Jeleeko Deforest Nichols v. Commonwealth ( 2007 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, McClanahan and Petty
Argued at Salem, Virginia
JELEEKO DEFOREST NICHOLS
MEMORANDUM OPINION* BY
v. Record No. 2299-05-3 JUDGE WILLIAM G. PETTY
JANUARY 9, 2007
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
Jonathan M. Apgar, Judge
Paul A. Dull (Brumberg, Mackey & Wall, P.L.C., on brief), for
appellant.
Karen Misbach, Assistant Attorney General (Robert F. McDonnell,
Attorney General, on brief), for appellee.
Appellant, Jeleeko Deforest Nichols, was convicted of possessing a firearm as a convicted
felon, in violation of Code § 18.2-308.2, following a bench trial. Nichols maintains that the
evidence was insufficient to establish that he was a felon at the time he possessed the firearm. We
disagree and affirm his conviction.
I. BACKGROUND
“On appeal, we review the evidence in the light most favorable to the Commonwealth,
granting to it all reasonable inferences fairly deducible therefrom.” Martin v. Commonwealth, 4
Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). On February 14, 2004, Police Officer Jerry
Abrams and Probation Officer Todd Carroll stopped a car in which Nichols was a passenger after
observing litter being thrown from it. When the officers approached the car, they noticed Nichols,
who was in the rear passenger seat, leaning down towards the floorboard and behaving in a
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
suspicious manner. After the officers demanded to see Nichols’ hands, they discovered that he was
holding a loaded ammunition clip for a firearm. The police searched the car and found a 9mm
semi-automatic handgun near where Nichols had been sitting.
At trial, the Commonwealth submitted a certified copy of an order of conviction dated June
23, 2003, in which the court found Nichols guilty of a felony and set sentencing for a later date.1
The Commonwealth did not introduce a copy of the sentencing order. However, Probation Officer
Carroll testified that Nichols was on probation the night of the arrest. Additionally, Nichols took the
stand and admitted that he had been previously convicted of a felony, although he did not specify
the date on which he had been convicted.
At the close of all of the evidence, Nichols moved to strike on the ground that the conviction
order was insufficient to prove that he had been previously convicted of a felony because the order
did not include the sentence for that conviction. The trial court denied Nichols’ motion to strike,
explaining that while the conviction order would have been insufficient by itself to establish
Nichols’ status as a felon, “all the evidence, including his admission under oath on the stand today
that he is, in fact, a convicted felon, is sufficient for the Commonwealth to sustain their burden.”
II. ANALYSIS
When the sufficiency of the evidence is challenged on appeal, the judgment of the trial
court “is presumed correct and will be reversed only upon a showing that it is ‘plainly wrong or
without evidence to support it.’” Viney v. Commonwealth, 269 Va. 296, 299, 609 S.E.2d 26, 28
(2005) (quoting Code § 8.01-680). Also, “[g]reat deference must be given to the factfinder who,
having seen and heard the witnesses, assesses their credibility and weighs their testimony.”
Walton v. Commonwealth, 255 Va. 422, 426, 497 S.E.2d 869, 871 (1988).
1
Nichols pled guilty and was convicted of the felony of shooting into an occupied
dwelling, in violation of Code § 18.2-279.
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Nichols argues that the order the Commonwealth introduced into evidence was not a final
conviction order since it did not include a sentence, and was therefore insufficient to establish
that he was a felon at the time of the present offense. Thus, Nichols reasons that our Supreme
Court’s holding in Palmer v. Commonwealth, 269 Va. 203, 208, 609 S.E.2d 308, 310 (2005),
requires reversal in this case. In Palmer, our Supreme Court held that four juvenile and domestic
relations district court petitions and disposition orders, which did not contain any orders of
adjudication and were unclear as to whether Palmer was charged with grand larceny or burglary
as a minor, were insufficient by themselves to prove the prior convictions. Id. at 206-07, 609
S.E.2d at 309-10.
The holding in Palmer does not, however, apply in this case. While Nichols is correct
that the Commonwealth had the burden to prove the prior conviction beyond a reasonable doubt
since its existence was an element of the crime with which he was charged, Palmer does not limit
the means by which the Commonwealth may prove a prior conviction. See id. at 207, 609
S.E.2d at 310. On the contrary, it is well settled that, “‘[w]hile the most efficient way to prove
the prior . . . conviction is to offer in evidence an authenticated copy of the prior order of
conviction,’ the prior conviction may be proved by any competent evidence.” McBride v.
Commonwealth, 24 Va. App. 30, 33-34, 480 S.E.2d 126, 128 (1997) (quoting Essex v.
Commonwealth, 18 Va. App. 168, 171, 442 S.E.2d 707, 709 (1994); citing 39 Am. Jur. 2d
Habitual Criminals § 27 (1968)) (citations omitted) (emphasis added).
Here, in contrast to Palmer, the Commonwealth introduced not only the conviction order
memorializing Nichols’ guilty plea to the felony charge of shooting into an occupied dwelling in
violation of Code § 18.2-279, but also presented Probation Officer Carroll’s testimony that
Nichols was on probation at the time of his arrest and Nichols’ own admission that he had
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previously been convicted of a felony. The trial court had ample evidence from which it could
infer that Nichols was a felon at the time of the offense.2
III. CONCLUSION
We cannot say that the decision of the trial court was plainly wrong or without evidence
to support it. Therefore, we affirm Nichols’ conviction.
Affirmed.
2
On brief, Nichols also argues that the evidence was insufficient to prove that he was a
felon at the specific time of the offense. As Nichols did not make this argument before the trial
court, we may not address it for the first time on appeal. Rule 5A:18; see also Weidman v.
Babcock, 241 Va. 40, 44, 400 S.E.2d 164, 167 (1991) (“[A] specific, contemporaneous objection
gives the opposing party the opportunity to meet the objection at that stage of the proceeding.”).
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