Jalen Rashon Parker v. Commonwealth of Virginia ( 2022 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Raphael and Callins
UNPUBLISHED
Argued by videoconference
JALEN RASHON PARKER
MEMORANDUM OPINION * BY
v. Record No. 0684-21-1 JUDGE ROBERT J. HUMPHREYS
MARCH 1, 2022
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK
Robert H. Sandwich, Jr., Judge
James L. Grandfield, Public Defender, for appellant.
A. Anne Lloyd, Deputy Solicitor General (Mark R. Herring,1
Attorney General, on brief), for appellee.
Jalen Parker was convicted in the Circuit Court of the City of Suffolk of, inter alia,
possession of a firearm under the age of twenty-nine after having been convicted of a delinquent
act that would be a felony if committed by an adult, in violation of Code § 18.2-308.2(A)(iii).
On appeal, Parker argues that the circuit court erred in finding the evidence was sufficient to
establish that he had previously been convicted of an offense that would be a felony if committed
by an adult.
I. BACKGROUND
On February 5, 2020, Officer Gauf with the Suffolk Police Department arrested Parker
and performed a search incident to arrest, during which he found a firearm tucked into the
waistband of Parker’s pants, hidden beneath his hoodie. After running the gun’s serial number
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
Jason S. Miyares succeeded Mark R. Herring as Attorney General on January 15, 2022.
through the police system, Officer Gauf learned that the weapon had been reported stolen
approximately ten hours prior to Parker’s arrest.
Following an investigation, Parker was indicted for, inter alia, one count of possession of
a firearm by a nonviolent felon. At a bench trial, the Commonwealth sought to introduce
evidence that Parker had previously been adjudicated guilty of an offense that would have been a
felony if committed by an adult in the Chesapeake Juvenile and Domestic Relations District
Court (“the J&DR court”), in violation of Code § 18.2-308.2 which says,
It shall be unlawful for . . . any person under the age of 29 who
was adjudicated delinquent as a juvenile 14 years of age or older at
the time of the offense of a delinquent act which would be a felony
if committed by an adult . . . to knowingly and intentionally
possess or transport any firearm . . . . Any person who violates this
section shall be guilty of a Class 6 felony.
The Commonwealth offered three documents as proof that Parker had been convicted of
the felony offense of receiving stolen property: (1) a petition from the J&DR court, (2) a
disposition order from the J&DR court, and (3) a signed order from the J&DR court requiring
Parker to be fingerprinted at the Chesapeake City Jail. 2 The documents showed that on April 24,
2018, Parker had been charged with receiving stolen property in excess of $200, namely, a 2019
Toyota vehicle, in violation of Code § 18.2-108. 3 Notably, Code § 18.2-108, “Receiving Stolen
Goods,” can be either a misdemeanor or felony offense pursuant to Code §§ 18.2-95 and
18.2-96. (Amended 2020). The evidence also showed that on July 31, 2018, Parker pled guilty
2
A petition is a charging document used in J&DR courts. See Burfoot v. Commonwealth,
23 Va. App. 38, 45-46 (1996) (“[T]he sole avenue available to prosecute a juvenile defendant
charged with a criminal offense begins with the Commonwealth filing a petition in the juvenile
and domestic relations district court. No statute allows the Commonwealth to directly indict a
juvenile for a criminal offense; process must be initiated by filing an appropriate petition in the
juvenile and domestic relations district court.”).
3
At the time of Parker’s offense, receiving stolen property in excess of $200 constituted
grand larceny under Code § 18.2-95.
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to violating Code § 18.2-108. The J&DR court’s disposition order contained two empty boxes,
one for “misdemeanor” and one for “felony,” and neither box had been checked by the court.
Parker objected to the evidence on the grounds that it was insufficient to prove a prior felony
conviction.
The circuit court held that the evidence was admissible, stating,
Well, certainly it could be a felony or a misdemeanor based solely
on the code section, but when I look at the petition and the order
by Judge Willis, and also the following items, the DNA testing
[order], and if you look at the top of that document it does say
receiving . . . stolen goods greater than two hundred dollars. Then
it lays out the code section. It also . . . indicates guilty. The plea
was “guilty” to the charge. 4
After the Commonwealth rested, Parker made a motion to strike the evidence regarding
felony possession of a firearm on the same grounds, that the evidence was insufficient. The
circuit court responded, “if this document was on its own, if this order from [the J&DR court]
stood on its own then I would agree with you as far as its ambiguity [regarding] misdemeanor or
felony.” The circuit court went on to say, however, that “taking all [three of] these documents
together and looking at the order that is presented to the court, the court finds that he was
adjudicated as a juvenile felony offense [sic], in this case, felony receiving stolen property.”
Parker was convicted of possession of a firearm by a convicted nonviolent felon. He
timely appealed his conviction to this Court.
4
The “DNA testing order” referenced by the circuit court is circuit court form 1390
(Form CC-1390). Although Form CC-1390 can be used to order DNA testing, here, it was used
to order Parker’s fingerprints. We will refer to this order as “the fingerprinting order” in this
opinion.
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II. ANALYSIS
A. STANDARD OF REVIEW
“When the sufficiency of the evidence is challenged on appeal, we determine whether the
evidence, viewed in the light most favorable to the Commonwealth, and the reasonable
inferences fairly deducible from that evidence support each and every element of the charged
offense.” Rooney v. Commonwealth, 27 Va. App. 634, 643 (1998). We defer to the findings of
fact made by a jury or a circuit court judge at a bench trial if there is evidence to support the
findings and will not set a judgment aside unless it appears from the evidence that the judgment
is plainly wrong. Sullivan v. Commonwealth, 280 Va. 672, 676 (2010). Our appellate deference
also applies “to any reasonable and justified inferences the fact-finder may have drawn from the
facts proved.” Id.B. WHETHER THE EVIDENCE WAS SUFFICIENT
“[W]hen the fact of a prior conviction is an element of a charged offense, the burden is on
the Commonwealth to prove that prior conviction beyond a reasonable doubt.” Overbey v.
Commonwealth, 271 Va. 231, 234 (2006) (quoting Palmer v. Commonwealth, 269 Va. 203, 207
(2005)). Parker argues that the evidence was insufficient to prove that he was convicted of a
crime that, had he been an adult, would have constituted a felony. On appeal, he primarily relies
on the Virginia Supreme Court’s decision in Palmer v. Commonwealth. Although Parker does
not cite Overbey v. Commonwealth, his argument that the evidence was impermissibly
ambiguous also implicates Overbey’s holding. 271 Va. at 234 (holding that the language of the
evidence submitted to prove defendant’s prior conviction was ambiguous and, as such, it was
insufficient to prove a prior conviction beyond a reasonable doubt). Palmer and Overbey are two
of several cases issued by the Virginia Supreme Court regarding whether evidence was sufficient
to establish the felonious nature of a prior delinquent act committed while a juvenile.
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In 2005, the Palmer Court determined that contested evidence was insufficient to prove
the defendant had sustained a conviction for an offense that would have been a felony if
committed by an adult. See Palmer, 269 Va. at 208. In that case, the Commonwealth’s evidence
consisted of four petitions and accompanying disposition orders from the J&DR court. Id. at
205. Two of the petitions charged Palmer with the delinquent act of grand larceny, and the other
two charged him with the delinquent act of burglary. Id. The disposition orders mandated that
Palmer pay restitution and be committed to jail for twelve months for each charge, however, the
orders did not contain clear adjudications. 5 See id. at 206. Stated another way, the disposition
orders in Palmer did not contain actual judgments, they merely reflected that he had been
sentenced to jail and to pay restitution. The circuit court reasoned that there was “no question”
Palmer had been convicted of one or more felonies because he “could only have been committed
to jail” for twelve months if he had been convicted of a felony offense. See id. The Virginia
Supreme Court rejected the circuit court’s reasoning, noting that the length of Palmer’s four
sentences, standing alone, was not dispositive because the law permitted twelve-month sentences
for misdemeanor offenses as well as felonies. See id. at 208. The Palmer Court held that the
evidence was insufficient because “[a] court may not engage in conjecture or surmise in
determining the offense for which a defendant was convicted” and the lack of a recorded
judgment entered in adjudication of the charges against Palmer required the circuit court to
engage in conjecture or surmise to find that he had definitively been convicted of a felony
offense; ultimately, Palmer held that evidence of a prior felony conviction cannot merely suggest
a conviction, it must establish the facts and nature of that conviction. Id. at 207-08.
5
Adjudication is defined first as “[t]he legal process of resolving a dispute; the process of
judicially deciding a case” and second as “judgment.” Adjudication, Black’s Law Dictionary
(11th ed. 2019).
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In 2006, the Virginia Supreme Court again found that the Commonwealth’s evidence was
insufficient to prove a defendant had been convicted of a felony as required by Code
§ 18.2-308.2. Overbey, 271 Va. at 232. In Overbey, the defendant had been charged with both
felony burglary and misdemeanor petit larceny when he was a juvenile. Id. The
Commonwealth’s evidence contained a J&DR court petition listing both charges and two pages
of attached notes relating to the proceedings against Overbey. See id. The notes showed that
Overbey entered a singular plea of guilty, despite having multiple charges against him; the notes
merely stated that Overbey was found guilty “based on the plea of guilty,” rather than “pleas of
guilty.” Id. at 233. The Virginia Supreme Court held that the circuit court “had to engage in
pure conjecture or surmise” to determine that Overbey had pled guilty to both felony burglary
and misdemeanor petit larceny. Id. at 234. The Court held that because the notes failed to
“specify to what offense [Overbey] pled guilty or [to] what evidence he stipulated,” the evidence
was impermissibly ambiguous and did not sufficiently prove Overbey’s prior felony conviction
beyond a reasonable doubt. See id. at 233-34.
In 2007, the Virginia Supreme Court held that an undated order purporting to be a
juvenile adjudication was sufficient to support a conviction for felony possession of a firearm.
Perez v. Commonwealth, 274 Va. 724, 730 (2007). In Perez, the Commonwealth introduced into
evidence two petitions and a disposition order from J&DR courts. Id. at 726-27. The petitions
charged Perez with grand larceny and burglary and listed case numbers for each charge. Id. at
727. The disposition order listed the type of case as “felony” and stated that Perez had been
“found guilty of [two] counts—B & E + Larceny.” Id. The disposition order also contained case
numbers that corresponded to the petitions. See id. The order was signed by the judge, but the
line for “Date” was left blank. See id. The Virginia Supreme Court held that “unlike Palmer or
Overbey, the fact finder [in Perez] did not have to engage in conjecture or surmise to find the
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fact of Perez’s prior conviction beyond a reasonable doubt.” Id. at 728-29. The two petitions
and undated order were adequate proof of conviction due to the consistency in case numbers,
charges, and the name of the defendant, despite the fact that the order was undated. See id. at
730.
In 2011, the Virginia Supreme Court found that a four-page document containing a
petition, a request for appointment of an attorney, and two pages titled “Record of Proceedings”
from a J&DR court was insufficient evidence of conviction of a juvenile act that would be a
violent felony if committed by an adult because it proved only the fact of Preston’s conviction
and not its nature. See Preston v. Commonwealth, 281 Va. 52 (2011). The evidence did not
indicate what plea Preston entered or of what specific charge he was convicted. See id. at 58(“Because the sections titled ‘Plea’ and ‘Findings of Court’ are blank on the two pages signed by
the juvenile and domestic relations district court judge, we do not know what plea Preston
entered or to what charge.”).
In the present case, Parker violated Code § 18.2-108, “Receiving, etc., stolen goods,”
when he was a juvenile. Under Code § 18.2-108, a person guilty of receiving stolen goods is
guilty of larceny, but the statute does not specify whether a violation of its terms is grand or petit
larceny. As a result, we must read the statute in conjunction with Code §§ 18.2-95 to -96, which
define grand and petit larceny based on the value of the stolen property. See, e.g., Jefferson v.
Commonwealth, 298 Va. 1, 11 (2019) (“Because [a larceny] statute does not state whether a
violation of its provisions is grand or petit larceny, it must be read in connection with Code
§§ 18.2-95[ to -96] . . . .”); Greenwalt v. Commonwealth, 224 Va. 498, 500 (1982) (“[A] person
violating [Code § 43-13] is guilty of larceny, and, if the amount involved exceeds $200, the
crime is a felony.”).
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At the time of Parker’s offense, Code § 18.2-95 stated, “Any person who . . . commits
simple larceny not from the person of another of goods and chattels of the value of $200 or
more . . . shall be guilty of grand larceny.” (Amended 2020). Therefore, if Parker was
adjudicated guilty of receiving stolen property worth $200 or more, he was guilty of the felony
offense of grand larceny.
As noted, the Commonwealth bore the burden of proving that Parker had been
adjudicated guilty of a felony and in support of its burden, the Commonwealth introduced a
petition from the J&DR court, a disposition order from the J&DR court, and a signed order from
the J&DR court requiring Parker be fingerprinted. See Palmer, 269 Va. at 207. The petition
originally charged Parker with stealing, not receiving, property valued in excess of $200. The
petition was amended, however, and the words “take, steal, and drive away” were crossed out
and replaced with “receive[d] stolen property.” Additionally, there were two series of
handwritten initials located next to the amended charge. At trial, the circuit court found that the
J&DR court had approved the amended charge because the judge’s initials were visible on the
petition. Importantly, the words “valued in excess of $200.00” were not similarly amended.
Both the amended petition and the fingerprinting order stated that Parker was charged
with receiving stolen property in violation of Code § 18.2-108. The disposition order stated that
Parker was found guilty of violating Code § 18.2-108. Most importantly, the amended petition
and the fingerprinting order both stated that Parker was charged with receiving property valued
in excess of $200.
Parker points out that the charge against him could have been reduced to a misdemeanor.
In essence, Parker argues that because (1) his charge could have been a misdemeanor or a felony
and (2) the boxes for “felony” and “misdemeanor” on the disposition order were unchecked, the
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Commonwealth’s evidence was insufficient per se to prove he was adjudicated guilty of the
felony offense. This argument is problematic for several reasons.
First, no evidence indicated that Parker’s charge was reduced to a misdemeanor.
Assuming that the charge was reduced from a felony to a misdemeanor is impermissibly
speculative because it assumes the J&DR court made two errors, first, by failing to amend the
charge on the petition to a misdemeanor and second, by failing to so amend the fingerprinting
order. 6 Such assumptions directly contradict the longstanding judicial doctrine regarding
regularity. In the absence of affirmative evidence to the contrary, courts in the Commonwealth
“are presumed to act in accordance with the law and orders of the court are entitled to a
presumption of regularity.” Napert v. Napert, 261 Va. 45, 47 (2001). This Court has relied on
the presumption of regularity in prior cases where appellant argued that the evidence was
insufficient to prove prior convictions. See Shell v. Commonwealth, 64 Va. App. 16, 21 (2014)
(“A presumption of regularity attends appellant’s prior convictions for failing to reregister as a
sex offender as ‘every act of a court of competent jurisdiction shall be presumed to have been
rightly done ‘till the contrary appears.’” (quoting Farmer v. Commonwealth, 62 Va. App. 285,
6
This issue arises entirely from the failure of the J&DR court to simply check a box that
would have clearly indicated its verdict. Further, while we do not disagree with the concurrence
that “a defendant is perfectly entitled to speculate” with respect to what facts evidence does or
does not establish, courts are not permitted to do so.
Also, with all due respect to our concurring colleague, we need not parse whether any
one of these orders standing alone is sufficient to establish an element of the offense. The issue
before us in this appeal is not whether any of these orders were improperly admitted as irrelevant
because they fail to show a prior felony adjudication. Instead, because the assignment of error
here is the sufficiency of the evidence, we must “regard as true all the credible evidence
favorable to the Commonwealth and all fair inferences to be drawn from that evidence” to
determine if the circuit court could reasonably conclude from all of the J&DR court orders, when
considered collectively, that Parker had a prior adjudication of guilt for the juvenile equivalent of
a felony. Bagley v. Commonwealth, 73 Va. App. 1, 26 (2021) (internal quotation omitted).
While Parker’s argument that the adjudication order indicates that he might have been convicted
of a lesser offense requires speculation that events occurred that conflict with what is facially
reflected in the court orders, the circuit court’s judgment that the orders here collectively
supported a contrary conclusion does not.
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289-90 (2014) (citation omitted))). Here, the circuit court’s conclusion that “there’s no
indication [the charge] was reduced” was consistent with the evidence presented and with the
presumption of regularity.
Second, contrary to Parker’s argument, the circuit court was simply required to find that
the evidence, given its logical inferences, was sufficient to establish beyond a reasonable doubt
that Parker had been adjudicated guilty of the equivalent of a felony offense. See Moody v.
Commonwealth, 28 Va. App. 702, 706 (1998) (“The fact finder, however, is entitled to draw
inferences from proved facts, so long as the inferences are reasonable and justified.”). The
Virginia Supreme Court has held that prior convictions may be proved by any competent
evidence. See Perez, 274 Va. at 730. The circuit court, sitting as a fact finder, was charged with
determining whether the Commonwealth’s evidence proved beyond a reasonable doubt that
Parker had previously been adjudicated guilty of a crime that would be a felony if committed by
an adult. After reviewing the record on appeal, it is clear that the circuit court did not need to
engage in impermissible “conjecture or surmise” to find that the Commonwealth’s evidence
tended to prove that Parker had previously been convicted of the felony offense of receiving
stolen goods. Unlike Palmer, here the disposition order contained a judgment. Unlike in
Preston, here the disposition order clearly shows that Parker pled guilty to receiving stolen
property as the petition was amended. See Preston, 281 Va. at 58. “The effect of a plea of
guilty . . . is a record admission of whatever is well charged in the indictment . . . . It admits all
the criminating facts alleged and the statutory elements of the offense charged.” Starrs v.
Commonwealth, 287 Va. 1, 10-11 (2014) (quoting Hobson v. Youell, 177 Va. 906, 912 (1941)). 7
Because the petition charged Parker with receiving stolen goods worth $200 or more and the
7
The concurrence disagrees with our reliance on Starrs and Hobson but makes no
attempt to explain why they are not applicable to, or distinguishable from, the facts of this case.
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disposition order stated that Parker pled guilty to the charge, it is reasonable to infer that Parker
admitted that he was guilty of the statutory elements of the offense listed in the charging
document, namely, the felony offense of receiving stolen property. It is logical to conclude that
because stolen property’s value ultimately determines whether a defendant committed a felony or
a misdemeanor, if Parker’s charge had been reduced to a misdemeanor, the J&DR court would
have also amended the value of the stolen property on the petition when it made other
amendments to the charging document. When the petition and the disposition order are taken
together it is reasonable to infer, as the circuit court did, that Parker was first charged with
stealing property valued in excess of $200, amended to receiving stolen property valued in
excess of $200, and he pled guilty to the amended charge.
Finally, we note that the circuit court explicitly read all three documents—the petition,
the disposition order, and the fingerprinting order—in concert to determine that Parker had
indeed been convicted of a felony. To the extent that the petition and disposition order were
ambiguous, we note that the fingerprinting order—which was signed by the J&DR court on the
same date as Parker’s disposition order—also stated that Parker’s offense was
“Rec[eiving]/buy[ing] stolen goods > $200.” The fingerprinting order further supports the
finding that Parker’s charge was never reduced to a misdemeanor. While it undoubtedly would
have been clearer if the J&DR court had checked the box next to “felony” on the disposition
order, upon reviewing the record, the circuit court did not have to engage in impermissible
conjecture or surmise to determine that Parker was adjudicated guilty of the delinquent act of
feloniously receiving stolen goods.
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III. CONCLUSION
For these reasons, this Court holds that the circuit court did not err in finding the
evidence sufficient to support Parker’s conviction for felony possession of a firearm.
Affirmed.
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Callins, J., concurring.
I concur with the majority’s conclusion that the three documents in Commonwealth’s
Exhibit 1, taken together, were sufficient for the trial court to reasonably infer that Parker had
been convicted as a juvenile of an offense that would be a felony if committed by an adult. I
would affirm Parker’s conviction on these narrow grounds alone, and I write separately because
the majority makes several arguments that I decline to adopt.
First, I cannot join in the majority’s reasoning that determinative to this case is whether
evidence exists indicating that Parker’s charge was reduced to a misdemeanor. Under these
circumstances, Parker did not carry any burden to establish that his charge was reduced to a
misdemeanor. The Commonwealth does not prevail based on what the evidence fails to show,
but on what the evidence shows beyond a reasonable doubt.
Second, I cannot agree with the majority’s characterization of Parker’s argument as an
invitation to the trial court to engage in “impermissibly speculative” judgment. The entire point
of our case law pertaining to proving a prior felony conviction is that a defendant is perfectly
entitled to speculate, on the face of ambiguous documents introduced by the Commonwealth,
that he or she may have actually been convicted of a misdemeanor instead of a felony. Given the
ambiguity concerning the nature of the underlying conviction, and existing precedent, a trial
court would have been no more speculative in declining to find a juvenile felony adjudication
beyond a reasonable doubt than in finding as the court below did.
Third, I cannot agree with the majority’s reliance on the doctrine of judicial regularity to
justify the ambiguity of the conviction. The J&DR court failed to indicate the nature of Parker’s
conviction in both failing to check the appropriate “Type of Case” box and in referencing only
Parker’s plea to the statute as opposed to the amended petition. That the J&DR court may have
made additional documenting errors is not beyond the realm of possibility here. Notably, the
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presumption of judicial regularity has never been invoked by this Court or our Supreme Court to
resolve ambiguity as to whether a defendant had been convicted of a felony or a misdemeanor.
To engage in presumptions of regularity in cases such as these takes us dangerously close to the
realm of conjecture and surmise that is expressly forbidden under Virginia law. See Palmer v.
Commonwealth, 269 Va. 203, 207 (2005).
Finally, I cannot agree with the majority’s conclusion that the disposition order 8 “clearly”
shows that Parker pled guilty to the amended charge of feloniously receiving stolen property. As
noted earlier, the ambiguity in this order is the reason this matter is before us. The order
indicates a plea of “guilty to [Code §] 18.2-108”—a statute that both parties concede
encompasses both misdemeanor and felony grade offenses. The clarity of the juvenile court
judgment is revealed only in reading the three documents in Commonwealth’s Exhibit 1 in
concert.
The majority relies on the proposition from Starrs v. Commonwealth, 287 Va. 1 (2014),
that “[t]he effect of [a] plea of guilty . . . is a record admission of whatever is well charged in the
indictment,” id. at 10-11 (third alteration in original) (quoting Hobson v. Youell, 177 Va. 906,
912 (1941)), but does not, in my view, adequately reconcile this proposition with our Supreme
Court’s admonition in Palmer that “as a practical matter . . . [a defendant’s] original charge may
8
I reference “disposition order” for the sake of consistency with the majority’s use of the
term. However, the juvenile court entered its order on a Form DC-570—a standardized,
multi-use form order generated by the Office of the Executive Secretary of the Supreme Court of
Virginia. The Form DC-570 allows a juvenile court judge to use check boxes to identify the
nature of the proceedings before it, including the “Type of Case” and the “Type of Hearing.” In
addition to failing to indicate “Felony” or “Misdemeanor,” the juvenile court order also fails to
indicate the type of hearing—namely, whether it was an “Adjudicatory Hearing” or a
“Disposition Hearing.” At oral argument, the Commonwealth characterized the order as an
“adjudicatory order.” However, unlike the question of the nature of Parker’s conviction, the
nature of the hearing under which the order was issued is not relevant to our determination in this
case.
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be reduced upon the defendant’s agreement to plead guilty to the reduced charge,” Palmer, 269
Va. at 207.
For these reasons, I refrain from joining the majority opinion, but I concur that the trial
court, by examining all three documents in Commonwealth’s Exhibit 1 in concert with one
another, could have reasonably inferred that Parker had been convicted of an offense that would
be a felony if committed by an adult. Accordingly, I agree that Parker’s conviction should be
affirmed.
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