Roosevelt Green v. Commonwealth ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Frank and Humphreys
Argued at Chesapeake, Virginia
ROOSEVELT GREEN
MEMORANDUM OPINION * BY
v. Record No. 2945-01-1 JUDGE ROBERT P. FRANK
NOVEMBER 5, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
Frederick H. Creekmore, Judge
Randolph D. Stowe for appellant.
Susan M. Harris, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
Roosevelt Green (appellant) was convicted in a bench trial of
possession of a firearm by a convicted felon, in violation of Code
§ 18.2-308.2. On appeal, he contends the trial court erred in
taking judicial notice of his age at the time of the predicate
juvenile adjudication. For the reasons stated, we reverse the
firearm conviction.
BACKGROUND
Appellant appeared before the Chesapeake Circuit Court for
trial on a charge of possession of a firearm by a felon. 1 After
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
1
At the time of this offense, Code § 18.2-308.2 stated, in
part:
appellant was sworn, the trial court conducted a colloquy,
pursuant to Rule 3A:18, to determine if his plea was voluntary.
In response to these questions, appellant stated his name and
indicated he was twenty-one years old, born on April 28, 1980.
The Commonwealth then presented its evidence. To prove the
predicate felony conviction, the Commonwealth offered three orders
of the Chesapeake Juvenile and Domestic Relations District Court,
dated April 22, 1997, May 15, 1997, and October 29, 1997. These
orders indicated appellant was adjudicated delinquent in 1997 for
committing a grand larceny. None of these orders indicated
appellant's date of birth, the date that the grand larceny
occurred, or his age at the time of the larceny. Appellant did
not testify.
At the conclusion of the Commonwealth's case, appellant moved
to strike the evidence, arguing the Commonwealth had not proved he
A. It shall be unlawful for . . . (ii) any
person under the age of twenty-nine who was
found guilty as a juvenile fourteen 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, whether such
conviction or adjudication occurred under
the laws of this Commonwealth, or any other
state, the District of Columbia, the United
States or any territory thereof, to
knowingly and intentionally possess or
transport any firearm or to knowingly and
intentionally carry about his person, hidden
from common observation, any weapon
described in § 18.2-308 A.
(Emphasis added.)
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was at least fourteen years old when the grand larceny occurred,
as required by Code § 18.2-308.2(A)(ii). 2 The Commonwealth
responded that the court could take judicial notice of appellant's
age, and the trial court agreed, stating appellant's "testimony as
to his age today would negate that defense."
ANALYSIS
The issue before us is whether, in this case, the trial court
properly took judicial notice of appellant's age at the time of
the offense, based on appellant's answers during the colloquy.
Clearly, the Commonwealth did not introduce evidence of
appellant's age at the time of the predicate offense.
Additionally, appellant's answers during the colloquy did not
suggest when the offense occurred or his age at that time.
"Judicial notice permits a court to
determine the existence of a fact without
formal evidence tending to support that
fact." Scafetta v. Arlington County, 13
Va. App. 646, 648, 414 S.E.2d 438, 439,
aff'd on reh'g, 14 Va. App. 834, 425 S.E.2d
807 (1992). "A trial court may take
judicial notice of those facts that are
either (1) so 'generally known' within the
jurisdiction or (2) so 'easily
ascertainable' by reference to reliable
sources that reasonably informed people in
the community would not regard them as
reasonably subject to dispute." Taylor v.
2
At times, appellant argued no evidence proved he was at
least fourteen years old at the time of adjudication. The
Commonwealth's attorney was equally confused, responding, "[H]e
told the court he was twenty-one. This is a 1997 conviction.
He had to be older than fourteen years." This exchange clearly
focused on appellant's age at adjudication, not at the time of
the offense.
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Commonwealth, 28 Va. App. 1, 7-8, 502 S.E.2d
113, 116 (1998) (en banc) (citations
omitted).
Thomas v. Commonwealth, 36 Va. App. 326, 331-32, 549 S.E.2d 648,
650-51 (2001).
Judicial notice is a short cut to avoid the
necessity for the formal introduction of
evidence in certain cases where there is no
need for such evidence. It is a rule of
necessity and public policy in the
expedition of trials. It relieves the party
from offering evidence because the matter is
one which the judge either knows or can
easily discover.
Williams v. Commonwealth, 190 Va. 280, 291, 56 S.E.2d 537, 542
(1949).
No evidence was presented or noticed regarding the date on
which the grand larceny occurred or appellant's age on that date. 3
Not knowing the date of the offense, the trial court could not
determine appellant's age at the time of the larceny.4 The
offense could have occurred three months or three years prior to
the adjudication. Appellant could have been at large for several
years.
3
The juvenile petition, with the larceny offense date, was
not included in the orders submitted to the trial court.
4
For the purposes of this opinion, we address neither the
Commonwealth's argument that the trial court properly took
judicial notice of appellant's date of birth nor appellant's
argument that the Fifth Amendment of the United States
Constitution bars the use of the colloquy as evidence against
him. These issues are unnecessary to the resolution of this
appeal.
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The trial court simply assumed the offense occurred within
three years prior to the adjudication date. The trial court
erroneously took judicial notice of a fact, the date of the
offense, when that fact was not "generally known" nor so easily
ascertainable that reasonably informed people in the community
would not regard the date as subject to dispute. See Thomas, 36
Va. App. at 331-32, 549 S.E.2d at 650-51.
The Commonwealth argues appellant's appeal is a collateral
attack on the predicate offense. Clearly, appellant does not
attack the validity of the grand larceny conviction. He argues
only that the Commonwealth failed to prove appellant's age at the
time the larceny was committed, thereby failing to prove an
element of the possession offense. See Jimenez v. Commonwealth,
241 Va. 244, 251, 402 S.E.2d 678, 682 (1991) (finding the
Commonwealth failed to present any evidence on an element of the
charged offense, therefore, defendant could not be convicted of
that offense).
Finding the Commonwealth did not prove appellant's age at the
time of the predicate offense, we reverse appellant's conviction
and dismiss.
Reversed and dismissed.
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