COURT OF APPEALS OF VIRGINIA 

Present: Judges Kelsey, Haley and Petty 

Argued at Salem, Virginia 

JAMES LESTER WALLER 

 OPINION BY 

v. Record No. 1024-07-3 JUDGE D. ARTHUR KELSEY 

 SEPTEMBER 2, 2008 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY 

Charles J. Strauss, Judge 

Glenn L. Berger (Berger & Thornhill, on brief), for appellant. 

Donald E. Jeffrey, III, Assistant Attorney General (Robert F. 

McDonnell, Attorney General, on brief), for appellee. 

The trial court convicted James Lester Waller for possessing a firearm after having been 

convicted of a violent felony. See Code § 18.2-308.2(A). On appeal, Waller claims the trial 

court erred (i) in not acquitting him based upon his necessity defense, and (ii) in admitting prior 

conviction orders and finding them sufficient to establish Waller’s status as a violent felon. 

Persuaded by neither assertion, we affirm. 

I. 

 On appeal, we review the evidence in the “light most favorable” to the Commonwealth. 

Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003). Viewing the record 

through this evidentiary prism requires us to “discard the evidence of the accused in conflict with 

that of the Commonwealth, and regard as true all the credible evidence favorable to the 

Commonwealth and all fair inferences to be drawn therefrom.” Parks v. Commonwealth, 221 

Va. 492, 498, 270 S.E.2d 755, 759 (1980) (emphasis and citation omitted). 
 The evidence before the trial court showed that a deputy sheriff was dispatched to 

Waller’s home in response to an alleged threat. The deputy found Waller placing a long-barreled 

weapon underneath a van in the front yard. After the deputy restrained Waller, the deputy found 

a loaded handgun in Waller’s back pocket and a shotgun, a rifle, and a pistol under the van. The 

cylinder and shells for the pistol under the van were found in Waller’s pocket. 

 Waller took the stand at trial and testified he was 69 years old at the time of the offense. 

He lived alone and owned the property. His 25-year-old nephew lived nearby. The nephew 

came by that day, and the two argued in the front yard. Waller accused his nephew of stealing 

from him. The nephew said: “I’m going to get my gun and I’ll be back.” Waller claimed his 

nephew intended to kill him. After making these threats, the nephew got in his car and drove off. 

Waller then “went in the woods” to retrieve various firearms stored on his property. Waller 

knew where to find them, he admitted, “Cause I know somebody put them there for me.” 

Waller had previously placed the weapons under “old table tops” to keep them “from 

getting rained on and messed up.” He said “somebody” (whom he never named) “was letting 

[him] use them.” He needed them, Waller argued, to “[p]rotect my life” but admitted that he also 

used the shotgun for hunting. 

 After arming himself, he went to the front yard to wait for his nephew’s return. Waller 

did not retreat, call the police, or call anyone else. Waller’s nephew never returned. Instead, the 

next person Waller saw was the deputy sheriff. Waller said about 35 to 45 minutes passed 

between arming himself and the arrival of the deputy. 

 The Commonwealth introduced into evidence six conviction orders from 1975 issued by 

the Circuit Court for Henry County, Virginia. Each conviction involved a charge of armed 

robbery and bore a stamp indicating the book and page number in which the order appears in the 

circuit court judgment book. Each order identifies Waller’s full name and age as well as his 

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defense counsel. Waller took the stand in his own defense. He admitted he was a convicted 

felon but could not remember what he did to earn that status. When asked if he went to prison 

for “armed robbery,” Waller said he did not remember “if it was armed robbery or not.” 

On the top of the first order (“Book 36 Page 338”) appears a typewritten heading 

identifying the date of trial (January 23, 1975) and the name of the circuit court judge 

(“Honorable John D. Hooker, Judge”). The judge did not sign the orders, and none of the orders 

has any signature lines or “Enter” blanks. Each order bears an original ink stamp stating: 

A COPY TESTE: 

 Vickie Helmstutler_____CLERK 

BY T. K. Patterson D.C. 

The name of the clerk appears to be a stamped signature, but the name of the deputy clerk 

(“D.C.”) is an original handwritten signature. 

 Waller’s counsel objected to the admission of the conviction orders because they were 

not signed by a judge. Counsel acknowledged that the orders bore a “book” and “page number” 

but noted that no “term order” signed by a judge had been introduced.1

 The Commonwealth 

argued that the orders had been properly attested and that Waller’s concerns went to the weight, 

not the admissibility, of the evidence. The trial court agreed, holding that the “record book and 

page number” evidenced that the conviction orders had been “recorded in the Clerk’s office.” 

The additional attestation stamp signed by the deputy clerk confirmed that fact. 

 1

 On appeal, Waller includes additional grounds in support of his objection. He argues, 

for example, that the orders should not have been admitted because the stamp was “not dated,” 

the “person who signed the stamp is not identified,” the clerk is not identified as the circuit court 

clerk, and the stamp did not reveal the particular circuit court. Appellant’s Br. at 7-8. Rule 

5A:18 precludes us from addressing arguments raised for the first time on appeal “as a basis for 

reversal” of the lower court’s judgment. “As a precondition to appellate review, Rule 5A:18 

requires a contemporaneous objection in the trial court to preserve the issue on appeal. Not just 

any objection will do. It must be both specific and timely — so that the trial judge would know 

the particular point being made in time to do something about it.” Thomas v. Commonwealth, 

44 Va. App. 741, 750, 607 S.E.2d 738, 742 (emphasis in original), adopted upon reh’g en banc, 

45 Va. App. 811, 613 S.E.2d 870 (2005). 

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 After hearing this evidence, the trial court rejected Waller’s necessity defense and relied 

on the armed robbery convictions to trigger the enhanced punishment reserved for those 

previously convicted of a “violent felony” within the meaning of Code § 18.2-308.2(A) 

(incorporating by reference Code § 17.1-805(C)).

II. 

 A. SUFFICIENCY OF THE EVIDENCE — WALLER’S NECESSITY DEFENSE

On appeal, Waller challenges the sufficiency of the evidence. He concedes he possessed 

firearms but claims the trial court, sitting as factfinder, should have found him not guilty based 

upon his necessity defense. We disagree. 

“Sufficiency-of-the-evidence review involves assessment by the courts of whether the 

evidence adduced at trial could support any rational determination of guilt beyond a reasonable 

doubt.” United States v. Powell, 469 U.S. 57, 67 (1984). As an appellate court, we rely “on the 

adversarial process to sort out the contested and the uncontested aspects of the case,” Logan v. 

Commonwealth, 47 Va. App. 168, 172, 622 S.E.2d 771, 773 (2005) (en banc), and then review 

the trial court’s factfinding “with the highest degree of appellate deference,” Thomas v. 

Commonwealth, 48 Va. App. 605, 608, 633 S.E.2d 229, 231 (2006). 

It follows that a reviewing court does not “ask itself whether it believes that the evidence 

at the trial established guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 

318-19 (1979) (emphasis in original and citation omitted). Instead, we ask only “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.” Maxwell v. 

Commonwealth, 275 Va. 437, 442, 657 S.E.2d 499, 502 (2008) (quoting Jackson, 443 U.S. at 

319) (emphasis in original). These principles recognize that an appellate court is “not permitted 

to reweigh the evidence,” Nusbaum v. Berlin, 273 Va. 385, 408, 641 S.E.2d 494, 507 (2007), 

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because appellate courts have no authority “to preside de novo over a second trial,” Haskins v. 

Commonwealth, 44 Va. App. 1, 11, 602 S.E.2d 402, 407 (2004).2

The common law defense of necessity applies to violations of Code § 18.2-308.2. The 

“essential elements” of this defense require a “reasonable belief that the action was necessary to 

avoid an imminent threatened harm” and a “lack of other adequate means to avoid the threatened 

harm.” Byers v. Commonwealth, 37 Va. App. 174, 183-84, 554 S.E.2d 714, 718 (2001) (quoting 

Humphrey v. Commonwealth, 37 Va. App. 36, 45, 553 S.E.2d 546, 550 (2001)). In addition, the 

evidence must prove “a direct causal relationship that may be reasonably anticipated between the 

action taken and the avoidance of the harm.” Id.

The trial court, sitting as factfinder, found that the evidence did not establish the elements 

of the necessity defense. This conclusion could have been reached from any number of 

perspectives. The court could have concluded Waller exaggerated the story. The nephew never 

testified. Nor did anyone else. Only Waller testified that his nephew threatened to kill him. The 

trial court had no obligation to accept this wholly uncorroborated allegation, offered by Waller in 

support of his only defense to the charge. See Coleman v. Commonwealth, 52 Va. App. 19, 25, 

660 S.E.2d 687, 690-91 (2008); Dugger v. Commonwealth, 40 Va. App. 586, 594 n.2, 580 

S.E.2d 477, 481 n.2 (2003). To be sure, the “power to segregate a witness’s testimony into the 

believable, partly believable, or wholly unbelievable is an exercise of decisional discretion 

intrinsic to the factfinding task and essential to its proper performance.” Harper v. 

Commonwealth, 49 Va. App. 517, 523, 642 S.E.2d 779, 782 (2007). 

 2

 This deferential standard of review “applies not only to the historical facts themselves, 

but the inferences from those facts as well.” Crowder v. Commonwealth, 41 Va. App. 658, 663 

n.2, 588 S.E.2d 384, 387 n.2 (2003). Thus, a jury may “draw reasonable inferences from basic 

facts to ultimate facts,” Haskins, 44 Va. App. at 10, 602 S.E.2d at 406 (citations omitted), unless 

doing so would push “into the realm of non sequitur,” Thomas, 48 Va. App. at 608, 633 S.E.2d 

at 231 (citation omitted). 

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On the other hand, the trial court could have accepted Waller’s explanation (either as fact 

or merely for arguendo purposes) but found the alleged threat insufficiently imminent to warrant 

Waller’s decision to outfit himself with multiple firearms and to lay in wait 35 to 45 minutes for 

the anticipated shootout with his nephew. Waller did not call the police. He did not walk away 

from the home to avoid his nephew’s contemplated return. To the contrary, Waller seemed 

anxious to prepare himself for a mortal gunfight with his nephew. “Implicit in the application of 

such a defense” is that the felon “may possess the weapon only so long as is necessary to protect 

himself from the imminent threat.” Humphrey, 37 Va. App. at 50, 553 S.E.2d at 553 (emphasis 

in original). The trial court had ample basis to conclude that, even accepting Waller’s testimony 

at face value, he never truly faced “imminent threatened harm,” nor did he lack “other adequate 

means to avoid the threatened harm.” Byers, 37 Va. App. at 184, 554 S.E.2d at 718.3

In such cases, we cannot discern with certainty “which scenario best describes” what the 

factfinder was thinking. Seaton v. Commonwealth, 42 Va. App. 739, 752, 595 S.E.2d 9, 15 

(2004). “But that does not matter for purposes of resolving this appeal.” Id. In either one, the 

factfinder “would have been acting well within [its] factfinding discretion.” Id. For these 

reasons, we hold the evidence was sufficient for the trial court to reject Waller’s necessity 

defense. 

 B. PRIOR CONVICTION OF A VIOLENT FELONY

Waller also challenges the trial court’s decision to admit the armed robbery conviction 

orders into evidence and its finding that the evidence was sufficient to establish the “violent 

felony” predicate required by the enhanced punishment provision of Code § 18.2-308.2(A). 

 3

 The Commonwealth also argues that, in any event, Waller constructively possessed the 

firearms because he placed them in a hiding spot on his own property and essentially conceded 

he had knowledge, dominion, and control over them immediately prior to the nephew’s alleged 

death threat — thus mooting Waller’s necessity defense. Given our holding, however, we need 

not analyze this alternative factual basis for Waller’s conviction. 

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(i) Admissibility of the Conviction Orders 

The trial court erroneously admitted the conviction orders, Waller contends, because the 

orders bore no judge’s signature and were unaccompanied by any term order signed by a judge. 

Our view to the contrary has been set out in some detail. In Mwangi v. Commonwealth, 51 

Va. App. 498, 503-04, 659 S.E.2d 519, 522 (2008), we applied Code § 8.01-389(A) to an 

unsigned criminal conviction order. Under that statute, the “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 such records are authenticated and certified by the clerk of the court 

where preserved to be a true record.” Code § 8.01-389(A). There, as here, the conviction order 

was “authenticated and certified by the clerk, and the stamp bears the signature of the deputy 

clerk.” Mwangi, 51 Va. App. at 503, 659 S.E.2d at 522; see also Owens v. Commonwealth, 10 

Va. App. 309, 311, 391 S.E.2d 605, 606 (1990) (“The conviction order was stamped ‘A Copy, 

Teste: William T. Ryan, Clerk’ and undersigned by the deputy clerk. This was sufficient to 

‘authenticate and certify’ the document within the meaning of Code § 8.01-389.”). 

We similarly held in Seaton, 42 Va. App. at 756, 595 S.E.2d at 17, that an unsigned 

conviction order may be admitted into evidence if properly authenticated by the clerk. The 

conviction orders in Seaton, as well as the 33-year-old conviction orders in this case, included no 

blank signature lines where one would, under modern practice,4

 typically see a judge’s signature. 

 4

 “Historically, when clerks of court would hand-copy orders, they could not also copy a 

judge’s signature. Thus, there arose the practice of the clerk attesting copies as genuine. The 

practice of including or excluding the judge’s signature on a photocopy may vary from 

jurisdiction to jurisdiction.” 1986-87 Va. Atty. Gen. Op. 46 (Nov. 21, 1986) (opining that “the 

signature of the judge is not a requisite for ‘a copy teste’”). In 1996, the General Assembly 

standardized the conviction orders used in Virginia courts. See Code § 19.2-307 (“The final 

judgment order shall be entered on a form promulgated by the Supreme Court.” 1996 Va. Acts, 

ch. 60). The Virginia Supreme Court later issued a conviction order form which includes a 

specific signature line for the judge. See Va. Sup. Ct. Rules, Part 3A, Appendix of Forms, Form 

10 (adopted November 14, 1996, and effective January 1, 1997). Rule 1:1 provides that the 

“date of entry” of an order is when it “is signed by the judge.” This proposition, however, 

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Under Code § 17.1-123(A)(ii) or (iii), a specific signature on each order is not required. The 

book and page numbers stamped on the orders, coupled with the deputy clerk’s certification, 

show that the conviction orders had been entered in the order book. Because of the presumption 

of official regularity, the trial court had “a reasonable basis for inferring that the order book 

included a judge’s signature or a signed term order in compliance with Code § 17.1-123(A)(ii) or 

(iii).” Seaton, 42 Va. App. at 757, 595 S.E.2d at 18.5

 (ii) Evidentiary Sufficiency of Conviction Orders 

Even if admissible, Waller contends, the conviction orders should not be accepted as 

sufficient evidence by the trial court as factfinder. We again disagree. The conviction orders 

provide “not only permissible evidence of the conviction but prima facie evidence of the 

conviction.” Mwangi, 51 Va. App. at 503, 659 S.E.2d at 522. Though he took the stand at trial, 

Waller made no effort to challenge this prima facie evidence. He admitted to being a convicted 

felon. He never claimed the six conviction orders inaccurately stated his full name and age. Nor 

did he challenge the accuracy of the orders or contend the signatures of the clerk or deputy clerk 

were suspect. To be sure, Waller never once denied being convicted of armed robbery. 

All legal proscriptions barring a negative inference from a criminal defendant’s failure to 

rebut an incriminating allegation fall away when the defendant takes the stand. See Williams v. 

 

presupposes the order is one intended to be signed by a judge — which would include any order 

not exempted by statute from being individually signed under the historic order book protocols 

recognized by Code § 17.1-123(A)(ii) or (iii). Cf. Clephas v. Clephas, 1 Va. App. 209, 211, 336 

S.E.2d 897, 899 (1985) (observing that, under historic order book practices, a “judgment occurs 

when a court directs the clerk to enter it on the court’s order book”). 

5

 We acknowledge Moreau v. Fuller, 276 Va. 127, 137-38, 661 S.E.2d 841, 847 (2008), 

which held: “The purported disposition on the back of the warrant is not an order because it is 

not signed by the judge. Consequently, the order of the juvenile court that we must consider is 

the independently generated order that is signed by the judge.” That unsigned order, however, 

did not involve an entry copied from a circuit court term order book that, by statute, need not be 

specifically signed by the judge. Instead, the unsigned order in Moreau had a blank signature 

line that conspicuously announced its legal inefficacy. And, to make matters worse, the 

unsigned order was wholly displaced by a signed order addressing exactly the same subject. 

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Commonwealth, 52 Va. App. 194, 203, 662 S.E.2d 627, 631 (2008). The failure of a testifying 

defendant to contest a factual assertion, when it is within his power and self-interest to do so, 

corroborates the probative force of the assertion. See Raffel v. United States, 271 U.S. 494, 497 

(1926) (stating a testifying defendant’s “failure to deny or explain evidence of incriminating 

circumstances of which he may have knowledge, may be the basis of adverse inference”). 

Stated differently, a testifying defendant “may not stop short in his testimony by omitting 

and failing to explain incriminating circumstances and events already in evidence, in which he 

participated and concerning which he is fully informed, without subjecting his silence to the 

inferences to be naturally drawn from it.” Caminetti v. United States, 242 U.S. 470, 494 (1917); 

see Wells v. Commonwealth, 32 Va. App. 775, 787, 531 S.E.2d 16, 21 (2000) (holding that 

“appellant’s failure to deny” the charge while on the stand “was probative of his guilt of the 

charged offense”); see also Carpenter v. United States, 264 F.2d 565, 569 (4th Cir. 1959). 

 As we said in Seaton when faced with similar circumstances, “The fundamental basis 

upon which all rules of evidence must rest — if they are to rest upon reason — is their adaptation 

to the successful development of the truth.” Seaton, 42 Va. App. at 759, 595 S.E.2d at 19 

(quoting Funk v. United States, 290 U.S. 371, 381 (1933)). The search for truth in this case 

would be sidelined if we fail to recognize that, to date, Waller has never challenged any of his 

conviction orders as “inaccurate or unreliable.” Id.; see also Owens, 10 Va. App. at 311, 391 

S.E.2d at 606-07 (taking into account that defendant did “not challenge the fact that it is a true 

and accurate copy of the conviction order”). This conspicuous omission, coupled with the 

persuasive force of the orders themselves, provided ample evidence for the trial court to 

conclude that Waller was convicted of armed robbery, a “violent felony” within the definition of 

Code § 18.2-308.2(A) (incorporating by reference Code § 17.1-805(C)).

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III. 

 In sum, we hold that sufficient evidence supports the trial court’s rejection of Waller’s 

necessity defense and that the court did not err in admitting and relying upon Waller’s armed 

robbery convictions. We thus affirm Waller’s conviction of possessing a firearm after being 

previously convicted of a violent felony. 

 Affirmed.