Terry Jansen Forney v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Lemons and
Senior Judge Duff
Argued at Alexandria, Virginia
TERRY JANSEN FORNEY
MEMORANDUM OPINION * BY
v. Record No. 0978-98-4 JUDGE DONALD W. LEMONS
JUNE 22, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF SHENANDOAH COUNTY
John J. McGrath, Jr., Judge
Elwood Earl Sanders, Jr., Appellate Defender
(Public Defender Commission of Virginia, on
briefs), for appellant.
Ruth M. McKeaney, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Terry Jansen Forney was convicted of driving after having
been declared an habitual offender in violation of Code
§ 46.2-357(1), and four counts of forging a public document in
violation of Code § 18.2-168. On appeal, he argues that the
trial court erroneously admitted evidence of a prior conviction
for driving after having been adjudged an habitual offender,
that the admission of such evidence violated the rule against
the admission of evidence of prior crimes, and that the court
erred in denying Forney’s motion to strike.
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
I. BACKGROUND
On May 19, 1997, Warden Jeffrey Allen Larson of the
Virginia Game and Inland Fisheries was patrolling the Elizabeth
Furnace area of Shenandoah County, checking fishing licenses,
when he noticed Terry Jansen Forney fishing in a stream. Larson
testified that he approached Forney and his two companions and
asked to see their fishing licenses. Forney denied that he was
fishing, but Larson told Forney that he was going to issue him
summonses for fishing without a license. Forney went to his car
and presented Larson with his driver’s license which indicated
that he was “Gregory Lewis.” Larson further testified that
Forney told him that the address on the license was correct.
Forney was given three summonses related to fishing without a
license, and he signed each one with the name “Gregory Lewis.”
Larson stated that Forney and his companions entered the car and
Forney got into the driver’s seat and drove away.
On June 24, 1997 Forney appeared and pled no contest in the
name of “Gregory Lewis” to the charges of fishing without a
license and paid fines in the General District Court of
Shenandoah County. Deputy Clerk Linda Sue Hawkins testified
that Forney signed a payment agreement with the name “Gregory
Lewis.” Both Larson and Hawkins identified Forney as the man
they had witnessed sign his name as “Gregory Lewis.”
Larson later learned Forney’s true identity and checked his
driving record which revealed that Forney was listed as an
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habitual offender. Forney was then charged with operating an
automobile after having been adjudged an habitual offender, as
well as with four counts of forgery. At trial, the
Commonwealth’s Attorney sought to introduce two orders
convicting Forney of driving after being declared an habitual
offender in Bristol, Virginia, and Winchester, Virginia. The
trial court excluded the order from Winchester because of
confusion of the dates listed on the document. The order from
Bristol was initially excluded, but the court ultimately
admitted it for the limited purpose of determining whether
Forney had notice of his adjudication as an habitual offender.
II. EVIDENCE OF PRIOR CONVICTION
On appeal, Forney argues that the court erred in admitting
evidence of a prior conviction for driving after having been
adjudicated an habitual offender for purposes of proving
knowledge of his prior adjudication. Forney contends that he
was convicted in his absence and there was no evidence that he
had been made aware of his conviction by the general district
court.
“The admissibility of evidence is within the broad
discretion of the trial court, and a ruling will not be
disturbed on appeal in the absence of an abuse of discretion.”
Brown v. Commonwealth, 21 Va. App. 552, 555, 466 S.E.2d 116, 117
(1996) (citations omitted). “Evidence of other crimes or bad
acts is inadmissible if it is offered merely to show that the
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defendant is likely to have committed the crime charged.” Goins
v. Commonwealth, 251 Va. 442, 462, 470 S.E.2d 114, 127, cert.
denied, 519 U.S. 887 (1996). However, “[e]vidence of other
crimes is admissible if it tends to prove any fact in issue,
even though it also tends to show the defendant guilty of
another crime.” Bullock v. Commonwealth, 27 Va. App. 255, 260,
498 S.E.2d 433, 435 (1998). “[E]vidence of other crimes is
[also] properly received if it is relevant and probative of an
issue on trial, such as an element of the offense charged or the
required predicate for enhanced punishment.” Pittman v.
Commonwealth, 17 Va. App. 33, 35, 434 S.E.2d 694, 695 (1993).
Forney was charged with driving after having been
adjudicated an habitual offender, second or subsequent offense,
see Code § 46.2-357(3), but convicted of a violation of
46.2-357(1), a misdemeanor not requiring proof of prior
conviction for the same offense. The Commonwealth was required
to prove that Forney had knowledge that he had been adjudicated
an habitual offender.
On February 6, 1996, Forney was charged on a misdemeanor
warrant with “after having been declared a habitual offender by
a court, driv[ing] a motor vehicle on the highway in a manner
which (did not) endanger the life, limb, or property of another
(the current offense being a second or subsequent violation of
this statute).” The language of the offense charged describes a
felony. However, the felony charge was erroneously written on a
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misdemeanor arrest warrant in Bristol, Virginia. Because of the
error in the 1996 warrant, the court refused to admit it as
evidence of a prior conviction. However, the court did admit
the document as evidence that Forney had knowledge that he had
been adjudicated an habitual offender. The arrest warrant,
which stated the offense charged, was served upon Forney upon
his arrest on February 6, 1996. The court instructed the jury
that it was to consider the misdemeanor warrant only for the
purpose of determining whether Forney had knowledge of his
adjudication as an habitual offender.
Whether Forney knew of his adjudication was an element of
the offense charged. “Evidence is relevant if it has any
logical tendency, however slight, to establish a fact at issue
in the case.” Ragland v. Commonwealth, 16 Va. App. 913, 918,
484 S.E.2d 675, 678 (1993). In addition, “evidence is
admissible if it tends to prove any relevant element of the
offense charged or if the evidence is connected with or leads up
to the offense for which the accused is on trial.” Woodfin v.
Commonwealth, 236 Va. 89, 95, 372 S.E.2d 377, 380 (1988)
(citations omitted). Because the arrest warrant was served on
Forney at the time of his arrest, it was relevant to the
question of Forney’s knowledge of his adjudication as an
habitual offender.
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III. PREJUDICIAL EFFECT OF PRIOR CONVICTION
Forney argues that the admission of his prior conviction as
an habitual offender was error because it created the
possibility of prejudice with respect to the forgery charges.
Forney contends that the evidence was unduly prejudicial and
that no exceptions to the general rule prohibiting the
introduction of prior crimes were applicable to the forgery
charges. Forney argues further that a limiting instruction, in
which the jury was instructed to consider evidence of the prior
conviction only for purposes of knowledge of his habitual
offender status, did not correct the error.
Forney failed to raise an objection to the admission of
evidence of his prior conviction on this ground at trial.
Therefore, we are barred from considering it on appeal. See
Rule 5A:18; Walton v. Commonwealth, 24 Va. App. 757, 485 S.E.2d
641 (1997), aff’d, 255 Va. 422, 497 S.E.2d 869 (1998).
In addition, Forney could have requested severance of the
charges prior to trial. A defendant must request separate
trials before trial begins or the defendant has waived the
issue. See Colclasure v. Commonwealth, 10 Va. App. 200, 202,
390 S.E.2d 790, 791 (1990). Forney was aware of all charges and
the respective elements of each prior to trial. Forney is
charged with the knowledge that the Commonwealth was required to
prove knowledge of his prior adjudication as an habitual
offender. If Forney believed that prejudice was likely to
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result, he should have moved to sever the charges against him.
He may not object for the first time on appeal to the
introduction of evidence necessary to prove one element of an
offense because of the possibility of prejudice on a second
charge.
IV. SUFFICIENCY OF THE EVIDENCE
Forney argues that the evidence was insufficient to sustain
his conviction for driving after having been adjudicated an
habitual offender. Forney contends that there was insufficient
evidence that he knew of his habitual offender status at the
time of his arrest.
We disagree. Where the sufficiency of the evidence is an
issue on appeal, an appellate court must view the evidence and
all reasonable inferences fairly deducible therefrom in the
light most favorable to the Commonwealth. See Cheng v.
Commonwealth, 240 Va. 26, 42, 393 S.E.2d 599, 608 (1990). We
hold that the evidence introduced at trial was sufficient to
demonstrate Forney’s knowledge that he had been adjudicated an
habitual offender. Forney was arrested on February 6, 1996 for
driving after having been declared an habitual offender. The
arrest warrant stated the charge and his status as an habitual
offender and was served on Forney and proved that Forney had
knowledge of his habitual offender status. In addition, the
fact finder was entitled to draw an inference that Forney had
misrepresented himself and used a false name because he was
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aware that he was driving in violation of his status as an
habitual offender.
IV. CONCLUSION
Based upon the foregoing, we hold that the trial court did
not err in admitting evidence of Forney’s prior conviction for
driving after having been adjudicated an habitual offender and
that the evidence was sufficient to support his convictions.
The convictions are affirmed.
Affirmed.
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