                                  COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Clements and Haley
Argued at Chesapeake, Virginia


DONALD JOSEPH CONLEY
                                                                MEMORANDUM OPINION* BY
v.        Record No. 2813-04-1                                JUDGE JEAN HARRISON CLEMENTS
                                                                     DECEMBER 20, 2005
COMMONWEALTH OF VIRGINIA


                    FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
                                 V. Thomas Forehand, Jr., Judge

                    Randolph D. Stowe (Randolph D. Stowe, P.C., on brief), for
                    appellant.

                    Eugene Murphy, Senior Assistant Attorney General (Judith Williams
                    Jagdmann, Attorney General, on brief), for appellee.


          Donald Joseph Conley was convicted in a bench trial in the Chesapeake Circuit Court of

driving under the influence (DUI), third offense within five years, a felony in violation of Code

§§ 18.2-266 and 18.2-270(C)(1). On appeal, Conley contends the trial court erred in admitting

into evidence two prior DUI conviction orders because they were not properly authenticated

under Code § 8.01-389(A). Finding no error, we affirm the trial court’s judgment and Conley’s

conviction.

          As the parties are fully conversant with the record in this case, and because this

memorandum opinion carries no precedential value, this opinion recites only those facts and

incidents of the proceedings as are necessary to the parties’ understanding of the disposition of this

appeal.



          *
              Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                                        I. BACKGROUND

       The relevant facts are not in dispute. On June 1, 2004, a grand jury indicted Conley for

DUI, third offense. At Conley’s trial on June 28, 2004, the Commonwealth sought to introduce

into evidence copies of conviction orders from the Chesapeake General District Court for

Conley’s two prior DUI convictions on February 18, 2004, and April 26, 2004, respectively.

Both documents were stamped with the following notation:

                I certify that the document to which this authentication is affixed is
                a true copy of a record in the Chesapeake General District Court,
                that I have custody of the record and that I am the custodian of that
                record.

                5 12 04        /s/ B. White_______
                Date    ( ) Clerk ( ) Deputy Clerk

As indicated, the stamped notation on each document was signed by “B. White” and hand-dated

May 12, 2004. However, neither the “Clerk” nor “Deputy Clerk” designation located below the

signature line was checked on either document.

       Conley objected to the admissibility of these documents on authentication grounds. He

argued that B. White’s failure to mark either the space for “Clerk” or “Deputy Clerk” gave no

indication as to B. White’s identity or the authority with which he or she signed the

authentication notations on the documents.1

       Finding that the stamped notation on each document was “the official stamp of the

general district court,” and concluding that it was “just a simple clerical oversight by the deputy

clerk who did not check that box,” the trial court overruled Conley’s objection and admitted the

documents into evidence. Conley made no further objection with respect to the court’s decision

to admit the two district court conviction orders.




       1
           Conley did not contend the documents were not true and accurate copies.
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       The trial court subsequently convicted Conley of DUI, third offense. After conducting a

sentencing hearing, the trial court imposed a penalty of five years’ imprisonment, with three

years suspended.

       This appeal followed.

                                          II. ANALYSIS

       On appeal, Conley contends the trial court erred in admitting the district court conviction

orders into evidence because those documents were not authenticated for purposes of Code

§ 8.01-389(A). Conley asserts the documents were not properly authenticated because the

person who signed the authentication notations stamped on the orders failed to indicate that he or

she was the clerk of the district court or was authorized to sign the records on behalf of the clerk.

Absent such an indication, Conley concludes, the documents were inadmissible to prove his prior

convictions, meaning “the evidence of record can sustain nothing more than a misdemeanor (first

offense) DUI.” We disagree.

       Code § 8.01-389(A) provides:

                       The records of any judicial proceeding and any other
               official records of any court of this Commonwealth shall be
               received as prima facie evidence provided that such records are
               authenticated and certified by the clerk of the court where
               preserved to be a true record.

This statute establishes an exception to the hearsay rule provided that the judicial records sought

to be admitted into evidence are properly authenticated. Taylor v. Commonwealth, 28 Va. App.

1, 11, 502 S.E.2d 113, 117 (1998) (en banc). Authentication is “the providing of an evidentiary

basis sufficient for a trier of fact to conclude that the writing came from the source claimed.”

Walters v. Littleton, 223 Va. 446, 451, 290 S.E.2d 839, 842 (1982). Authentication also

establishes that “a document is genuine and that it is what its proponent claims it to be.” Owens

v. Commonwealth, 10 Va. App. 309, 311, 391 S.E.2d 605, 607 (1990). A judicial record may be

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authenticated within the meaning of Code § 8.01-389(A) by the written certification or

attestation of the clerk of the court holding the record. Id.

       The dispositive question in this case, therefore, is whether the DUI conviction orders

from the Chesapeake General District Court were properly “authenticated . . . by the clerk” of the

Chesapeake General District Court within the meaning of Code § 8.01-389(A). We hold that

they were.

       Without objection, the trial court took judicial notice that the authentication notation

stamped on each of the subject conviction orders was “the official stamp of the [Chesapeake]

general district court.” See Taylor, 28 Va. App. at 7-8, 502 S.E.2d at 116 (finding that, although

the trial court did not use the specific words “judicial notice,” its ruling that a stamp on a

document was the “official stamp” of the clerk’s office indicated that the court took judicial

notice, and holding that the taking of such judicial notice was not an abuse of discretion because

the source of the stamp’s “indisputable accuracy [was] so readily accessible” to the trial court

that “a reasonably informed person would not have regarded the identity of the . . . stamp as

reasonably subject to dispute”). Consistent with that finding, the signatory of the authentication

notations certified that each document was “a true copy of a record in the Chesapeake General

District Court” and that he or she had “custody of the record” and was “the custodian of that

record.”

       Because the clerk of a district court is exclusively vested with the responsibility of

“keep[ing] the records and accounts of [that] court,” Code § 16.1-69.40, it is clear that the clerk

of a district court and the deputy clerks who work for that clerk are the sole custodians of the

records of that court. See Williams v. Commonwealth, 35 Va. App. 545, 557, 546 S.E.2d 735,

741 (2001) (“A ‘custodian’ is ‘one entrusted officially with guarding and keeping (as property,

artifacts, records).’” (emphasis added) (quoting Webster’s Third International Dictionary 559

                                                 -4-
(1993))). It follows, therefore, that, as the stated “custodian” of the conviction orders from the

Chesapeake General District Court, the signatory of the authentication notations on the copies of

those orders was either the clerk of the Chesapeake General District Court or a deputy of that

clerk. See also Code § 16.1-69.40 (“A record made in the performance of the clerk’s official

duties may be authenticated as a true copy by the clerk or by a deputy clerk . . . .”); Gilmore v.

Landsidle, 252 Va. 388, 396, 478 S.E.2d 307, 312 (1996) (“In the absence of clear evidence to

the contrary, this Court must presume that a public officer has properly discharged his official

duties.”).

        Although Code § 8.01-389(A) specifically references only the “clerk of the court,” we

have recognized that, for purposes of determining whether a judicial record has been properly

authenticated within the meaning of the statute, authentication of the record by a deputy clerk of

the court is equivalent to authentication by the clerk of the court. See Owens v. Commonwealth,

10 Va. App. 309, 311, 391 S.E.2d 605, 606 (1990) (holding that the deputy clerk’s signature on

the stamped authentication notation “was sufficient to ‘authenticate and certify’ the document

within the meaning of Code § 8.01-389”); see also Medici v. Commonwealth, 260 Va. 223,

230-31, 532 S.E.2d 28, 32-33 (2000) (holding that a California conviction order authenticated by

a deputy clerk complied with Code § 8.01-389(A1)’s requirement that such a document be

“authenticated by the clerk of the court”), overruled on other grounds by Townsend v.

Commonwealth, 270 Va. 325, 619 S.E.2d 71 (2005); Carroll v. Commonwealth, 10 Va. App.

686, 691, 396 S.E.2d 137, 140 (1990) (holding that a document was not properly “authenticated”

within the meaning of Code § 8.01-389 because nothing in the record showed that the signatory

of the authentication notation on the document was the clerk or the deputy clerk). Thus, it is

immaterial that the signatory of the authentication notations on the copies of the prior DUI

conviction orders failed to check the box marked “Clerk” or “Deputy Clerk.”

                                                -5-
       In Carroll, upon which Conley relies, the document at issue

               was not “certified and authenticated” by the clerk but by Peggy B.
               Elmore. Neither the document itself nor any other evidence in the
               record establishe[d] that Peggy B. Elmore [was] authorized by law
               to act in the place of the clerk. The order [did] not state that she
               [was] a deputy clerk, nor [did] it contain initials or other indicia to
               demonstrate that she [was] a deputy clerk. No evidence was
               presented to the trial court as to who Peggy B. Elmore [was] or
               whether she [was] authorized to act in place of the clerk.

10 Va. App. at 691, 396 S.E.2d at 140. Here, however, as discussed above, the authentication

notations affixed to the prior DUI conviction orders indicated that the signatory of the

authentication notations was either the clerk or a deputy clerk of the Chesapeake General District

Court. Thus, unlike in Carroll, the instant record establishes that the signatory was the clerk or

authorized to act in place of the clerk.

       We hold, therefore, that the district court conviction orders offered by the

Commonwealth were properly authenticated within the meaning of Code § 8.01-389(A) and

were thus admissible under the statute as prima facie evidence of Conley’s two prior DUI

convictions. Accordingly, we affirm the trial court’s judgment and Conley’s conviction.

                                                                                           Affirmed.




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