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JOHNSON v. COMMONWEALTH (53268)


JOHNSON, JR.

v.

COMMONWEALTH

(unpublished)


JUNE 22, 1999

Record No. 0348-98-4


JOSEPH JOHNSON, JR.

v.

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY

Benjamin N. A. Kendrick, Judge

Present: Judge Bray, Senior Judges Duff and
Overton

Argued at Alexandria, Virginia

MEMORANDUM OPINION* BY JUDGE CHARLES
H. DUFF

Leo R. Andrews, Jr., for appellant.

Steven A. Witmer, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief), for appellee.


Appellant contends that the trial court erred
in admitting a copy of a prior order where the original was lost
or destroyed. Appellant also contends that the trial court erred
in entering an order on February 6, 1997, which vacated an
earlier order. For the following reasons, we affirm appellant’s
convictions.

I.

THE ORDERS IN CASES 93-321 and
93-322

A. The 1993 Charges

On March 23, 1993, appellant appeared before
Arlington County Circuit Court Judge Paul F. Sheridan on Case No.
93-321, charging appellant with statutory burglary, a felony.
[1] Appellant,
appellant’s attorney (Evans), and the Commonwealth’s attorney
presented Judge Sheridan with a "plea agreement
memorandum" under which appellant agreed to plead guilty
pursuant to North Carolina v. Alford, 400 U.S. 25 (1970),
to the lesser-included offense of misdemeanor unlawful entry. In
exchange for his Alford plea, the Commonwealth moved
"to nol pros" Case No. 93-322, involving grand larceny.
Without objection, Judge Sheridan nolle prosequied
Case No. 93-322.

B. The Expungement Petition and
June 16, 1995 Hearing

On May 3, 1995, appellant filed a motion for
expungement in which he alleged the following:

That your petitioner, Joseph
Johnson, . . .

. . . was arrested on the 11th
day of January, 1993, by the County of ARLINGTON
Sheriff’s Department for "Statutory Burglary
and Grand Larceny" . . . .

2. That your petitioner, Joseph
Johnson, was innocent of any and all charges
aforesaid.

3. That on the 23th day of
March, 1993, in the General Circuit Court of the
County of ARLINGTON, Virginia, the Commonwealth
of Virginia, by her Attorney for the Commonwealth
of the County of ARLINGTON moved for a nolle
prosequi of said charges, which motion was
granted by the Court at that time.

There are no transcripts or orders regarding
the expungement proceeding. The only information about that
proceeding is contained in the April 29, 1996 transcript from
appellant’s forgery trial. At that trial, Sheila Norman,
"the Assistant Commonwealth Attorney who handles
expungements usually," testified that, on June 16, 1995, she
learned through a circuit court judge that appellant’s
"expungement proceeding was on the docket" to be heard
that day. That was the first time Norman was advised of the
petition. After hearing conflicting arguments from appellant and
Norman, the trial judge denied appellant’s petition for
expungement.

C. The Show Cause Hearing in
Case No. 93-321

On June 16, 1995, the same date as appellant’s
expungement hearing, appellant appeared before Judge Sheridan
regarding "a show cause letter dated March 9, 1995."
[2] At that hearing,
the Commonwealth asserted that appellant "still owes $1,500
in restitution." Appellant averred that his probation was
transferred "from Virginia to Maryland" where he had
"been making minimum payments of $50 to the probation
officer" there.

Appellant stated, "And now that I am aware
that this probation has expired as of March 23, [1995] Your
Honor, I would be willing to – actually I’m in the position
within the next 30 days to pay off whatever balance that
exists."

The trial judge indicated that the Virginia
probation office requested that appellant’s probation be
extended. He then ruled that he was "extend[ing] the
probation to March 23, 1996 for lack of compliance" and
because appellant’s "probation conditions weren’t carried
out within the time period."

D. The April 26, 1996 Forgery
and Uttering Trial

On August 21, 1995, appellant was indicted for
forging and uttering the order in Case No. 93-321, the order upon
which appellant relied to expunge his record and the case in
which Judge Sheridan extended probation two months earlier. The
Commonwealth alleged that appellant visited the circuit court
clerk’s office on June 7, 1995, and stole the original orders
from the file and the order book for Case No. 93-321 relating to
his 1993 misdemeanor conviction. According to the Commonwealth,
appellant prepared a forged order for Case No. 93-321 indicating
that the charges were nolle prosequied. The
Commonwealth alleged that appellant then substituted a
photocopied forgery for the original conviction order when he
returned the file to the clerk. At appellant’s trial, because the
circuit court had no original orders from which to make certified
copies, the Commonwealth sought to admit a copy of the conviction
order provided by appellant’s probation officer.

Prior to the introduction of evidence at
appellant’s April 29, 1996 trial, appellant’s attorney questioned
how the Commonwealth intended to prove the contents of the
original order that was allegedly stolen and replaced with a
forgery. The Commonwealth explained that it intended to present a
copy of the original order received from the file of appellant’s
probation officer, Carol Hawkins, and to establish its
authenticity through the testimony of Hawkins and two circuit
court assistants, Vickie Separis and Beth Davis.
[3] In support, the prosecutor made the following
assertion:

[The copy of the original
order] will be Exhibit No. 1. It is the actual
conviction of the defendant. Our evidence would
show that circumstantially the defendant took it
and destroyed it. The way that I would prove to
– intend to introduce it is because Vicki
Separis recognizes it that this was the actual
conviction order that had been in the file before
it was given to the defendant.

She also got a copy of –
the copy that I am using was supplied by the
probation office because they kept a file of his
actual conviction order and then since then they
have requested the book and page photographs
entered from the Supreme Court and as I’ve gotten
the actual conviction order and she has compared
them, it is the same thing now. And I am going to
use the presumption of regularity as to judicial
proceedings which apply here and the presumption
that this is accurate and true.

The Commonwealth’s attorney further asserted
that she was "not trying to prove the contents" of the
order. Instead, she merely intended to prove that appellant was
convicted in Case No. 93-321 and that the case was not nolle
prosequied as indicated in the alleged forgery.

Defense counsel objected, citing Code
Sects. 8.01-389(A) and 18.2-391(C) as methods and procedures
by which the order might be made admissible had the Commonwealth
sought to do so. The prosecutor explained that the order could
not be authenticated and certified because "the original has
been destroyed and they can’t" certify a copy.

Defense counsel pointed out the procedure in
Code

Sect. 8.01-394 for proving lost records
and argued that the Commonwealth chose not to follow it.
Following a brief recess, the following colloquy took place:

THE COURT: Is this the copy
that you were referring to? Have I been given

[THE PROSECUTOR]: Your Honor, I
was wrong. The defense attorney had it at the
time, and when you asked if it had been
certified, I thought that it had been. It
actually had - this is a copy that was given
to the probation officer before all of this
happened back in 1993 so that they could start
monitoring him and that was certified at the time
– from the original.
[4]

THE COURT: That changes things,
doesn’t it?

[DEFENSE COUNSEL]: Well, sir,
if that order had a date – if the
certification has a date, I would agree with this
Court. But it doesn’t have –

THE COURT: But [Code
Sect. 8.01-391]C doesn’t say that. C doesn’t
say whether the original is in existence or not
provided that such copy is authenticated as a
true copy by the Clerk or Deputy Clerk of such
Court and dated. It doesn’t say that.

The trial judge ruled as follows:

Well, I think this document as
certified
[5] satisfies
the statutory requirements and your objection is
overruled, Mr. King, and your exception is noted.

The prosecutor then informed the trial court of
other documents she intended to introduce for admission. She
stated:

[T]he best way we should
probably settle this issue of the exception, is I
have a document that I will put in as
Commonwealth’s Exhibit No. 2, will be a photocopy
of his actual nol pros order. That also –
that is not certified. It is missing out of the
– the original is missing out of the file I
believe and so I would be introducing it not just
based on its certification but because it is
something that has been recognized by the Clerk.
The Clerk knows what it is.

Then the third thing I am going
to be submitting is the fake order, the
constructed order. And, of course, that can never
be certified. It’s false. It is just a piece of
paper that was put in the file . . . .

The following exchange ensued:

[THE PROSECUTOR]: Your Honor,
if you think 8.01, the section referred to was
preventing from [sic] introducing the nol pros
order, if it is not certified, I can ask that we
- I can get – now that they have gotten
the book and page from the Supreme Court, they
can use that as an original I learned during the
break from Ms. Separis. They can use that as an
original and I could produce a certified copy and
have that in my exhibits.

THE COURT: I think you should
do that.
[6]

Separis, a court assistant in the circuit court
clerk’s office, testified that her duties include "providing
. . . administrative support" and photocopying. Separis
testified that she saw appellant on June 7, 1995, when he
"c[a]me into the Clerk’s office asking for copies of a file
and [she] went to go look for the file for him." Separis
gave the files to appellant who "had them for probably
fifteen to twenty minutes." Because of other activity in the
office, Separis did not watch appellant closely. According to
Separis, appellant "asked for certified copies of" the
orders in the two cases, however, she "noticed that they
were Xeroxed." Separis testified as follows:

When [appellant] asked for a
certified copy, I told him that I needed to find
the original in order to give him a certified
copy because all this was was a copy and our
office policy is not to give a certified copy of
a copy.

Separis also noticed that "most of the
contents of the file were copies" and that the returned file
"was pretty thin." Appellant told Separis that
"his name was Kevin Stevens," that an attorney named
Vernon Evans "needed [the copies] right away for an
expungement that was going to happen pretty soon," and that
he, appellant, could be reached at Evans’ office. Separis also
testified about a "book and page" collection in which
the clerk’s office maintains copies of every document. The
"book and page" collection is accessible to the public.
When Separis looked in "the book and page" compendium,
the orders from the two cases "were mysteriously
missing." Separis later met with appellant’s probation
officer who provided her with a photograph of appellant and
"the original that they received in the office from our
office of the court orders that were provided in those
cases." Separis identified Commonwealth’s exhibit 1, the
copy of the order supplied by the probation officer, as "the
original sentencing order from case CR 93-321," and
Commonwealth’s exhibit 2 as "the nol pros order that was in
the case CR 93-322." The trial judge admitted the exhibits
without further objections or comments.

Separis testified that, after viewing the
photograph provided by Hawkins, she realized that appellant was
the person who claimed to be Kevin Stevens. Separis also
inspected the judgment lien books and "observed that there
were several pages torn out," including a page containing a
judgment written against appellant.

Circuit court assistant Beth Davis testified
that she was typing an order relating to Probation Officer
Hawkins’ letter to the trial judge advising him of appellant’s
"nonpayment of restitution." Davis had attached
Hawkins’ letter to the two files numbered 93-321 and 93-322 and
placed the files on the floor. When appellant entered the clerk’s
office looking for the files, Davis provided them to Separis.
When appellant returned the files, "the probation officer’s
letter was gone." Davis testified about what occurred after
appellant returned the files:

Just at that time when I was
looking for the probation officer’s letter, the
first thing I did was just open the top file to
see if maybe it had been slid inside the file and
that is when I realized at the time that the only
contents of that file were all copies. There were
no original signatures of anything that was there
that I would assume would be there before.

Davis telephoned Probation Officer Hawkins and
requested a copy of the missing letter to the judge to attach to
the order.

Carol Hawkins testified that she was
appellant’s probation officer for his March 1993 conviction for
which "[h]e received a twelve-month, all suspended sentence
. . . and two years of probation with some special
conditions." Hawkins identified the letter she wrote to the
trial judge. The letter referenced appellant’s name and
"Case No.: CR93-321 & 322" and discussed his March
23, 1993 sentence and the fact that he had failed to pay
court-ordered restitution. After the clerk’s office contacted
her, Hawkins delivered her entire file relating to appellant to
the clerk’s office.

Assistant Commonwealth’s Attorney Norman
testified that she represented the state in appellant’s June 16,
1995 expungement proceeding. At that proceeding, Norman disagreed
with appellant’s contention that the charge was nolle prosequied.
According to Norman, the trial judge dismissed the expungement
petition after considering arguments from her and appellant.
Norman also identified Commonwealth’s exhibit 7, a document
entitled "Motion to Lessen Sentence" filed on February
8, 1994, in which appellant wrote that "[o]n or about March
23rd, 1993, Defendant was sentenced a [sic] two (2) year
probation, and with an order of restitution to be paid."

During the testimony of Separis, the trial
court admitted Commonwealth’s exhibit 1. The jury found appellant
guilty of both charges.

E. Admissibility of
Commonwealth’s Exhibit 1

1. The Commonwealth’s 5A:18
Argument

The Commonwealth contends that appellant is
barred from arguing against the admissibility of the exhibit
because he put forth a different argument in his reply brief at
the petition stage. In his petition, appellant contended, inter
alia, that Commonwealth’s exhibit 1, the uncertified copy
of the conviction order contained in the probation officer’s
file, was not a true copy pursuant to Code Sect. 8.01-391(B)
or (C). This argument encompassed both authentication and
certification. See Owens v. Commonwealth, 10 Va.
App. 309, 311, 391 S.E.2d 605, 605-06 (1990) (holding that
"authenticated" and "certified" are
synonymous terms). In our order dated August 31, 1998, we granted
an appeal on the issue of whether "the trial court err[ed] by not requiring the Commonwealth to establish the contents of
[the] missing circuit court order without satisfying[, inter
alia, Code] Sections 8.01-389 and 391." Those code
sections relate to the authentication and certification of an
official document. Because this issue was before the trial court
and argued in appellant’s petition, we will address the merits of
the issue.

2. Analysis and Discussion on
the Merits

Code Sect. 8.01-389 provides, in pertinent
part, that "[t]he records of any judicial proceeding and any
other official records of any court of this Commonwealth shall be
received as prima facie evidence provided that such records are
authenticated and certified by the clerk of the court where
preserved to be a true record." "Code Sect. 8.01-389
‘codifies as part of the official records exception to the
hearsay rule judicial "records" which are properly
authenticated.’" Taylor v. Commonwealth, 28 Va. App.
1, 11, 502 S.E.2d 113, 117 (1998) (citation omitted).

Code Sect. 8.01-391(C) provides:

If any court or clerk’s office
of a court of this Commonwealth, of another state
or country, or of the United States, or of any
political subdivision or agency of the same, has
copied any record made in the performance of its
official duties, such copy shall be admissible
into evidence as the original, whether the
original is in existence or not, provided that
such copy is authenticated as a true copy by a
clerk or deputy clerk of such court.

The above-quoted statutes put forth the
generally accepted method for admitting official documents,
namely, that they be properly authenticated and/or certified as
to their accuracy.

Appellant correctly asserts that, absent
authentication and/or certification, the Commonwealth was
required to follow Code Sect. 8.01-392 or Code
Sect. 8.01-394 to replace the lost conviction order. Both
cited code sections offer methods for replacing a lost original.
However, if the Commonwealth was able to sufficiently
authenticate the exhibit, it did not need to rely on Code
Sects. 8.01-392 or 8.01-394.

Our review of the record reveals that the
record does not contain sufficient evidence authenticating
Commonwealth’s exhibit 1. Neither Separis nor Davis testified
that they were custodians of the records or that they were
personally familiar with the original order.
[7] Likewise, the Commonwealth offered no evidence that
Hawkins was the custodian of the records or other evidence
through Hawkins establishing the exhibit’s authenticity.

3. Harmless Error

Although the trial court erred in admitting the
unauthenticated document, we find such error harmless.

When improper evidence is offered to establish
a fact overwhelmingly established by other competent evidence,
the improper admission of that evidence constitutes harmless
error. See Hall v. Commonwealth, 12 Va. App. 198,
216, 403 S.E.2d 362, 373 (1991); Williams v. Commonwealth,
4 Va. App. 53, 74, 354 S.E.2d 79, 91 (1987). The harmless error
doctrine "enables an appellate court . . . to ignore the
effect of an erroneous ruling when an error clearly has had no
impact upon the verdict or sentence in a case." Hackney
v. Commonwealth
, 28 Va. App. 288, 296, 504 S.E.2d 385, 389
(1998) (citation omitted). An error is harmless when a
"’reviewing court, can conclude, without usurping the jury’s
fact finding function, that, had the error not occurred, the
verdict would have been the same.’" Davies v.
Commonwealth
, 15 Va. App. 350, 353, 423 S.E.2d 839, 840
(1992) (quoting Lavinder v. Commonwealth, 12 Va. App.
1003, 1005, 407 S.E.2d 910, 911 (1991) (en banc)).

In prosecuting appellant for forging and
uttering a public record, the Commonwealth was required to prove
that appellant forged a public record, namely, the photocopy of
the March 23, 1993 order for Case No. 93-321, and attempted to
employ as true that forged order. See Code
Sect. 18.2-168. Under the common law, forgery "is
defined as ‘the false making or materially altering’" of a
document. Fitzgerald v. Commonwealth, 227 Va. 171, 173-74,
313 S.E.2d 394, 395 (1984) (quoting Bullock v. Commonwealth,
205 Va. 558, 561, 138 S.E.2d 261, 263 (1964)). To convict
appellant, the Commonwealth merely had to prove that the original
order for Case No. 93-321 reflected appellant’s conviction and
that appellant altered the photocopied order in Case No. 93-321
to reflect that the charge was nolle prosequied.
Thus, the precise contents of the original order were not at
issue; all the Commonwealth had to prove was an original
conviction in Case No. 93-321. This fact could be established by
circumstantial evidence.

"’Circumstantial evidence is as competent
and is entitled to as much weight as direct evidence, provided it
is sufficiently convincing to exclude every reasonable hypothesis
except that of guilt.’" Patrick v. Commonwealth, 27
Va. App. 655, 662, 500 S.E.2d 839, 843 (1998) (quoting Coleman
v. Commonwealth
, 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983)).
When relying on circumstantial evidence, the Commonwealth need
only exclude hypotheses of innocence that flow from the evidence,
not those that flow from the imagination of defense counsel. See
id.

The record contains a copy of the March 23,
1993 transcript from appellant’s trial in Case No. 93-321. At
that proceeding, appellant entered an Alford plea after
which the trial judge found appellant "guilty in 93-321 of
the lesser included offense of unlawful entry in an indictment
originally charging him with statutory burglary."

The record also contains a copy of the June 16,
1995 transcript from appellant’s show cause hearing in Case
Numbers 93-321 and 93-322. The trial judge explained on the
record that the hearing was initiated by Probation Officer
Hawkins’ March 9, 1995 letter informing him that appellant had
failed to pay the court-ordered restitution. Hawkins identified
Commonwealth’s exhibit 4 as a copy of the letter sent to the
trial judge. At the top of the letter, Hawkins referenced Case
Numbers 93-321 and 93-322. At the hearing, appellant admitted he
had not completed the special term of his probation.

Moreover, on February 8, 1994, appellant filed
a "Motion to Lessen Sentence" in the trial court. He
referenced his motion with Case Numbers CR93-321 and CR93-322. In
that motion, appellant wrote the following:

On or about March 23rd, 1993,
Defendant was sentenced a [sic] two (2) year
probation, and with an order of restitution to be
paid.

Finally, Assistant Commonwealth’s Attorney
Norman testified that, at the June 16, 1995 expungement
proceeding, she told appellant that Case Number 93-321 had not
been nolle prosequied. At that time, she told
appellant that "it is [presently] across the hall on the
court’s docket for a revocation hearing."

The record contains substantial circumstantial
evidence establishing that the missing order in Case Number
93-321 was an order of conviction, not an order of nolle prosequi.
Because sufficient evidence established that the original order
was a conviction order, the Commonwealth did not need to have the
original order admitted or recreated to prevail. Accordingly, the
admission of the unauthenticated copy of Commonwealth’s exhibit 1
was harmless error.

II.

THE FEBRUARY 6, 1997 ORDER

A. Background

On April 29, 1996, at the conclusion of the
evidence, the jury found appellant guilty of forgery and uttering
and fixed punishment at two years for each offense. The trial
judge sentenced appellant at that time to "two years in the
penitentiary" for each conviction and ruled that
"[t]hese two sentences will run consecutive to each
other." The final order was entered on June 14, 1996 and was
silent as to how the sentences were to run.

On September 4, 1996, appellant filed a
"Motion to Modify Sentence." In his motion, appellant
stated that he "has not been transferred to the Department
of Corrections as of the date of this motion, and pursuant to
section 19.2-303, Code of Virginia, this Court maintains
jurisdiction over the judgments in the above cases to modify the
terms of the sentencing orders."

In a letter to Circuit Court Judge Newman dated
December 19, 1996, and entered in appellant’s circuit court file
on December 20, 1996, appellant wrote the following:

I have been transferred to
the Department of Corrections on September 11,
1996
, and the ability to correspond with the
Court has been impaired.

(Emphasis added.)

On September 19, 1996, the trial judge entered
an order stating that the two sentences imposed for forgery and
uttering "are hereby directed to run concurrent."

On February 6, 1997, the trial judge entered an
order vacating and setting aside the September 19, 1996 order.
The trial judge explained that the "order of September 19,
1996 was entered in error."

B. Discussion and Analysis

Code Sect. 19.2-303 provides, in pertinent
part:

If a person has been sentenced
for a felony to the Department of Corrections but
has not actually been transferred to a receiving
unit of the Department, the court which heard the
case, if it appears compatible with the public
interest and there are circumstances in
mitigation of the offense, may, at any time
before the person is transferred to the
Department, suspend or otherwise modify the
unserved portion of such a sentence
.

(Emphasis added.)

"By its explicit terms, [Code
Sect. 19.2-303] permits a trial judge to retain jurisdiction
to suspend or modify a sentence beyond the twenty-one day limit
of Rule 1:1 only if the person sentenced for a felony has not
been transferred to the Department of Corrections
." D’Alessandro
v. Commonwealth
, 15 Va. App. 163, 168, 423 S.E.2d 199, 202
(1992) (emphasis added). "[T]he burden of proving appellate
jurisdiction rests upon the appellant." Id.

The record contains no documents or transcripts
showing that a hearing was conducted on either motion prior to
entry of the orders. "It is basic that an appellant has the
primary responsibility of ensuring that a complete record is
furnished to an appellate court so that the errors assigned may
be decided properly." Ferguson v. Commonwealth, 10
Va. App. 189, 194, 390 S.E.2d 782, 785, aff’d in part, rev’d
in part
, 240 Va. ix, 396 S.E.2d 675 (1990).

Not only did appellant fail to establish that
the trial court had jurisdiction over his case on September 19,
1996, when it entered the order, the record shows that appellant
was transferred to the Department of Corrections on September 11,
1996, eight days before entry of the first order. In the absence
of proof that appellant had not been transferred to the custody
of the Department of Corrections, and in light of proof to the
contrary, appellant failed to prove on this record that the trial
judge had authority to act on September 19, 1996. See D’Alessandro,
15 Va. App. at 168, 423 S.E.2d at 202. Because the trial court
lacked jurisdiction to enter the September 19, 1996 order, that
order was void. Accordingly, the February 6, 1997 order vacating
the void order was also void.

For the reasons stated, appellant’s convictions
are affirmed.

Affirmed.

 

*Pursuant to Code Sect. 17.1-413,
recodifying Code Sect. 17-116.010, this opinion is not
designated for publication.

 

FOOTNOTES:

[1] The facts that
follow are contained in a March 23, 1993 transcript that was made
a part of the appellate record.

[2] A copy of the
transcript of that hearing is contained in the appellate record.

[3] On August 31,
1998, we denied part of appellant’s petition for appeal in which
he presented an argument regarding the admissibility of testimony
from Separis and Davis, and ruled that "Code
Sect. 19.2-271 was not applicable" to bar their
testimony at trial.

[4] Contrary to
statements in the trial transcript, the copy of the order
provided by Hawkins and admitted as Commonwealth’s exhibit 1,
contained no certification, no attestation, or any indicia that
it was a copy created from the original.

[5] As previously
explained, there is no evidence that Commonwealth’s exhibit 1 was
certified. See supra note 4.

[6] Despite the
trial judge’s belief that it should be done, at no time during
the trial did the Commonwealth’s attorney introduce or offer
"the nol pros order" and "book and page" that
she presented was received from the Supreme Court and that the
trial judge agreed should be done.

[7] Although Separis
identified Commonwealth’s exhibit 1 as "the original
sentencing order from case CR 93-321," the Commonwealth
elicited no information establishing the basis of her knowledge,
her prior awareness that appellant was convicted in that case, or
her firsthand knowledge that the exhibit was accurate.

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