PRESENT: All the Justices 

LONNIE LORENZO BOONE 

 OPINION BY 

 v. Record No. 121144 JUSTICE WILLIAM C. MIMS 

 April 18, 2013

COMMONWEALTH OF VIRGINIA 

 

FROM THE COURT OF APPEALS OF VIRGINIA 

In this appeal, we consider whether Code § 18.2-308.2(A) 

limits the number of convictions the Commonwealth may prove in 

a trial upon an indictment charging possession of a firearm by 

a person previously convicted of a violent felony. 

I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW 

Lonnie Lorenzo Boone was indicted upon a charge of 

knowingly and intentionally possessing or transporting a 

firearm after having previously been convicted of a violent 

felony, in violation of Code § 18.2-308.2(A). At a jury trial, 

the Commonwealth offered as evidence one prior conviction for 

robbery, in violation of Code § 18.2-58, and four prior 

convictions for burglary, in violation of Code § 18.2-91. Each 

of these offenses is a violent felony. Code § 18.2-308.2(A) 

(incorporating Code § 17.1-805(C)). 

Boone objected to the Commonwealth’s evidence, arguing 

that the phrase “previously convicted of a violent felony” in 

Code § 18.2-308.2(A) limited the Commonwealth to adducing 

evidence of only one prior conviction for a violent felony. 
2

Admitting all five prior convictions into evidence, Boone 

continued, would be cumulative and prejudicial. The circuit 

court overruled the objection and admitted the evidence. 

Thereafter, the jury returned a guilty verdict and imposed a 

sentence of five years’ incarceration. 

Boone appealed to the Court of Appeals, which affirmed the 

circuit court’s judgment by unpublished, per curiam order. 

This appeal followed. 

II. ANALYSIS 

The only issue is whether Code § 18.2-308.2(A) limits the 

evidence the Commonwealth may adduce to prove the offense. 

That is a question of statutory interpretation, which we review 

de novo. Belew v. Commonwealth, 284 Va. 173, 177, 726 S.E.2d 

257, 259 (2012). 

Code § 18.2-308.2(A) provides that 

[i]t shall be unlawful for . . . any person 

who has been convicted of a felony . . . to 

knowingly and intentionally possess or 

transport any firearm . . . . [A]ny person 

who violates this section by knowingly and 

intentionally possessing or transporting 

any firearm and who was previously 

convicted of a violent felony as defined in 

§ 17.1-805 shall be sentenced to a 

mandatory minimum term of imprisonment of 

five years. 

Boone contends that by using the phrase “previously 

convicted of a violent felony,” the General Assembly intended 

to permit the Commonwealth to adduce evidence of only one prior 
3

violent felony conviction. Accordingly, he continues, the 

Commonwealth was required to choose one prior conviction from 

the five available. He asserts the other four convictions were 

cumulative and prejudicial, and the circuit court erred in 

admitting them as evidence. We disagree. 

In Pittman v. Commonwealth, 17 Va. App. 33, 434 S.E.2d 694 

(1993), the Court of Appeals acknowledged the Commonwealth’s 

prerogative to choose what evidence to offer to the fact-finder 

to meet its burden of proof. The court held that “[t]he 

Commonwealth . . . is entitled to prove its case by evidence 

that is relevant, competent and material. [A]n accused cannot 

. . . require the Commonwealth to pick and choose among its 

proofs, to elect which to present and which to forego.” Id. at 

35, 434 S.E.2d at 695-96. Accordingly, where the existence of 

one or more prior convictions is a necessary element to obtain 

a conviction, “the Commonwealth [i]s not obliged to have faith 

that the jury would be satisfied with any particular one or 

more of the items of proof. Therefore, it was entitled to 

utilize its entire arsenal” of prior convictions to meet its 

burden. Id. at 35-36, 434 S.E.2d at 696. We agree. 

Boone argues that his case is distinguishable from Pittman

because the defendant in that case was charged with felony 

larceny, in violation of former Code § 18.2-104(b). Under that 

statute, a person convicted of larceny after a third or 
4

subsequent prior conviction for larceny was guilty of a Class 6 

felony. Former Code § 18.2-104(b) (1988 Repl. vol.). 

Therefore, the Commonwealth was required to prove multiple 

prior convictions in Pittman. By contrast, Boone argues, the 

Commonwealth was limited to proving only “a” prior violent 

felony conviction in his case. This is a distinction without a 

difference. 

Both former Code § 18.2-104(b) and Code § 18.2-308.2(A) 

establish the elements of their respective offenses. Neither 

provides a rule of evidence constraining the Commonwealth’s 

prerogative to prove those elements with its choice of the 

available evidence. Like the phrase “a third[] or any 

subsequent offense” in former Code § 18.2-104(b), the phrase 

“previously convicted of a violent felony” in Code § 18.2-

308.2(A) merely sets forth an additional element the 

Commonwealth is required to prove beyond a reasonable doubt to 

obtain an enhanced sentence. Compare former Code § 18.2-104(b) 

(elevating larceny from a Class 1 misdemeanor to a Class 6 

felony when the additional element is proven) with Code § 18.2-

308.2(A) (imposing a five-year mandatory minimum sentence when 

the additional element is proven). Accordingly, while the 

article “a” in Code § 18.2-308.2(A) does, as Boone argues, 

reflect legislative intent that proof of only one violent 

felony is necessary to obtain the enhanced sentence, that 
5

article does not limit the evidence the Commonwealth may adduce 

to prove it. 

Two considerations support this reading of the statute. 

First, as noted in Pittman, the jury may not be satisfied with 

the evidence of one or more of the convictions upon which the 

Commonwealth relies. 17 Va. App. at 35-36, 434 S.E.2d at 696. 

Second, one or more of the convictions may later be vacated by 

appellate or collateral proceedings. For example, in Conley v. 

Commonwealth, 284 Va. 691, 733 S.E.2d 927 (2012), the defendant 

was convicted of felony third-offense driving under the 

influence (“DUI”) while a petition for a writ of habeas corpus 

with respect to his second DUI conviction was pending in this 

Court. We granted the defendant’s petition and the second DUI 

conviction thereafter was dismissed. The validity of his 

felony third-offense DUI conviction therefore was in doubt and 

that conviction became the subject of a petition for a writ of 

actual innocence in the Court of Appeals. Id. at 692-93, 733 

S.E.2d at 928. 

It thus behooves the Commonwealth to create a record at 

trial that will preserve the integrity of the conviction being 

sought, in the event a conviction on which it relies at trial 

is subsequently overturned in later appellate or collateral 

proceedings. Cf. Rushing v. Commonwealth, 284 Va. 270, 277-78, 

726 S.E.2d 333, 338-39 (2012) (vacating a conviction where the 
6

evidence in the record was insufficient to prove a necessary 

element after the exclusion of evidence improperly admitted at 

trial). 

This conclusion does not give the Commonwealth unfettered 

license to admit every relevant conviction of a serial 

criminal. To the contrary, the trial court retains its 

discretion to exclude evidence as repetitious and cumulative. 

See Harrison v. Commonwealth, 244 Va. 576, 585, 423 S.E.2d 160, 

165 (1992). Similarly, the trial court may exclude evidence 

when, in the court’s sound discretion, its prejudicial effect 

substantially exceeds its probative value. Juniper v. 

Commonwealth, 271 Va. 362, 412, 626 S.E.2d 383, 415 (2006); 

Goins v. Commonwealth, 251 Va. 442, 461-62, 470 S.E.2d 114, 127 

(1996); see also Va. R. Evid. 2:403. 

Citing Old Chief v. United States, 519 U.S. 172 (1997), 

Boone argues that evidence of his prior convictions was 

especially prejudicial. In Old Chief, the defendant was 

charged with possession of a firearm after having previously 

been convicted of a felony, in violation of 18 U.S.C. § 

922(g)(1). The indictment specifically charged that the 

defendant had previously been convicted of assault. He moved 

to exclude any evidence of the prior conviction, other than the 

fact of its existence, and offered to stipulate that the prior 
7

conviction was entered upon a felony charge within the meaning 

of the federal statute. Id. at 174-75. 

The United States refused the offered stipulation. The 

federal district court acknowledged the prosecution’s 

prerogative to prove its case with the evidence of its choosing 

and denied the defendant’s motion. Id. at 177. He appealed to 

the United States Circuit Court of Appeals for the Ninth 

Circuit, which affirmed. Id. 

On further appeal, however, the Supreme Court of the 

United States reversed. The Court held that the fact the 

prosecution was required to prove was the existence of a 

conviction for a crime within the class of crimes set forth in 

18 U.S.C. § 922(g)(1). Because the defendant had offered to 

stipulate to that fact, the probative value of the conviction 

record itself was outweighed by the substantial risk of 

prejudice to the defendant. It therefore should have been 

excluded under Rule 403 of the Federal Rules of Evidence. Id.

at 190-92. 

The conspicuous factor distinguishing Old Chief from this 

case is the absence of any offer by Boone to stipulate to the 

fact that he had previously been convicted of a violent felony. 

In the absence of such a stipulation, the Commonwealth retained 

the burden of proving that fact beyond reasonable doubt. As 

discussed above, within certain limits the Commonwealth was 
8

entitled to offer whatever evidence was available in its 

attempt to meet that burden. 

Boone argues that, under Glover v. Commonwealth, 3 Va. 

App. 152, 348 S.E.2d 434 (1986), which we summarily affirmed, 

236 Va. 1, 372 S.E.2d 134 (1988) (per curiam), he was not 

permitted to offer to stipulate to the fact of conviction. 

However, nothing in Glover prohibits a defendant from offering 

to stipulate to a fact the Commonwealth must prove at trial. 

Rather, Glover merely concludes that the Commonwealth is not 

required to accept such an offer if one is made. Id. at 162, 

348 S.E.2d at 441. Boone made no such offer, so there was 

nothing for the Commonwealth to accept or reject.*

Because Code § 18.2-308.2(A) establishes the elements of 

the offense rather than a rule of evidence by which the 

elements may be proven, the statute does not limit the 

Commonwealth’s prerogative to meet its burden of proof using 

whatever available evidence it chooses. Accordingly, the 

circuit court did not abuse its discretion in admitting the 

five conviction orders and the Court of Appeals did not err in 

affirming Boone’s conviction and sentence. We therefore will 

affirm the judgment of the Court of Appeals. 

 *

 This case therefore does not present and we do not 

consider the question whether Old Chief affects the continuing 

validity of Glover. 
9

Affirmed.