                     COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Frank and Senior Judge Hodges
Argued at Richmond, Virginia


MARGARET REA BRIGHT
                                                 OPINION BY
v.   Record No. 1064-98-2                  JUDGE WILLIAM H. HODGES
                                               FEBRUARY 8, 2000
COMMONWEALTH OF VIRGINIA


               FROM THE CIRCUIT COURT OF MADISON COUNTY
                     Lloyd C. Sullenberger, Judge

             Stephen C. Harris for appellant.

             Jeffrey S. Shapiro, Assistant Attorney
             General (Mark L. Earley, Attorney General, on
             brief), for appellee.


     Margaret Rea Bright, appellant, was convicted of possessing

cocaine with the intent to distribute, a second or subsequent

offense, and with possessing a firearm while in possession of

cocaine.   On appeal, she contends the trial court erred "when it

allowed the Commonwealth to prove the existence of a prior offense

of possession with intent to distribute cocaine by using solely a

jury verdict without the Court having pronounced final judgment

and having sentenced the defendant."    Bright also argues that the

trial judge erred in refusing to strike a juror for cause and in

refusing to strike the evidence.

     We agree that the trial judge's evidentiary ruling was

erroneous.    We also find that the error was not harmless.

Accordingly, we reverse her convictions.
                   THE APRIL 1997 PREDICATE OFFENSE

     On January 28, 1998, a Madison County jury found appellant

guilty of possessing cocaine on April 14, 1997, with the intent to

distribute it.   On that same date, the jury recommended

punishment.    The trial judge "entered judgment on the verdict of

guilty" but ordered that "imposition of sentence be deferred while

the Probation Officer prepares a presentence report."   Sentencing

was scheduled for April 8, 1998.

                   THE MAY 1997 SUBSEQUENT OFFENSE

     On May 16, 1997, police officers arrested appellant and

charged her with possessing cocaine with intent to distribute and

with possessing a firearm while possessing cocaine.    On February

11, 1998, the parties appeared before the trial court "to

reschedule" the trial of the May 16, 1997 charges.    Also before

the trial court at that February 1998 hearing was the

Commonwealth's motion to amend the indictment on the May 16, 1997

charges to reflect that this was appellant's "second or subsequent

violation."    That motion was filed on January 29, 1998, the day

after the jury rendered its verdict on the April 1997 charge.

     Defense counsel pointed out that a presentence report was

being prepared for a future sentencing hearing yet to be

scheduled.    Therefore, he objected to the Commonwealth using a

non-final conviction to amend the indictment.




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     The Commonwealth argued that the prior offense was

established by the January 28, 1998 order finding appellant

guilty of distributing cocaine.

     The trial judge granted the Commonwealth's motion to amend

the indictment "to allege a second or subsequent offense."     He

based his decision on prior case law approving enhanced

punishment where two distribution convictions are obtained in a

single trial.

     On April 1, 1998, trial commenced on the May 16, 1997

charges.   After selecting a jury, the trial judge excused the

jurors and heard arguments relating to the admissibility of

certain items of evidence.   Defense counsel asked the trial

court to prohibit the Commonwealth from using the prior

"incomplete" and non-final conviction for enhancement purposes.

     Relying on the same case law it used to uphold amendment of

the indictment, the trial court ruled that an incomplete prior

conviction was admissible.

     Consequently, over appellant's continuing objection, the

trial court admitted into evidence a certified copy of the

January 28, 1998 jury verdict.    The trial judge redacted the

portion of the January 28, 1998 order indicating the jury's

recommended punishment and admitted the prior conviction order

into evidence.   The jury found appellant guilty of possessing

cocaine with intent to distribute, a second or subsequent

offense, and of the attendant firearm offense.

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                               DISCUSSION

     A jury's verdict is "not a final conviction without the

entry of the sentencing order and, therefore," it cannot "be

used to establish [a] predicate first offense."        Batts v.

Commonwealth, 30 Va. App. 1, 12, 515 S.E.2d 307, 313 (1999).

Quoting Ramdass v. Commonwealth, 248 Va. 518, 520, 450 S.E.2d

360, 361 (1994), we noted the Supreme Court's directive that

"'[j]udgment had not been entered on that verdict; therefore, it

cannot be considered as a conviction under [the applicable Code

provision].'"   Batts, 30 Va. App. at 12, 515 S.E.2d at 313.

Moreover, we have held that "'[a] guilty verdict is not a

conviction until a final order of judgment has been entered.'"

Id. (quoting Miller v. Commonwealth, 22 Va. App. 497, 500 n.3, 471

S.E.2d 780, 781 n.3 (1996)).

     Here, the trial judge admitted an order of conviction during

the guilt phase of appellant's trial.       That order was not final

because the jury's sentence had not been imposed and a final order

had not yet been entered.   Accordingly, the trial judge erred in

admitting it into evidence at trial.     Cf. Dowell v. Commonwealth,

12 Va. App. 1145, 408 S.E.2d 263 (1991) (holding that the trial

court erred in allowing defendant to be impeached by jury's

verdict of guilty for which defendant had not been sentenced and

for which no final order had been entered), aff'd on reh'g en

banc, 14 Va. App. 58, 414 S.E.2d 440 (1992).



                                 - 4 -
     A non-constitutional error is harmless if "it plainly

appears from the record and the evidence given at trial that the

error did not affect the verdict."      Lavinder v. Commonwealth, 12

Va. App. 1003, 1005, 407 S.E.2d 910, 911 (1991) (en banc).         "An

error does not affect a verdict if a reviewing court can

conclude, without usurping the [trial court's] fact finding

function, that, had the error not occurred, the verdict would

have been the same."    Id.

     We distinguish this case from Mason v. Commonwealth, 16 Va.

App. 260, 262-63, 430 S.E.2d 543, 544 (1993).     In Mason, a jury

convicted Mason in a single trial of two separate counts of

distributing cocaine in violation of Code § 18.2-248.     As a

result, Mason received an enhanced punishment for the second or

subsequent offense.    We held that "an enhanced punishment may be

applied where there are multiple convictions for separate

offenses in a simultaneous prosecution."      Id. at 262-63, 430

S.E.2d at 544.   Implicit in that holding is that each offense

must be and was sufficiently proved by competent evidence.       In

Mason, there was no argument raised about the quality of the

evidence to prove each offense; therefore, by sufficiently

establishing each offense, the Commonwealth necessarily proved

the second or subsequent offense.    Here, and in Batts, the

Commonwealth attempted to prove a prior conviction with a

non-final order that "could not be used to establish the



                                - 5 -
predicate first offense."    Batts, 30 Va. App. at 12, 515 S.E.2d

at 313.

     During the guilt phase of this trial, the jury was provided

testimonial and documentary evidence that appellant had been

found guilty by a jury of the same type of offense.   Appellant

was one of many people in the house at which drugs were found.

We cannot say that evidence of the recent prior trial did not

affect the jury's verdict.   Accordingly, we reverse the

convictions.

                  SUFFICIENCY OF THE EVIDENCE AND
                 REFUSAL TO STRIKE JUROR FOR CAUSE

     "Because we reverse and remand for evidentiary reasons, we

do not address" whether there was sufficient evidence of intent

to distribute.   Warmouth v. Commonwealth, 29 Va. App. 476, 480

n.1, 513 S.E.2d 418, 420 n.1 (1999).    The trial court instructed

the jury that the Commonwealth "must prove beyond a reasonable

doubt that the defendant possessed with intent to distribute

cocaine and that the defendant has a prior conviction for

distribution of cocaine."    The non-final conviction did not

sufficiently prove one element of the charged offense, namely,

the prior conviction.   However, we cannot say how the jury would

decide the issue absent the admission at the guilt phase of the

non-final conviction.   Therefore, should the Commonwealth choose

to retry appellant, it may not try her on the enhanced charge.

See Gorham v. Commonwealth, 15 Va. App. 673, 678, 426 S.E.2d


                                - 6 -
493, 496 (1993) (explaining consistent practice in Virginia and

other states when the evidence is found insufficient to sustain

conviction on appeal, but sufficient to sustain a conviction on

a lesser-included offense, is to remand the case for retrial on

the lesser offense); Stanley v. Commonwealth, 12 Va. App. 867,

407 S.E.2d 13 (1991) (reversing conviction of possession with

intent to distribute and remanding for a new trial on lesser

offense of possession of cocaine if the Commonwealth so

decides).

     Because we reverse the convictions, we find it unnecessary

to address the trial judge's refusal to strike a juror for

cause.

                                                          Reversed.




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