COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Elder and Bray
Argued at Salem, Virginia
MICHAEL CAROLL McBRIDE, S/K/A
MICHAEL CARROLL McBRIDE
OPINION BY
v. Record No. 2491-95-3 JUDGE LARRY G. ELDER
JANUARY 21, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CRAIG COUNTY
Duncan M. Byrd, Jr., Judge
Charles R. Allen, Jr., for appellant.
Margaret Ann B. Walker, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Michael Carroll McBride (appellant) appeals his conviction
by the Craig County Circuit Court (trial court) of a second
offense of driving under the influence. Code §§ 18.2-266,
18.2-270. He contends that he cannot be subjected to the
enhanced penalty of Code § 18.2-270 because the evidence was
insufficient to prove that he was previously convicted for
violating Code § 18.2-266. For the reasons that follow, we
reverse and remand.
I.
FACTS
On March 17, 1995, appellant was arrested and charged with
committing his second offense in the past ten years of driving
under the influence in violation of Code § 18.2-266. Appellant
was convicted as charged by the Craig County General District
Court on May 23, 1995 and appealed to the Craig County Circuit
Court (trial court).
At his trial on October 11, the Commonwealth attempted to
prove that appellant had a previous conviction under Code
§ 18.2-266 by offering a certified copy of a record from the City
of Roanoke General District Court (district court) regarding a
trial held on August 11, 1986. The document was a warrant of
arrest that charged appellant with violating Code § 18.2-266 on
April 13, 1986. The second page of the warrant contained a
printed form upon which the district court purportedly indicated
the proceedings subsequent to appellant's arrest. This form was
signed by the district court judge and indicated that appellant
had pleaded not guilty. It also indicated that the district
court judge had sentenced appellant to thirty days in jail,
imposed a fine of $300, and suspended his driver's license for
six months, all suspended on the condition that appellant enter
and complete an alcohol safety action program. However, the form
was left blank where it stated:
[The Accused] was TRIED and FOUND by me
not guilty
guilty as charged
guilty of
The Commonwealth offered no other evidence to prove the prior
conviction.
Appellant moved to strike the Commonwealth's evidence on the
ground that the Commonwealth had failed to prove a prior
conviction under Code § 18.2-266. Appellant argued that the
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warrant pertaining to the prior proceeding did not indicate that
appellant was tried and found guilty of violating Code
§ 18.2-266. The trial court denied appellant's motion and found
him guilty of a second violation of Code § 18.2-266.
II.
SUFFICIENCY OF THE EVIDENCE OF A PRIOR CONVICTION
Appellant contends that the evidence was insufficient to
prove that he was previously convicted under Code § 18.2-266. We
agree.
Code § 18.2-270 sets forth the penalties for a defendant
convicted of driving while intoxicated or under the influence in
violation of Code § 18.2-266. Code § 18.2-270 establishes an
enhanced penalty for repeat offenders and states in relevant
part:
Any person convicted of a second offense
committed within a period of five to ten
years of a first offense under § 18.2-266
shall be punishable by a fine of not less
than $200 nor more than $2,500 and by
confinement in jail for not less than one
month nor more than one year.
As with all elements of a crime, the burden is on the
Commonwealth to prove the prior conviction beyond a reasonable
doubt. Ellet v. Commonwealth, 174 Va. 403, 413, 4 S.E.2d 762,
766 (1939); see James v. Commonwealth, 18 Va. App. 746, 752, 446
S.E.2d 900, 903 (1994); Dowdy v. Commonwealth, 220 Va. 114, 116,
255 S.E.2d 506, 508 (1979). While "the most efficient way to
prove the prior . . . conviction is to offer in evidence an
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authenticated copy of the prior order of conviction," Essex v.
Commonwealth, 18 Va. App. 168, 171, 442 S.E.2d 707, 709 (1994),
the prior conviction may be proved by any competent evidence. 39
Am. Jur.2d Habitual Criminals § 27 (1968); see Griswold v.
Commonwealth, 19 Va. App. 477, 483, 453 S.E.2d 287, 290 (1995),
rev'd on other grounds, 21 Va. App. 22, 25, 461 S.E.2d 411, 412
(1995) (en banc) (rev'd on other grounds, 252 Va. 113, 472 S.E.2d
789 (1996)) (stating that the mere fact that printed spaces on
reverse side of warrant were not clearly marked is not
determinative of whether defendant had a counseled prior
conviction if the Commonwealth produces other competent
evidence).
We hold that the evidence was insufficient to
establish that appellant was previously
convicted of violating Code § 18.2-266.
[W]hen the question of the sufficiency of the
evidence is raised on appellate review, we
must determine whether a reasonable fact
finder could have found from the evidence
before it that guilt had been proved beyond a
reasonable doubt. Furthermore, when
reviewing the sufficiency of the evidence, we
must view the evidence in the light most
favorable to the Commonwealth, granting all
reasonable inferences fairly deducible from
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the evidence.
Crump v. Commonwealth, 20 Va. App. 609, 617, 460 S.E.2d 238,
241-42 (1995). "The judgment of a trial court sitting without a
jury is entitled to the same weight as a jury verdict and will
not be set aside unless it appears from the evidence that the
judgment is plainly wrong or without evidence to support it."
Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418
(1987).
The evidence was insufficient to establish a prior
conviction because the warrant regarding the previous proceeding
did not indicate that appellant was convicted under Code
§ 18.2-266, and the Commonwealth offered no other competent
evidence. When a court not of record tries a defendant on a
criminal charge, it is required to memorialize its judgment by
setting forth "[the defendant's] plea, [the court's] verdict or
findings and the adjudication and sentence." Code § 19.2-307;
see Bellinger v. Commonwealth, 23 Va. App. 471, 474, 477 S.E.2d
779, 780 (1996). While the warrant regarding the prior
proceeding states that appellant pleaded not guilty to the charge
of violating Code § 18.2-266 and that the court imposed a
sentence, the warrant fails to state that the court found
appellant guilty of violating Code § 18.2-266. A court speaks
through its orders and those orders are presumed to accurately
reflect what transpired. See Waterfront Marine Const, Inc. v.
North End 49ers Sandbridge Bulkhead Groups A, B and C, 251 Va.
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417, 427 n.2, 468 S.E.2d 894, 900 n.2 (1996). Because the
Commonwealth offered no evidence to rebut the presumption arising
from the warrant that appellant was not found guilty of violating
Code § 18.2-266, we hold that the trial court's conclusion that
appellant had a prior conviction lacked evidence to support it.
See Bellinger, 23 Va. App. at 474-75, 477 S.E.2d at 780-81
(holding that the evidence was insufficient to prove prior
convictions by the district court when the printed forms on
reverse side of warrants were unsigned and did not set forth
either the defendant's plea or the court's verdict and sentence);
Walthall v. Commonwealth, 3 Va. App. 674, 678-79, 353 S.E.2d 169,
171 (1987) (holding that the evidence was insufficient to prove
criminal conviction of nonsupport by the juvenile and domestic
relations court when the printed form on the reverse side of the
original nonsupport complaint was not used).
The Commonwealth contends that the warrant was sufficient to
prove that appellant had a prior conviction because the sentence
written on the warrant is consistent with that generally imposed
on a person convicted of violating Code § 18.2-266, and the
district court judge is presumed to have discharged his duties in
accordance with the law. We disagree. The Commonwealth's
reasoning actually undermines its argument. If we presume that
the district court judge in the prior case lawfully discharged
his duties, then his failure to indicate on the warrant that he
found appellant guilty under Code § 18.2-266 correctly represents
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his legal judgment. On the other hand, if we accept, as the
Commonwealth argues, that the judge merely neglected to complete
the printed form, then the presumption that the trial judge
correctly discharged his duties is rebutted. Thus, in order to
reach the Commonwealth's conclusion that a prior conviction under
Code § 18.2-266 may be inferred from the sentence imposed as
indicated on the warrant, a reasonable fact finder would be
forced to speculate that the district court judge made no other
errors, such as convicting appellant of a charge other than that
stated in the warrant. We have said that we are not restricted
to the precise, technical wording of a court's order when other
evidence in the record clearly establishes that the court had a
different intent. Guba v. Commonwealth, 9 Va. App. 114, 118, 383
S.E.2d 764, 767 (1989). However, the Commonwealth offered no
other evidence to indicate that the district court had an intent
other than not finding appellant guilty under Code § 18.2-266.
For the foregoing reasons, we reverse the conviction for a
second violation of Code § 18.2-266 and remand for further
proceedings consistent with this opinion if the Commonwealth be
so advised.
Reversed and remanded.
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