                                          COURT OF APPEALS OF VIRGINIA


            Present: Judges Elder, Humphreys and Huff
PUBLISHED


            Argued at Chesapeake, Virginia


            JAYQUANE D. PERRY
                                                                                           OPINION BY
            v.     Record No. 2171-11-1                                                JUDGE GLEN A. HUFF
                                                                                          MARCH 5, 2013
            COMMONWEALTH OF VIRGINIA


                              FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                                      John C. Morrison, Jr., Judge Designate

                           J. Barry McCracken, Assistant Public Defender (Office of the Public
                           Defender, on brief), for appellant.

                           Aaron J. Campbell, Assistant Attorney General (Kenneth T.
                           Cuccinelli, II, Attorney General, on brief), for appellee.


                   Jayquane D. Perry (“appellant”) appeals his conviction of possession of a firearm after

            having been adjudicated delinquent of an act which would be a felony if committed by an adult,

            in violation of Code § 18.2-308.2. Following a jury trial in the Circuit Court of the City of

            Norfolk (“trial court”), appellant was sentenced to five years in prison. On appeal, appellant

            contends that the trial court erred in 1) admitting into evidence an exhibit reflecting his

            adjudicatory hearing in the Norfolk Juvenile and Domestic Relations District Court (“JDR

            court”) for a previous violation of Code § 18.2-308.2, when such document did not constitute an

            adjudication of delinquency and thus had no tendency to prove guilt; and 2) denying the motions

            to strike, when the evidence did not establish that he had a prior adjudication of delinquency and

            that the instrument was a firearm. For the following reasons, we affirm the trial court’s

            judgment.
                                        I. BACKGROUND

       On appeal, “‘we consider the evidence and all reasonable inferences flowing from that

evidence in the light most favorable to the Commonwealth, the prevailing party at trial.’”

Williams v. Commonwealth, 49 Va. App. 439, 442, 642 S.E.2d 295, 296 (2007) (en banc)

(quoting Jackson v. Commonwealth, 267 Va. 666, 672, 594 S.E.2d 595, 598 (2004)). So viewed,

the evidence is as follows.

       On October 2, 2010, police officers were dispatched to an apartment building in Norfolk

after receiving a telephone call about narcotics usage and trespassing on those premises. Officer

John Thomas (“Thomas”) and Officer Laura Mason (“Mason”), both with the Norfolk Police

Department, parked outside of the building and approached the front door. The door was

standing open, and the officers “smelled the strong odor of burnt marijuana coming from the

stairwell” inside.

       As Thomas crossed the threshold of the building, he observed a man “standing in the

middle of the doorway counting money,” as well as several other individuals sitting on the stairs.

Thomas “asked everybody to exit the stairwell,” after which the individuals filed out of the

building onto the sidewalk. Once they had congregated outside, Thomas and Mason started to

explain to them why they were investigating the area. Before they could finish, Thomas

observed one of the individuals, later identified as appellant, sprint away from the building area.

Mason tried unsuccessfully to activate her taser on appellant as he ran by her.

       As appellant crossed a nearby street, Thomas “saw a revolver, a firearm fall from the

right side of his body from under the T-shirt . . . into the middle of the street.” Thomas also

“heard the metal hit the asphalt,” then moments later saw the revolver “spinning in the middle of

the street.” Thomas later testified at appellant’s jury trial that he had received special training in

firearms and that the instrument in question was a Smith & Wesson revolver. Thomas also

                                                 -2-
testified with regard to the general characteristics of revolvers. In particular, Thomas stated that

“[a]t the time the trigger is pulled, the firing pin is going to hit the strike plate on the round

which then sends the round out of the barrel by force.”

        Mason did not see the firearm fall from appellant’s clothing, but heard “a loud clang” as

appellant ran and observed a firearm spinning in the middle of the street. Mason recorded the

location of the firearm, then secured the firearm and took it into police custody. As part of this

process, Mason removed six rounds of ammunition from the loaded revolver.

        Officer Christopher Doukas (“Doukas”), with the Norfolk Police Department, responded

to the scene just as appellant started running away from the group of individuals assembled near

Mason and Thomas. Doukas immediately began pursuing appellant. As appellant crossed the

street, Doukas “heard a loud metal clank on the pavement,” but he never saw any object on the

street as he ran after appellant. Doukas took appellant into custody shortly thereafter.

        In order to establish at trial that appellant had a prior adjudication of delinquency, the

Commonwealth introduced as an exhibit a document showing appellant’s adjudication in the

JDR court for another violation of the same Code provision. The document was titled “order”;

stated that the type of case was a felony violation of Code § 18.2-308.2(A) and that the type of

hearing was an adjudicatory hearing; indicated that appellant had pleaded guilty and that the JDR

court had found him guilty, as well as the judge’s notation that “[h]e is a convicted felon”;

ordered that appellant be remanded to “NDH” and that a social history be prepared; and was

date-stamped and signed by the judge.

        Appellant objected to the admission of the document into evidence on the basis that the

document did not show a final conviction. Specifically, appellant argued that “in order to have it

appropriately to the jury, it has to be evidence of finality. The documentation that they have in

the exhibit [is] itself listed as adjudicatory, [whereas] I believe that there has to be something that

                                                  -3-
suggests disposition. Adjudicatory indicates there are a number [of] options.” The trial court

overruled the objection and admitted the exhibit into evidence, finding that it constituted a “final

adjudication of guilt.”

        At the conclusion of all of the evidence, appellant made a motion to strike on the basis

that the Commonwealth had not proved his prior adjudication of delinquency. Appellant also

argued the evidence was insufficient to establish that he possessed the instrument or that the

instrument was in fact a firearm, specifically alleging that Thomas’s testimony was inadequate to

establish this fact. The trial court denied the motion and convicted appellant of violating Code

§ 18.2-308.2. This appeal followed.

                                          II. ANALYSIS

           A. Admissibility of the Evidence of the Prior Adjudication of Delinquency

        On appeal, appellant first contends that the trial court erred in admitting into evidence an

exhibit reflecting his juvenile adjudication for a previous violation of Code § 18.2-308.2, as such

exhibit was inadequate to prove his prior adjudication of delinquency. Specifically, appellant

argues that the exhibit did “not constitute a final conviction order,” but rather was “merely a

record of an adjudicatory hearing establishing [his] plea and the [JDR court’s] initial acceptance

of that plea.”

        “‘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 (1982)). “The

                                                -4-
proponent of the evidence bears the burden of establishing[,] by a preponderance of the evidence,

the facts necessary to support its admissibility.” Id.

        “‘It is a fundamental principle of jurisprudence that evidence which is not relevant is not

admissible.’” McMillan v. Commonwealth, 277 Va. 11, 22, 671 S.E.2d 396, 401 (2009)

(quoting Davis v. Marshall Homes, 265 Va. 159, 166, 576 S.E.2d 504, 507 (2003)). “‘Evidence

is relevant if it tends to prove or disprove, or is pertinent to, matters in issue.’” Id. (quoting

McCloud v. Commonwealth, 269 Va. 242, 257, 609 S.E.2d 16, 24 (2005)).

                  “Evidence which has no tendency to prove guilt, but only serves to
                  prejudice an accused, should be excluded on the ground of lack of
                  relevancy. For evidence to be admissible it must relate and be
                  confined to the matters in issue and tend to prove an offense or be
                  pertinent thereto. Evidence of collateral facts or those incapable of
                  affording any reasonable presumption or inference on matters in
                  issue, because too remote or irrelevant, cannot be accepted in
                  evidence.”

Id. (quoting Smith v. Commonwealth, 223 Va. 721, 723, 292 S.E.2d 362, 363 (1982)).

        Appellant asserts that the only evidence relevant to prove a prior adjudication of

delinquency is a final judgment order as defined by Code § 19.2-307. Such a judgment order

“shall set forth the plea, the verdict or findings and the adjudication and sentence.” Code

§ 19.2-307. The element of proof required by Code § 18.2-308.2(A)(iii), however, is an

adjudication of delinquency “of a delinquent act which would be a felony if committed by an

adult.” 1


        1
            Code § 18.2-308.2(A) provides, in relevant part, that

                  [i]t shall be unlawful for . . . (iii) any person under the age of 29
                  who was adjudicated delinquent as a juvenile 14 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 or ammunition for a
                  firearm . . . .


                                                  -5-
       The evidence in this case was an exhibit that the Commonwealth asserted was an

adjudication of delinquency under Code § 18.2-308.2(A)(iii). The document was titled “order,”

and described the proceeding as an adjudicatory hearing based on the felony charge of violating

Code § 18.2-308.2(A). The document also established that appellant pleaded guilty to the charge

and that the JDR court found appellant guilty following his plea of guilty. It further indicated

that appellant should be remanded to the “NDH” and that a social history should be prepared.

The document was date-stamped and signed by the JDR court judge and also provided that the

matter was continued until a later date, ostensibly for the purpose of reaching a disposition at that

time. Based on the foregoing, the document in question plainly evidenced an adjudication of

delinquency under Code § 18.2-308.2(A)(iii), upon which a judgment of conviction was found. 2

       Based on this determination, it follows that the adjudication order was relevant to the

matter of whether appellant had a prior adjudication of delinquency. The order in question

indicated not only that appellant pleaded guilty to a felony charge, but also that the JDR court

accepted his guilty plea. In sum, the order directly related to the charged offense and tended to

prove that appellant had, in fact, satisfied the requisite element of a prior adjudication of

delinquency. Accordingly, the trial court did not abuse its discretion in admitting the order into

evidence.




       2
          The Supreme Court stated in Palmer v. Commonwealth, 269 Va. 203, 609 S.E.2d 308
(2005), that Code § 19.2-307 requires judgment orders to “reflect, among other things, the plea
of the defendant, the verdict or findings of the fact finder, and the adjudication and sentence of
the court.” Palmer, 269 Va. at 207, 609 S.E.2d at 310 (emphasis added). However, to the extent
the Court in Palmer purported to impose this as a requirement for admissibility or sufficiency, it
is dicta because in Palmer, the records reflected the sentence, and it was the adjudication that was
missing. In the instant case, by contrast, the order reflects the adjudication but not the sentence.
                                                 -6-
         B. Sufficiency of the Evidence to Prove the Prior Adjudication of Delinquency

       Appellant also contends the evidence was insufficient to support his conviction on the

basis that the Commonwealth neither proved the requisite prior adjudication of delinquency nor

established that the instrument was a firearm within the meaning of Code § 18.2-308.2.

       “When considering on appeal the sufficiency of the evidence presented below, we

‘presume the judgment of the trial court to be correct’ and reverse only if the trial court’s

decision is ‘plainly wrong or without evidence to support it.’” Wood v. Commonwealth, 57

Va. App. 286, 296, 701 S.E.2d 810, 815 (2010) (quoting Davis v. Commonwealth, 39 Va. App.

96, 99, 570 S.E.2d 875, 876-77 (2002)). Under this standard, the relevant inquiry is whether

“any rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979).

       Moreover, “[t]here is no distinction in the law between the weight or value to be given to

either direct or circumstantial evidence.” Commonwealth v. Hudson, 265 Va. 505, 512, 578

S.E.2d 781, 785 (2003). “‘While no single piece of evidence may be sufficient, the combined

force of many concurrent and related circumstances, each insufficient in itself, may lead a

reasonable mind irresistibly to a conclusion.’” Id. at 514, 578 S.E.2d at 786 (quoting Derr v.

Commonwealth, 242 Va. 413, 425, 410 S.E.2d 662, 669 (1991)).

                               1. Prior Adjudication of Delinquency

       First, appellant argues that the evidence is insufficient to sustain the conviction on the

basis that the Commonwealth did not prove the prior adjudication of delinquency. Appellant

relies on the same argument he made for the inadmissibility of the exhibit, namely that it “was

not evidence of a final conviction since it did not reflect the final disposition of the case.” Thus,

appellant essentially limits his challenge on the sufficiency of the evidence to the argument that




                                                -7-
the trial court relied on improperly admitted evidence to satisfy an essential element for

conviction.

       “When the fact of a prior conviction is an element of a charged offense, the burden is on

the Commonwealth to prove that prior conviction beyond a reasonable doubt.” Palmer, 269 Va.

at 207, 609 S.E.2d at 310. “Prior convictions may be proved by any competent evidence.” Perez

v. Commonwealth, 274 Va. 724, 730, 652 S.E.2d 95, 98 (2007) (citing Palmer, 269 Va. at 207,

609 S.E.2d at 310; McBride v. Commonwealth, 24 Va. App. 30, 34, 480 S.E.2d 126, 128

(1997)). “[W]hen the Commonwealth seeks to prove a prior conviction as an element of a crime

by presenting an order entered in that prior case, the order must show that a judgment of

conviction was entered in adjudication of the charge.” Palmer, 269 Va. at 207, 609 S.E.2d at

310.

       As noted above, the document constituted an adjudication of delinquency under

Code § 18.2-308.2(A)(iii) and was properly admitted into evidence. Although the disposition

order itself was not admitted, the record does not indicate that appellant’s conviction changed at

any time following the adjudication hearing and finding of guilt. 3 Therefore, the trial court did

not err in finding the evidence sufficient to prove appellant’s prior adjudication of delinquency.




       3
         Appellant argues that Code § 16.1-278.8(A)(5) permits the dismissal of charges after an
adjudicatory hearing under certain conditions and that this fact, combined with the absence of a
sentencing order, prevents a finding that appellant had a prior adjudication of delinquency.
Code § 16.1-278.8(A)(5) does provide that a juvenile court may “defer disposition . . . for a
specific period of time” based upon certain conditions and then dismiss the proceedings “[u]pon
fulfillment of the terms and conditions.” It specifically states, however, that the juvenile court
may do so only “[w]ithout entering a judgment of guilty” and that “[d]ischarge and dismissal
under these provisions shall be without adjudication of guilt.” Code § 16.1-278.8(A)(5)
(emphases added). Here, by contrast, the JDR court records make clear that an adjudication of
guilt was made. Thus, the outcome put forth by appellant under this statute is not available in the
present case.
                                                -8-
                                              2. Firearm

        Second, appellant argues the evidence is insufficient to sustain his conviction on the basis

that the Commonwealth did not prove the instrument was a firearm. Specifically, he contends

that the evidence admitted at trial, in this case the instrument itself as well as the testimony of the

responding officers, did not establish that the instrument satisfied the requirements of

Code § 18.2-308.2.

        “Code § 18.2-308.2 provides no express definition of the term ‘firearm.’” Armstrong v.

Commonwealth, 263 Va. 573, 583, 562 S.E.2d 139, 145 (2002). It is settled, however, that “in

order to sustain a conviction for possessing a firearm in violation of Code § 18.2-308.2, the

evidence need show only that a person subject to the provisions of that statute possessed an

instrument which was designed, made, and intended to expel a projectile by means of an

explosion.” Id. at 584, 562 S.E.2d at 145. “It is not necessary that the Commonwealth prove the

instrument was ‘operable,’ ‘capable’ of being fired, or had the ‘actual capacity to do serious

harm.’” Id.

        In considering the entire record in this case, the evidence was sufficient to prove that

appellant possessed a firearm. Thomas testified that he had received training on firearms and

that the instrument in question was a “Smith & Wesson revolver.” Thomas stated that revolvers

operate such that “[a]t the time the trigger is pulled, the firing pin is going to hit the strike plate

on the round which then sends the round out of the barrel by force.” Mason’s testimony also

indicated that the instrument was loaded in that she removed six rounds of ammunition when she

retrieved the instrument from the street. Moreover, the firearm itself was admitted into evidence

at trial, and thus was available for examination by the jury. For these reasons, a rational trier of

fact could find beyond a reasonable doubt that the instrument was “designed, made, and intended




                                                  -9-
to expel a projectile by means of an explosion.” Id. Thus, the trial court did not err in finding

the evidence sufficient to sustain appellant’s conviction under Code § 18.2-308.2.

                                       III. CONCLUSION

       For the foregoing reasons, we hold that the trial court did not err in admitting the

evidence pertaining to appellant’s juvenile adjudication for the purpose of establishing

appellant’s prior adjudication of delinquency. We also hold that the trial court did not err in

finding the evidence sufficient to prove appellant’s prior adjudication of delinquency and

establish that the instrument in this case was a firearm. Accordingly, we affirm the trial court’s

judgment.

                                                                                           Affirmed.




                                               - 10 -
