Sidney Delwood Thacker, Sr. v Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: 	Chief Judge Moon, Judges Elder and Fitzpatrick
SIDNEY DELWOOD THACKER, SR. MEMORANDUM OPINION* BY
v. 	Record No. 2072-94-2 	JUDGE LARRY G. ELDER
DECEMBER 19, 1995
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
Paul M. Peatross, Jr., Judge
(Frederick T. Heblich, Jr.; Parker, McElwain &
Jacobs, P.C., on brief), for appellant. 	Appellant
submitting on brief.
(James S. Gilmore, III, Attorney General;
H. Elizabeth Shaffer, Assistant Attorney General,
on brief), for appellee. 	Appellee submitting
on brief.
Sidney Delwood Thacker, Sr. (appellant) appeals his
conviction for second offense driving under the influence (DUI)
in violation of Code §§ 18.2-266 and 18.2-270. 	Appellant
contends the evidence failed to support the instant conviction
where the conviction order from appellant's prior DUI offense did
not list the date of the prior offense. 	Agreeing with appellant,
we reverse his conviction and remand for further proceedings if
the Commonwealth be so advised.
The facts reveal that Albemarle County Police arrested and
charged appellant with driving under the influence of alcohol on
April 9, 1994. 	At trial in the circuit court on October 14,
*Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

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1994, before the Honorable Paul M. Peatross, Jr., the
Commonwealth introduced a certified copy of a prior order signed
by Judge Peatross, which showed an earlier DUI conviction from
May 22, 1992. 	Importantly, appellant's May 22, 1992 conviction
order did not provide the date of the offense.
Appellant argued that without proof of the actual date of
the earlier offense, the Commonwealth failed to prove the instant
charge occurred within ten years of the earlier offense. 	Judge
Peatross rejected this argument after noting the date of the
conviction of the prior offense and noting it was he who had
entered the order of the prior conviction. 	Judge Peatross
concluded, "that the order was sufficient to prove that the prior
offense contained in that order had occurred within ten years of
the offense for which the defendant was on trial." 	Judge
Peatross then found appellant guilty of the charge.
"It is elementary that the burden is on the Commonwealth to
prove every essential element of the offense beyond a reasonable
doubt." 	Dowdy v. Commonwealth, 220 Va. 114, 116, 255 S.E.2d 506,
508 (1979)(citation omitted). 	In this case, in order to obtain
the enhanced penalties of Code § 18.2-270,1 the Commonwealth had
to prove beyond a reasonable doubt that appellant committed the
1 This section states, in pertinent part:
Any person convicted of a second offense committed within a
period of five to ten years of a first offense under Code
§ 18.2-266 shall be punishable by a fine of not less than
$200 nor more than $2500 and by confinement in jail for not
less than one month nor more than one year.

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instant DUI offense within a period of ten years after the first
DUI offense. 	The Commonwealth failed to meet this burden.
The instant offense occurred on April 9, 1994. 	The
Commonwealth therefore had to prove the first offense occurred
after April 9, 1984. 	The conviction date, listed on the trial
judge's order for appellant's first DUI conviction, was May 22,
1992. 	From this, the trial judge took judicial notice that the
first offense must have occurred sometime before May 22, 1992 but
sometime after April 9, 1984. 	The trial judge's action in this
regard was improper and constitutes reversible error.
As this Court has explained:
Courts may take judicial notice of facts commonly known
from human experience, but facts which are not commonly
known must be proved. 	The individual and extrajudicial
knowledge of a judge cannot be used to dispense with
proof of facts not properly the subject of judicial
notice, and cannot be resorted to for the purpose of
supplementing the record.
Lassen v. Lassen, 8 Va. App. 502, 507, 383 S.E.2d 471, 474
(1989)(citing Darnell v. Barker, 179 Va. 86, 93, 18 S.E.2d 271,
275 (1942)). 	A judge's "personal knowledge cannot be a basis of
judicial notice, at least as to matters of fact." 	Charles E.
Friend, The Law of Evidence in Virginia, § 19-2, at 261 (4th ed.
1993 & Supp. 1994)(footnote omitted & emphasis added).
Accordingly, we reverse the conviction and remand for
further action if the Commonwealth be so advised.
Reversed and remanded.