COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Clements and Senior Judge Overton Argued at Chesapeake, Virginia

MICHAEL CHRISTOPHER HUMPHRIES, S/K/A MICHAEL A. HUMPHRIES MEMORANDUM OPINION * BY v. Record No. 0282-04-1 JUDGE NELSON T. OVERTON JANUARY 11, 2005 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH Mark S. Davis, Judge Laurel A. Uhlar (St. Clair La w Firm, on brief), for appellant. Kathleen B. Martin, Assistant A ttorney General (Je rry W. Kilgore, Attorney General, on brief), for appellee.

Michael Christopher Humphries, appellant, was conv icted of third offe nse petit larceny and assault and battery. He appeals and contends the trial court erred by finding that the Commonwealth sufficiently proved that he had been pr eviously convicted of two larceny type

offenses and contends the eviden ce was insufficient to support either of his convictions. We disagree and affirm.

Facts Randy Silver, the meat manager at a gro cery store, was cutting meat and noticed appellant standing by the meat case. Appellant looked at Si lver, then at the steaks, then at Silver, and then at the steaks. Silver was suspicious, so when appellant picked up the steaks, Silver followed him to see where he was taking the meat. Initially, appellant put the steaks into his

cart. When Silver confronted him as he was heading towards the front of the store, Silver

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.-2- noticed the meat was no longer in the cart. Silver asked appellant what had happened to the meat, and appellant responded that he did not ha ve anything and that the meat was back on the aisle. Silver asked where and explained he needed to return the meat to the meat case. Appellant said, “Naw, here it is,” and lif ted his shirt and pulled packages of steaks, boneless chicken and boneless pork out of his pants. As Silver tried to take appellant to the fr ont of the store and call the police, appellant tried to get away. Appellant and Silver began wrestli ng and fell to the floor. Silver took appellant to the office in the rear of the store. As Silver talked to the assistant manager, appellant tried to sneak out the door. As Silver tried to grab him, appellant pushed

Silver in the face and then elbowed him in the face. At trial, appellant claimed that Silver accused him of stealing, jumped on him and ripped his shirt. Appellant claimed he told Silver he was going to sue the store because he “ain’t have nothing on [him].” Appellant denied having any m eat with him when the struggle with Silver began. Appellant said he had two packages of steaks, three packages of pork chops, two packages of chicken and a pack of link sausages in his grocery cart and that he le ft his cart and

went outside to his car to get his grocery list. Proof of previous larceny type offense issue In appellant’s bench trial, the Commonwealth proved that appellant had been previously convicted of two larceny type offenses, making appellant eligible for the enhanced penalty provisions of Code § 18.2-104. The Commonwealth offered into eviden ce two prior court orders. Commonwealth’s Exhibit #4 proved that appellant was convict ed of petit larceny on April 15, 2002. Commonwealth’s Exhibit #5, to wh ich appellant objected, is an order revoking appellant’s probation given for hi s conviction on October 19, 1994 fo r grand larceny. Appellant contends that although the probati on revocation order references th e grand larceny conviction of-3- October 19, 1994, the order is insufficient to prov e one of the two larc eny type convictions needed for the enhanced punishment. “[T]he Commonwealth is entitle d to a presumption of regular ity which attends the prior conviction because ‘every act of a court of comp etent jurisdiction shall be presumed to have been rightly done, till th e contrary appears.’” Nicely v. Commonwealth , 25 Va. App. 579, 584, 490 S.E.2d 281, 283 (1997) (citation omitted). Therefor e, unless the defendant presents evidence rebutting the presumption of regularity, the Co mmonwealth has satisfied its burden of proving the prior conviction was valid, and established a third offense in order to enhance punishment.

See Samuels v. Commonwealth , 27 Va. App. 119, 123-24, 497 S.E.2d 873, 875 (1998). The probation revocation order states that appellant “stands convicte d of Grand Larceny on October 19, 1994 and was sentenced to the State Correctional Facility for a period of two (2) years, but the court suspended the sentence,” and then states that appellant’s probation is revoked due to probation violations. This document, certified by the clerk of court, was properly admitted and proved that appellant was convi cted of grand larceny on Oct ober 19, 1994. Appellant did not rebut the presumption of regularity of this order. This order constituted competent evidence, as required by Code § 18.2-104, from which the fact finder could find that appellant had been previously convicted of a larceny offense. The trial court did not err by finding that this order, referencing the grand larceny conviction, was suffi cient to prove a third offense in order to enhance punishment. Moreover, appellant admitted during his testimony that he had been convicted of two prior larceny convictions. The evidence was suff icient to prove beyond a reasonable doubt that appellant committed third offense petit larceny.-4- Sufficiency issues “On appeal, ‘we review the ev idence in the light most fa vorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom.’” Archer v. Commonwealth , 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (citati on omitted). “The credibility of the witnesses and the weight accorded the evidence ar e matters solely for the fact finder who has the opportunity to see and hear that evidence as it is presented.” Sandoval v. Commonwealth , 20 Va. App. 133, 138, 455 S.E.2d 730, 732 (1995).

The fact finder believed the Commonwealth ’s evidence, and rejected appellant’s evidence. The Commonwealth’s evidence proved that appellant committed larceny when he stole meat from the store and hid it in his pant s. When Silver stopped him, appellant initially said he had put the packages of meat down on another aisle, but th en acknowledged that he had it and pulled the packages of meat out of his pant s. Thereafter, appellan t was taken to a back office. When Silver tried to stop appellant from sneaking away before the police arrived, appellant committed assault and battery when he pushed and elbowed Silver in the face. The Commonwealth’s evidence was competent, was not inherently incredible, and was sufficient to prove beyond a reasonable doubt that a ppellant committed the charged offenses.

Affirmed.