COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Bray and Overton
Argued at Norfolk, Virginia
JOHN PRICE, JR.
MEMORANDUM OPINION * BY
v. Record No. 0261-98-1 CHIEF JUDGE JOHANNA L. FITZPATRICK
JANUARY 26, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK
Rodham T. Delk, Jr., Judge
Barrett R. Richardson (Richardson and
Rosenberg, LLC, on brief), for appellant.
Marla Graff Decker, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
John Price, Jr. (appellant) appeals his bench trial
conviction for petit larceny, third offense, in violation of Code
§ 18.2-104. The sole issue raised is whether the Commonwealth
laid a proper foundation to introduce into evidence certified
copies of appellant's prior larceny convictions. For the
following reasons, we affirm.
I.
The facts are undisputed. On October 6, 1995, Carl Scott, a
loss prevention manager at Wal-Mart, observed appellant remove
his shirt, take a different shirt from a store rack, put it on,
and then put his own shirt over the new shirt. Appellant took
another shirt and concealed it in a Wal-Mart bag that he was
*
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
carrying. He then took two pairs of sweatpants to the men's
fitting room, and when he exited he no longer had the pants.
Scott testified that "you could tell by looking at [appellant]
that he had three or four other pants on other than the pants he
came in with."
After appellant left the store, Scott confronted him in the
parking lot and identified himself as store security. Appellant
attempted to flee but was apprehended by Scott still wearing the
store's clothing. Its value was $65.75.
At trial, the Commonwealth attempted to introduce two
certified orders of prior petit larceny convictions. Appellant
objected on the basis that a proper foundation had not been
established to show that he was the same person as listed on the
conviction orders. The trial court overruled appellant's
objection, and the two orders were admitted into evidence to
establish the necessary predicate for the felony offense. The
Commonwealth rested, and appellant offered no evidence. The
trial court found appellant guilty of petit larceny, third
offense, in violation of Code § 18.2-104.
II.
On appeal, appellant contends that the Commonwealth did not
lay a proper foundation for the introduction of the certified
copies of the two prior larceny convictions because it failed to
establish that appellant was in fact the person named in the
conviction orders. We disagree.
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"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." Pavlick v.
Commonwealth, 27 Va. App. 219, 232, 497 S.E.2d 920, 926 (1998)
(citing James v. Commonwealth, 18 Va. App. 746, 753, 446 S.E.2d
900, 904 (1994)).
The decision in Cook v. Commonwealth, 7 Va. App. 225, 372
S.E.2d 780 (1988), is dispositive. In Cook, the Commonwealth
offered into evidence two certified copies of court orders which
reflected that "a person with the same name and birth date as the
defendant" had been convicted of the respective prior crimes.
Id. at 230, 372 S.E.2d at 783. The trial court admitted the
records into evidence over the objection of defense counsel. See
id.
On appeal, Cook argued that the court orders were
inadmissible because the Commonwealth failed to prove that he was
the person named in the orders. Rejecting defendant's argument,
we wrote:
Identity of names carries with it a
presumption of identity of person, the
strength of which will vary according to the
circumstances. In this case, authenticated
conviction records bore the defendant's exact
name and birth date. Courts in many other
jurisdictions have held that identity of the
name of a defendant and the name of a person
previously convicted is prima facie evidence
of identity of person and, absent contrary
evidence, supports a finding of such
identity.
Because the name of the defendant in
each of the two certified conviction orders
was the same as the defendant's name and
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because the orders bore his birth date, they
were properly admitted by the trial court.
Id. at 230-31, 372 S.E.2d at 783 (citations omitted) (emphasis
added).
In the instant case, the certified copies of the prior
convictions bore appellant's exact name and birth date. When he
was arraigned, appellant confirmed that his full name was "John
Price, Jr."; he was thirty-eight years old; and his date of birth
was "8-12-58." Appellant also acknowledged that he was the
person charged in the indictment with "third offense petit
larceny from Wal-Mart on October 6, 1995." The two proffered
petit larceny conviction orders, which contained appellant's
exact name and birth date, is "prima facie evidence of identity
of person and, absent contrary evidence, supports a finding of
such identity." Id. at 230, 372 S.E.2d at 783. 1 Although
appellant objected to the admission of the two prior petit
larceny conviction orders, he offered no evidence that he was not
the individual named in the documents. Thus, the trial court had
sufficient evidence to establish that appellant was the person
named in the conviction orders and did not abuse its discretion
in their admission. Accordingly, we affirm appellant's felony
conviction.
1
Additionally, the arrest warrants attached to the
conviction orders contained appellant's Social Security number,
and an individual's height, weight, race, eye color and hair
color. The trial court could have appropriately used these to
further bolster the identification of appellant.
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Affirmed.
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