Boone v. Commonwealth ( 2013 )

PRESENT: All the Justices
LONNIE LORENZO BOONE
OPINION BY
v. Record No. 121144 JUSTICE WILLIAM C. MIMS
April 18, 2013
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal, we consider whether Code § 18.2-308.2(A)
limits the number of convictions the Commonwealth may prove in
a trial upon an indictment charging possession of a firearm by
a person previously convicted of a violent felony.
I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW
Lonnie Lorenzo Boone was indicted upon a charge of
knowingly and intentionally possessing or transporting a
firearm after having previously been convicted of a violent
felony, in violation of Code § 18.2-308.2(A). At a jury trial,
the Commonwealth offered as evidence one prior conviction for
robbery, in violation of Code § 18.2-58, and four prior
convictions for burglary, in violation of Code § 18.2-91. Each
of these offenses is a violent felony. Code § 18.2-308.2(A)
(incorporating Code § 17.1-805(C)).
Boone objected to the Commonwealth’s evidence, arguing
that the phrase “previously convicted of a violent felony” in
Code § 18.2-308.2(A) limited the Commonwealth to adducing
evidence of only one prior conviction for a violent felony.
Admitting all five prior convictions into evidence, Boone
continued, would be cumulative and prejudicial. The circuit
court overruled the objection and admitted the evidence.
Thereafter, the jury returned a guilty verdict and imposed a
sentence of five years’ incarceration.
Boone appealed to the Court of Appeals, which affirmed the
circuit court’s judgment by unpublished, per curiam order.
This appeal followed.
II. ANALYSIS
The only issue is whether Code § 18.2-308.2(A) limits the
evidence the Commonwealth may adduce to prove the offense.
That is a question of statutory interpretation, which we review
de novo. Belew v. Commonwealth, 284 Va. 173, 177, 726 S.E.2d
257, 259 (2012).
Code § 18.2-308.2(A) provides that
[i]t shall be unlawful for . . . any person
who has been convicted of a felony . . . to
knowingly and intentionally possess or
transport any firearm . . . . [A]ny person
who violates this section by knowingly and
intentionally possessing or transporting
any firearm and who was previously
convicted of a violent felony as defined in
§ 17.1-805 shall be sentenced to a
mandatory minimum term of imprisonment of
five years.
Boone contends that by using the phrase “previously
convicted of a violent felony,” the General Assembly intended
to permit the Commonwealth to adduce evidence of only one prior
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violent felony conviction. Accordingly, he continues, the
Commonwealth was required to choose one prior conviction from
the five available. He asserts the other four convictions were
cumulative and prejudicial, and the circuit court erred in
admitting them as evidence. We disagree.
In Pittman v. Commonwealth, 17 Va. App. 33, 434 S.E.2d 694(1993), the Court of Appeals acknowledged the Commonwealth’s
prerogative to choose what evidence to offer to the fact-finder
to meet its burden of proof. The court held that “[t]he
Commonwealth . . . is entitled to prove its case by evidence
that is relevant, competent and material. [A]n accused cannot
. . . require the Commonwealth to pick and choose among its
proofs, to elect which to present and which to forego.” Id. at
35, 434 S.E.2d at 695-96. Accordingly, where the existence of
one or more prior convictions is a necessary element to obtain
a conviction, “the Commonwealth [i]s not obliged to have faith
that the jury would be satisfied with any particular one or
more of the items of proof. Therefore, it was entitled to
utilize its entire arsenal” of prior convictions to meet its
burden. Id. at 35-36, 434 S.E.2d at 696. We agree.
Boone argues that his case is distinguishable from Pittman
because the defendant in that case was charged with felony
larceny, in violation of former Code § 18.2-104(b). Under that
statute, a person convicted of larceny after a third or
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subsequent prior conviction for larceny was guilty of a Class 6
felony. Former Code § 18.2-104(b) (1988 Repl. vol.).
Therefore, the Commonwealth was required to prove multiple
prior convictions in Pittman. By contrast, Boone argues, the
Commonwealth was limited to proving only “a” prior violent
felony conviction in his case. This is a distinction without a
difference.
Both former Code § 18.2-104(b) and Code § 18.2-308.2(A)
establish the elements of their respective offenses. Neither
provides a rule of evidence constraining the Commonwealth’s
prerogative to prove those elements with its choice of the
available evidence. Like the phrase “a third[] or any
subsequent offense” in former Code § 18.2-104(b), the phrase
“previously convicted of a violent felony” in Code § 18.2-
308.2(A) merely sets forth an additional element the
Commonwealth is required to prove beyond a reasonable doubt to
obtain an enhanced sentence. Compare former Code § 18.2-104(b)
(elevating larceny from a Class 1 misdemeanor to a Class 6
felony when the additional element is proven) with Code § 18.2-
308.2(A) (imposing a five-year mandatory minimum sentence when
the additional element is proven). Accordingly, while the
article “a” in Code § 18.2-308.2(A) does, as Boone argues,
reflect legislative intent that proof of only one violent
felony is necessary to obtain the enhanced sentence, that
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article does not limit the evidence the Commonwealth may adduce
to prove it.
Two considerations support this reading of the statute.
First, as noted in Pittman, the jury may not be satisfied with
the evidence of one or more of the convictions upon which the
Commonwealth relies. 17 Va. App. at 35-36, 434 S.E.2d at 696.
Second, one or more of the convictions may later be vacated by
appellate or collateral proceedings. For example, in Conley v.
Commonwealth, 284 Va. 691, 733 S.E.2d 927 (2012), the defendant
was convicted of felony third-offense driving under the
influence (“DUI”) while a petition for a writ of habeas corpus
with respect to his second DUI conviction was pending in this
Court. We granted the defendant’s petition and the second DUI
conviction thereafter was dismissed. The validity of his
felony third-offense DUI conviction therefore was in doubt and
that conviction became the subject of a petition for a writ of
actual innocence in the Court of Appeals. Id. at 692-93, 733
S.E.2d at 928.
It thus behooves the Commonwealth to create a record at
trial that will preserve the integrity of the conviction being
sought, in the event a conviction on which it relies at trial
is subsequently overturned in later appellate or collateral
proceedings. Cf. Rushing v. Commonwealth, 284 Va. 270, 277-78,
726 S.E.2d 333, 338-39 (2012) (vacating a conviction where the
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evidence in the record was insufficient to prove a necessary
element after the exclusion of evidence improperly admitted at
trial).
This conclusion does not give the Commonwealth unfettered
license to admit every relevant conviction of a serial
criminal. To the contrary, the trial court retains its
discretion to exclude evidence as repetitious and cumulative.
See Harrison v. Commonwealth, 244 Va. 576, 585, 423 S.E.2d 160,
165 (1992). Similarly, the trial court may exclude evidence
when, in the court’s sound discretion, its prejudicial effect
substantially exceeds its probative value. Juniper v.
Commonwealth, 271 Va. 362, 412, 626 S.E.2d 383, 415 (2006);
Goins v. Commonwealth, 251 Va. 442, 461-62, 470 S.E.2d 114, 127
(1996); see also Va. R. Evid. 2:403.
Citing Old Chief v. United States, 519 U.S. 172 (1997),
Boone argues that evidence of his prior convictions was
especially prejudicial. In Old Chief, the defendant was
charged with possession of a firearm after having previously
been convicted of a felony, in violation of 18 U.S.C. §
922(g)(1). The indictment specifically charged that the
defendant had previously been convicted of assault. He moved
to exclude any evidence of the prior conviction, other than the
fact of its existence, and offered to stipulate that the prior
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conviction was entered upon a felony charge within the meaning
of the federal statute. Id. at 174-75.
The United States refused the offered stipulation. The
federal district court acknowledged the prosecution’s
prerogative to prove its case with the evidence of its choosing
and denied the defendant’s motion. Id. at 177. He appealed to
the United States Circuit Court of Appeals for the Ninth
Circuit, which affirmed. Id.
On further appeal, however, the Supreme Court of the
United States reversed. The Court held that the fact the
prosecution was required to prove was the existence of a
conviction for a crime within the class of crimes set forth in
18 U.S.C. § 922(g)(1). Because the defendant had offered to
stipulate to that fact, the probative value of the conviction
record itself was outweighed by the substantial risk of
prejudice to the defendant. It therefore should have been
excluded under Rule 403 of the Federal Rules of Evidence. Id.
at 190-92.
The conspicuous factor distinguishing Old Chief from this
case is the absence of any offer by Boone to stipulate to the
fact that he had previously been convicted of a violent felony.
In the absence of such a stipulation, the Commonwealth retained
the burden of proving that fact beyond reasonable doubt. As
discussed above, within certain limits the Commonwealth was
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entitled to offer whatever evidence was available in its
attempt to meet that burden.
Boone argues that, under Glover v. Commonwealth, 3 Va.
App. 152, 348 S.E.2d 434 (1986), which we summarily affirmed,
236 Va. 1, 372 S.E.2d 134 (1988) (per curiam), he was not
permitted to offer to stipulate to the fact of conviction.
However, nothing in Glover prohibits a defendant from offering
to stipulate to a fact the Commonwealth must prove at trial.
Rather, Glover merely concludes that the Commonwealth is not
required to accept such an offer if one is made. Id. at 162,
348 S.E.2d at 441. Boone made no such offer, so there was
nothing for the Commonwealth to accept or reject. *
Because Code § 18.2-308.2(A) establishes the elements of
the offense rather than a rule of evidence by which the
elements may be proven, the statute does not limit the
Commonwealth’s prerogative to meet its burden of proof using
whatever available evidence it chooses. Accordingly, the
circuit court did not abuse its discretion in admitting the
five conviction orders and the Court of Appeals did not err in
affirming Boone’s conviction and sentence. We therefore will
affirm the judgment of the Court of Appeals.
*
This case therefore does not present and we do not
consider the question whether Old Chief affects the continuing
validity of Glover.
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Affirmed.
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