                                COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Frank and Senior Judge Overton
Argued by teleconference


RONNIE ODELL BROOKS
                                                                MEMORANDUM OPINION* BY
v.      Record No. 2714-03-1                                     JUDGE ROBERT P. FRANK
                                                                    FEBRUARY 15, 2005
COMMONWEALTH OF VIRGINIA


                    FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
                                Christopher W. Hutton, Judge

                  W. A. Maust for appellant.

                  John H. McLees, Senior Assistant Attorney General (Jerry W.
                  Kilgore, Attorney General, on brief), for appellee.


        Ronnie Odell Brooks, appellant, was convicted in a bench trial of driving while under the

influence of alcohol, third offense within ten years, in violation of Code § 18.2-266. On appeal, he

contends that the trial court erred in accepting an unsigned circuit court order as proof of a prior

conviction. Appellant concludes the evidence was insufficient to convict. Finding no error, we

affirm the judgment of the trial court.

                                           BACKGROUND

        During appellant’s trial, the Commonwealth sought to introduce two prior convictions for

driving under the influence. Appellant challenges only the copy of a conviction order dated July 6,

1994 from the Circuit Court for the City of Hampton. Stamped on the document was the following

notation:




        *
            Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                I certify that the document to which this authentication is affixed is
                a true copy of an original record in the Hampton Circuit Court, that
                I have custody of the record and I am the custodian of that record.

       The stamped notation was signed by a deputy clerk of the court. The order itself bears

neither the trial judge’s signature nor the date. Appellant did not object to the admissibility of

the document.

       Appellant contended below that this unsigned order was insufficient to establish a prior

conviction for purposes of an enhanced penalty.

       He argued:

                On the ’94 conviction, which apparently was a circuit court
                conviction, there’s no signature on anything. It’s just a page.
                There must be a second page or something, but without the Court’s
                signature and the date it was entered, it’s a defective order. It’s
                one without any value to this case and I would object to that. I
                mean, I guess I’m not arguing that it’s admissible because I really
                don’t care whether you admit it or not. I’m just saying there’s
                absolutely no value to it and you can’t use it to elevate my client
                from a second to a third, I guess.

       The trial court overruled appellant’s objection.

                                            ANALYSIS

       Appellant argues, on appeal, that in order to prove a prior conviction, the Commonwealth

must present a conviction that complies with Code § 17.1-123(A). Otherwise, he claims, the

copy of the conviction order is not authenticated and should not be afforded any weight by the

fact finder. He contends the 1994 conviction “is no order at all.” Essentially, he argues the

evidence was insufficient to prove an element of the offense, i.e., a third or subsequent offense.

       The Commonwealth responds that any competent evidence can be used as proof of a

prior conviction for drunk driving. Citing Code § 8.01-389(A), it contends the certified copy of

the July 6, 1994 conviction order was prima facie evidence of the conviction. We agree.




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       Appellant’s entire argument focuses on Code § 17.1-123(A) which requires the judge’s

signature on any order recorded in the clerk’s order book.

       Code § 17.1-123(A) provides:

               All orders that make up each day’s proceedings of every circuit
               court shall be recorded by the clerk in a book known as the order
               book. Orders that make up each day’s proceedings that have been
               recorded in the order book shall be deemed authenticated when
               (i) the judge’s signature is shown in the order, (ii) the judge’s
               signature is shown in the order book, or (iii) an order is recorded in
               the order book on the last day of each term showing the signature
               of each judge presiding during the term.

Thus, appellant concludes that an order without a judge’s signature on a duly certified copy of a

conviction order introduced into evidence under Code § 8.01-389(A) may not be used as a prior

conviction.

       Appellant ignores the presumption of regularity. Absent evidence to the contrary, we

presume that public officials properly discharged their official duties. See Gilmore v. Landsidle,

252 Va. 388, 396, 478 S.E.2d 307, 312 (1996); Crews v. Commonwealth, 18 Va. App. 115, 119,

442 S.E.2d 407, 409 (1994). That presumption holds in this case even though the order copied

from the Hampton order book does not show the trial judge’s signature. As in Seaton v.

Commonwealth, 42 Va. App. 739, 757, 595 S.E.2d 9, 17 (2004), the presumption of regularity

has not been rebutted. Therefore, we may presume the orders were properly recorded in the

clerk’s order book, including the judge’s signature.

       Code § 8.01-389(A) addresses the admissibility of judicial records. Code § 8.01-389(A)

makes clear that 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.”

“All writings are subject to the requirement of authentication, which is the providing of an

evidentiary basis sufficient for the trier of fact to conclude that the writing came from the source
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claimed.” Walters v. Littleton, 223 Va. 446, 451, 290 S.E.2d 839, 842 (1982). Under Code

§ 8.01-389, a judicial record may be authenticated by the written certification of the clerk of the

court holding the record. See Owens v. Commonwealth, 10 Va. App. 309, 311, 391 S.E.2d 605,

606-07 (1990) (holding that written attestation by court clerk that a document was a certified

copy of a court record “was sufficient to ‘authenticate and certify’ the document within the

meaning of Code § 8.01-389”).

       The order in this case was authenticated and certified by the clerk. The stamp bears the

signature of a deputy clerk. Once admitted into evidence, the certified copy, by operation of

Code § 8.01-389(A), became prima facie evidence of the conviction contained therein. The trial

court, having been presented with no rebuttal evidence, was entitled to find that the certified

copy, as a true record, proved appellant’s prior conviction.

       Finally, appellant argues that the trial court could not take judicial notice of the prior

unsigned order. Neither the trial court below, nor the Commonwealth on appeal, cites judicial

notice as a basis for the trial court to recognize the validity of the prior order. We therefore need

not address appellant’s discussion of judicial notice. See Rule 5A:20(e).

                                          CONCLUSION

       For the foregoing reasons, we find that the July 6, 1994 conviction order was properly

authenticated by the clerk pursuant to Code § 8.01-389(A). Through that order the

Commonwealth proved appellant’s prior conviction. Accordingly, we affirm.

                                                                                            Affirmed.




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