concurring in result.
In my view, the phrase “history of the accused” contained in Code § 19.2-299(A) does not contemplate the inclusion of a “not guilty” finding in a prior criminal case in a presentence report prepared for a defendant’s sentencing on a current, unrelated criminal conviction. In the context of a trial court’s consideration of a defendant’s presentence report, such an acquittal is distinctly different from criminal charges unresolved, dismissed, or never prosecuted. Cf. Johnson v. Commonwealth, 221 Va. 736, 273 S.E.2d 784 (1981) (distinguishing a dismissal pursuant to a legal defense and one pursuant to a factual defense for double jeopardy purposes). When preparing a presentence report pursuant to Code § 19.2-299(A), an acquittal on the merits of a *604prior criminal charge should be considered an unambiguous determination of innocence and excluded from the report. To do otherwise would allow an inference of an adverse contact with the criminal justice system, rendering the American verdict “not guilty” analogous to the Scots verdict, “not proven.”1
Fundamental fairness dictates that once acquitted, a defendant should not have to defend further his or her innocence. The fact of a prior acquittal is simply not relevant information for the judge to consider in appropriately determining the fate of the defendant. Whatever the rule may be in other jurisdictions, the rule in this Commonwealth should be clear. Accordingly, I would hold that it was error to permit the inclusion of Thomas’ 1976 acquittal of a criminal charge in his 1992 presentence report.
In Thomas’ case, however, the error of including the prior acquittal in his presentence report was clearly harmless error. Thomas entered guilty pleas to the current charges, and the trial judge sentenced him within the limits imposed by law and consistent with the plea agreement. The record supports the conclusion that the trial judge did not impose an increased penalty upon consideration of Thomas’ prior acquittal of the 1976 criminal charge.
For these reasons, I would affirm the judgment of the trial court.
The Soots verdict “not proven” allowed the jury to assert that the evidence was insufficient, but that they nonetheless possessed a belief in the defendant’s guilt. Though discharged from custody, the verdict left the defendant under a cloud of suspicion. Such a notion is anathema to the presumption of innocence. Although it may be true that society views with suspicion those acquitted of crimes, that prejudice should not be used by the state to justify enhanced punishment for a subsequent conviction.