John Kurt Sensabaugh v. Commonwealth ( 2007 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Haley and Petty
Argued at Salem, Virginia
JOHN KURT SENSABAUGH
MEMORANDUM OPINION* BY
v. Record No. 1263-06-3 JUDGE ROBERT J. HUMPHREYS
MAY 15, 2007
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF AUGUSTA COUNTY
Thomas H. Wood, Judge
Peter L. Boatner (Office of the Public Defender, on brief), for
appellant.
J. Robert Bryden, II, Assistant Attorney General (Robert F.
McDonnell, Attorney General, on brief), for appellee.
John Kurt Sensabaugh (“Sensabaugh”) appeals his conviction for domestic assault and
battery third or subsequent offense, in violation of Code § 18.2-57.2(B). He argues that the
evidence was insufficient to support his conviction, because the Commonwealth did not prove
two or more prior convictions occurring on different days. The Commonwealth agrees and
concedes error but nevertheless urges us to affirm because the trial court reached the right result,
although for the wrong reason. For the reasons set forth below, we disagree and reverse the
decision of the trial court, and remand for further proceedings.
ANALYSIS
Sensabaugh contends on appeal that the trial court erred in convicting him of domestic
assault and battery third or subsequent offense by relying on the March 21 conviction to elevate
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
the April 18 conviction obtained at the same trial to a felony. The Commonwealth concedes that
the trial court erred in this respect.
Code § 18.2-57.2 states, in pertinent part:
A. Any person who commits an assault and battery against a
family or household member is guilty of a Class 1
misdemeanor.
B. Upon a conviction for assault and battery against a family or
household member, where it is alleged in the warrant,
information, or indictment on which a person is convicted, that
such person has been previously convicted of two offenses
against a family or household member of (i) assault and battery
against a family or household member in violation of this
section . . . which occurred within a period of 20 years, and
each of which occurred on a different date, such person is
guilty of a Class 6 felony.
The Commonwealth nevertheless urges us to affirm under the “right result, wrong
reason” doctrine, see Frye v. Commonwealth, 231 Va. 370, 389, 345 S.E.2d 267, 281 (1986),
because one of the warrants introduced to show the prior convictions alleges that the offense
occurred “on or about 6/11/2004 to 6/13/2004.” The Commonwealth notes that “the record of a
prior misdemeanor conviction . . . is entitled to a presumption of regularity on collateral attack in
a recidivist proceeding[,]” Nicely v. Commonwealth, 25 Va. App. 579, 587, 490 S.E.2d 281, 284
(1997), and reasons that this particular offense “must have taken place on more than one day.”
However, we need not consider the merits of such an argument because the warrant alleging that
Sensabaugh assaulted a family or household member “on or about 06/11/2004 to 06/13/2004”
fails to indicate any finding of guilt. Thus, the warrant is insufficient as a matter of law to prove
a prior conviction on any date.
“As with all elements of a crime, the burden is on the Commonwealth to prove the prior
conviction beyond a reasonable doubt.” McBride v. Commonwealth, 24 Va. App. 30, 33, 480
S.E.2d 126, 127 (1997). “While the most efficient way to prove the prior conviction is to offer in
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evidence an authenticated copy of the prior order of conviction, the prior conviction may be
proved by any competent evidence.” Id. at 33-34, 480 S.E.2d at 128 (citations omitted). A court
not of record trying a defendant on a criminal offense must memorialize its judgment by stating
“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).
In McBride, we held that a certified copy of a warrant charging appellant with driving
under the influence of alcohol was insufficient to prove a prior conviction of that offense when
the warrant indicated that appellant had pled not guilty and that the general district court had
imposed a fine and suspended jail sentence, suspended appellant’s driver’s license, and ordered
alcohol treatment, but did not indicate a finding of guilt. 24 Va. App. at 35, 480 S.E.2d at 128.
We did not accept the jail sentence indicated on the back of the warrant as evidence of a
conviction, because “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.” Id. at 36, 480 S.E.2d at 129.
As in McBride, we hold that the Commonwealth presented insufficient evidence to prove
Sensabaugh’s prior conviction of domestic assault and battery. Furthermore, the Commonwealth
offered no other competent evidence of this conviction. The underlying assaults proved by the
Commonwealth occurred on the same day as one another, and are thus insufficient to prove the
elements of felony domestic assault and battery under Code § 18.2-57.2(B).
Because the Commonwealth also concedes that the trial court erred in using
Sensabaugh’s March 21 conviction to elevate his April 18 conviction obtained at the same trial
to a felony, we need not address that issue.
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The sole difference between the felony offense, of which the trial court convicted
Sensabaugh, and the lesser-included misdemeanor offense, both codified in Code § 18.2-57.2, is
the requirement of prior convictions for offenses occurring on different days. Without these
convictions, the elements of the lesser-included misdemeanor have nonetheless been proven
beyond a reasonable doubt in the trial court. Thus, we vacate the felony conviction, and remand
the case to the trial court for a new sentencing hearing on the Class 1 misdemeanor. See
Commonwealth v. South, 272 Va. 1, 1-2, 630 S.E.2d 318, 318-19 (2006) (remanding appellant’s
conviction to trial court for new sentencing proceeding upon showing that the evidence proved
only a lesser-included offense).
Reversed and remanded.
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