Charles Lee Argenbright v. Commonwealth ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Felton and Kelsey
Argued at Salem, Virginia
CHARLES LEE ARGENBRIGHT
MEMORANDUM OPINION* BY
v. Record No. 3282-02-3 JUDGE WALTER S. FELTON, JR.
NOVEMBER 25, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF STAUNTON
Humes J. Franklin, Jr., Judge
William E. Bobbitt, Jr., Public Defender (Office of the Public
Defender, on brief), for appellant.
Eugene Murphy, Assistant Attorney General (Jerry W. Kilgore,
Attorney General, on brief), for appellee.
Charles Lee Argenbright appeals his multiple felony convictions for obtaining goods by
false pretenses, having been convicted two or more times previously of larceny or a similar
offense in violation of Code §§ 18.2-178 and 18.2-104. On appeal, he contends the trial court
erred in admitting a copy of a National Crime Information Center (hereafter “NCIC”) printout to
prove the prior convictions necessary to enhance thirteen out of eighteen charges of obtaining
goods by false pretenses from misdemeanors to felonies. We disagree and affirm the
convictions.
BACKGROUND
Applying well-established principles of appellate review, we must consider the evidence
and all reasonable inferences fairly deducible therefrom in the light most favorable to the
* Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Commonwealth, the prevailing party below. Derr v. Commonwealth, 242 Va. 413, 424, 410
S.E.2d 662, 668 (1991).
In March of 2001, Argenbright discovered a box of personal checks belonging to his
deceased father. He and others forged and used eighteen of the checks to fraudulently obtain
goods from businesses in the City of Staunton. Thirteen of the eighteen checks were for amounts
less than $200.
On October 15, 2001, a grand jury indicted Argenbright on eighteen counts of obtaining
money by false pretenses under Code § 18.2-178. Because Argenbright had been previously
convicted of two or more larceny offenses, thirteen of the eighteen counts were indicted as
felonies pursuant to Code § 18.2-104.
On May 17, 2002, the Staunton Circuit Court convicted Argenbright on all eighteen
felony counts. At trial, Investigator Kristie Siron of the Staunton Police Department testified that
the felony theft charges were based on Argenbright’s record of prior convictions for similar
offenses. When shown a copy of a computer printout of Argenbright’s NCIC record by the
Commonwealth, Investigator Siron identified the printout as appellant’s criminal record. The
Commonwealth then offered the printout into evidence. Argenbright objected and the following
exchange took place:
MR. BOBBITT [Defense Attorney]: Your Honor, I’m going to
object to the - - this printout, I mean I would think that there ought
to be copies of the - - of the - - certified copies of the conviction if
they are going to establish that he was convicted.
MR. ROBERTSON [Commonwealth’s Attorney]: Judge, there is
a statute that allows the record to come in.
JUDGE: Isn’t that true Mr. Bobbitt?
MR. BOBBITT: I think he’s probably right, but I’m not sure about
that so I’m - - I’m going to object to it.
JUDGE: I’m going to admit it, it’s Commonwealth’s One.
-2-
The trial court relied on the information contained in the NCIC record to prove the prior
convictions required under Code § 18.2-104 to convict Argenbright on thirteen out of eighteen
felony charges of obtaining money by false pretenses under Code § 18.2-178. The court
subsequently sentenced him to the penitentiary for ten years, with seven years suspended.
Argenbright appeals the thirteen convictions elevated to felonies pursuant to Code § 18.2-104.
ANALYSIS
“‘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.’” Summerlin v.
Commonwealth, 37 Va. App. 288, 293, 557 S.E.2d 731, 734 (2002) (quoting Blain v.
Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988)).
Both at trial and on appeal, Argenbright argued that only certified copies of court records
of his previous convictions were admissible to prove the prior convictions necessary to convict
him pursuant to Code § 18.2-104. While he objected when the Commonwealth sought to admit
the printout of the NCIC report, his sole argument was that only certified copies of the
convictions were admissible for that purpose.
Argenbright argues for the first time on appeal that the trial court erred by admitting the
printout without proper certification pursuant to the Code § 8.01-389, the judicial records
exception to the hearsay rule. We will not review on appeal a specific argument not raised
before the trial court absent a showing of good cause or as necessary to attain the ends of justice.
Rule 5A:18; see Scott v. Commonwealth, 31 Va. App. 461, 464-65, 524 S.E.2d 162, 164 (2000).
Despite his reliance on Code § 8.01-389 in his brief, Argenbright’s contention remains that only
certified copies of court records of his previous convictions are admissible as proof to satisfy the
prior convictions requirement of Code § 18.2-104.
-3-
“While ‘the most efficient way to prove the prior . . . conviction is to offer in evidence an
authenticated copy of the prior order or conviction,’ the prior conviction may be proven by any
competent evidence.” Wilson v. Commonwealth, 40 Va. App. 250, 254, 578 S.E.2d 831, 833
(2003) (noting defendant’s plea of guilty to offense alleged in warrant was sufficient to prove
prior conviction as a habitual offender) (citations omitted); see Folson v. Commonwealth, 23
Va. App. 521, 525, 478 S.E.2d 316, 318 (1996) (holding that certified copies of the defendant’s
prior indictments and subsequent sentences constituted “‘records of conviction’ because they
were recorded evidence that the court convicted the defendant for the crimes charged”); Harris v.
Commonwealth, 26 Va. App. 794, 806, 497 S.E.2d 165, 170 (1998) (using out-of-court
statements of the probation and parole officer); Miller v. Commonwealth, 22 Va. App. 497, 501,
471 S.E.2d 780, 782 (1996) (admitting probation officer’s testimony and report during
sentencing).
Code § 18.2-104 requires an admission or finding that the defendant has been convicted
previously for two or more larcenies or like offenses punishable as larceny, to enhance a charge
of misdemeanor obtaining property by false pretenses to a Class 6 felony. Code § 18.2-104.1
Nothing in the plain language of Code § 18.2-104 requires the previous convictions be
1
Code § 18.2-104 provides:
When a person is convicted of an offense of larceny or any offense
deemed to be or punished as larceny under any provision of the
Code, and it is alleged in the warrant, indictment or information on
which he is convicted, and admitted, or found by the jury or judge
before whom he is tried, that he has been before convicted in the
Commonwealth of Virginia or in another jurisdiction for any
offense of larceny or any offense deemed or punishable as larceny,
or of any substantially similar offense in any other jurisdiction,
regardless of whether the prior convictions were misdemeanors,
felonies or a combination thereof, he shall be confined in jail not
less than thirty days nor more than twelve months; and for a third,
or any subsequent offense, he shall be guilty of a Class 6 felony.
-4-
established only by the admission of certified copies of the final conviction orders. Compare
Code § 19.2-295.1 (requiring “the Commonwealth to present the defendant’s prior criminal
convictions by certified, attested or exemplified copies of the record of conviction” during the
sentencing phase of a bifurcated jury trial). Code § 18.2-104 requires only that the
Commonwealth introduce competent evidence from which the trier of fact can find the defendant
has been previously convicted of prior larceny type offenses.
When Argenbright objected to the offer of the printout of the NCIC report into evidence,
the Commonwealth asserted that there was “a statute” that permits the NCIC report to be
admitted into evidence. In response, the court stated that it also thought a statute permitted the
admissibility of the NCIC report as evidence, and asked if Argenbright agreed. He responded
that he agreed that the Commonwealth was “probably right but I’m not sure about that so I’m - -
I’m going to object to it.” Argenbright articulated no other grounds to the trial court as to why
the NCIC report should not have been admitted into evidence. Neither the trial court nor the
Commonwealth’s attorney identified the statute “that allows the record to come in.” On appeal
we will not speculate on which statute the court may have relied.
Absent clear evidence to the contrary in the record, the judgment of a trial court comes to
us on appeal with a presumption that the judge knew and correctly applied the law. See
Yarborough v. Commonwealth, 217 Va. 971, 978, 234 S.E.2d 286, 291 (1977).
Argenbright argued that the evidence was inadmissible solely because the NCIC printout
was not a certified copy of the court record of his prior convictions. He did not object that the
NCIC report was not accurate or that it contained erroneous information. Finally, Argenbright
did not object to the NCIC report as inadmissible hearsay or that it had not been properly
authenticated. Neither did he object on the grounds of lack of adequate foundation. His failure
to raise these objections to the trial court constituted a waiver of these objections. We will not
-5-
consider them for the first time on appeal. See Rule 5A:18; Crawley v. Commonwealth, 29
Va. App. 372, 376, 512 S.E.2d 169, 171 (1999).
In its brief, the Commonwealth contends that the NCIC report is hearsay but is
admissible under Code § 8.01-390, the official records exception to the hearsay rule. The
Supreme Court in Frye v. Commonwealth, 231 Va. 370, 345 S.E.2d 267 (1986), found that an
NCIC report was admissible hearsay. The Court held that:
In certain cases, where verification of the recorded facts is not
possible through the personal knowledge of the record keeper,
practical necessity nevertheless requires admission of recorded
evidence which has a circumstantial guarantee of trustworthiness;
this guarantee is provided where evidence shows the regularity of
the preparation of the records and reliance on them by their
preparers or those for whom they are prepared. The NCIC
printout, therefore, also comes within the exception.
Id. at 387, 345 S.E.2d at 279-80.
Argenbright’s failure to make a hearsay objection to the NCIC report permits the trial
court to consider the report as evidence of his previous larceny convictions. Without objection,
the trial court may admit evidence that it determines to be relevant, trustworthy and competent.
The trial court determined the evidence to be competent, not inherently incredible and was
sufficient to prove beyond a reasonable doubt that Argenbright had been previously convicted of
the requisite offenses to satisfy the requirement of Code § 18.2-104.2
The trial court did not abuse its discretion by admitting the printout of the NCIC report
into evidence to prove Argenbright’s prior convictions of larceny as charged in the indictments.
Accordingly we affirm the trial court.
Affirmed.
2
The record reflects that Argenbright took the stand and testified on his own behalf. He
did not question the accuracy of the information in the NCIC report, nor did the Commonwealth
seek to verify it.
-6-
Humphreys, J., concurring.
I concur with the majority in its judgment because I agree that the only issue Argenbright
preserved for appeal was whether certified copies of a conviction are the only means of
establishing convictions. “While ‘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)); see also Whitten v. McClelland, 137 Va. 726, 741, 120 S.E. 146, 150
(1923) (“It is a well settled and obviously sound general rule that an objection to evidence cannot
be availed of by a party who has, at some other time during the trial, voluntarily elicited the same
evidence, or has permitted it to be brought out by his adversary without objection.” (emphasis
added)); Gregory v. Commonwealth, 22 Va. App. 100, 111, 468 S.E.2d 117, 122-23 (1996)
(“Although the tipster’s statement was inadmissible hearsay, the defendant failed to object to the
statement at the time it was offered into evidence. Therefore, the statement was properly before
the trial court and was relevant to prove the defendant’s guilt.” (citations omitted)).
However, I write separately to emphasize that the majority’s holding today should not be
viewed as an approval of the procedure employed by the Commonwealth in this case.
Specifically, on appeal the Commonwealth contends that the NCIC report was properly admitted
as an “official record” and, therefore, pursuant to a valid exception to the rule barring hearsay.
See Williams v. Commonwealth, 213 Va. 45, 46, 189 S.E.2d 378, 379 (1972) (“It is a generally
recognized rule that records and reports prepared by public officials pursuant to a duty imposed
by statute, or required by the nature of their offices, are admissible as proof of the facts stated
therein. But the mere fact that a record or report qualifies as a public document does not
automatically overcome the hearsay objection unless the document relates facts or events within
-7-
the personal knowledge and observation of the recording official to which he could testify should
he be called as a witness.” (citations omitted)); see also Code § 8.01-388 (“The court shall take
judicial notice of the contents of all official publications of this Commonwealth and its political
subdivisions and agencies required to be published pursuant to the laws thereof, and of all such
official publications of other states, of the United States, of other countries, and of the political
subdivisions and agencies of each published within those jurisdictions pursuant to the laws
thereof.”). Nevertheless, the totality of the foundation laid by the prosecutor for admission of the
computer printout was Investigator Kristie Siron’s testimony that the printout represented
Argenbright’s “record of prior convictions for similar offenses.” No further effort was made by
the prosecutor to demonstrate its trustworthiness or reliability, or to demonstrate that the
document was an “official record” falling within a recognized exception to the general rule
prohibiting the admission of hearsay evidence. Instead, the prosecutor merely stated, in response
to Argenbright’s narrow objection, “Judge, there is a statute that allows the record to come in.”
No more specific citation was offered to the trial court, nor, in view of the objection, was there
any attempt made by the trial court to determine the requirements for admissibility under any
statute.
In sum, while I am compelled to concur in the judgment, I must also observe that, in my
view, this case represents something less than a shining example of our adversary system of
justice.
-8-