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COURT OF APPEALS OF VIRGINIA
Present:    Chief Judge Fitzpatrick, Judges Baker, Benton, Coleman,
Willis, Elder, Bray, Annunziata, Overton and Bumgardner
Argued at Richmond, Virginia
CHANCE TAYLOR
OPINION BY
v.    Record No.  0938-96-2                                              JUDGE ROSEMARIE ANNUNZIATA
JULY  21,  1998
COMMONWEALTH OF VIRGINIA
UPON REHEARING EN BANC
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
John F. Daffron, Jr., Judge
Charles R. Watson for appellant.
Leah A. Darron, Assistant Attorney General
(Richard Cullen, Attorney General, on brief),
for appellee.
Chance Taylor  (appellant) appeals his convictions of three
counts of possession of cocaine with intent to distribute.    He
contends the trial court erred  (1) by admitting into evidence the
date stamp on a certificate of drug analysis apparently affixed
when the certificate was received by an employee of the trial
court's clerk's office, and  (2) by admitting the certificate of
drug analysis itself in violation of Code  §  19.2-187.    A panel of
this Court reversed the judgment of the trial court, holding that
the Commonwealth did not authenticate the date stamp.    Taylor v.
Commonwealth,  25 Va. App.  457,  463,  489 S.E.2d  250,  253  (1997).
Upon rehearing en banc, we affirm appellant's convictions.




I.
FACTS
Appellant was charged with three counts of possessing
cocaine with intent to distribute and was tried on October  27,
1995.    At trial, a narcotics detective testified that on three
separate occasions he purchased a substance from appellant that
appeared to be crack cocaine.    After the detective testified, the
Commonwealth's attorney offered a certificate of drug analysis
(certificate) prepared by Anthony A. Burke, a forensic scientist
with the Commonwealth's Division of Forensic Science.    The
certificate included Mr. Burke's written statement that a
laboratory analysis of the items purchased from appellant
established that they were cocaine.    On the face of the
certificate was an impression made by a mechanical date stamp
that stated:
RECEIVED AND FILED
JUL  13  1995
CHESTERFIELD CIRCUIT
COURT
Other than the date stamp, the certificate contained no
handwriting or other indicia that it was received by the clerk of
the trial court prior to appellant's trial.
Appellant objected to the admission of the certificate on
the ground that the Commonwealth failed to prove the certificate
had been filed with the clerk of the trial court at least seven
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days prior to trial as required by Code  §  19.2-187.    He objected
to the admission of the date stamp on the certificate, contending
that it was inadmissible to prove the certificate was timely
filed because it had not been authenticated.    The trial court
overruled appellant's objection and received both the certificate
and the date stamp into evidence.    Appellant later renewed his
objection to the certificate and date stamp in a motion to
strike.    The trial court overruled the motion and convicted
appellant of all three charges.
During the sentencing phase of the proceeding, appellant
moved the trial court to reconsider its ruling on his motion to
strike.    He argued that, in addition to the lack of evidence
establishing the date stamp's authenticity, the date stamp on the
certificate was inadmissible because it was hearsay and not
within any exception to the hearsay rule.    He argued that the
inadmissibility of the date stamp rendered the certificate
inadmissible because, without the date stamp, the Commonwealth
had failed to prove that the certificate had been filed in
accordance with Code  §  19.2-187.    The trial court overruled
appellant's motion and sentenced him.
On appeal, appellant contends that the trial court erred
when it admitted the date stamp on the certificate.    He argues
that the date stamp was inadmissible either because it was not
authenticated or it was hearsay and not within an exception to
the hearsay rule.    We disagree and affirm appellant's
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convictions.
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II.
AUTHENTICATION OF THE DATE STAMP
Appellant initially contends the date stamp was inadmissible
because it was not authenticated.    "'As a general rule, no
writing may be admitted into evidence unless and until it has
been "authenticated"  .  .  .                                             .'"    Proctor v. Commonwealth,  14 Va.
App.  937,  938,  419 S.E.2d  867,  868  (1992)  (quoting Charles E.
Friend, The Law of Evidence in Virginia  §  180  (3d ed.  1988)).
Authentication is the "providing of an evidentiary basis
sufficient for the trier of fact to conclude that the writing
came from the source claimed."    Walters v. Littleton,  223 Va.
446,  451,  290 S.E.2d  839,  842  (1982)  (citing, inter alia, Bain v.
Commonwealth,  215 Va.  89,  205 S.E.2d  641  (1974)); see also
Proctor,  14 Va. App. at  938,  419 S.E.2d at  868  (describing
authentication as showing a document to be genuine)  (quoting
Friend, supra, at  §  180).
Appellant does not challenge the authentication of the
certificate of analysis itself, but, rather, the authentication
of the date stamp affixed to the certificate.    Under Code
§  19.2-187, a certificate of analysis is admissible to prove the
truth of its contents without the appearance in court of the
technician who conducted the analysis, provided the Commonwealth
strictly complies with several "specific safeguards" listed in
the statute.    See Myrick v. Commonwealth,  13 Va. App.  333,  337,
412 S.E.2d  176,  178  (1991).    Included among the mandatory
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safeguards is the requirement that the certificate be "filed with
the clerk of the court hearing the case at least seven days prior
to the hearing or trial."    Code  §  19.2-187.    When the
Commonwealth seeks to admit a certificate of analysis containing
hearsay evidence, it has the burden of proving that the
certificate satisfies the requirements of Code  §  19.2-187,
including the filing requirement.    See Neal v. Commonwealth,  15
Va. App.  416,  420,  425 S.E.2d  521,  524  (1992)  (stating that
"[t]he party seeking to rely on an exception to the hearsay rule
has the burden of establishing admissibility").    The
admissibility of the date stamp on the certificate in this case
is, therefore, essential to proving the Commonwealth's claim that
the certificate had been filed in accordance with Code
§  19.2-187.
We hold that the trial court properly overruled appellant's
objection to the admission of the certificate of analysis based
on his claim that the date stamp was not properly authenticated.
In addressing the authenticity of the date stamp, the trial
court acknowledged appellant's argument that "[t]here is no
evidence to say that that's the proper stamp of the court or
that, in fact, that's the kind of stamp the court uses."    The
court ruled, however, that the date stamp "is an official stamp
of the court and papers received in the court at the clerk's
office."
"[T]he fact of judicial notice must appear from the record."
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Sutherland v. Commonwealth,  6 Va. App.  378,  383,  368 S.E.2d  295,
298  (1988)  (citing Keesee v. Commonwealth,  216 Va.  174,  175,  217
S.E.2d  808,  809  (1975)  (per curiam)).    Although the court did not
use the words "judicial notice," we find that the trial court's
ruling indicates that it took judicial notice of the identity of
the date stamp.
"Judicial notice permits a court to determine the existence
of a fact without formal evidence tending to support that fact."
Scafetta v. Arlington County,  13 Va. App.  646,  648,  414 S.E.2d
438,  439  (citing Friend, supra, at  §  268), aff'd on reh'g,  14 Va.
App.  834,  425 S.E.2d  807  (1992).    A trial court may take judicial
notice of those facts that are either  (1) so "generally known"
within the jurisdiction or  (2) so "easily ascertainable" by
reference to reliable sources that reasonably informed people in
the community would not regard them as reasonably subject to
dispute.    Ryan v. Commonwealth,  219 Va.  439,  445,  247 S.E.2d  698,
703  (1978); see also  2 McCormick on Evidence  §  328  (John William
Strong ed.,  4th ed.  1992); Friend, supra, at  §  19-2.
"The taking of judicial notice is generally within the
discretion of the trial court."    Ryan,  219 Va. at  446,  247 S.E.2d
at  703  (citing Randall v. Commonwealth,  183 Va.  182,  186,  31
S.E.2d  571,  572  (1944)).    A trial court's discretion to take
judicial notice of facts, however, is not without limits.    A
trial court may not take judicial notice of matters that are not
otherwise judicially noticeable, merely because the judge happens
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to have individual and extrajudicial knowledge of those matters.
See Darnell v. Barker,  179 Va.  86,  93,  18 S.E.2d  271,  275
(1942).    In addition, regarding judicial records, a trial court
"will not take judicial notice of its records, judgments and
orders in other and different cases or proceedings, even though
such cases or proceedings may be between the same parties and in
relation to the same subject matter."    Fleming v. Anderson,  187
Va.  788,  794,  48 S.E.2d  269,  272  (1948).    The question before
this Court is whether the trial court abused its discretion in
taking judicial notice of the date stamp's authenticity.
We find no abuse of discretion in this case.    The trial
court did not expressly state the ground on which it based its
judicial notice of the identity of its official date stamp.
Judicial notice of the identity of the official date stamp of a
court's clerk's office is proper, however, because this fact is
easily ascertainable by reference to a reliable source.    The
actual date stamp utilized by a trial court's clerk's office is
in such close proximity to a trial court that it can be easily
inspected by the trial judge to verify its identity.    With a
source of indisputable accuracy so readily accessible, a
reasonably informed person would not have regarded the identity
of the trial court's official date stamp as reasonably subject to
dispute.
II.
ADMISSION OF THE DATE STAMP AS HEARSAY
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Appellant also contends the date stamp was inadmissible
hearsay.    "'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.'"    Brown v.
Commonwealth,  25 Va. App.  171,  181,  487 S.E.2d  248,  253  (1997)
(en banc)  (quoting Blain v. Commonwealth,  7 Va. App.  10,  16,  371
S.E.2d  838,  842  (1988))  (addressing issue of whether out-of-court
statement was offered for the truth of the matter asserted).    Of
course, a trial court's discretion is not without limits.    See,
e.g., Wright v. Commonwealth,  23 Va. App.  1,  8-9,  473 S.E.2d  707,
710  (1996)  (en banc)  ("Additionally, while a trial court
generally has discretion in ruling on the admissibility of
evidence, a trial court has no discretion to apply the doctrine
of curative admissibility if the party seeking to invoke it
intentionally failed to object to the inadmissible  [hearsay]
evidence in order to gain admission of otherwise inadmissible
[hearsay] evidence."  (citations omitted)).    "[A] trial court 'by
definition abuses its discretion when it makes an error of law.'"
Shooltz v. Shooltz,  27 Va. App.  255,  271,  498 S.E.2d  437,  441
(1998)  (quoting Koon v. United States,  518 U.S.  81,  100  (1996)).
"Hearsay is an out-of-court statement offered to prove the
truth of the matter asserted."    Garcia v. Commonwealth,  21 Va.
App.  445,  450,  464 S.E.2d  563,  565  (1995)  (en banc)  (citing
Tickel v. Commonwealth,  11 Va. App.  558,  564,  400 S.E.2d  534,  538
(1991)).    "'Hearsay evidence is testimony in court, or written
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evidence, of a statement made out of court, the statement being
offered as an assertion to show the truth of matters asserted
therein, and thus resting for its value upon the credibility of
the out-of-court asserter.'"    Stevenson v. Commonwealth,  218 Va.
462,  465,  237 S.E.2d  779,  781  (1977)  (quoting McCormick on
Evidence  §  246  (2d ed.  1972)).
The date stamp in this case was written evidence of the
out-of-court statement made by an employee of the trial court's
clerk's office that the document bearing the date stamp was filed
with the clerk's office on the date indicated.    The Commonwealth
offered the date stamp to prove that the certificate of analysis
had been received and filed in the Chesterfield Circuit Court on
July  13,  1995.    As such, the date stamp was hearsay because it
was an out-of-court statement offered to prove the truth of the
matter asserted.    Nonetheless, we hold the trial court properly
admitted the date stamp under the judicial records exception to
the hearsay rule codified in Code  §  8.01-389.
"'As a general rule, hearsay evidence is incompetent and
inadmissible,' and '[t]he party seeking to rely upon an exception
to the hearsay rule has the burden of establishing
admissibility.'"    Braxton v. Commonwealth,  26 Va. App.  176,
183-84,  493 S.E.2d  688,  691  (1997)  (quoting Neal,  15 Va. App. at
420-21,  425 S.E.2d at  524).    Generally, "authenticating a
document  -- that is, proving that it is genuine  -- does not
resolve other obstacles that may prevent the evidence from being
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admissible.    The hearsay issue must be resolved independently
."    Hall v. Commonwealth,  15 Va. App.  170,  175,  421 S.E.2d
887,  890  (1992)  (citation omitted).    In Virginia, the law of
hearsay is governed by both common law and statute.    See, e.g.,
Terry v. Commonwealth,  24 Va. App.  627,  633,  484 S.E.2d  614,  616
(1997)  (explaining relationship between common law and statutory
"recent complaint" exceptions); see also Hanson v. Commonwealth,
14 Va. App.  173,  185,  416 S.E.2d  14,  21  (1992)  (explaining that
Virginia has not adopted codified rules of evidence).
Code Section  8.01-389(A) provides:
The records of any judicial proceeding and
any other official records of any court of
this Commonwealth shall be received as prima
facie evidence provided that such records are
authenticated and certified by the clerk of
the court where preserved to be a true
record.
In the same way that "Code  §  8.01-390 has codified the official
written documents exception  [to the hearsay rule] recognized in
Virginia for documents or copies of documents that are properly
authenticated in accordance with its requirements," Ingram v.
Commonwealth,  1 Va. App.  335,  340,  338 S.E.2d  657,  659  (1986),
its companion statute Code  §  8.01-389 "codifies as part of the
official records exception to the hearsay rule judicial 'records'
which are properly authenticated."    Dingus v. Commonwealth,  23
Va. App.  382,  392,  477 S.E.2d  303,  308  (1996)  (Coleman, J.,
concurring in part and dissenting in part)  (citing Owens v.
Commonwealth,  10 Va. App.  309,  311,  391 S.E.2d  605,  607  (1990)).
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Although the language of Code  §  8.01-389(A) requires that a
judicial record be "authenticated and certified by the clerk of
the court where preserved to be a true record" prior to its
admission, it does not indicate that the formal introduction of
evidence is the exclusive means by which this requirement can be
satisfied.    In Owens,  10 Va. App. at  311,  391 S.E.2d at  607
(citations omitted), we addressed the meaning of this
requirement:
For purposes of this Code section the terms
"authenticated" and "certified" are basically
synonymous and we are unwilling to place
undue significance on the fact they are used
in the conjunctive in the statute.
Authentication is merely the process of
showing that a document is genuine and that
it is what its proponent claims it to be.    As
we noted in Ingram v. Commonwealth,  1 Va.
App.  335,  338 S.E.2d  657  (1986), "[t]he
underlying rationale which justifies
admitting facts contained in official records
as an exception to the hearsay rule is that
the concern for reliability is largely
obviated because the nature and source of the
evidence enhance the prospect of its
trustworthiness."
The principles we articulated in Owens are applicable here.
Because the trial court took judicial notice that the date stamp
was genuine and was what its proponent claimed it to be, the date
stamp was authenticated within the meaning of Code  §  8.01-389(A).
The policy basis for the judicial records exception codified in
Code  §  8.01-389(A) was satisfied because the identity of the date
stamp was so easily ascertainable by reference to reliable
sources that reasonably informed people in the community would
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not regard it as reasonably subject to dispute.    We therefore
hold that the date stamp was sufficiently "authenticated and
certified" to satisfy the requirements of the statute.1    Because
the date stamp met the authentication requirement of the statute,
it fell within the judicial records exception to the hearsay
rule, and "shall be received as prima facie evidence."    Code
§  8.01-389; cf. Ingram,  1 Va. App. at  340,  338 S.E.2d at  659
(explaining that Code  §  8.01-389 codifies the official records
exception to the hearsay rule).
In summary, we hold that a court may take judicial notice of
the identity of the date stamp employed by its clerk because the
information is easily ascertainable through reference to the
actual date stamp.    We also hold that the trial court's judicial
notice of the authenticity of the date stamp satisfies the
authentication requirement of Code  §  8.01-389 and that therefore
the court did not err in admitting the date stamp as a judicial
record.    Once properly admitted, the date stamp provided evidence
that the certificate of analysis was filed with the court at
least seven days in advance of trial.    Code  §  19.2-187.
Therefore, we find that the certificate of analysis was properly
admitted into evidence and affirm appellant's convictions.
Affirmed.
1By so holding, we express no opinion on means of
authentication other than judicial notice or certification by the
clerk of the court.
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Benton, J., with whom Elder, J., joins, dissenting.
At trial, the Commonwealth sought to admit a certificate of
analysis pursuant to Code  §  19.2-187.    In pertinent part, that
statute reads as follows:
In any hearing or trial of any criminal
offense  .  .  .  , a certificate of analysis of
a person performing an analysis  .  .  .
performed in any laboratory operated by the
.  .  . the Division of Forensic Science when
.  .  . such certificate is duly attested by
such person, shall be admissible in evidence
as evidence of the facts therein stated and
the results of the analysis or examination
referred to therein, provided  .  .  . the
certificate of analysis is filed with the
clerk of the court hearing the case at least
seven days prior to the hearing or trial
*                                                                    *   *   *   *   *   *
Any such certificate of analysis
purporting to be signed by any such person
shall be admissible as evidence in such
hearing or trial without any proof of the
seal or signature or of the official
character of the person whose name is signed
to it.
Code  §  19.2-187.    Because "[t]he statute deals with criminal
matters, and it undertakes to make admissible evidence which
otherwise might be subject to a valid hearsay objection," the
filing requirement in the statute must be "construed strictly
against the Commonwealth and in favor of the accused."    Gray v.
Commonwealth,  220 Va.  943,  945,  265 S.E.2d  705,  706  (1980).
I.
The Commonwealth sought to prove the filing requirement by
offering as evidence the following legend made by a stamp on the
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face of the certificate:
RECEIVED AND FILED
JUL  13  1995
CHESTERFIELD CIRCUIT
COURT
No evidence proved that the stamp was the official stamp of the
Chesterfield Circuit Court Clerk's Office.    No evidence proved
who affixed the legend.    No employee of the clerk's office
certified or authenticated the legend by writing or testimony.
"All writings are subject to the requirement of
authentication, which is the providing of an evidentiary basis
sufficient for the trier of fact to conclude that the writing
came from the source claimed."    Walters v. Littleton,  223 Va.
446,  451,  290 S.E.2d  839,  842  (1982).    "'As a general rule, no
writing may be admitted into evidence unless and until it has
been 'authenticated,' i.e., until it has been shown to be
genuine.'"    Proctor v. Commonwealth,  14 Va. App.  937,  938,  419
S.E.2d  867,  868  (1992)  (citation omitted).    See also  2 McCormick
on Evidence  §  218  (4th ed.  1992).    However, "authenticating a
document  .  .  . does not resolve other obstacles that may prevent
the evidence from being admissible."    Hall v. Commonwealth,  15
Va. App.  170,  175,  421 S.E.2d  887,  890  (1992).    Authentication is
"a separate and distinct evidentiary problem."    Walters,  223 Va.
at  451,  290 S.E.2d at  842.    Because authentication only
establishes the genuineness of the item, mere proof of
authenticity does not necessarily resolve the question of
admissibility.    See  2 McCormick on Evidence  §  218, at  36.
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The majority concludes that the trial judge judicially
noticed that the legend on the certificate was "an official
stamp."2    The record contains no indication, however, that the
trial judge actually judicially noticed that the legend on the
certificate was the "official stamp" of the clerk's office.    Our
decisions specifically state that "the fact of judicial notice
must appear from the record."    Sutherland v. Commonwealth,  6 Va.
App.  378,  383,  368 S.E.2d  295,  298  (1988).    When the issue was
raised at trial, the trial judge merely noted that "the question
.  .  . becomes whether or not that stamp is sufficient without a
personal identification of the clerk."    The judge then ruled that
the fact of the legend on the certificate, without more, was
sufficient to authenticate it.
Although no name or title is ascribed to the legend, the
majority concludes that the trial judge could infer from the
presence of the legend that it was genuine and affixed by some
official of the clerk's office.    In short, the majority holds
that the mere presence of the legend, without signature,
sufficiently authenticates the document.    The majority holds that
2The Commonwealth did not address the issue of judicial
notice in either its brief or oral argument during the original
appellate hearing in this case.    Instead, the Commonwealth's sole
argument was that the evidence was sufficient to prove that the
certificate of analysis was filed seven days before appellant's
trial in accordance with Code  §  19.2-187.    Only after the
original panel decision held that the evidence was insufficient
did the Commonwealth raise for the first time its argument that
"the trial court was entitled to  -- and effectively did in this
case  -- take judicial notice of the documents in its own court
file."
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appearance alone suffices to authenticate the item.    However, in
Carroll v. Commonwealth,  10 Va. App.  686,  396 S.E.2d  137  (1990),
we held that a document purporting to be from the clerk's office
was not properly authenticated, where the person purporting to
sign the document on behalf of the clerk was not identified and
was not shown to be authorized by law to act.    See id. at  691,
396 S.E.2d at  140.
The issue in this case is whether it is appropriate to infer
from the presence of a purported official legend that the legend
is genuine and was affixed by an official in the clerk's office.
See  7 Wigmore, Evidence  §  2162, at  783  (Chadbourn rev.  1974)
(stating that these elements "are distinct  .  .  . for it might be
[the clerk's] impression and yet another person might have
affixed it").    See also  3 Spencer S. Gard, Jones on Evidence
§  17:17, at  274  (6th ed.  1972)  (stating that authentication
requires proof of execution as well as proof of the "source from
which  [the writing] was derived");  2 McCormick on Evidence  §  218,
at  36  (stating that authentication requires "proof of authorship
of, or other connection with, writings").    Thus, whether the
legend was authentic depends upon whether  (1) the legend was the
official mark of the circuit court clerk's office and  (2) whether
it was affixed by the clerk or someone authorized to act on the
clerk's behalf.    Even if the trial judge could have taken
judicial notice of the fact that the legend was the "official
stamp" of the clerk's office, he did not and could not take
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judicial notice of the fact that the legend on the certificate of
analysis was genuinely affixed by the clerk or someone
"authorized by law to act in place of the clerk."    Carroll,  10
Va. App. at  691,  386 S.E.2d at  140.
The determination of who affixed the legend would not be a
fact subject to judicial notice as a matter that is "generally
known" or "easily ascertainable."    Doe v. Doe,  222 Va.  736,  746,
284 S.E.2d  799,  805  (1981).    While "[i]t is conceivable that a
court might judicially know what the design of a certain public
[stamp] was,  .  .  . this would not of itself enable the judge to
declare that the specific impression offered in court was genuine
or forged."                                                             7 Wigmore, supra,  §  2161, at  784.    This is so
because "the principle of judicial notice, i.e., of assuming the
truth of an allegation without any evidence, rests on the
conceded notoriety of the fact alleged, as being too well known
to need evidence; obviously, this can never be the case with the
specific act of executing a particular document."    Id.
No evidence in the record proved that the legend was affixed
by an official of the clerk's office.    Because the legend
contains no signature, initials, or any other indication of who
affixed it, the trial judge had no evidence from which he could
find that the legend was affixed by the clerk or someone
"authorized to act in place of the clerk."    Carroll,  10 Va. App.
at  691,  386 S.E.2d at  140.
Authentication may be accomplished by testimony of a
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competent witness with knowledge.    See Jackson v. Commonwealth,
13 Va. App.  599,  602,  413 S.E.2d  662,  665  (1992).    Authentication
may also be accomplished by the fixing of the signature or seal
of office of the clerk.    See  7 Wigmore, supra,  §  2131, at  714.
Neither was done.    The filing requirement of Code  §  19.2-187
pertaining to the certificate of analysis must be "strictly
construed against the Commonwealth and in favor of the accused."
Gray,  220 Va. at  945,  265 S.E.2d at  706.    Thus, on this
evidence, I would hold that the Commonwealth failed to
authenticate the legend because the trial judge had no
"evidentiary basis sufficient  .  .  . to conclude that the  [legend]
came from the source claimed."    Walters,  223 Va. at  451,  290
S.E.2d at  842.    Accordingly, no evidence proved that the
certificate of analysis was filed in the clerk's office pursuant
to the requirements of Code  §  19.2-187.
II.
Although the failure to authenticate the legend is
dispositive, I address the majority's discussion of the hearsay
issue because I believe it is also flawed.    The majority holds
that the trial judge properly admitted the legend on the
certificate under the provisions of Code  §  8.01-389.    That
statutory exception to the hearsay rule provides, in pertinent
part, as follows:
The records of any judicial proceeding and
any other official records of any court of
this Commonwealth shall be received as prima
facie evidence provided that such records are
authenticated and certified by the clerk of
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the court where preserved to be a true
record.
Code  §  8.01-389(A)  (emphasis added).    For the reasons I have
previously stated, the Commonwealth failed to authenticate the
legend.    However, even assuming, as the majority asserts, that
the legend was authenticated, that fact is not sufficient to
render the document admissible under Code  §  8.01-389(A).    To be
admissible, the legend must be "authenticated and certified by
the clerk of the court where preserved to be a true record."
Code  §  8.01-389(A)  (emphasis added).    The record in this case
contains no evidence that the clerk of the court where the
document was required to be lodged "certified" that the legend on
the document was true.    The majority relies, however, upon Owens
v. Commonwealth,  10 Va. App.  309,  391 S.E.2d  605  (1990), to hold
that certification was not required because authentication was
sufficient.    I believe, first, the majority reads Owens too
broadly and, second, if Owens is properly interpreted by the
majority, the decision in Owens is plainly wrong and should be
reversed.
In Code  §  8.01-389(A), the legislature statutorily adopted
the common law requirement that "records of any judicial
proceeding and any other official records of any court of this
Commonwealth shall be received as prima facie evidence provided
that such records are authenticated and certified by the clerk of
the court where preserved to be a true record."    Code
§  8.01-389(A).    See  5 Wigmore, Evidence,  §  1680-1681a, at  912-13,
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919-21  (Chadbourn rev.  1974).    The statute does not adopt a
principle of certification by authentication; it requires
authentication and certification.    The clear language of the
statute uses authentication and certification conjunctively.
Both conditions must be present before the document can be
admitted, and the proponent of the document bears the burden of
proving both conditions exist.
In Owens, the "order was stamped 'A COPY, TESTE:    WILLIAM T.
RYAN, CLERK' and undersigned by the deputy clerk."                     10 Va. App.
at  311,  391 S.E.2d at  606.    That document contained the clerk's
statement that the document was a true copy, an attestation by
the clerk, and the signature of the deputy clerk attesting to the
clerk's certification.    Thus, the facts proved the document was
both "authenticated and certified by the clerk of the court."
Code  §  8.01-389(A).    Indeed, the Owens court noted that those
facts were "sufficient to 'authenticate and certify' the document
within the meaning of Code  §  8.01-389."                              10 Va. App. at  311,  391
S.E.2d at  606.
In Owens, and now in this case, the Court reads out of the
statute the clear legislative mandate that both authentication
and certification are required before the record is admitted.
Those terms were not synonymous under the common law, and we have
no indication that the legislature intended them to be synonymous
when adopting Code  §  8.01-389(A).    See also  5 Wigmore, supra,
§  1679, at  877  ("It was natural, when declaring certified copies
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admissible,  [for legislatures] to provide in the same place for a
definite mode of authenticating them; and hence the two sets of
rules  -- the admissibility of certified copies, and the proper
modes of authenticating such copies  -- are customarily provided
for at the same time by the same statutory act.").    Obviously,
"[w]hen the official custodian certifies a copy to be used in
evidence, and such a copy is admissible under the hearsay
exception  .  .  .  , the certificate also testifies, expressly or by
implication, to the genuineness of the original in his custody
from which the copy is made."                                              7 Wigmore, supra,  §  2158, at  772.
To be admissible under Code  §  8.01-389(A), however, the record
must be both certified and authenticated.    If Owens is read in
this light, despite its statement that "the terms 'authenticated'
and 'certified' are basically synonymous,"  10 Va. App. at  311,
391 S.E.2d at  607, it clearly does not support the majority's
holding in this case.
Authentication addresses the genuineness of a document.
Thus, authentication ensures that a document is what it purports
to be.    For example, under the common law, the act of a public
official fixing the seal of that official's office to a document
was a means of authentication.
Certification, however, involves "a written assurance, or
official representation, that some act has or has not been done,
or that some event occurred, or some legal formality has been
complied with."    Black's Law Dictionary  225  (6th ed.  1990).    When
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a person certifies a document, he or she is attesting to the fact
that what is contained in the document is true.    Thus, a
"'certificate' by a public officer is a statement  .  .  . which is
by law made evidence of the truth of the facts stated for all or
for certain purposes."    Id.3    Here, if the clerk had certified
the legend on the certificate of analysis, he or she would have
been representing that the facts contained in the legend  -- the
date the certificate of analysis was filed and the office in
which it was filed  -- were true.    Because the legend on the
certificate of analysis appears without any certification by the
clerk, no evidence proved that the certificate of analysis was
filed in the clerk's office on that date.
In Carroll, we reversed the trial judge's decision to admit
a document with the following legend:
A COPY TESTE:
WALTON F. MITCHELL, JR., CLERK
CRAIG COUNTY CIRCUIT COURT
BY  /s/ Peggy B. Elmore
/s/ Peggy B. Elmore
Id. at  689,  396 S.E.2d at  139.    We held that the document had not
been authenticated and certified as required by Code
§  8.01-389(A).    Id. at  691,  396 S.E.2d at  140.    We reasoned as
3Certification may often encompass authentication.    See  18
U.S.C.A.  §  3506  (certification by a custodian that certain facts
are true "shall authenticate" a record of a regularly conducted
activity); Uniform Rule of Evidence  902(11)  (if a custodian
certifies, or declares under oath, that certain facts are true, a
record of a regularly conducted activity is self-authenticating);
7 Wigmore, supra,  §  2158, at  772  (certification of a copy also
testifies to authenticity of original).    However, authentication
does not encompass certification.
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follows:
[T]he deficiency in the certificate arises
with the signature.    The document was not
"certified and authenticated" by the clerk
but by Peggy B. Elmore.    Neither the document
itself nor any other evidence in the record
establishes that Peggy B. Elmore is
authorized by law to act in the place of the
clerk.    The order does not state that she is
a deputy clerk, nor does it contain initials
or other indicia to demonstrate that she is a
deputy clerk.    No evidence was presented to
the trial court as to who Peggy B. Elmore is
or whether she is authorized to act in place
of the clerk.
Id. at  691,  396 S.E.2d at  140.
Without the clerk's certification and authentication in this
case, the trial judge lacked assurance that the certificate of
analysis was not placed in the clerk's file by a third person and
at a time different than proported on the legend.
For these reasons, I would reverse the convictions and
remand for a new trial.
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