                       COURT OF APPEALS OF VIRGINIA


Present: Judges Bray, Clements and Agee
Argued at Salem, Virginia


CLINTON CECIL HARDEN
                                          MEMORANDUM OPINION * BY
v.   Record No. 0758-00-3                  JUDGE RICHARD S. BRAY
                                               JULY 17, 2001
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
                    William W. Sweeney, Judge

          Dawn E. Wright (Amanda E. Shaw; Office of the
          Public Defender, on brief), for appellant.

          Virginia B. Theisen, Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellee.


     Clinton Cecil Harden (defendant) was convicted in a bench

trial for possession of cocaine, related possession of a firearm

and possession of a firearm by a convicted felon, violations of

Code §§ 18.2-250, -308.4, and –308.2, respectively.    On appeal, he

challenges only the conviction for possession of a firearm by a

convicted felon, contending the trial court erroneously granted

the Commonwealth a recess to obtain additional evidence and,

thereafter, permitted introduction of such evidence.    Finding no

error, we affirm the conviction.



     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     The parties are fully conversant with the record, and we

recite only those facts necessary to a disposition of the appeal.

In accordance with well established principles, we review the

evidence in the light most favorable to the party prevailing

below, the Commonwealth in this instance.   Watkins v.

Commonwealth, 26 Va. App. 335, 348, 494 S.E.2d 859, 866 (1998)

(citation omitted).

                                   I.

     At trial on the instant offense, the Commonwealth, seeking to

establish the requisite prior felony conviction, offered into

evidence "a certified copy of [a] conviction order," "Exhibit 1,"

which memorialized the finding, "Guilty as Charged," of the

Lynchburg Juvenile and Domestic Relations District Court (J&D

court) in an earlier felony prosecution of defendant.    Defense

counsel objected, contending the order, absent the related

"disposition or sentencing order," did not properly establish "a

. . . prior conviction."   Unable to produce a certified copy of

the attendant disposition order, the Commonwealth moved the court

to "adjourn . . . to allow us [the] opportunity to present [the

J&D court] dispositional order."    The court granted the motion,

over defendant's objection, and the Commonwealth "rested its case

in chief[,] subject to the . . . Exhibit 1 matter."   The court

then entertained defense motions to strike and recessed "to read




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the cases" and allow the Commonwealth to pursue "that other

matter."

     Shortly thereafter, the proceedings reconvened and the

Commonwealth advised that "paperwork" reflecting disposition of

the J&D prosecution had not been located and elected to rely upon

the "presumption of regularity" accorded the J&D court

adjudication as proof of the prior conviction.   In response,

defendant again challenged the sufficiency of the Commonwealth's

evidence to prove the prior felony conviction.   Reasoning "that

Exhibit 1 . . . create[d] a prima facie factual case of the

defendant having previously been convicted of a felony," the court

pronounced defendant "guilty as charged in the indictment[]," but

expressly reserved to defendant's counsel the right "to look into

the matter further and present . . . additional evidence[] . . .

within ten days . . . ."

     Later that same day, prior to entry of the order reflecting

the court's earlier ruling, counsel for defendant, the prosecutor

and the trial judge were together in chambers on an unrelated

matter, when the prosecutor was delivered a certified copy of the

elusive disposition order, which the court then admitted into

evidence, marked "Exhibit 1A."    The subsequent trial order

entered by the court recited the conviction of defendant for the

subject offense but "allow[ed] defense counsel 10 days . . . to

present evidence in objection to Commonwealth's Exhibit #1 and



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#1A, at which time the court may reconsider its ruling . . . ."

In response to defendant's subsequent written objection to

"Exhibit 1A," the court noted the Commonwealth would be "allow[ed]

to formally introduce the final J&D judgment order at sentencing."

The disputed exhibit, then a part of the record, was again

received into evidence at the sentencing hearing, despite

defendant's objection, resulting in the instant appeal.

                                 II.

     As defendant correctly reminds us, the Commonwealth must

prove each element of the subject offense beyond a reasonable

doubt, including a prior felony conviction of defendant. 1    We

further acknowledge "[i]t is . . . now well established in our

jurisprudence that a 'conviction' ordinarily embraces both an

adjudication of guilt and a related sentence, thus concluding a

prosecution by final order."    Webb v. Commonwealth, 31 Va. App.

466, 470, 524 S.E.2d 164, 166 (2000).    Nevertheless, we do not

agree that the court erroneously granted the Commonwealth's motion


     1
         Code § 18.2-308.2 provides in pertinent part:

            It shall be unlawful for (i) any person who
            has been convicted of a felony or (ii) any
            person under the age of twenty-nine who was
            found guilty as a juvenile fourteen years of
            age or older at the time of the offense of a
            delinquent act which would be a felony if
            committed by an adult, . . . to knowingly
            and intentionally possess or transport any
            firearm . . . .




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to recess the proceedings and, later, improperly admitted the

dispositional order, "Exhibit 1A," into evidence.

     In conducting trial, "'the order of proof is a matter

within the sound discretion of the . . . court and [an

appellate] court will not reverse the judgment except in very

exceptional cases, and, unless it affirmatively appears from the

record that this discretion has been abused, [an appellate]

court will not disturb the trial court's ruling.'"    Lebedun v.

Commonwealth, 27 Va. App. 697, 715, 501 S.E.2d 427, 436 (1998)

(citation omitted).   Similarly, "[w]hether the Commonwealth

should be permitted to introduce evidence in chief after it has

rested is [also] a matter for the sound discretion of the trial

court, and in the absence of abuse, its judgment will not be

disturbed on appeal."   Chrisman v. Commonwealth, 3 Va. App. 371,

375-76, 349 S.E.2d 899, 902 (1986).    Moreover, the trial court

is expressly empowered by Code § 19.2-183(c) to "adjourn a

trial, pending before [the court], not exceeding ten days at one

time, without the consent of the accused."   Code § 19.2-183(c).

     Here, the court granted the Commonwealth's motion to

adjourn the proceedings to provide an opportunity to locate the

dispositional order of the J&D court.   The Commonwealth then

rested, expressly reserving the right to pursue such evidence in

accordance with the ruling of the court, defense arguments to

strike the evidence were entertained, and the court recessed to



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consider the issues and permit the Commonwealth to "look into

the other matter."   Reconvening, the court found defendant

"guilty," subject to the receipt and consideration of further

evidence.   Later in the day, before the court had entered the

order memorializing these incidents of trial, the disputed

evidence was produced by the Commonwealth, the record reopened

by the court, and the document introduced and marked "Exhibit

1A."

       Clearly, the court did not enter the trial order

adjudicating defendant guilty, which expressly referenced

"Exhibit 1A," until after the exhibit had been received into

evidence.   "[A] court speaks only through its written orders.

And, 'orders speak as of the day they were entered.'"     Wagner v.

Shird, 257 Va. 584, 588, 514 S.E.2d 613, 615 (1999) (citation

omitted).   Thus, the court simply permitted the Commonwealth to

reopen her case-in-chief, while the proceedings remained within

the breast of the court, and introduce the exhibit.     The court's

response to defendant's subsequent written objection, advising

the parties that the Commonwealth would be allowed to "formally

introduce" the exhibit at the forthcoming sentencing hearing and

attendant events confirmed the earlier ruling.

       The "exercise [of judicial discretion] implies

conscientious judgment, not arbitrary action.    It takes account

of the law and the particular circumstances of the case and is



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'directed by the reason and conscience of the judge to a just

result.'"   Slayton v. Commonwealth, 185 Va. 357, 367, 385 S.E.2d

479, 484 (1946) (citation omitted).

     Under the instant circumstances, we find no abuse of

discretion by the court, either in recessing the proceedings or

permitting the Commonwealth to reopen her case-in-chief and

receive "Exhibit 1A" into evidence.

     Accordingly, we affirm the conviction.

                                              Affirmed.




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