COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Elder and Bray 

Argued at Salem, Virginia 

MICHAEL CAROLL McBRIDE, S/K/A 

 MICHAEL CARROLL McBRIDE 

 OPINION BY 

v. Record No. 2491-95-3 JUDGE LARRY G. ELDER 

 JANUARY 21, 1997 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF CRAIG COUNTY 

Duncan M. Byrd, Jr., Judge 

 Charles R. Allen, Jr., for appellant. 

 Margaret Ann B. Walker, Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 Michael Carroll McBride (appellant) appeals his conviction 

by the Craig County Circuit Court (trial court) of a second 

offense of driving under the influence. Code §§ 18.2-266, 

18.2-270. He contends that he cannot be subjected to the 

enhanced penalty of Code § 18.2-270 because the evidence was 

insufficient to prove that he was previously convicted for 

violating Code § 18.2-266. For the reasons that follow, we 

reverse and remand. 

 I. 

 FACTS 

 On March 17, 1995, appellant was arrested and charged with 

committing his second offense in the past ten years of driving 

under the influence in violation of Code § 18.2-266. Appellant 

was convicted as charged by the Craig County General District 
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Court on May 23, 1995 and appealed to the Craig County Circuit 

Court (trial court). 

 At his trial on October 11, the Commonwealth attempted to 

prove that appellant had a previous conviction under Code 

§ 18.2-266 by offering a certified copy of a record from the City 

of Roanoke General District Court (district court) regarding a 

trial held on August 11, 1986. The document was a warrant of 

arrest that charged appellant with violating Code § 18.2-266 on 

April 13, 1986. The second page of the warrant contained a 

printed form upon which the district court purportedly indicated 

the proceedings subsequent to appellant's arrest. This form was 

signed by the district court judge and indicated that appellant 

had pleaded not guilty. It also indicated that the district 

court judge had sentenced appellant to thirty days in jail, 

imposed a fine of $300, and suspended his driver's license for 

six months, all suspended on the condition that appellant enter 

and complete an alcohol safety action program. However, the form 

was left blank where it stated: 

 [The Accused] was TRIED and FOUND by me 

 not guilty guilty as charged 

 guilty of 

The Commonwealth offered no other evidence to prove the prior 

conviction. 

 Appellant moved to strike the Commonwealth's evidence on the 

ground that the Commonwealth had failed to prove a prior 

conviction under Code § 18.2-266. Appellant argued that the 
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warrant pertaining to the prior proceeding did not indicate that 

appellant was tried and found guilty of violating Code 

§ 18.2-266. The trial court denied appellant's motion and found 

him guilty of a second violation of Code § 18.2-266. 

 II. 

 SUFFICIENCY OF THE EVIDENCE OF A PRIOR CONVICTION 

 Appellant contends that the evidence was insufficient to 

prove that he was previously convicted under Code § 18.2-266. We 

agree. 

 Code § 18.2-270 sets forth the penalties for a defendant 

convicted of driving while intoxicated or under the influence in 

violation of Code § 18.2-266. Code § 18.2-270 establishes an 

enhanced penalty for repeat offenders and states in relevant 

part: 

 Any person convicted of a second offense 

committed within a period of five to ten 

years of a first offense under § 18.2-266 

shall be punishable by a fine of not less 

than $200 nor more than $2,500 and by 

confinement in jail for not less than one 

month nor more than one year. 

As with all elements of a crime, the burden is on the 

Commonwealth to prove the prior conviction beyond a reasonable 

doubt. Ellet v. Commonwealth, 174 Va. 403, 413, 4 S.E.2d 762, 

766 (1939); see James v. Commonwealth, 18 Va. App. 746, 752, 446 

S.E.2d 900, 903 (1994); Dowdy v. Commonwealth, 220 Va. 114, 116, 

255 S.E.2d 506, 508 (1979). While "the most efficient way to 

prove the prior . . . conviction is to offer in evidence an 
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authenticated copy of the prior order of conviction," Essex v. 

Commonwealth, 18 Va. App. 168, 171, 442 S.E.2d 707, 709 (1994), 

the prior conviction may be proved by any competent evidence. 39 

Am. Jur.2d Habitual Criminals § 27 (1968); see Griswold v. 

Commonwealth, 19 Va. App. 477, 483, 453 S.E.2d 287, 290 (1995), 

rev'd on other grounds, 21 Va. App. 22, 25, 461 S.E.2d 411, 412 

(1995) (en banc) (rev'd on other grounds, 252 Va. 113, 472 S.E.2d 

789 (1996)) (stating that the mere fact that printed spaces on 

reverse side of warrant were not clearly marked is not 

determinative of whether defendant had a counseled prior 

conviction if the Commonwealth produces other competent 

evidence). 

 We hold that the evidence was insufficient to 

establish that appellant was previously 

convicted of violating Code § 18.2-266. 

[W]hen the question of the sufficiency of the 

evidence is raised on appellate review, we 

must determine whether a reasonable fact 

finder could have found from the evidence 

before it that guilt had been proved beyond a 

reasonable doubt. Furthermore, when 

reviewing the sufficiency of the evidence, we 

must view the evidence in the light most 

favorable to the Commonwealth, granting all 

reasonable inferences fairly deducible from 
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the evidence. 

Crump v. Commonwealth, 20 Va. App. 609, 617, 460 S.E.2d 238, 

241-42 (1995). "The judgment of a trial court sitting without a 

jury is entitled to the same weight as a jury verdict and will 

not be set aside unless it appears from the evidence that the 

judgment is plainly wrong or without evidence to support it." 

Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 

(1987). 

 The evidence was insufficient to establish a prior 

conviction because the warrant regarding the previous proceeding 

did not indicate that appellant was convicted under Code 

§ 18.2-266, and the Commonwealth offered no other competent 

evidence. When a court not of record tries a defendant on a 

criminal charge, it is required to memorialize its judgment by 

setting forth "[the defendant's] plea, [the court's] verdict or 

findings and the adjudication and sentence." Code § 19.2-307; 

see Bellinger v. Commonwealth, 23 Va. App. 471, 474, 477 S.E.2d 

779, 780 (1996). While the warrant regarding the prior 

proceeding states that appellant pleaded not guilty to the charge 

of violating Code § 18.2-266 and that the court imposed a 

sentence, the warrant fails to state that the court found 

appellant guilty of violating Code § 18.2-266. A court speaks 

through its orders and those orders are presumed to accurately 

reflect what transpired. See Waterfront Marine Const, Inc. v. 

North End 49ers Sandbridge Bulkhead Groups A, B and C, 251 Va. 
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417, 427 n.2, 468 S.E.2d 894, 900 n.2 (1996). Because the 

Commonwealth offered no evidence to rebut the presumption arising 

from the warrant that appellant was not found guilty of violating 

Code § 18.2-266, we hold that the trial court's conclusion that 

appellant had a prior conviction lacked evidence to support it. 

See Bellinger, 23 Va. App. at 474-75, 477 S.E.2d at 780-81 

(holding that the evidence was insufficient to prove prior 

convictions by the district court when the printed forms on 

reverse side of warrants were unsigned and did not set forth 

either the defendant's plea or the court's verdict and sentence); 

Walthall v. Commonwealth, 3 Va. App. 674, 678-79, 353 S.E.2d 169, 

171 (1987) (holding that the evidence was insufficient to prove 

criminal conviction of nonsupport by the juvenile and domestic 

relations court when the printed form on the reverse side of the 

original nonsupport complaint was not used). 

 The Commonwealth contends that the warrant was sufficient to 

prove that appellant had a prior conviction because the sentence 

written on the warrant is consistent with that generally imposed 

on a person convicted of violating Code § 18.2-266, and the 

district court judge is presumed to have discharged his duties in 

accordance with the law. We disagree. The Commonwealth's 

reasoning actually undermines its argument. If we presume that 

the district court judge in the prior case lawfully discharged 

his duties, then his failure to indicate on the warrant that he 

found appellant guilty under Code § 18.2-266 correctly represents 
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his legal judgment. On the other hand, if we accept, as the 

Commonwealth argues, that the judge merely neglected to complete 

the printed form, then the presumption that the trial judge 

correctly discharged his duties is rebutted. Thus, in order to 

reach the Commonwealth's conclusion that a prior conviction under 

Code § 18.2-266 may be inferred from the sentence imposed as 

indicated on the warrant, a reasonable fact finder would be 

forced to speculate that the district court judge made no other 

errors, such as convicting appellant of a charge other than that 

stated in the warrant. We have said that we are not restricted 

to the precise, technical wording of a court's order when other 

evidence in the record clearly establishes that the court had a 

different intent. Guba v. Commonwealth, 9 Va. App. 114, 118, 383 

S.E.2d 764, 767 (1989). However, the Commonwealth offered no 

other evidence to indicate that the district court had an intent 

other than not finding appellant guilty under Code § 18.2-266. 

 For the foregoing reasons, we reverse the conviction for a 

second violation of Code § 18.2-266 and remand for further 

proceedings consistent with this opinion if the Commonwealth be 

so advised. 

Reversed and remanded.