                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Decker, Russell and Senior Judge Felton
UNPUBLISHED


              Argued at Norfolk, Virginia


              BRIONNE ALEXANDER COVIL
                                                                            MEMORANDUM OPINION* BY
              v.     Record No. 2268-14-1                                   JUDGE WALTER S. FELTON, JR.
                                                                                   MAY 17, 2016
              COMMONWEALTH OF VIRGINIA


                               FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
                                          Marjorie A. Taylor Arrington, Judge

                               Andrew M. Sacks (Stanley E. Sacks; Sacks & Sacks, P.C., on briefs),
                               for appellant.

                               Leah A. Darron, Senior Assistant Attorney General (Mark R.
                               Herring, Attorney General, on brief), for appellee.


                     Brionne Alexander Covil, appellant, appeals his convictions of the distribution of cocaine,

              third or subsequent offense, and the distribution of heroin, third or subsequent offense. He contends

              the trial court abused its discretion in admitting into evidence two prior conviction orders for drug

              related charges “on the grounds that those orders did not properly establish such prior predicate

              convictions.” For the following reasons, we affirm the decision of the trial court.

                                                        BACKGROUND

                     Appellant was charged with two counts of a third or subsequent offense under Code

              § 18.2-248(C). At trial, the Commonwealth introduced several documents as proof of appellant’s

              prior convictions. The Commonwealth introduced a conviction and sentencing order from the

              City of Portsmouth, entered June 21, 2012, which provided that appellant pled not guilty to the

              charge of “PWID Cocaine” and that he pled guilty to “PWID Accommodation.” The

                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
accommodation provision of Code § 18.2-248 is addressed in Code § 18.2-248(D). Under the

heading “OFFENSE DESCRIPTION AND INDICATOR (F/M),” the June 21, 2012 order

contains “PWID ACCOMMODATION (F)” and cites Code § “18.2-248.” Appellant objected to

the admission of this conviction order as a predicate offense, arguing that a conviction for a

violation of Code § 18.2-248(D) is not a prior conviction for violating Code § 18.2-248(C).

       The Commonwealth also introduced into evidence a conviction and sentencing order

from the City of Portsmouth, entered October 22, 2012. The order stated “the defendant was

arraigned, and . . . entered his Guilty plea to PWID Cocaine as charged in the indictment . . . .”

The order further provided that the trial court found appellant “guilty of the following offenses:”

               OFFENSE DESCRIPTION AND
               INDICATOR (F/M)

               PWID COCAINE (F)
               VCCNAR3043F9

       Under the heading “VA CODE SECTION,” the October 22, 2012 order recited Code

§ “18.2-250,” the statute prohibiting the possession of a controlled substance. Possession with

intent to distribute cocaine is a violation of Code § 18.2-248.

       The Commonwealth also introduced the grand jury indictment for this charge which

provided that appellant “did manufacture, sell, give, distribute, or possess with intent to

manufacture, sell, give or distribute” cocaine, citing Code § 18.2-248 and §§ 54.1-3446 through

54.1-3452.

       Appellant objected to the admission of the October 22, 2012 order as a predicate offense,

arguing that the order reflected that he was convicted of simple possession of cocaine in

violation of Code § 18.2-250 rather than possession with intent to distribute cocaine in violation

of Code § 18.2-248.




                                                -2-
        The trial court overruled appellant’s objections to the admission of the prior conviction

orders and admitted both orders into evidence. The trial court ruled that the June 21, 2012

conviction order for an accommodation distribution was admissible “because under [Code

§ 18.2-]248 it suffices to trigger the enhanced punishment [of] Code [§] 18.2-248(C).” The trial

court ruled that the October 22, 2012 conviction “clearly” contained a scrivener’s error as to the

statutory designation of Code § 18.2-250. The trial court admitted the orders as part of the proof

of the predicate convictions for violations of possession with intent to distribute cocaine.

                                              ANALYSIS

        At the outset, we note that, although appellant challenges the admission of the orders for the

reason that the orders were insufficient to establish the prior convictions, he assigned error only to

the trial court’s decision to admit the prior orders. He did not assign error to the jury’s ultimate

conclusion that all of the evidence sufficiently established the two predicate convictions.

        This is significant because “[t]he admissibility of evidence and the sufficiency of evidence

are distinct issues.” Wells v. Commonwealth, 65 Va. App. 722, 728, 781 S.E.2d 362, 365 (2016)

(quoting Banks v. Mario Indus., 274 Va. 438, 455, 650 S.E.2d 687, 696 (2007)). “It therefore

‘follows that objections to the admissibility of evidence and the sufficiency of evidence are also

distinguishable.’” Id. at 729, 781 S.E.2d at 365 (quoting Banks, 274 Va. at 455, 650 S.E.2d at

696). Given the assignment of error, our review is limited to whether the trial court abused its

discretion in admitting the orders into evidence.

                        “‘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.’” Bell v.
                Commonwealth, 49 Va. App. 570, 576, 643 S.E.2d 497, 500
                (2007) (quoting Blain v. Commonwealth, 7 Va. App. 10, 16, 371
                S.E.2d 838, 842 (1988)). “This standard, if nothing else, means
                that the trial judge’s ‘ruling will not be reversed simply because an
                appellate court disagrees.’” Thomas v. Commonwealth, 44
                Va. App. 741, 753, 607 S.E.2d 738, 743 (2005) (quoting Henry J.
                Friendly, Indiscretion about Discretion, 31 Emory L.J. 747, 754
                                                  -3-
               (1982)). “The proponent of the evidence bears the burden of
               establishing[,] by a preponderance of the evidence, the facts
               necessary to support its admissibility.” Id.

Perry v. Commonwealth, 61 Va. App. 502, 509, 737 S.E.2d 922, 926 (2013).

       Here, there is no dispute that the orders offered by the Commonwealth were properly

authenticated copies of court orders. Thus, if material and relevant, the orders were admissible

pursuant to Code § 8.01-389(A), which provides, in pertinent part, that “[t]he 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 certified by the clerk of the court

where preserved to be a true record.” See also Va. R. Evid. 2:803(8) and 2:902(1).

       Evidence is material if it “tend[s] to prove a matter . . . properly at issue in the case . . . .”

Wells, 65 Va. App. at 728, 781 S.E.2d at 365 (quoting Crawley v. Commonwealth, 29 Va. App.

372, 377, 512 S.E.2d 169, 172 (1999)). “Evidence is relevant if it has any logical tendency to

prove an issue in a case.” Avent v. Commonwealth, 279 Va. 175, 198, 688 S.E.2d 244, 257

(2010) (quoting John Crane, Inc. v. Jones, 274 Va. 581, 590, 650 S.E.2d 851, 855 (2007)).

       The orders are material and relevant to the question of whether or not appellant had two

prior convictions for violations of Code § 18.2-248. Each of the orders references that appellant

previously had been convicted of violating Code § 18.2-248. The fact that one order also noted

that he had been sentenced under the accommodation provision of Code § 18.2-248(D) and the

other order contained a discrepancy that he argues suggests that he actually was convicted of

simple possession pursuant to Code § 18.2-250, does not change the fact that the orders had a

tendency to prove that appellant had the requisite prior convictions.

       In essence, appellant argues that the orders cannot be material or relevant because they

did not, in and of themselves, sufficiently establish the ultimate issue of the prior convictions.

There simply is no requirement that any single piece of evidence establish the ultimate issue in

                                                 -4-
order to be admissible. As has been noted regarding circumstantial evidence, “while no single

piece of evidence may be sufficient [to establish the ultimate issue], the combined force of many

concurrent and related circumstances, each insufficient in itself, may lead a reasonable mind

irresistibly to a conclusion.” Juniper v. Commonwealth, 271 Va. 362, 416, 626 S.E.2d 383, 418

(2006) (internal quotation marks and citations omitted). This concept applies with equal force to

discrete pieces of direct evidence. Thus, “[w]hen we consider the admissibility of the evidence

we consider each piece of evidence individually,” Wells, 65 Va. App. at 728, 781 S.E.2d at 365,

without regard for whether that piece of evidence, whether alone or in conjunction with other

evidence, establishes the ultimate issue.1

       Although we recognize that the Commonwealth must prove every element of the offense

charged beyond a reasonable doubt, Palmer v. Commonwealth, 269 Va. 203, 207, 609 S.E.2d

308, 310 (2005), the issue raised in this appeal is whether the trial court abused its discretion in

admitting the prior conviction orders, not the weight to be given the orders or whether the orders,

in and of themselves, sufficiently proved the prior convictions. Because our review is limited to

the question of the admissibility of the orders and the orders unquestionably provide at least

some proof of the prior convictions, we cannot say that the trial court abused its discretion in

admitting the orders.

                                             CONCLUSION

       Accordingly, we affirm appellant’s convictions and resulting sentences.

                                                                                           Affirmed.




       1
         This stands in stark contrast to how we review a challenge to the sufficiency of the
evidence. “[W]hen we consider the sufficiency of the evidence we do not consider each piece of
evidence in isolation. Instead, we review the totality of the evidence to determine whether it was
sufficient to prove an offense.” Wells, 65 Va. App. at 728-29, 781 S.E.2d at 365 (quoting
Bowling v. Commonwealth, 51 Va. App. 102, 107, 654 S.E.2d 354, 356 (2007)).
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