COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Fitzpatrick and Annunziata 

Argued at Alexandria, Virginia 

VINCENT LLOYD VIRGIL STAUP 

 MEMORANDUM OPINION* BY 

v. Record No. 2897-95-4 JUDGE JOHANNA L. FITZPATRICK 

 OCTOBER 22, 1996 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF CLARKE COUNTY 

James L. Berry, Judge 

 James A. Drown (Larrick, Larrick & Drown, 

P.C., on brief), for appellant. 

 Linwood T. Wells, Jr., Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 Following a bench trial, Vincent Lloyd Virgil Staup 

(appellant) was adjudged to be an habitual offender pursuant to 

Code § 46.2-351. Appellant contends that the trial court erred 

in using a 1990 West Virginia conviction as one of his predicate 

convictions because it did not substantially conform to the 

provisions of Virginia law by failing to specify under which 

statutory section he was convicted. Finding no error, we affirm. 

 On August 7, 1995, the Circuit Court of Clarke County 

declared appellant to be an habitual offender pursuant to Code 

§ 46.2-351. The predicate convictions for the determination were 

three driving while intoxicated convictions: (1) the West 

Virginia conviction of December 6, 1990 which is the subject of 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
 2 

controversy in this appeal; (2) a Virginia conviction of August 

8, 1991; and (3) a Maryland conviction of January 3, 1995. 

 The trial court specifically found that § 17C-5-2(d) of the 

West Virginia Code substantially conformed to Code § 18.2-266. 

The evidence supporting the West Virginia conviction consisted of 

a copy of the Uniform Traffic Ticket and Complaint, appellant's 

criminal case history, and a certified transcript from the 

Department of Motor Vehicles.1

 

 This case is factually indistinguishable from and controlled 

by our decision in Honaker v. Commonwealth, 19 Va. App. 682, 454 

S.E.2d 29 (1995). The other state's law does not have to 

"substantially conform in every respect to Code § 18.2-266." 

Rather, in order to adjudicate a defendant an habitual offender 

based upon a conviction from another state, "[o]nly that 

prohibition of the other state's law under which the person was 

convicted must substantially conform [to Code § 18.2-266]." 

Honaker, 19 Va. App. at 684, 454 S.E.2d at 30 (citations 

omitted). The record in this case clearly established the nature 

of appellant's conviction for "DUI (.121) w/ accident." This 

fact was unrebutted. 

 The Commonwealth established a "prima facie presumption" 

that the convictions are valid "by introducing the certified DMV 

 

 1The Uniform Traffic Ticket and Complaint showed that on 

December 1, 1990, appellant was charged with "DUI (.121) 

w/accident" in violation of West Virginia Code § 17C-5-2, and 

"Failure to Maintain Control" in violation of West Virginia Code 

§ 17C-6-1. 
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transcript listing the three requisite convictions against 

[defendant]." Moffitt v. Commonwealth, 16 Va. App. 983, 986, 434 

S.E.2d 684, 687 (1993). "Once the Commonwealth has established a 

prima facie case, it is entitled to judgment, unless [defendant] 

goes forward with evidence that refutes an element of the 

Commonwealth's case or rebuts the prima facie presumption." Id. 

"This shift in the burden of producing evidence occurs because of 

the presumption that the Commissioner of the Division of Motor 

Vehicles has kept accurate records and has made at least a 

tentative determination of conformity." Bouldin v. Commonwealth, 

4 Va. App. 166, 169, 355 S.E.2d 352, 353 (1987) (citing Davis v. 

Commonwealth, 219 Va. 808, 812-13, 252 S.E.2d 299, 301 (1979)). 

 Appellant produced no evidence that as a matter of law 

rebutted the Commonwealth's prima facie case. Accordingly, the 

trial court did not err in considering appellant's West Virginia 

conviction to be a predicate conviction for purposes of adjudging 

appellant an habitual offender. 

 Affirmed.