COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Huff, J udges Humphrey s and O’Brien Argued at Fredericksburg, Virginia

DONALD DRAVELL ROBINSON OPINION BY v. Record No . 1923-16-4 CHIEF J UDGE GLEN A. HUFF APRIL 3, 2018 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT C OURT OF LOUDOUN COUNTY Burke F. McCahill, Judge Rachel D. Robinson, Assistant Public Defender (Elizabeth Jean Lancaster, Deputy Public Defe nder, on briefs), for appellant. Christopher P. Schandevel, Assi stant Attorney General (Mark R

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

Donald Dravell Robinson (“appella nt”) appeals the sentence imp osed by the Circuit Court of Loudoun County (“trial cou rt”) after his conviction fo r possession of a Schedule I or II controlled substance in v iolation of Code § 18.2-250. Appellan t’s sole assignment of error is that the trial court erred “in admitting the sentencing order f rom the Fairfax County Circuit Court as such order included informati on about a charge for which Mr. Robinson was not convicted.” For the following reasons, this C ourt affirms the sentence impo sed by the trial court.
I. BACKGROUND On appeal, “we consider the evi dence and all reasonable infere nces flowing from that evidence in the light most favor able to the Commonwealth, the p revailing party at trial.” Williams v. Commonwealth, 49 Va. App. 439, 442, 642 S.E.2d 295, 296 (2007) ( en banc ) (quoting Jackson v. Commonwealth, 267 Va. 666, 672, 594 S.E.2d 595, 598 (2004)). So viewed, the evidence is as follows.PUBLISHED- 2 - A Loudoun County Sheriff’s deputy a rrested appellant for publi c intoxication on May 22, 2015, and a search incident to arre st revealed drug paraphernal ia and a substance later determined to be cocaine. Appe llant was tried by a jury on cha rges of public intoxication and possession of a Schedule I or II controlled substance. While t he jury deliberated on the question of appellant’s guilt, counsel for both parties and the trial co urt discussed exhibits the Commonwealth intended to admit during the sentencing phase. The prosecutor expressed his in tention to introduce evidence o f four prior convictions, including one from Fairfax C ounty. Defense counsel objected to the admission of the Fairfax County order unless it was redact ed to remove “any reference to the charge that he was charged with but not convicted of.” The or der in question referenced t he fact that the Commonwealth had indicted appellant for fel ony grand larceny, but later amen ded the indictment to reduce the charge to petit larceny. Appellant pled guilty and was convict ed on that lesser charge. The prosecutor argued that the enti re, unredacted final order shoul d be admitted in compliance with Code § 19.2-295.1. Appellant’s counsel argued that leaving inf ormation about the felony charge would be “misleading” to the jur y. The trial court overruled a ppellant’s objection and admitted the final order in its entirety. The jury ultimately found app ellant guilty of possession of a controlled substance, but not gui lty of public intoxication. Neither side called any witnes ses during sentencing, but both sides argued for what they thought were appropriate senten ces. After pointing out that th e sentencing range for appellant’s conviction was one to ten years of incarceration, the Commonwea lth requested a sentence of two years. Appellant’s counsel argue d that a sentence over twelve months would be excessive and asked the jury to limit appellant ’s punishment to a fine. Afte r a brief deliberation, the jury delivered a verdict fixing appell ant’s sentence at twelve month s’ incarcerati on and a $2,500 fine. The trial court imposed the jur y’s sentence, and this appeal fo llowed.- 3 - II. STANDARD OF REVIEW Courts in Virginia have long rec ognized that “[t]he scope of t estimony in the sentencing phase is wide, and the standard f or exclusion of relevant evide nce is whether the prejudicial effect substantially outweighs its probative value. This is a matter of discretion for the circuit court and is . . . reviewed [fo r] abuse of discretion . . . .” Prieto v. Commonwealth, 283 Va. 149, 168, 721 S.E.2d 484, 496 (2012) (citation omitted). Under this standard, the tria l judge’s ruling “will not be reversed simply because an appellate court disagre es.” Thomas v. Commonwealth, 44 Va. App. 741, 753, 607 S.E.2d 738, 743 (quoting Henry J. Fri endly, Indiscretion about Discretion, 31 Emory L.J. 747, 754 (1982)), adopted upon reh’g en banc, 45 Va. App. 811, 613 S.E.2d 870 (2005). Instead, “[o]nly w hen reasonable jurists co uld not differ can [this Court] say an abuse of discretion has occu rred.” Id. A trial court, howe ver, “by definition abuses its discretion when it makes an erro r of law.” Dean v. Commonwealt h, 61 Va. App. 209, 213, 734 S.E.2d 673, 675 (2012) (quoting Porte r v. Commonwealth, 276 Va. 203, 260, 661 S.E.2d 415, 445 (2008)). Therefore, any abuse of discretion review must en sure “that the discretion was not guided by erroneous legal conclusi ons.” Id. (quoting Porter, 2 76 Va. at 260, 661 S.E.2d at 445). “To the extent admissibility rests upon the interpretation of astatute, that interpretation is a question of law subject to de novo review.” Id. (quoting Cra wford v. Commonwealth, 281 Va. 84, 97, 704 S.E.2d 107, 115 (2011)).
III. ANALYSIS Appellant contends that the tria l court abused its discretion by admitting evidence of a prior charge that did not result in a conviction and that refer ences to that charge should have been redacted from the order admitted into evidence during the sentencing phase of his trial. The Commonwealth counters that C ode § 19.2-295.1 allows it to intro duce copies of final orders of- 4 - appellant’s prior convictions in their entirety. 1 Based upon the plain langua ge of the statute in question, this Court agrees with the Commonwealth. Code § 19.2-295.1 directs that when a defendant is convicted b y a jury for either a felony or a Class 1 misdemeanor, the sam e jury shall decide the defend ant’s punishment in a separate proceeding to be held as soon as practicable. At that proceedi ng, the Commonwealth “shall present the defendant’s prior c riminal history, including prior convictions and the punishments imposed, by certified, attested or exemplified copies of the fi nal order . . . .” Code § 19.2-295.1. The language of a statute “is ambiguous if it admits of being understood in more than one way, refers to two or more thi ngs simultaneously, is difficult to comprehend . . . or lacks clearness and definiteness.” G illespie v. Commonwealth, 272 Va . 753, 757-58, 636 S.E.2d 430, 432 (2006) (superseded by statute on other grounds). If a stat ute is unambiguous, however, this Court will “apply the plain meaning of the language appearing i n the statute unless . . . [doing so] leads to an absurd result.” H arvey v. Commonwealth, 65 Va. App . 280, 285, 777 S.E.2d 231, 234 (2015) (quoting Commonwealth v. Amos, 287 Va. 301, 305-06, 754 S.E.2d 304, 306-07 (2014)). “The plain, obvious, and r ational meaning of a statut e is always pr eferred to any curious, narrow or strained cons truction.” Gilliam v. Commonwe alth, 21 Va. App. 519, 522-23, 465 S.E.2d 592, 594 (1996) (quoting Branch v. Commonwealth, 14 Va. App. 836, 839, 419 S.E.2d 422, 424 (1992)). Appellant contends that C ode § 19.2-295.1 limits evidence at s entencing to convictions, relying on this Court’s interpre tation of the statute in Byrd v . Commonwealth, 30 Va. App. 371, 375, 517 S.E.2d 243, 245 (1999) (holding that juries may not se e evidence of charges that were nolle prosequied , because they were not convictions). Appellant further notes that the Supreme

1 The Commonwealth also argued t hat any error in admitting the o rder in question was harmless based on the light sen tence recommended by the jury. Because we find no error, we need not address the issue further.- 5 - Court reversed this Court’s de cision to allow evidence about pr obation revocations, finding such evidence inadmissible during sentencing because the revocations were not part of the “record of conviction.” Jaccard v. Co mmonwealth, 268 Va. 56, 59, 597 S.E. 2d 30, 31 (2004). Appellant’s argument fails, however, because these cases all interpret an o utdated version of the statute. When interpreted in both Byrd and Jaccard, the statute read th at the Commonwealth must present evidence of the defendant’s “ prior convictions ” to the jury during the sentencing phase, by entering copies of “the record of conviction ” into evidence. Code § 19.2-295.1 (2001) (emphasis added). In 2007, however, the General Assembly amend ed the statute and made a significant change to this sent ence. “As a general rule, a pre sumption exists that a substantive change in law was intended by an a mendment to an existing statu te.” Commonwealth v. Bruhn, 264 Va. 597, 602, 570 S.E.2d 866, 869 (2002) (quoting Virginia- American Water Co. v. Prince William County Service Authority, 246 Va. 509, 517, 436 S.E.2d 618, 622-23 (1993)). The General Assembly’s amend ment in 2007 added clarity to the statute. See Jaccard, 268 Va. at 59, 597 S.E.2d at 31 (interpreting the meaning of th e phrase “record of conviction” in the statute’s earlier version). T he current statute, as amende d, requires presentation of “the defendant’s prior criminal history , including prior convictions a nd the punishments imposed . . . by certified, attested or exemp lified copies of the final order .” Code § 19.2-295.1 (emphasis added). The amendment, therefore , broadens the scope of materi als to be presented to the jury and specifies that such materia ls are to include the contents o f the final orders. Accordingly, this Court finds the amended statut e unambiguous. Because the new l anguage is unambiguous, this Court looks to the plain meaning of the statute to decide the q uestion at hand. In this case, the Commonwealth o ffered into evidence a certifi ed copy of the final order of the Circuit Court of Fairfa x County convicting appellant of petit larceny. Appellant asked the trial court to redact parts of t he order mentioning that appell ant was previously charged with- 6 - grand larceny, because he was not convicted of that charge. Th e plain language of the statute mentions no need to shield the jury from such information if it is part of the final order, and this Court will not add such a requirement because “courts cannot, b y judicial interpretation, add language to a statute that the G eneral Assembly did not include in its enactment.” Young v. Commonwealth, 273 Va. 528, 534, 643 S.E.2d 491, 494 (2007). Fu rthermore, the fact that he was charged with grand larceny is part of appellant’s criminal history, which the statute requires the Commonwealth to present . See Code § 19.2-295.1 (“[t]he Com monwealth shall present evidence of the defendant’s cri minal history . . .” (emphasis a dded)). Interpreti ng the statute to require admission of evidence of c riminal history, while simult aneously requiring any history not resulting in a conviction to be r edacted would render the statu te internally inconsistent and yield an absurd result. See Co ok v. Commonwealth, 268 Va. 111, 116, 597 S.E.2d 84, 87 (2004) (noting that Virginia “case law uses the phrase ‘absurd result’ to describe situations in which the law would be internally inconsiste nt or otherwise incapable of operation”). The trial court’s interpretation of the statute w as in accordance with traditiona l canons of statutory interpretation. Accordingly, its decision to adm it the unredacted final order o f appellant’s 2005 conviction was within its sound discretion a nd will not be disturbed on appeal

. IV. CONCLUSION Because the trial court did not abuse its discretion by admitt ing the unredacte d final order from the Circuit Court of Fairf ax County, this Court affirms ap pellant’s sentence. Affirmed.