                                             COURT OF APPEALS OF VIRGINIA


              Present: Chief Judge Huff, Judges Decker and AtLee
UNPUBLISHED


              Argued at Chesapeake, Virginia


              JAY HOON KIM
                                                                            MEMORANDUM OPINION* BY
              v.     Record No. 0116-17-1                                    CHIEF JUDGE GLEN A. HUFF
                                                                                   OCTOBER 3, 2017
              COMMONWEALTH OF VIRGINIA


                             FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
                                               Bryant L. Sugg, Judge

                               Charles E. Haden for appellant.

                               Virginia B. Theisen, Senior Assistant Attorney General (Mark R.
                               Herring, Attorney General, on brief), for appellee.


                     Jay Hoon Kim (“appellant”) appeals his conviction of possession of a firearm by one

              under the age of twenty-nine years, who had been adjudged delinquent when he was fourteen

              years of age or older, of an act that would be a violent felony if committed by an adult, in

              violation of Code § 18.2-308.2(A). Following a bench trial in the Circuit Court of the City of

              Newport News (“trial court”), appellant was convicted as charged and sentenced to the

              mandatory minimum of five years’ imprisonment. On appeal, appellant argues that the trial

              court erred (1) by admitting “a purported felony conviction order from a juvenile court” that did

              not indicate whether appellant had counsel when he was convicted, and (2) by denying

              appellant’s motion to strike where, because the conviction order was invalid, there was

              insufficient evidence to establish a prior felony conviction. For the reasons that follow, this

              Court affirms the trial court’s rulings.



                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                                       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.

                                   Adjudication of delinquency

       On February 4, 2008, appellant was charged via petition with two counts of breaking and

entering and one count of grand larceny. As appellant was a juvenile at the time, he stood trial

for those charges before the Hampton Juvenile and Domestic Relations District Court.

       A document from that court labeled “Court Record of Proceedings and Court Orders”

details the progression of appellant’s juvenile case. It indicates that on February 5, 2008, the

court appointed the public defender to represent appellant. From this initial appointment, the

document recites that the public defender was present with appellant at the following points

during the proceedings:

              a February 26, 2008 motion to continue,
              a March 18, 2008 motion for a competency evaluation,
              an April 30, 2008 motion to continue,
              a May 21, 2008 hearing during which the court found appellant competent to
               stand trial,
              an August 20, 2008 hearing during which the court appointed a guardian ad litem
               because appellant’s mother was not in attendance, and
              a September 3, 2008 hearing during which the court continued the matter to
               November 19, 2008 for disposition.

Additionally, a juvenile court document entitled “Adjudicatory/Disposition Record of

Proceedings” records that appellant pled guilty to all charges and was convicted of all charges

during an “adjudicatory hearing” on June 25, 2008. In the section for the adjudicatory hearing

labeled “Present,” boxes are marked for “Juvenile/Defendant” and “Mother,” but not for

                                                -2-
“Attorney.” The document’s header, however, contains the handwritten words “Public

Defender” in a section labeled “Attorney A/R/W.” Finally, that document records that appellant,

his attorney, the guardian ad litem, and a foster parent were all present for the dispositional

hearing on November 19, 2008, during which the juvenile court sentenced appellant to thirty

days of “post dispositional confinement,” all of which it suspended on certain conditions.

                                        The present offense

       Newport News police officers received a property damage call on October 28, 2015,

reporting individuals defacing campaign signs. Upon arriving at the scene, they located

appellant and observed two firearms on his person. The officers then checked appellant’s

identification information and learned that he had been adjudicated delinquent as a juvenile aged

fourteen years or older at the time of the offense of acts which would have been felonies if

committed by an adult.

                                  Material trial court proceedings

       At trial, the Commonwealth sought to introduce a record of appellant’s 2008 convictions

in the juvenile court. Counsel for appellant objected on the grounds that the

Adjudicatory/Disposition Record of Proceedings form did not indicate the presence of counsel or

appellant’s affirmative waiver of counsel on the date he was convicted. Counsel specifically

contended that due to this absence, the order was invalid on its face and therefore the

presumption of regularity would not apply. The Commonwealth argued that because other

documentation from the juvenile court proceedings established the presence of counsel, the trial

court need not engage in conjecture to determine what occurred in the juvenile court and thus the

presumption of regularity would apply. After reviewing the contested documents, the trial court

admitted them as evidence of appellant’s prior convictions. In so holding, the trial court

specifically found that the presumption of regularity applied because “it appears . . . there’s a

                                                -3-
scriber’s error, that box was inadvertently left blank based on the evidence that’s presented in the

packet.”

        Appellant’s counsel later moved to strike the Commonwealth’s evidence on the ground

that the juvenile court order was invalid and thus did not suffice to prove appellant’s status as a

convicted felon for purposes of establishing the firearm possession offense. The trial court

overruled the motion, and after appellant declined to present evidence, overruled appellant’s

renewed motion to strike. The trial court convicted appellant as charged, and this appeal

followed.

                                           II. ANALYSIS

        Appellant first argues that the trial court abused its discretion in admitting the juvenile

court conviction order introduced by the Commonwealth because that order did not reflect the

presence or waiver of defense counsel. Because the presumption of regularity applies, this Court

affirms the trial court’s ruling.

        This Court reviews a trial court’s evidentiary decision under an abuse of discretion

standard. See, e.g., Campos v. Commonwealth, 67 Va. App. 690, 702, 800 S.E.2d 174, 180

(2017). Under this deferential standard, an appellate court does “not substitute [its] judgment for

that of the trial court,” but instead “consider[s] only whether the record fairly supports the trial

court’s action.” Grattan v. Commonwealth, 278 Va. 602, 620, 685 S.E.2d 634, 644 (2009)

(quoting Beck v. Commonwealth, 253 Va. 373, 385, 484 S.E.2d 898, 906 (1997)).

        Code § 18.2-308.2(A) provides in pertinent part that no “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” may “knowingly and

intentionally possess or transport any firearm.” Proof that the accused had been so adjudicated is




                                                 -4-
thus a necessary element of this offense that the Commonwealth must prove beyond a reasonable

doubt.

         “[W]hen, as here, a prior conviction is collaterally attacked in a subsequent proceeding,

‘the Commonwealth is entitled to a presumption of regularity which attends the prior conviction

because “every act of a court of competent jurisdiction shall be presumed to have been rightly

done, till the contrary appears.”’” Samuels v. Commonwealth, 27 Va. App. 119, 123, 497 S.E.2d

873, 875 (1998) (quoting Nicely v. Commonwealth, 25 Va. App. 579, 584, 490 S.E.2d 281, 283

(1997)). “[T]he presumption of regularity that attaches to final judgments makes it appropriate

[for the fact finder to presume that the conviction was obtained in compliance with the

defendant’s right to counsel under the Sixth Amendment and] to assign a proof burden to the

defendant.” Id. (second alteration in original) (quoting James v. Commonwealth, 18 Va. App.

746, 751, 446 S.E.2d 900, 903 (1994)). Accordingly, “unless the defendant presents evidence

rebutting the presumption of regularity, by which it may be presumed that the conviction was

obtained in compliance with the defendant’s right to counsel, the Commonwealth has satisfied its

burden of proving that the prior conviction was valid and, therefore, was admissible.” Id.

         This Court’s resolution of a nearly identical situation in Samuels guides our conclusion

here. In Samuels, the Commonwealth introduced a 1987 general district court criminal warrant

to establish the defendant’s prior conviction. Id. at 121, 497 S.E.2d at 874. That warrant

contained no notations or initials following the preprinted language “ATTORNEY FOR THE

ACCUSED,” and on the side of the warrant reflecting the “Judgment of the Court,” boxes for the

Commonwealth and defense in the section for “ATTORNEY(S) PRESENT” remained

unchecked. Id. at 122, 479 S.E.2d at 875. The defendant offered no evidence to suggest that his

general district court conviction was uncounseled. Id. at 121, 497 S.E.2d at 874. This Court

held that “because the defendant offered no evidence rebutting the presumption, the trial judge

                                                -5-
did not err by finding that the 1987 conviction was counseled and admitting it into evidence.”

Id. at 124, 497 S.E.2d at 875.

        Like the defendant in Samuels, appellant here presented no affirmative evidence to rebut

the presumption of regularity and instead offered only a bare assertion that the juvenile court

conviction was uncounseled. The trial court made a factual finding based on the evidence before

it that the juvenile court’s failure to check the box for “Attorney” on the

Adjudicatory/Disposition Record of Proceedings was an “inadvertent[]” “scriber’s error.” A

mere judicial omission, without more to indicate error, is insufficient to rebut the principle that

“every act of a court of competent jurisdiction shall be presumed to have been rightly done, till

the contrary appears.” Parke v. Raley, 506 U.S. 20, 30 (1992); see also James, 18 Va. App. at

752, 446 S.E.2d at 904 (holding that “[a] silent record or . . . mere naked assertion by the accused

. . . is insufficient . . . to rebut the presumption of regularity that attached” to the prior

conviction).

        Moreover, the Commonwealth presented additional evidence that appellant was

represented by counsel during the juvenile proceedings—evidence far stronger than that before

this Court in Samuels. The Court Record of Proceedings and Court Orders indicates that the

juvenile court appointed the public defender to represent appellant on February 5, 2008, one day

after appellant was first charged with the offenses. Further, notations from every hearing except

the adjudication hearing on June 25, 2008, indicate counsel’s presence. The juvenile court’s care

to preserve appellant’s rights is apparent from its decision to appoint a guardian ad litem when

appellant’s mother was unable to attend the August 20, 2008 hearing. Finally, the

Adjudicatory/Disposition Record of Proceedings, which records the juvenile court’s findings of

guilt and disposition order, contains the notation “Public Defender” in a section on the

document’s header for recording whether an attorney had been appointed for or retained by the

                                                   -6-
juvenile or that the juvenile waived representation. Relying on this information, the trial court

made a factual finding that appellant had been represented by the public defender at the time of

his juvenile court adjudicatory hearing. Because this Court “is bound by the trial court’s findings

of historical fact unless plainly wrong or without evidence to support them,” Kuhne v.

Commonwealth, 61 Va. App. 79, 86, 733 S.E.2d 667, 670 (2012) (quoting Harris v.

Commonwealth, 276 Va. 689, 695, 668 S.E.2d 141, 145 (2008)), and the Commonwealth’s

evidence supported that factual conclusion, this Court will not disturb the trial court’s finding.

       Appellant’s prior convictions were therefore valid because appellant was represented at

the time of his juvenile adjudication. Accordingly, this Court holds that the trial court did not

abuse its discretion in admitting the juvenile court conviction order into evidence.

       This Court need not reach appellant’s second assignment of error because it hinges on the

validity of the conviction order. Having held that the conviction order was valid, that order

constituted competent evidence of appellant’s juvenile felony convictions that a reasonable

factfinder could rely upon to establish the prior conviction element of Code § 18.2-308.2(A).

                                        III. CONCLUSION

       For the foregoing reasons, this Court affirms appellant’s conviction.

                                                                                           Affirmed.




                                                -7-
