Vincent Lloyd Virgil Staup v. Commonwealth ( 1996 )


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  •                    COURT OF APPEALS OF VIRGINIA
    Present: Judges Willis, Fitzpatrick and Annunziata
    Argued at Alexandria, Virginia
    VINCENT LLOYD VIRGIL STAUP
    MEMORANDUM OPINION * BY
    v.   Record No. 2897-95-4        JUDGE JOHANNA L. FITZPATRICK
    OCTOBER 22, 1996
    COMMONWEALTH OF VIRGINIA
    FROM THE CIRCUIT COURT OF CLARKE COUNTY
    James L. Berry, Judge
    James A. Drown (Larrick, Larrick & Drown,
    P.C., on brief), for appellant.
    Linwood T. Wells, Jr., Assistant Attorney
    General (James S. Gilmore, III, Attorney
    General, on brief), for appellee.
    Following a bench trial, Vincent Lloyd Virgil Staup
    (appellant) was adjudged to be an habitual offender pursuant to
    Code § 46.2-351.   Appellant contends that the trial court erred
    in using a 1990 West Virginia conviction as one of his predicate
    convictions because it did not substantially conform to the
    provisions of Virginia law by failing to specify under which
    statutory section he was convicted.   Finding no error, we affirm.
    On August 7, 1995, the Circuit Court of Clarke County
    declared appellant to be an habitual offender pursuant to Code
    § 46.2-351.   The predicate convictions for the determination were
    three driving while intoxicated convictions:   (1) the West
    Virginia conviction of December 6, 1990 which is the subject of
    *
    Pursuant to Code § 17-116.010 this opinion is not
    designated for publication.
    controversy in this appeal; (2) a Virginia conviction of August
    8, 1991; and (3) a Maryland conviction of January 3, 1995.
    The trial court specifically found that § 17C-5-2(d) of the
    West Virginia Code substantially conformed to Code § 18.2-266.
    The evidence supporting the West Virginia conviction consisted of
    a copy of the Uniform Traffic Ticket and Complaint, appellant's
    criminal case history, and a certified transcript from the
    Department of Motor Vehicles. 1
    This case is factually indistinguishable from and controlled
    by our decision in Honaker v. Commonwealth, 
    19 Va. App. 682
    , 
    454 S.E.2d 29
    (1995).   The other state's law does not have to
    "substantially conform in every respect to Code § 18.2-266."
    Rather, in order to adjudicate a defendant an habitual offender
    based upon a conviction from another state, "[o]nly that
    prohibition of the other state's law under which the person was
    convicted must substantially conform [to Code § 18.2-266]."
    
    Honaker, 19 Va. App. at 684
    , 454 S.E.2d at 30 (citations
    omitted).   The record in this case clearly established the nature
    of appellant's conviction for "DUI (.121) w/ accident."    This
    fact was unrebutted.
    The Commonwealth established a "prima facie presumption"
    that the convictions are valid "by introducing the certified DMV
    1
    The Uniform Traffic Ticket and Complaint showed that on
    December 1, 1990, appellant was charged with "DUI (.121)
    w/accident" in violation of West Virginia Code § 17C-5-2, and
    "Failure to Maintain Control" in violation of West Virginia Code
    § 17C-6-1.
    2
    transcript listing the three requisite convictions against
    [defendant]."   Moffitt v. Commonwealth, 
    16 Va. App. 983
    , 986, 
    434 S.E.2d 684
    , 687 (1993).   "Once the Commonwealth has established a
    prima facie case, it is entitled to judgment, unless [defendant]
    goes forward with evidence that refutes an element of the
    Commonwealth's case or rebuts the prima facie presumption."    
    Id. "This shift in
    the burden of producing evidence occurs because of
    the presumption that the Commissioner of the Division of Motor
    Vehicles has kept accurate records and has made at least a
    tentative determination of conformity."   Bouldin v. Commonwealth,
    
    4 Va. App. 166
    , 169, 
    355 S.E.2d 352
    , 353 (1987) (citing Davis v.
    Commonwealth, 
    219 Va. 808
    , 812-13, 
    252 S.E.2d 299
    , 301 (1979)).
    Appellant produced no evidence that as a matter of law
    rebutted the Commonwealth's prima facie case.    Accordingly, the
    trial court did not err in considering appellant's West Virginia
    conviction to be a predicate conviction for purposes of adjudging
    appellant an habitual offender.
    Affirmed.
    3
    

Document Info

Docket Number: 2897954

Filed Date: 10/22/1996

Precedential Status: Non-Precedential

Modified Date: 4/17/2021