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Present: Judges Annunziata, Bumgardner and Frank

Argued at Chesapeake, Virginia

Record No. 2799-02-1






NOVEMBER 25, 2003


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
assault, Code

? 18.2-57.2.[1]
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
defendant’s wife.

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
(1999), the

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.




[1]"On a
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.