                                   COURT OF APPEALS OF VIRGINIA


Present: Judges Frank, McClanahan and Haley
Argued at Richmond, Virginia


CARLA THORNLEY
                                                              MEMORANDUM OPINION ∗ BY
v.     Record No. 3136-06-2                                   JUDGE JAMES W. HALEY, JR.
                                                                     JUNE 10, 2008
COMMONWEALTH OF VIRGINIA


              FROM THE CIRCUIT COURT OF THE CITY OF FREDERICKSBURG
                                John W. Scott, Jr., Judge

                 Shama Farooq (Office of the Public Defender, on brief), for
                 appellant.

                 Joanne V. Frye, Assistant Attorney General (Robert F. McDonnell,
                 Attorney General; Alice T. Armstrong, Assistant Attorney General
                 II, on brief), for appellee.


                                        I. INTRODUCTION

       Carla Thornley appeals her conviction of third offense petit larceny in violation of Code

§§ 18.2-103 and 18.2-104 by the Circuit Court of the City of Fredericksburg. On brief, Thornley

argues the circuit court erred in admitting into evidence an order finding she previously violated

probation because (1) a probation violation does not represent a predicate offense for proving a

third violation under the statute, (2) a probation violation order does not represent sufficient

proof of other offenses mentioned within it, and (3) the order created unfair prejudice by

mentioning a prior conviction for drug distribution. Thornley conceded her second assignment

of error at oral argument, and this makes her first argument irrelevant. We therefore only

address her third assignment, which we reject. Accordingly, we affirm.



       ∗
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                                           II. FACTS

       We mention only those facts necessary to the disposition of this appeal.

       A grand jury indicted Thornley for third offense petit larceny on November 28, 2005.

The circuit court held a bench trial on May 12, 2006.

       During the trial, the prosecution offered documentary evidence to prove Thornley had

prior convictions for larceny. One document, dated April 5, 2002, was a conviction and

sentencing order also for third offense petit larceny. The other, dated October 20, 1997, was an

order finding Thornley violated probation. This order stated Thornley had convictions for drug

distribution and third offense concealment. Thornley only objected to the admission of the

probation violation order. However, she did not contest the probation order’s validity. The

prosecution stated it sought to admit the probation violation order as demonstrating “that she has

been convicted of a third offense concealment charge.” The court admitted both documents.

       At the conclusion of the trial, the court found Thornley guilty. The court specifically

made this finding based upon the credibility of the witnesses and not upon Thornley’s prior

offenses. The court declared:

                       It comes down to a matter of credibility. The matter of
               credibility has nothing to do with prior offenses and this Courts
               find [sic], given the testimony of the two employees [who testified
               for the prosecution] . . . the Court finds that their testimony was
               consistent in reference to what occurred at the office of this
               business that night, therefore, based on the finding that the
               Commonwealth has met its burden of proof, the Court finds Ms.
               Thornley guilty as charged.

From this conviction, Thornley now appeals.

                                        III. ANALYSIS

       Due to the nature of our disposition of this case, we first consider Thornley’s second

assignment of error. On brief, Thornley contends the probation violation order could not present

proof of other offenses listed within it. However, at oral argument, Thornley conceded the

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probation violation order could suffice. Accordingly, further consideration of this point is

unnecessary.

       Due to this concession, we necessarily reject her first argument that the circuit court erred

in admitting the probation violation order because a probation violation cannot serve as a

predicate offense under the statute. The order could serve as evidence of the prior concealment

offense, as the prosecution argued at trial. This makes Thornley’s first argument irrelevant.

       Finally, Thornley contends the circuit court erred in admitting the probation order during

the guilt phase of the trial in that it caused unfair prejudice by mentioning a prior conviction for

drug distribution. A circuit court has significant discretion in determining the admissibility of

evidence, and we review its finding only for an abuse of discretion. Jones v. Commonwealth, 50

Va. App. 437, 446, 650 S.E.2d 859, 863 (2007). Evidence of a defendant’s unrelated criminal

activity is generally inadmissible, and this rule especially applies to unrelated drug distribution.

Rodriguez v. Commonwealth, 18 Va. App. 277, 280, 443 S.E.2d 419, 422 (1994). However,

when a circuit court sits as the finder of fact, it is “presumed to disregard prejudicial or

inadmissible evidence, and this presumption will control in the absence of clear evidence to the

contrary.” Hall v. Commonwealth, 14 Va. App. 892, 902, 421 S.E.2d 455, 462 (1992) (en banc)

(citation omitted).

       We find no error in the circuit court’s decision. The evidence was properly admissible to

prove Thornley committed the predicate offense of concealment. While the evidence regarding

drug distribution was inadmissible, the record clearly shows the court did not consider this

evidence, as the law presumes. As quoted above, the circuit court convicted Thornley based on

its consideration of the credibility of the witnesses, not Thornley’s history with law enforcement.

       For the foregoing reasons, we affirm the judgment of the circuit court.

                                                                                               Affirmed.


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