Aftеr a jury trial, Mathurin Ngomondjami (“appellant”) was convicted of driving under the influence of alcohol (DUI) in violation of Code § 18.2-266. On appeal, appellant contends the evidence was insufficient as a matter of law to convict him of DUI, arguing it failed to prove he “operated” a motor vehiсle while under the influence of alcohol. He also contends the trial court erred in refusing his proffered jury instruction defining the term “operating a motor vehicle” within the meaning of Code § 18.2-266. Additionally, he contends the trial court erred during the sentencing phase of his trial by admitting into evidence his Department of Motor Vehicles driving record (DMV record) pursuant to Code § 46.2-943, arguing the Commonwealth failed to comply with the notice requirements of Code § 19.2-295.1.
I. Background
“Where the sufficiency of the evidence is challenged after conviction, it is our duty to consider it in the light most favorable to the Commonwealth and give it all reasonаble inferences fairly deducible therefrom.”
Higginbotham v. Commonwealth,
So viewed, the evidence proved that in the early morning hours of October 29, 2006, Corporal Arthur Tate of the Arlington County Police Department found appellant, unconscious, reclined in the driver’s seat of a car with its engine running in a school parking lot. Appellant was its only-occupant. After several attempts to get appellant’s attention by knocking on the driver’s door window, Tate opened the unlocked driver’s door and woke him.
Corporal Tate determined that appellant had slurred speech, was unsteady on his feet, and had bloodshot eyes. He asked appellant if he would take field sobriety tests, and appellant agreed to do so. However, appellant laughed at Cоrporal Tate when he demonstrated the one-legged stand test, and refused to attempt it, stating he thought Tate wanted to make fun of him. Appellant also refused to attempt the heel-to-toe test and the alphabet test. Although he previously told Tate he had a degree in electrical enginеering, appellant told Tate he had no education
Appellant spoke in a soft voice but was belligerent, and repeatedly threatened Corporal Tate, stating he “prayed that [Tate’s] wife and kids would die within three days.... ” After talking with appellant for approximately 15 minutes, Corporal Tate arrested him for DUI.
At trial, appellant testified he was sleeping in his car because he was in the process of divorcing his wife and that he was homeless. He denied being intoxicated.
After the trial court denied appellant’s motion to strike the Commonwealth’s evidence, the jury found appellant guilty оf DUI. During the sentencing phase, the Commonwealth sought to introduce appellant’s DMV record, pursuant to Code § 46.2-943, for consideration by the jury in fixing his sentence. Appellant objected, contending the Commonwealth failed to provide him with notice pursuant to Code § 19.2-295.1 of its intent to introduce his driving record at sentencing. 1
Appellant also objected to the trial court permitting the jury to consider his DMV record, arguing it was “unreliable and much more unreliable than an actual record of conviction. That’s ... why there is a surprise and it is prejudicial to the defendant without being able to investigate by looking at the actual rеcord of conviction to see what occurred in court.” Appellant’s counsel told the trial court that prior to trial she “got [her] own [copy of appellant’s] DMV record and it was different from [the] one” offered by the Commonwealth. The only DMV record contained in the record on appeal is the DMV record offered by the Commonwealth.
The trial court overruled appellant’s objections and admitted his DMV record, concluding it was admissible under Code § 46.2-943 and that statute did not contain a notice requirement. It also refused to grant appellant’s proffered jury instruction defining “operating” a motor vehicle. The jury fixed appellant’s sentence at an $800 fine.
II. Analysis
A. Jury Instruction
On appeal, appellant first contends the trial court erred in not granting his proffered jury instruction defining “operating a motor vehicle.”
“The trial judge has broad discretion in giving or denying instructions requested.”
Gaines v. Commonwealth,
Code § 18.2-266 provides, in pertinent part, that “[i]t shall be unlawful for any person to drive or operate any motor vehicle ... while such person is under the influence of alcohol. ...” (Emphasis added). An “operator” of a car is defined as any person “who either [] drives or is in actual physical control of a motor vehicle.... ” Codе § 46.2-100. “Operating” a car within the meaning of Code § 18.2-266
“not only includes the process of moving the vehicle from one place to another, but also includes starting the engine, or manipulating the mechanical or electrical equipment of the vehicle without actually putting the car in motion. It means engaging the machinery of the vehicle which alone, or in sequence, will activate the motive power of the vehi cle.”
Stevenson v. City of Falls Church,
Appellant’s proffered instruction was not an accurate statement of the law.
See Mouberry v. Commonwealth,
The instruction granted by the trial court fully and fairly covered the principles of law relevant to the question of whether appellant operated the car in which he was found, intoxicated and while the engine was running. We conclude the trial court did not err in refusing to grant appellant’s proffered jury instruction.
See Gaines,
B. Sufficiency of the Evidence
Appellant also contends the Commonwealth’s evidence was insufficient as a matter of law to prove he “operated] [the vehicle,] because there is no evidence that supports a reasonable inference that he had any purpose to put his vehicle in motion on a highway.” We find appellant’s argument tо be without merit.
The evidence at trial proved appellant was in his car and was intoxicated, that the key was in the ignition switch of his car, turned to the on position, and the car’s engine was running. From this evidence, the jury could reasonably conclude appellant was in actual physical control of the car, and was “operating” it within the meaning of Code § 18.2-266. Accordingly, we find the jury did not err in finding the evidence sufficient to convict appellant of DUI in violation of Code § 18.2-266.
See Stevenson,
C. Admission of Appellant’s DMV Record
Appellant also contends the trial court erred at the sentencing phase of his bifurcated jury trial by admitting his DMV record into evidence pursuant to Code § 46.2-943, arguing it was errоr to do so because the Commonwealth did not comply with the notice provisions of Code § 19.2-295.1. 2 We disagree, finding that Code § 46.2-943, rather than Code § 19.2-295.1, is the controlling statute in this case.
“ ‘The admissibility of evidence is within the broad discretion of the trial court, and [its ruling thereon] will not be disturbed on appeal in the absencе of an abuse of discretion.’ ” Jones v. Commonwealth,38 Va.App. 231 , 236,563 S.E.2d 364 , 366 (2002) (quoting Blain v. Commonwealth,7 Va.App. 10 , 16,371 S.E.2d 838 , 842 (1988)). However, “a trial court ‘by definition abuses its discretion when it makes an error of law.’ ” Shooltz v. Shooltz,27 Va.App. 264 , 271,498 S.E.2d 437 , 441 (1998) (quoting Koon v. United States,518 U.S. 81 , 100,116 S.Ct. 2035 , 2047,135 L.Ed.2d 392 (1996)). “In determining whether the trial court made an error of law, ‘we review the trial court’s statutory interpretations and legal conclusions de novo.’ ” Rollins v. Commonwealth, 37 Va.App. 73 , 79,554 S.E.2d 99 , 102 (2001) (quoting Timbers v. Commonwealth,28 Va.App. 187 , 193,503 S.E.2d 233 , 236 (1998)).
Auer v. Commonwealth,
Code § 46.2-943 provides that “[w]hen any person is found guilty of a traffic offense, the court or jury trying the case may consider the prior traffic record of the defendant before imposing sentence as provided by law.” The term “traffic offense,” within the meaning of Code § 46.2-943, is defined as “any moving traffic violation described or enumerated in subdivisions 1 and 2 of § 46.2-382,”
3
and includes the offense of
DUI, of which appellant was convicted.
See
Code § 46.2-382;
see also Farmer v. Commonwealth,
The term “prior traffic record,” within the meaning of Code § 46.2-943, is defined as “the record of prior suspensions and revocations of a driver’s license, and the record of prior convictions of traffic offenses described in [Code § 46.2-943].” Code § 46.2-943. A DMV record is admissible еvidence of a defendant’s prior traffic record.
See
Code § 46.2-384;
see also Mwangi v. Commonwealth,
Accordingly, when the jury found appellant guilty of DUI, Code § 46.2-943 authorized the admission of his DMV record into evidence during the sentencing phase as evidence of his prior traffic record.
Appellant contends, nevertheless, that the trial court erred by admitting his DMV record into evidence because the Commonwealth did not comply with the notice provisions of Code § 19.2-295.1. He argues that Code § 19.2-295.1 and Code § 46.2-943 address similar subjects, i.e., the introduction of evidence of prior offenses during the sentencing phase of a bifurcated trial, and contends the trial court should have harmonized the two statutes by applying the Code § 19.2-295.1 notice requirements to Code § 46.2-943, which contains no notice requirement.
“Under well-settled principles of statutory construction, we may not adopt an interpretation of one statute that conflicts with the plain language of another.”
Washing
ton v. Commonwealth,
For the trial court to find that the Code § 19.2-295.1 notice requirements applied as a prerequisite to the admission of appellant’s DMV transcript into evidence pursuant to Code § 46.2-943, it would have to read those requirements into Code § 46.2-943, which does not contain a notice requirement. To do so would be to impermissibly add language to a statute that the General Assembly has not seen fit to include.
See Washington,
Appellant also аrgues that Code § 19.2-295.1 is the controlling statute because it “provides very specific provisions on introduction of criminal histories” during the sentencing phase of a bifurcated trial, while “[Code § ]46.2-943 generally authorizes introduction
[W]hen one statute speaks to a subject generally and another deals with an elеment of that subject specifically, ... if they conflict, the more specific statute prevails. This is so because a specific statute cannot be controlled or nullified by a statute of general application unless the legislature clearly intended such a result.
Commonwealth v. Brown,
Here, contrary to apрellant’s argument otherwise, Code § 46.2-943 is the more specific statute. Prior to the 1994 enactment of Code § 19.2-295.1, “[bifurcated trials [were] provided by statute only in capital murder cases ... and in certain traffic cases, Code § 46.1-347.2,” the predecessor of Code § 46.2-943.
Brown v. Commonwealth,
We additionally note that the “implied repeal of an earlier statute by a later enactment is not favored,” and we “assume that a legislative body, when enacting new legislation, was aware of existing laws pertaining to the same subject matter....”
Sexton v. Virginia Cornett,
We conclude that the Code § 19.2-295.1 notice requirements do not apply to the admission of a defendant’s prior traffic record into evidence pursuant to Code § 46.2-943. Accordingly, we conclude the trial court did not err by admitting appellant’s DMV record into evidence. 5
III. Conclusion
For the foregoing reasons, we affirm appellant’s conviction and sentence.
Affirmed.
Notes
. Appellant acknowledged that he was provided notice more than fourteen days prior to the start of trial that the Commonwealth’s Attorney had an "open file” policy and that the Commonwealth's Attorney's file included appellant’s DMV record.
. Code § 19.2-295.1 provides for jury sentencing in a proceeding separate from the guilt phase of the trial when the jury finds the defendant guilty of a Class 1 misdemeanor or a felony.
. Code § 46.2-382 enumerates the following as moving traffic violations:
1. ... (i) a violation of any law of the Commonwealth pertaining to the operator or operation of a motor vehicle; (ii) a violation of any ordinance of any county, city, or town pertaining to the operator or opеration of any motor vehicles, except parking regulations; (iii) any theft of a motor vehicle or unauthorized use thereof or theft of any part attached to it; or (iv) a violation of § 18.2-36.2, subsection B of § 29.1-738, or § 29.1-738.02, 29.1-738.2, or 29.1-738.4;
2. ... [Manslaughter or any other felony in the commission of which a motor vehicle was used....
. We note that the 1994 legislation enacting Code § 19.2-295.1 reflects no language by the General Assembly to amend or repeal Code § 46.2-943 by that enactment. See 1994 Acts, chs. 828, 860, 862, and 881. We also note that the General Assembly subsequently amended Code § 19.2-295.1 at its 1995, 1996, 2001, and 2007 sessions. None of the legislation enacting those amendments made referеnce to Code § 46.2-943.
. For the first time on appeal, appellant also contends the trial court erred in admitting his DMV record into evidence because it contained
improper character evidence. Because this argument was not presented to the trial court, we will not consider it on appeal.
See
Rule 5A:18;
Ohree v. Commonwealth,