COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Fitzpatrick and Annunziata
Argued at Alexandria, Virginia
VINCENT LLOYD VIRGIL STAUP
MEMORANDUM OPINION * BY
v. Record No. 2897-95-4 JUDGE JOHANNA L. FITZPATRICK
OCTOBER 22, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CLARKE COUNTY
James L. Berry, Judge
James A. Drown (Larrick, Larrick & Drown,
P.C., on brief), for appellant.
Linwood T. Wells, Jr., Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Following a bench trial, Vincent Lloyd Virgil Staup
(appellant) was adjudged to be an habitual offender pursuant to
Code § 46.2-351. Appellant contends that the trial court erred
in using a 1990 West Virginia conviction as one of his predicate
convictions because it did not substantially conform to the
provisions of Virginia law by failing to specify under which
statutory section he was convicted. Finding no error, we affirm.
On August 7, 1995, the Circuit Court of Clarke County
declared appellant to be an habitual offender pursuant to Code
§ 46.2-351. The predicate convictions for the determination were
three driving while intoxicated convictions: (1) the West
Virginia conviction of December 6, 1990 which is the subject of
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
controversy in this appeal; (2) a Virginia conviction of August
8, 1991; and (3) a Maryland conviction of January 3, 1995.
The trial court specifically found that § 17C-5-2(d) of the
West Virginia Code substantially conformed to Code § 18.2-266.
The evidence supporting the West Virginia conviction consisted of
a copy of the Uniform Traffic Ticket and Complaint, appellant's
criminal case history, and a certified transcript from the
Department of Motor Vehicles. 1
This case is factually indistinguishable from and controlled
by our decision in Honaker v. Commonwealth, 19 Va. App. 682, 454
S.E.2d 29 (1995). The other state's law does not have to
"substantially conform in every respect to Code § 18.2-266."
Rather, in order to adjudicate a defendant an habitual offender
based upon a conviction from another state, "[o]nly that
prohibition of the other state's law under which the person was
convicted must substantially conform [to Code § 18.2-266]."
Honaker, 19 Va. App. at 684, 454 S.E.2d at 30 (citations
omitted). The record in this case clearly established the nature
of appellant's conviction for "DUI (.121) w/ accident." This
fact was unrebutted.
The Commonwealth established a "prima facie presumption"
that the convictions are valid "by introducing the certified DMV
1
The Uniform Traffic Ticket and Complaint showed that on
December 1, 1990, appellant was charged with "DUI (.121)
w/accident" in violation of West Virginia Code § 17C-5-2, and
"Failure to Maintain Control" in violation of West Virginia Code
§ 17C-6-1.
2
transcript listing the three requisite convictions against
[defendant]." Moffitt v. Commonwealth, 16 Va. App. 983, 986, 434
S.E.2d 684, 687 (1993). "Once the Commonwealth has established a
prima facie case, it is entitled to judgment, unless [defendant]
goes forward with evidence that refutes an element of the
Commonwealth's case or rebuts the prima facie presumption." Id.
"This shift in the burden of producing evidence occurs because of
the presumption that the Commissioner of the Division of Motor
Vehicles has kept accurate records and has made at least a
tentative determination of conformity." Bouldin v. Commonwealth,
4 Va. App. 166, 169, 355 S.E.2d 352, 353 (1987) (citing Davis v.
Commonwealth, 219 Va. 808, 812-13, 252 S.E.2d 299, 301 (1979)).
Appellant produced no evidence that as a matter of law
rebutted the Commonwealth's prima facie case. Accordingly, the
trial court did not err in considering appellant's West Virginia
conviction to be a predicate conviction for purposes of adjudging
appellant an habitual offender.
Affirmed.
3