                     COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Benton and Senior Judge Hodges
Argued at Norfolk, Virginia

RANDOLPH EDWARD CARTHUNE, A/K/A
 JOHN EDGAR NORFLEET, A/K/A
 ARLANDERS B. WICHARD
                                       MEMORANDUM OPINION * BY
v.       Record No. 2576-93-1          JUDGE WILLIAM H. HODGES
                                          AUGUST 29, 1995
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                      A. Bonwill Shockley, Judge
          Andrew G. Wiggin (Office of the Public Defender, on
brief), for appellant.

            G. Russell Stone, Jr., Assistant Attorney General
            (James S. Gilmore, III, Attorney General, on
            brief), for appellee.



     The appellant, Randolph Edward Carthune, was convicted by a

jury of concealment of goods valued under $200 after having been

convicted at least twice of like offenses pursuant to Code

§§ 18.2-103 and 18.2-104.    On appeal, appellant contends that the

trial judge erred in admitting certain evidence, in refusing to

give a jury instruction, and in refusing to strike the evidence

based on insufficient evidence.    Finding no error, we affirm.

                    THE PRINT CARDS AND MUG SHOTS
            "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." Williams v.
            Commonwealth, 213 Va. 45, 46, 189 S.E.2d 378, 379
            (1972). In Ingram v. Commonwealth, 1 Va. App.
            335, 338 S.E.2d 657 (1986), we held that the
            official records of the Division of Motor Vehicles
     *
      Pursuant to Code § 17-116.010, this opinion is not designated
for publication.
            were admissible as an exception to the hearsay
            rule "if the document 'relates facts or events
            within the personal knowledge and observation of
            the recording official to which he could testify
            should he be called as a witness.'" Id. at 339,
            338 S.E.2d at 658; see also Hall v. Commonwealth,
            15 Va. App. 170, 421 S.E.2d 887 (1992) (court
            order reflecting habitual offender adjudication
            recorded by DMV on an operator's driving record
            admissible).
                 In Virginia, "[t]he official records
            exception allows the admission of certain official
            public documents, without the necessity of
            producing the record keeper, so long as the keeper
            or entrant had personal knowledge contained in
            those records and could be called to testify
            regarding them." Hooker v. Commonwealth, 14 Va.
            App. 454, 456, 418 S.E.2d 343, 344 (1992).

Smoot v. Commonwealth, 18 Va. App. 562, 565, 445 S.E.2d 688, 690

(1994).
            [A] fingerprint card, which Code § 19.2-390
            requires the police to prepare and submit to the
            Central Criminal Records Exchange (CCRE) on
            special forms, is clearly a public record under
            the above statutory definition. It is no less a
            public record under this definition simply because
            the person arrested is required to apply his
            signature and fingerprints to it.


Reid v. Commonwealth, 16 Va. App. 468, 470, 431 S.E.2d 63, 64

(1993).

     The Commonwealth satisfactorily explained the procedures

used to create the fingerprint cards and mug shots and

established their reliability.   Because there was a question as

to appellant's identity, the print cards and mug shots were

relevant.   Moreover, the fingerprint cards are public records and

were admissible under that exception.   Accordingly, the trial

judge did not err in admitting the print cards and mug shots.



                                 -2-
     On appeal, a trial judge's ruling that the probative value

of admitting relevant evidence outweighs any incidental prejudice

to the accused will be reversed only on a clear showing of an

abuse of discretion.     Lewis v. Commonwealth, 7 Va. App. 596, 602,

376 S.E.2d 295, 298, aff'd on reh'g en banc, 8 Va. App. 574, 383

S.E.2d 736 (1989).   Because the Commonwealth was constrained to

prove that appellant had at least two prior convictions, and

because there was doubt as to appellant's identity, we cannot say

that the trial judge abused his discretion in admitting the two

contested print cards.
                     THE PRIOR CONVICTION ORDERS

     Because the Commonwealth was obligated to prove at least two

prior convictions, the trial court did not err by admitting the

prior conviction orders and refusing to redact the references to

the offenses for which appellant was previously convicted.     See

Essex v. Commonwealth, 18 Va. App. 168, 442 S.E.2d 707 (1994)

(holding that conviction order which proves that an accused has

been convicted of a specific felony is relevant and admissible to

prove an essential element of offense); see also Dotson v.
Commonwealth, 18 Va. App. 465, 445 S.E.2d 492 (1994).    Also, the

Commonwealth may show as many separate convictions as it wants.

See Pittman v. Commonwealth, 17 Va. App. 33, 34, 434 S.E.2d 694,

695 (1993) (approving introduction of six prior convictions in

prosecution for third offense concealment).




                                  -3-
                 PRESENT RECOLLECTION REFRESHED

     There are two ways to refresh a "witness's memory by

allowing the witness to examine material, usually writings, which

relate to the incident in question."   Charles E. Friend, The Law

of Evidence in Virginia § 3-7 (4th ed. 1994).

          After examining the document or other

          material, the witness may then be able either

          to (1) put aside the material and testify

          from an independent recollection or (2)

          although without actual independent

          recollection, testify directly from the

          material placed before him. . . .
               The most common (and least technical)
          method is to provide the witness with any
          material of counsel's choice and ask him to
          examine it. Upon completion of his
          examination, the witness is required to
          testify from independent memory, which has
          supposedly returned to him upon sight of the
          refreshing material. . . .
               Any material which actually stimulates
          or revives the witness's memory may be used.
           It is not limited to writings, and may
          consist of anything which in fact stimulates
          memory. It makes no difference whether the
          material was prepared by the witness or by
          some other person . . . .
               There is no requirement that the
          material itself be admitted into evidence, or
          even that it be admissible. . . .
          . . . [T]here seems to be little or no
          restriction on [the material's] use, except
          that the courts repeatedly emphasize that the
          memory must in fact be refreshed, and that
          the witness must, after examining the
          material, be able to speak from his or her
          own refreshed memory, and not from the source
          of the refreshment. . . .
               The court has discretion to control or


                               -4-
          deny the use of the material if it appears
          that the procedure is being used to suggest
          or provide answers which are not in fact
          remembered by the witness. . . .


Id. (footnotes omitted) (explaining present recollection

refreshed).   See also McGann v. Commonwealth, 15 Va. App. 448,

451-52, 424 S.E.2d 706, 709 (1992).

     Officer McElligott testified that his memory was refreshed

after looking at the police report, and that he recalled

appellant's "place of birth . . . as Norfolk."   Accordingly, the

document was properly used to refresh his memory and the trial

judge did not err in allowing him to refer to it.
                   THE REFUSED JURY INSTRUCTION
          When a trial judge instructs the jury in the law,
          he or she may not "single out for emphasis a part
          of the evidence tending to establish a particular
          fact." The danger of such emphasis is that it
          gives undue prominence by the trial judge to the
          highlighted evidence and may mislead the jury. On
          the other hand, instructions should relate to the
          specific evidence of the case; abstract
          propositions of law do little to help and much to
          mystify a jury.

Terry v. Commonwealth, 5 Va. App. 167, 170, 360 S.E.2d 880, 882

(1987) (citations omitted) (finding that instructions did not

suggest the credibility or weight which should be given any

specific evidence at trial or impermissibly highlight any of the

evidence to the exclusion of other evidence).

     Appellant's proposed instruction improperly emphasized

specific pieces of evidence relating to appellant's identity.

Accordingly, the trial court did not err in refusing the




                                -5-
instruction.    Although appellant claims that there was no general

instruction on credibility and fact finding, he failed to proffer

one or bring it to the trial judge's attention.      Therefore, he

cannot now complain of the absence of such an instruction.      Rule

5A:18.

                      SUFFICIENCY OF THE EVIDENCE

     "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).

     The February 24, 1987 and August 26, 1993 print cards

contain appellant's fingerprints and list him as John Edgar

Norfleet.    The three prior conviction orders list John Edgar

Norfleet as the person convicted.       The Commonwealth's evidence

was competent, was not inherently incredible, and was sufficient

to prove beyond a reasonable doubt that appellant was John Edgar

Norfleet and that appellant had been convicted on three prior

occasions.     See Moffitt v. Commonwealth, 16 Va. App. 983, 987,

434 S.E.2d 684, 687 (1993) (holding that the accused failed to

rebut the prima facie showing that he was person identified in

prior conviction order).

     For the aforementioned reasons, we affirm as to all issues.

                                                             Affirmed.




                                  -6-
BAKER, J., concurring.



     I concur in result with the majority.




                               -7-
BENTON, J., dissenting.



                                 I.

       The trial judge erred in admitting the fingerprint cards and

mug shots.   The Supreme Court of Virginia has stated that "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 the personal knowledge

and observation of the recording official to which he could

testify should he be called as a witness."    Williams v.

Commonwealth, 213 Va. 45, 46, 189 S.E.2d 378, 379 (1972).     See

also Smith v. Woodlawn Constr. Co., 235 Va. 424, 431, 368 S.E.2d

699, 704 (1988).   Indeed, hearsay statements "traditionally have

been excluded because they have been perceived to lack the

conventional indicia of reliability and are not susceptible to

cross-examination."    Tickel v. Commonwealth, 11 Va. App. 558,

564, 400 S.E.2d 534, 538 (1991).

       In holding that a minor's arrest records were not admissible

under the public documents exception to the hearsay rule, the

Supreme Court reasoned that the minor's age could not be proven

by these records because the "date of birth was what [the minor]

told the recording officer, who had no personal knowledge of the

truth of the statements."    Williams, 213 Va. at 47, 189 S.E.2d at

380.   Consistent with that decision, this Court held in Tickel v.
Commonwealth, 11 Va. App. 558, 400 S.E.2d 534 (1991), that "the




                                 -8-
official documents exception to the hearsay rule is narrow in

scope, encompassing only that information within the knowledge of

the record keeper."     Id. at 568, 400 S.E.2d at 540.   Thus, in

Tickel, the sales price of a car, its odometer reading, and its

transfer date were "facts that the record keeper had obtained

from a third person" and were excluded as hearsay.       Id.

     Charles W. Johnson, an employee of the Virginia Beach

police, was offered by the Commonwealth as the custodian of the

fingerprint cards.    Johnson testified concerning routine

procedures involved in producing fingerprint cards.      He explained

that after the arrestee's fingerprints are placed on a clean

card, the arrestee is required to sign the card.    The employee

who oversees the arrestee's fingerprints being made also must

sign the card.   A photograph of the arrestee is also taken at

this time by a clerk.    An officer then enters the fingerprints

into the Automated Fingerprint Identification System to check for

a criminal history in the computer files.    The fingerprint card

then goes to a clerk who types information from the arresting

officer's worksheet.    The information on the officer's worksheet,

such as alias name, date of birth, height, weight, place of

birth, social security number, previous state number or an FBI

number is usually compiled by the officer from the person that

was arrested.
     All three fingerprint cards admitted in evidence had typed

onto them alias names, date of birth, place of birth, and social



                                  -9-
security number.   That information had been gotten from the

individuals being fingerprinted at the times those cards were

created.   None of the intake officers who typed those cards had

personal knowledge of these facts.      Thus, the trial judge erred

in admitting the cards with these facts which were obtained from

a third party and not within the personal knowledge of the record

keeper.    Williams, 213 Va. at 47, 189 S.E.2d at 380.

                                 II.
     These cards contained information that Carthune had

committed other, unrelated criminal offenses in Virginia Beach

for which he was not on trial.    The prejudicial effect of this

evidence of unrelated arrests is apparent from the following

events which occurred during jury deliberations:
     COURT:         [The jury has] handed me exhibit -- For
               the record they've handed me out Exhibit
               Number 5 [fingerprint card #3] and placed
               above it what does the fingerprint card --
               and in parenthesis -- August 1993 -- pertain
               to?

     BAILIFF:         What they mean is they want to know what
                 charge it is.

     COURT:           And the only guidance I'm going to be able to
                 give them is that they're just going to have to
                 look at the exhibits they have and remember the
                 evidence that they heard and I can't give them any
                 other guidance to answer that question for them.

                     *     *      *      *     *     *     *

                 (jury recalled to the courtroom)
                      Ladies and gentlemen, the bailiff has handed
                 me out Exhibit Number 5 [fingerprint card #3] with
                 a written question asking, What does the
                 fingerprint card dated August 1993 pertain to?

                     *     *      *      *     *     *     *


                                 -10-
                     The only guidance that I can give you is you
                have to search your own recollections, look at the
                evidence that you heard, look at the exhibits that
                you have and solve the questions for yourself; and
                I know that that doesn't seem like I'm answering
                your question, and I guess the answer to your
                question is I can't answer the question for you.
                You're going to have to deliberate among
                yourselves using whatever evidence it was that you
                heard during the trial, your recollection of the
                testimony and the exhibits and the instructions
                that you have back there, and I really can't give
                you any more guidance than that.


The trial judge did not instruct the jury that the evidence was

admissible for the limited purpose of proving Carthune's

identity.   See Rider v. Commonwealth, 8 Va. App. 595, 599, 383

S.E.2d 25, 27 (1989).   Without the guidance of the judge to

instruct the jury to limit their consideration of this evidence

to Carthune's identity only, the jury was left to use the

information on those fingerprint cards in any manner.     Thus, the

trial judge erred in admitting the two fingerprint cards without

limiting the scope of their admissibility.

                                III.

     The trial judge further erred in admitting the mug shots.

In Johnson v. Commonwealth, 2 Va. App. 447, 345 S.E.2d 303
(1986), this Court adopted a three part test to determine the

admissibility of "mug shots."   To be admissible, each of the

following three conditions must be met:
          (1) The Government must have a demonstrable
          need to introduce the photographs;

            (2) The photographs themselves, if shown to
            the jury, must not imply that the defendant
            has a prior criminal record; and



                                -11-
          (3) The manner of introduction at trial must
          be such that it does not draw particular
          attention to the source or implications of
          the photographs.


Id. at 454, 345 S.E.2d at 307.

     The evidence proved that a mug shot is taken each time a

fingerprint card is produced.    The mug shots were of a typical

nature, with a placard of information shown at chest level.   The

placard bore a number, contained dates unrelated to the prior

convictions at issue, and identified the Virginia Beach Police

Department.    Thus, like the fingerprint cards, these mug shots

implied that Carthune had a criminal record other than the prior

convictions that the Commonwealth was required to prove.

Accordingly, the trial judge erred in admitting these

photographs.
     For these reasons, I would reverse Carthune's conviction and

remand for a new trial.




                                 -12-
