n.1, 513 S.E.2d 418, 420 n.1 (1999). The trial court instructed
the jury that the Commonwealth "must prove beyond a reasonable
doubt that the defendant possessed with intent to distribute
cocaine and that the defendant has a prior conviction for
distribution of cocaine." The non-final conviction did not
sufficiently prove one element of the charged offense, namely,
the prior conviction. However, we cannot say how the jury would
decide the issue absent the admission at the guilt phase of the
non-final conviction. Therefore, should the Commonwealth choose
to retry appellant, it may not try her on the enhanced charge.
See Gorham v. Commonwealth, 15 Va. App. 673, 678, 426 S.E.2d
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493, 496 (1993) (explaining consistent practice in Virginia and
other states when the evidence is found insufficient to sustain
conviction on appeal, but sufficient to sustain a conviction on
a lesser-included offense, is to remand the case for retrial on
the lesser offense); Stanley v. Commonwealth, 12 Va. App. 867,
407 S.E.2d 13 (1991) (reversing conviction of possession with
intent to distribute and remanding for a new trial on lesser
offense of possession of cocaine if the Commonwealth so
decides).
Because we reverse the convictions, we find it unnecessary
to address the trial judge's refusal to strike a juror for
cause.
Reversed.
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