COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Felton, Judge Mc Clanahan and Senior Judge Fitzpatrick Argued at Richmond, Virginia

BRANDEN SHAWNE GHEE, S/K/A BRANDON GHEE MEMORANDUM OPINION * BY v. Record No. 1565-05-2 J UDGE JOHANNA L. FITZPATRICK OCTOBER 24, 2006 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY Frederick G. Rock well, III, Judge Gregory P. Sheldon (Ken Lammers, Jr., on brief), for appellant. Michael T. Judge, Senior Assi stant Attorney Ge neral (Robert F. McDonnell, Attorney General, on brief), for appellee.

Branden Shawne Ghee, appellan t, appeals a convic tion for possession of a firearm after having been found guilty of an offense which woul d be a felony if committed by an adult when he was fourteen years of age or older in violation of Code § 18.2-308.2. On appeal, he contends (1) the evidence was insufficient to prove his juvenile adjudication was a pr ior conviction for the purposes of Code § 18.2-308.2; and (2 ) the trial court erred by se ntencing him pursuant to the mandatory punishment provision of Code § 18.2-308.2 because the provision applies to convictions, not juvenile adjudicatio ns. For the reasons that follow, we affirm the conviction. Background “Under familiar principles of appellate review, we examine the evidence in the light most favorable to the Commonwealth, granting to it al l reasonable inferences fairly deducible

therefrom.” Slade v. Commonwealth , 43 Va. App. 61, 64, 596 S.E.2d 90, 92 (2004).

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - On January 6, 2005, appellant was a passe nger in a car stopped by Officer Edwardo Martinez. Appellant admitted that a shotgun found in the vehicle belonged to him, and he was charged with a violation of Code § 18.2-308.2. Mart inez testified that at th e time of the stop, he ran a “criminal history” on appellant that “cam e back that [appellant] was a convicted felon.” The trial court admitted into evidence Commonwealth’s Exhibit 2, which contained several documents related to an offense committed by appellant on May 23, 2003. The first document was a petition from the Chesterfield Juve nile and Domestic Rela tions District Court, dated June 11, 2003, charging that on May 23, 2003, appellant “unlawfully and feloniously assault[ed] and batter[ed]” an officer in violati on of Code § 18.2-57(C). Attached to Exhibit 2 was an adjudication order dated October 9, 2003, wh ich showed appellant pled guilty to charge “(12) A&B/Policeman” and was found guilty of that offense. A disposition order dated March 9, 2004, referenced charge “(12) A&B” and stated that appellant was sentenced to serve six months in jail, with all but three weekends of the time suspended. The order al so noted that appellant was eighteen years old at the time of sentencing. Appellant offered into evidence a dispos ition notice dated March 9, 2004. This notice referenced an offense date of May 23, 2003, Ca se No. JJ03733-12-00, and identified the charge as “A&B/Police Officer,” citing Code § 18.2-57(C) . This document also indicated the offense was a felony. As rebuttal evidence, the Commonwealth called Duncan Minton, Assistant Commonwealth’s Attorney, to testify concerning a ppellant’s charge of assault and battery of a police officer. Minton testified th at he prosecuted appellant on this charge of assa ult and battery on a police officer in the juvenile and domestic relations district court. Minton stated that appellant pled guilty to “the fe lony charge of assault on a police officer.” Minton testified that he was at the disposition heari ng and his notes did not reflect a ny change in the charge from a- 3 - felony to a misdemeanor. Additionally, the supe rvisor of juvenile probation testified that appellant’s file did not contain any notation that the felony charge for a ssault and battery of a police officer was changed or reduced. Appellant made a motion to strike the charge on the ground that the Commonwealth failed to prove he was a felon within the m eaning of Code § 18.2-308.2 because the disposition order reflected only a charge of “assault and batt ery” without indicating that the charge was a felony. The trial court overruled the motion to strike. Analysis

I. “When the fact of a prior convi ction is an element of a char ged offense, the burden is on the Commonwealth to prove that prior convi ction beyond a reasonable doubt.” Palmer v.

Commonwealth , 269 Va. 203, 207, 609 S.E.2d 308, 310 (2005) (citations omitted). Appellant

relies on Palmer to support his argument. In Palmer , the Court held, “the Commonwealth did not present sufficient evidence in the circuit court to establish that Palmer previously had been convicted of a delinquent act that would have been a felony if committed by an adult.” Id. at 208, 609 S.E.2d at 310. In Palmer , the evidence consisted of four petitions and four accompanying dispositional orders from the juvenile and domestic relations district court. “Two of the petitions alleged that Palmer committed the delinquent act of grand larceny, in violation of Code § 18.2-95. The other two petitions alleged that Palmer committed the delinquent act of burglary with the intent to commit larce ny, in violation of Code § 18.2-91.” Id. at 205, 609 S.E.2d at 309. No evidence was presented other than the juvenile court orders.

Palmer is clearly distinguishable from the inst ant case. Here, seve ral documents were admitted into evidence, which when read togeth er, show the nature of the delinquent act for which appellant was sentenced. The documents re flect that appellant pled guilty to a felony- 4 - charge of violating Code § 18.2-57(C), was fou nd guilty of the charge, and was sentenced for this offense, which would have been a felony if committed by an adult. Appellant focuses only on the disposition orde r. He argues that because the disposition order references “A&B,” which could possibly designate a misdemeanor charge, the evidence failed to show appellant had committed an offe nse that would be a felony if committed by an adult. However, the complete reference to the charge in the dispositi on order is “(12) A&B.” The adjudication order cited a ch arge “(12) A&B/Policeman,” and the disposition notice cited a Case No. JJ003733-12-00, identifying the charge as “A&B/Police Officer,” and stating this was a violation of Code § 18.2-57(C), a felony. These doc uments, when read together, indicate that the charge referenced in the dispos ition order, “(12) A&B,” was a re ference to appellant’s Case No. JJ003733-12-00, a charge for a viol ation of Code § 18.2-57(C). The underlying petition charged th at appellant “unlawfully and feloniously assault[ed] and batter[ed]” an officer in vi olation of Code § 18.2-57(C). (Em phasis added). A violation of Code § 18.2-57(C) is an offense which w ould be a felony if committed by an adult. 1 Furthermore, the Commonwealth introduced evid ence from both the assistant Commonwealth’s attorney who prosecuted the case and the supervis or of juvenile probati on who testified that appellant’s charge for a violation of Code § 18.2-57(C) was never reduced from a felony. A “prior conviction may be proved by any competent evidence.” McBride v.

Commonwealth , 24 Va. App. 30, 34, 480 S.E.2d 126, 128 (1997). From the evidence presented, the jury could conclude beyond a reasonable doubt that appellant had been found guilty of an offense which would be a felony if committed by an adu lt when he was fourte en years of age or older. It is in the “province of the jury to determine what infere nces are to be drawn from proved

1 Code § 18.2-57(C) provides in pertinent par t: “[I]f any person commits an assault or an assault and battery against anot her knowing or having reason to know that such other person is . . . a law-enforcement officer . . . such person is guilty of a Class 6 felony . . . .”- 5 - facts, provided the inferences are reasonably related to thos e facts.” Inge v. Commonwealth , 217 Va. 360, 366, 228 S.E.2d 563, 568 (1976). Accord ingly, the evidence was sufficient to establish that appellant violat ed Code § 18.2-308.2.

II. Appellant next argues the trial court erre d by sentencing him pursuant to the mandatory punishment provision of Code § 18.2-308.2 because it does not apply to adjudications of delinquency. 2

Our decision in Carter v. Commonwealth , 38 Va. App. 116, 562 S.E.2d 331 (2002), controls the disposition of this issue. In Carter , the defendant argued the mandatory sentencing provision of Code § 18.2-308.2 was not implicated by a prior “juvenile ad judication.” Carter , 38 Va. App. at 123, 562 S.E.2d at 334. However, we held: [I]n fashioning a statute to protec t the public from the threat of dangerously armed felons, the legi slature expressly included within the statutory proscription all persons previously “found guilty,” while juveniles, of a “delinquent act,” deemed felonious. Subsequent reference in Code § 18.2-308.2(A) to “conviction or adjudication” simply recognizes te rms that sometimes differentiate determinations of guilt in juvenile and adult prosecutions. Thus,

2 The applicable provisions of Code § 18.2-308.2 state: A. It shall be unlawful for (i) any person who has been convicted of a felony; (ii) any person adjudi cated delinquent, on or after July 1, 2005, as a juvenile 14 years of ag e or older at the time of the offense of murder in violation of § 18.2-31 or 18.2-32, kidnapping in violation of § 18.2-47, robbery by the threat or presentation of firearms in violation of § 18.2- 58, or rape in violation of § 18.2-61; or (iii) any person under the age of 29 who was adjudicated delinquent as a juvenile 14 years of age or older at the time of the offense of a delinquent act which would be a felony if committed by an adult . . . to knowingly and intentionally possess or transport any firearm . . . . A ny person who violates this section by knowingly and intentionally possessing . . . any firearm and who was previously convicted of an y other felony within the prior 10 years shall be sentenced to a mandatory minimum term of imprisonment of two years.- 6 - the inclusive language, “any person,” which appears in the punishment provisions of the statute, clearly embraces anyone found in violation of the prohibi tion. Contrary to defendant’s argument, the statutory langua ge promotes inclusion, not exclusion. Id. at 125, 562 S.E.2d at 335 (footnote omitted). The Court also noted that its holding compor ts with the legislature’s use of the term

“conviction” in other statutes. [T]reatment of juvenile “adjudications” as convictions for purposes of sentencing considerations com ports with [many] statutes that address the issue. See , e.g. Code § 17.1-805(B)(1) (“For purposes of [sentencing guidelines], previous convictions shall include prior adult convictions and juvenile convictions and adjudications of delinquency based on an offense wh ich would have been at the time of conviction a felony if commi tted by an adult . . . .”); Code § 19.2-295.1 (stating that for purposes of sentencing, “defendant’s prior criminal convictions . . . include[ ] adult convictions and juvenile convictions and adjudica tions of delinquency” (emphasis added)). Id. at 125-26, 562 S.E.2d at 335-36. The General Assembly has not rejected or modified this interpretation of Code § 18.2-308.2. “‘Under these circumstan ces, the construction given to the statute is presumed to be sanctioned by the legislature and therefore becomes obligator y upon the courts.’” Cochran v.

Commonwealth , 258 Va. 604, 607, 521 S.E.2d 287, 289 (1999) (quoting Vansant and Gusler, Inc. v. Washington , 245 Va. 356, 361, 429 S.E.2d 31, 33-34 (1993)). Therefore, appellant’s argument is without merit. Accordingly, we affirm appellant’s convi ction and mandatory punishment imposed in accord with Code § 18.2-308.2.

Affirmed.