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PRICE v. COMMONWEALTH OF VA


PRICE

v.

COMMONWEALTH OF VA

(unpublished)


JANUARY 26, 1999
Record No.
0261-98-1

JOHN PRICE, JR.

v.

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF
THE CITY OF SUFFOLK

Rodham T.
Delk, Jr., Judge

Argued at
Norfolk, Virginia

Present:
Chief Judge Fitzpatrick, Judges Bray and Overton

MEMORANDUM
OPINION
[1] BY CHIEF JUDGE JOHANNA L.
FITZPATRICK

Barrett R.
Richardson (Richardson and Rosenberg, LLC, on brief), for
appellant.

Marla Graff
Decker, Assistant Attorney General (Mark L. Earley, Attorney
General, on brief), for appellee.


John Price, Jr.
(appellant) appeals his bench trial conviction for petit larceny,
third offense, in violation of Code Sect. 18.2-104. The sole
issue raised is whether the Commonwealth laid a proper foundation
to introduce into evidence certified copies of appellant’s prior
larceny convictions. For the following reasons, we affirm.

I.

The facts are undisputed.
On October 6, 1995, Carl Scott, a loss prevention manager at
Wal-Mart, observed appellant remove his shirt, take a different
shirt from a store rack, put it on, and then put his own shirt
over the new shirt. Appellant took another shirt and concealed it
in a Wal-Mart bag that he was carrying. He then took two pairs of
sweatpants to the men’s fitting room, and when he exited he no
longer had the pants. Scott testified that "you could tell
by looking at [appellant] that he had three or four other pants
on other than the pants he came in with."

After appellant left the
store, Scott confronted him in the parking lot and identified
himself as store security. Appellant attempted to flee but was
apprehended by Scott still wearing the store’s clothing. Its
value was $65.75.

At trial, the Commonwealth
attempted to introduce two certified orders of prior petit
larceny convictions. Appellant objected on the basis that a
proper foundation had not been established to show that he was
the same person as listed on the conviction orders. The trial
court overruled appellant’s objection, and the two orders were
admitted into evidence to establish the necessary predicate for
the felony offense. The Commonwealth rested, and appellant
offered no evidence. The trial court found appellant guilty of
petit larceny, third offense, in violation of Code
Sect. 18.2-104.

II.

On appeal, appellant
contends that the Commonwealth did not lay a proper foundation
for the introduction of the certified copies of the two prior
larceny convictions because it failed to establish that appellant
was in fact the person named in the conviction orders. We
disagree.

"The admissibility of
evidence is within the broad discretion of the trial court, and a
ruling will not be disturbed on appeal in the absence of an abuse
of discretion." Pavlick v. Commonwealth, 27 Va. App.
219, 232, 497 S.E.2d 920, 926 (1998) (citing James v.
Commonwealth
, 18 Va. App. 746, 753, 446 S.E.2d 900, 904
(1994)).

The decision in Cook v.
Commonwealth
, 7 Va. App. 225, 372 S.E.2d 780 (1988), is
dispositive. In Cook, the Commonwealth offered into
evidence two certified copies of court orders which reflected
that "a person with the same name and birth date as the
defendant" had been convicted of the respective prior
crimes. Id. at 230, 372 S.E.2d at 783. The trial court
admitted the records into evidence over the objection of defense
counsel. See id.

On appeal, Cook argued
that the court orders were inadmissible because the Commonwealth
failed to prove that he was the person named in the orders.
Rejecting defendant’s argument, we wrote:

Identity of names
carries with it a presumption of identity of person, the
strength of which will vary according to the
circumstances. In this case, authenticated conviction
records bore the defendant’s exact name and birth date.
Courts in many other jurisdictions have held that
identity of the name of a defendant and the name of a
person previously convicted is prima facie
evidence of identity of person and, absent contrary
evidence, supports a finding of such identity.

Because the
name of the defendant in each of the two certified
conviction orders was the same as the defendant’s name
and because the orders bore his birth date, they were
properly admitted by the trial court
.

Id. at 230-31, 372
S.E.2d at 783 (citations omitted) (emphasis added).

In the instant case, the
certified copies of the prior convictions bore appellant’s exact
name and birth date. When he was arraigned, appellant confirmed
that his full name was "John Price, Jr."; he was
thirty-eight years old; and his date of birth was
"8-12-58." Appellant also acknowledged that he was the
person charged in the indictment with "third offense petit
larceny from Wal-Mart on October 6, 1995." The two proffered
petit larceny conviction orders, which contained appellant’s
exact name and birth date, is "prima facie
evidence of identity of person and, absent contrary evidence,
supports a finding of such identity." Id. at 230, 372
S.E.2d at 783.
[2]Although
appellant objected to the admission of the two prior petit
larceny conviction orders, he offered no evidence that he was not
the individual named in the documents. Thus, the trial court had
sufficient evidence to establish that appellant was the person
named in the conviction orders and did not abuse its discretion
in their admission. Accordingly, we affirm appellant’s felony
conviction.

Affirmed.

 

 

FOOTNOTES:

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

[2]Additionally, the
arrest warrants attached to the conviction orders contained
appellant’s Social Security number, and an individual’s height,
weight, race, eye color and hair color. The trial court could
have appropriately used these to further bolster the
identification of appellant.

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