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COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Bumgardner and Frank
Argued at Chesapeake, Virginia
Record No. 2799-02-1
JOHN ANTHONY HOLMES
COMMONWEALTH OF VIRGINIA
OPINION BY JUDGE RUDOLPH BUMGARDNER, III
NOVEMBER 25, 2003
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Von L. Piersall, Jr., Judge
S. Jane Chittom, Appellate Defender (Public Defender Commission,
on briefs), for appellant.
Jennifer R. Franklin, Assistant Attorney General (Jerry W.
Attorney General, on brief), for appellee.
The trial court convicted John Anthony Holmes of felony domestic
He contends the evidence fails to prove he was the same person named in the
conviction orders used to prove his prior convictions. Finding
no error, we affirm.
In ruling on the sufficiency of the evidence, "the relevant
question is whether, after
viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt." Jackson v.
Virginia, 443 U.S. 307, 319 (1979). The trier of fact resolves
conflicts in the evidence, weighs
the evidence, and draws "reasonable inferences from basic
facts to ultimate facts." Id. The trial
court has broad discretion over the admission of evidence.
Officer Brian Davis responded to a domestic disturbance call in
Portsmouth and spoke
with the victim, the defendant’s wife. He then "secured
felony warrants for third offense
domestic assault and battery." At trial, the victim
identified the defendant as "John Anthony
Holmes." The Commonwealth introduced certified copies of
two domestic assault conviction
orders entered by the Circuit Court of the City of Suffolk. The
orders reflected that "John
Anthony Holmes" had committed the offenses. The orders also
contained the same date of birth
and social security number.
The trial court overruled the defendant’s motion to strike at
the conclusion of the
Commonwealth’s evidence. It stated, "the similarity in
names is sufficient at this point." The
defendant offered no evidence that he was not the person named
in the conviction orders.
The trial court’s ruling shows that it relied on the
similarity of the names to establish
prima facie proof that the defendant was the person
convicted in Suffolk. "Identity of names
carries with it a presumption of identity of person, the
strength of which will vary according to
the circumstances." Cook v. Commonwealth, 7 Va. App. 225,
230, 372 S.E.2d 780, 783 (1988)
(citing Blair v. Rorer’s Administrator, 135 Va. 1, 25, 116
S.E. 767, 776, cert. denied, 262 U.S.
734 (1923)). The identity of names presumption is a presumption
in the sense that it is a
permissible inference. The fact finder is not required to draw
the inference. Whether to draw the
inference, and if drawn, the strength to accord it will vary
according to the particular
circumstances of the case. The Commonwealth’s evidence
established a prima facie case, which
merely indicated some evidence created a question of fact. See
Charles E. Friend, The Law of
Evidence in Virginia ? 10.4, at 359-60 (6th ed. 2003).
In this case, the circumstances add to the strength of the
inference. The name itself, John
Anthony Holmes, is not obviously common. The offenses were all
domestic assaults, occurred
in adjacent jurisdictions, and were committed by adult males of
like age. The officer
immediately charged the defendant with a third domestic offense,
presumably based on the
information provided at the scene by the victim, who was the
The issue was a "mere question of identification."
King v. Lynn, 90 Va. 345, 347, 18
S.E. 439, 440 (1893) (under recidivist statute this is a
question for the jury when defendant is
silent or is mute as to whether or not he is person named in
conviction orders). The evidence
raised a permissible inference, which the fact finder could
accept or reject; it was not a rebuttable
presumption, which the defendant was required to refute. The
defendant declined to introduce
evidence to the contrary. While the trial court was not required
to find the Commonwealth
carried its burden of proof, the evidence permitted it to do so.
In Crawley v. Commonwealth, 29 Va. App. 372, 512 S.E.2d 169
Commonwealth attempted to prove the defendant was the burglar by
matching a fingerprint card,
bearing his name and vital statistics, with fingerprints taken
at the crime scene. The vital
statistics on the card matched the defendant’s
characteristics, but his personal data, including a
social security number and date of birth, were not admitted at
trial. This Court reversed his
conviction because no evidence proved the defendant’s name or
birth date. In this case, the
Commonwealth proved the name and identity of the defendant.
Given these circumstances, a reasonable trier of fact could have
concluded the defendant
was the person named in the conviction orders. Accordingly, we
affirm the conviction.
third or subsequent conviction for assault and battery against a family or
household member . . . such person shall be guilty of a Class 6
felony." Code ? 18.2-57.2.