COURT OF APPEALS OF VIRGINIA

Present: Judges Fran k, McClanahan and Haley Argued at Richmond, Virginia

ARIK WILDER, S/K/A ARIK STEFON WILDER MEMORANDUM OPINION * BY v. Record No. 0654-07-2 J UDGE JAMES W. HALEY, JR. JULY 8, 2008 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY Cleo E. Powell, Judge Travis R. Williams (Todd M. R itter; Daniels & Mo rgan, on brief), for appellant. Karen Misbach, Assistant Attorn ey General (Rober t F. McDonnell, Attorney General, on brief), for appellee.

* Pursuant to Code § 17.1-413, this op inion is not designa ted for publication. Arik Stefon Wilder (“Wilder”) appeals hi s conviction for possessing a firearm after having been adjudicated delinquent as a juvenile of an act that would be a felony if committed by an adult in violation of Code § 18.2-308.2. He ar gues that the juvenile court records introduced into evidence by the Commonwealth during his tr ial were ambiguous and insufficient to prove that his prior juvenile adjudication was for an act that would be a felony if committed by an adult. We disagree because the juvenile cour t records show that appellant was adjudicated delinquent as a juvenile of ca rrying a pistol into a public sc hool in violation of Code § 18.2-308.1. Because Code § 18.2-308.1 makes this act a Class 6 felony, we affirm Wilder’s conviction for violating Code § 18.2-308.2.FACTS After a bench trial on November 8, 2006, Wild er was convicted of attempted malicious wounding in violation of Code §§ 18.2-51 and 18.2- 26, use of a firearm in the commission of a felony in violation of Code § 18.2-53.1, and posse ssing a firearm after having been adjudicated delinquent of an act that would be a felony if committed by an adult in violation of Code § 18.2-308.2. The evidence showed that Wilder dr ove to the Interstate Inn in Chesterfield County on March 27, 2006. Shortly after Wilder left his car, he had an argument with Daniel Joseph Leonard. Two witnesses, Derrick Smith and Daniel Vaughan, testified that Wilder pointed a pistol at Mr. Leonard and fired tw o shots. Neither of the shots hit anyone. 1 Also at Wilder’s trial, the Commonwealth introduced six pages of certified documents from the City of Hopewell Juvenile and Domestic Relations District Court. The first of these records is a petition naming Wilder as the pers on charged and listing Wilder’s social security number, date of birth, race, gende r, and address. The petition al so charges that “[h]e did on or about 5/6/04 unlawfully and feloni ously carry about his person a pistol into a public school in

violation of section 18.2-308.1.”

The record also includes four form orders. E ach order consists of notes handwritten on a form with boxes or dotted lines for the judge to ma rk next to pre-printed text. On the first of these orders, the box designating whether the case is a felony or a misdemea nor is left blank. This order is dated May 7, 2004 and reflects th at Wilder and his guardian appeared for a

1 At trial, Wilder’s counsel di d not dispute that Wilder was pr esent at the Interstate Inn. He did argue that the evidence failed to prove th at the object Wilder us ed in the shooting was a firearm and that the evidence faile d to prove that Wilder intended to shoot Mr. Leonard. Neither question is presented in this a ppeal. We granted Wilder an a ppeal with respect to a single question: “Whether the trial court erred in findi ng sufficient evidence to c onvict the defendant of possession of a firearm after having been adjudica ted delinquent as a juve nile, where the record and disposition of defendant’s pr ior juvenile case was unclear.”

-2-detention hearing on that date and that the cour t set a detention review date of May 24, 2004 and a trial date of June 21, 2004. On the next or der, the trial judge le ft blank both the box designating the type of hearing and the box designating whether th e type of case was a felony or

a misdemeanor. The handwritten no tes attached to this order establish only that Wilder, his attorney, and his guardian app eared for some kind of heari ng on June 14, 2004, apparently a hearing on Wilder’s pretrial confinement status, and that the court ordered electronic monitoring and continued the case to June 21, 2004. The next order is dated somewhat imprecisely (“6/”) and continues the case until August 23, 2004. The judge who signed the order apparen tly checked boxes indicating that Wilder had an attorney and a guardian presen t for the hearing, that the type of the case was a felony, and that the type of hearing was an adj udicatory hearing. Next to the pre-printed word “PLEA:” is the handwritten note “guilty.” Next to the pre-printed word “FI NDINGS OF THE COURT” is the handwritten note: “continue on community supervis ion.” Next to the pr e-printed words “IT IS

ORDERED THAT” is the handwritten note “social history ordered.” Th e judge asked Wilder for his plea and designated the hearing an adjudicator y hearing; we, therefore, conclude that this hearing took place on Wilder’s scheduled trial date of June 21, 2004. Wilder points out that this order includes no express finding that Wilder is adjudicated delinquent of the felony alleged in the original petition. The last form order is dated August 23, 2004 and leaves blank the boxes indicating type of case and the type of hearing. This order only shows that Wilder appear ed in court with his attorney, his mother, and a proba tion officer. Next to the wo rds “IT IS ORDERED THAT” are two notes: “-no hand guns for twelve months –12 months supervised probation.”

-3-The last juvenile court document in the r ecord is not a form order but a printed order styled “Probation Order.” This order is dated August 23, 2004 a nd includes Wilder’s full name

and date of birth. The order reads as follows: WHEREAS, The Court having he ard the evidence on June 21, 2004, upon petition(s) alleging th at the said ARIK STEFON WILDER did in said City of HOPEWELL: “He, did on or about 5/6/04 unlawfu lly and feloniously carry about his person a pistol into a public school, in violation of Section 18.2-308.1 of the 1950 Code of Virginia, as amended” and the Court having found the sa id ARIK STEFON WILDER to be delinquent, the Court accordingly places ARIK STEFON WILDER on probation under th e supervision of HOPEWELL Sixth District Court Services Unit.

___ X ____ For a period of twelve (12) months

ANALYSIS When considering the sufficiency of the evid ence on appeal, we give the benefit of all

reasonable inferences deducible from the ev idence to the party prevailing at trial. Shropshire v.

Commonwealth , 40 Va. App. 34, 38, 577 S.E.2d 521, 523 (2003). “The judgment of a trial court sitting without a jury is entitled to the same weig ht as a jury verdict and will not be set aside unless it appears from the evidence that the j udgment is plainly wrong or without evidence to support it.” Martin v. Commonwealth , 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). “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 conviction beyond a r easonable doubt.” Palmer v.

Commonwealth , 269 Va. 203, 207, 609 S.E.2d 308, 310 (2005). “A court speaks through its orders and those orders are presumed to accurately reflect what transpired.” McBride v.

Commonwealth , 24 Va. App. 30, 35, 480 S.E.2d 126, 128 (1997). While the most efficient way of proving a prior conviction is to introduce an authenticated copy of the order of conviction into

-4-evidence, the prior conviction may be proven by any competent evidence. Id. at 33-34, 480

S.E.2d at 128. On brief, Wilder relies on the decisions of our Supreme Court in Palmer , 269 Va. 203, 609 S.E.2d 308, and Overbey v. Commonwealth , 271 Va. 231, 623 S.E.2d 904 (2006). Like Wilder, the defendant in Palmer was convicted of violating Code § 18.2-308.2 on the basis of juvenile court records. Palmer , 269 Va. at 205, 608 S.E.2d at 309. These juvenile court records included petitions alleging felony offenses and orders sentencing the defendant to pay restitution and to serve four concurrent jail sentences of twelve months with six months suspended. Id. at 206, 608 S.E.2d at 309. However, “[t]he juvenile a nd domestic relations dist rict court records do not contain any orders pr oviding an adjudication of the four charges.” Id. Our Supreme Court

reversed the defendant’s conviction because the se ntences imposed were consistent with either felony or misdemeanor adjudications. Thus, the sentences did not prove that the defendant was adjudicated delinquent of a felony. [A]s a practical matter, a defenda nt charged with felonious conduct may be convicted of a lesser-inc luded offense, or the original charge may be reduced upon the defendant’s agreement to plead guilty to the reduced charge. Applying these principles and obser vations to the present case, we conclude that the juvenile and domestic relations district court records do not establish the fact or nature of Palmer’s adjudication. For example, we do not know if Palmer agreed to plead guilty to four offenses that would have been misdemeanors, rather than felonies, if committed by an adult. Palmer was 18 years old at the time he was sentenced and, thus, the juvenile and domestic relations district court was permitted to sentence him to jail for delinquent acts that would have been a misdemeanor if committed by an adult for a period not to exceed 12 months for a single offense or multiple offenses. See Code § 16.1-284. As stated above, the record shows that Palmer received four concurrent jail sentences of 12 months, with six months of each sentence

-5-suspended, sentences within the limits allowed by Code § 16.1-284.

Id. at 207-08, 608 S.E.2d at 310.

In Overbey , the defendant was also convicted of violating Code § 18.2-308.2 on the basis of juvenile court records. The records proved that the defendant was originally charged with two offenses, one felony and one misdemeanor. Overbey , 271 Va. at 232, 623 S.E.2d at 904. The records also proved that the defendant entered a guilty plea and was sentenced to a twelve-month suspended jail sentence. Id. at 233, 623 S.E.2d at 905. Citing Palmer , our Supreme Court found the juvenile records to be ambiguous and revers ed the defendant’s conviction because it was not clear from the juvenile records whether the defe ndant pled guilty to the felony, the misdemeanor,

or both. Id. at 234, 623 S.E.2d at 905-06. “In these circum stances, the trial court had to engage in pure speculation or surmise to determine, as the Commonwealth conte nds, that the defendant pled guilty to both burglary and petit larceny. Th e trial court thus erred in concluding that the Commonwealth proved the necessary elemen t of a prior felony conviction.” Id. The juvenile records in Palmer were insufficient because the presence of felony allegations, together with the lack of any orde r specifically adjudicating those allegations and a sentence within the range of punishment for e ither the charged feloni es or lesser-included misdemeanors, left open the reasonable possibility that the defendant ha d not been adjudicated delinquent of a felony. The juvenile records in Overbey were insufficient because the original petition alleging a felony and a misdemeanor, together with a guilty plea to one or both of those offenses, left open the reasonable possibility that the defendant had only been adjudicated delinquent of a misdemeanor. The juvenile r ecords in this case are not ambiguous. Unlike

Palmer or Overbey , the original petition in this case al leged only one offense, a felony, and the

-6-probation order in this case stat es that Wilder was found to be delinquent of the felony offense alleged in the original petition. Wilder argues that the probation order does not prove a prior felony conviction because it does not have one of the characteristics of a “judg ment order” as that term is used in Code § 19.2-307 (“Contents of Judgment Order”). Specif ically, Wilder notes that the probation order does not reflect his plea to the juve nile firearm charge as required by the statute. However, Code § 19.2-307 does not purport to be a rule of admissi bility. The admissibility of court records is governed by a different statut e, Code § 8.01-389, which provides 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 su ch records are authenticat ed and certified by the clerk of the court where preser ved to be a true record.” See Owens v. Commonwealth , 10 Va. App. 309, 310-11, 391 S.E.2d 605, 606 (1990). C ode § 8.01-389 refers to the “records of any judicial proceeding and any ot her official records.” The legi slature could have written the statute to apply only to record s that qualify as “judgment or ders” pursuant to Code § 19.2-307, but did not do so. Thus, we must assume that the legislature intended to allow the admissibility of more judicial records than Wilder’s argument suggests. More over, Wilder’s reading of Code § 19.2-307 is inconsistent with the principle th at “[p]rior convictions may be proved by any competent evidence.” Perez v. Commonwealth , 274 Va. 724, 730, 652 S.E.2d 95, 98 (2007). Finally, we note that, though th e probation order does not mention Wilder’s plea, the

Commonwealth also introduced the fo rm order of Wilder’s adjudica tory hearing, which reflects a plea of guilty. Wilder also argues that a condition of his probation mentioned in the form order dated August 23, 2004 is inconsistent with a felony adjudi cation. Next to the pr e-printed words “IT IS

-7-ORDERED THAT:” is the handwritten note “ no hand guns for 12 months.” Because a delinquent adjudication on the felony charge allege d in the original petition would automatically subject Wilder to criminal penalties if he posse ssed a firearm at any time before he reached the age of twenty-nine, ( see Code § 18.2-308.2(A)(iii)), Wilder argue s that it would be “nonsensical” for the court to adjudicate him delinquent of the felony and then attach th is particular condition of probation. We disagree. It is common for a court to suspend its sentence on the condition that the defendant be of general good behavior, meaning that the suspended sentence may be imposed

unless the defendant’s conduct conforms with the law. Griffin v. Cunningham , 205 Va. 349, 353, 136 S.E.2d 840, 843 (1964); Holden v. Commonwealth , 27 Va. App. 38, 43, 497 S.E.2d 492, 494 (1998). Indeed, our Supreme Court has he ld that this conditi on of good behavior is implied in every order suspending a sentence. Collins v. Commonwealth , 269 Va. 141, 146, 607 S.E.2d 719, 721 (2005). This is so despite the fact that everyone has a duty to obey the law, whether they are on probation or not. See WTAR Radio-TV Corp. v. City Council of Virginia

Beach , 216 Va. 892, 895, 223 S.E.2d 895, 898 (1976). While the “no hand guns” condition of Wilder’s juvenile probation may not have altered the legality of his possession of a handgun, this condition, like the condition of good behavior, im posed an additional legal consequence on any future handgun possession by Wilder. This is an extremely common feature of sentencing orders, and it is certainly not inconsistent with an adjudicatio n of delinquency on the original felony petition. We also note that Wilder was sixteen years ol d at the time the juveni le court ordered that Wilder refrain from possessing handguns for twelve months. With a few exceptions, Code § 18.2-308.7 makes it a misdemeanor for a person unde r eighteen to posse ss a handgun. By its terms, this statute made it unlawful for Wild er to possess a handgun at sixteen even if his

-8--9- criminal adjudication had been a misdemeanor. Indeed, Code § 18.2-308.7 applies to all persons under eighteen, even those who have no prior adjudications for any type of juvenile delinquency. We must, therefore, reject the argument that the “no hand guns” condition of Wilder’s probation is consistent with a misdemeanor adjudication an d inconsistent with a felony adjudication. To the extent that this probation condition was le gally redundant or meaningless, as Wilder suggests, this legal redundancy ex isted whether or not the criminal adjudication in juvenile court was for a felony. Accordingly, we cannot say that the presence of this probation condition is so clearly inconsistent w ith a felony adjudication that it out weighs the explic it language of the “probation order” stating that W ilder had been found delinquent of the felony offense charged in the original petition.

We conclude that the trial court did not err in convicti ng Wilder of violating Code § 18.2-308.2. Wilder’s convi ction is affirmed.

Affirmed.