Steven Lee HODGES v. COMMONWEALTH of Virginia.
No. 1243-14-3
Court of Appeals of Virginia, Salem
May 5, 2015
771 S.E.2d 693
Victoria Johnson, Assistant Attorney General (Mark R. Herring, Attorney General; Steven A. Witmer, Senior Assistant Attorney General, on brief), for appellee.
Present: HUFF, C.J., CHAFIN and RUSSELL, JJ.
RUSSELL, Judge.
Steven Lee Hodges, appellant, was convicted in a bench trial of driving while his license has been suspended in violation of
FACTS1
“Under well-settled principles of appellate review, we consider the evidence presented at trial in the light most favorable to the Commonwealth, the prevailing party below.” Smallwood v. Commonwealth, 278 Va. 625, 629, 688 S.E.2d 154, 156 (2009) (quoting Bolden v. Commonwealth, 275 Va. 144, 148, 654 S.E.2d 584, 586 (2008)). This principle requires us to “discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom.” Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980) (emphasis and internal quotation marks omitted).
Officers searched the vehicle and located a handgun inside the center console. The barrel was pointing down, and the handgrip was covered by a large plastic cup. Officer Schula recalled that the console‘s lid was closed when he turned off the engine, but he could not remember “if the console had a latch or a lock.” Appellant did not have a concealed weapon permit.
At trial, the Commonwealth introduced a Department of Motor Vehicles printout of appellant‘s driving history without objection. The printout indicated that appellant‘s driver‘s license was suspended and that appellant had been notified of the suspension “BY LAW ENFORCEMENT” before December 5, 2013. It also bore the certificate of the Commissioner of the Department of Motor Vehicles referenced in
At the close of the evidence, appellant moved to strike the evidence on the driving charge, arguing that the DMV transcript alone was insufficient to prove that he had received notice of the suspension. The trial court disagreed and convicted appellant of driving on a suspended license.
Appellant also moved to strike the evidence as to the handgun arguing that he was allowed to transport the gun in the console pursuant to the exception found in
This appeal followed.
ANALYSIS
Suspended License
Appellant argues that the evidence was insufficient to sustain his conviction for driving while his license has been suspended. As such, we review the conviction “with the highest degree of appellate deference.” Thomas v. Commonwealth, 48 Va.App. 605, 608, 633 S.E.2d 229, 231 (2006). “An appellate court does not ‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.‘” Williams v. Commonwealth, 278 Va. 190, 193, 677 S.E.2d 280, 282 (2009) (quoting Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979)). Instead, the only “relevant question is, after reviewing the evidence in the light most favorable to the prosecution, whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Sullivan v. Commonwealth, 280 Va. 672, 676, 701 S.E.2d 61, 63 (2010) (emphasis added).
This deferential appellate standard “applies not only to the historical facts themselves, but the inferences from those facts as well.” Clanton v. Commonwealth, 53 Va.App. 561, 566, 673 S.E.2d 904, 907 (2009) (en banc) (internal quotation marks omitted). “Thus, a factfinder may ‘draw reasonable inferences from basic facts to ultimate facts,‘” Tizon v. Commonwealth, 60 Va.App. 1, 10, 723 S.E.2d 260, 264 (2012) (quoting Haskins v. Commonwealth, 44 Va.App. 1, 10, 602 S.E.2d 402, 406 (2004)), “unless doing so would push ‘into the realm of non
[N]o resident or nonresident (i) whose driver‘s license ... or privilege to drive a motor vehicle has been suspended or revoked ... shall thereafter drive any motor vehicle or any self-propelled machinery or equipment on any highway in the Commonwealth until the period of such suspension or revocation has terminated or the privilege has been reinstated....
In order to convict appellant of violating
Appellant relies primarily on Bishop v. Commonwealth, 275 Va. 9, 654 S.E.2d 906 (2008). There, the Commonwealth introduced Bishop‘s driving record from DMV as proof that Bishop received notice regarding his status as an habitual offender. The record indicated that Bishop had been notified “by law enforcement.” Id. at 12, 654 S.E.2d at 907. However, the record did not contain an entry indicating that Bishop had been declared an habitual offender, but rather, only an entry that he had been notified of an “HO DETERMINATION PROCESS.” Id. In finding that the driving record did not provide sufficient evidence to convict Bishop of driving after having been declared an habitual offender, the Court noted that the reference to an habitual offender determination process was “confusing and does not contain any information about Bishop‘s status as an habitual offender.” Id. at 14, 654 S.E.2d at 908.
The instant case is distinguishable from Bishop. First, unlike the confusing entry on the driving record in Bishop, the entry in this case is clear: appellant was “NOTIFIED ... BY
Furthermore, unlike in Bishop, the Commonwealth here relies on the provisions of
If the certificate of the Commissioner or someone designated by him for that purpose shows that the notice or copy has been so sent or provided, it shall be deemed prima facie evidence that the notice or copy has been sent and delivered or otherwise provided to the driver for all purposes involving the application of the provisions of this title.
Given the lack of ambiguity in the record itself and the General Assembly‘s direction in
Concealed Weapon
In challenging his conviction for possession of a concealed weapon, appellant argues that “[t]he trial court erred in finding the evidence sufficient to convict [appellant] of possession of a concealed weapon when the weapon was located in a secured compartment in [appellant‘s] vehicle.” In essence, appellant argues that the trial court, under the facts adduced at trial, misapplied a statutory exception to the prohibition on carrying a concealed weapon. As such, the argument presents a mixed question of law and fact, which we review de novo on appeal. Nelson v. Commonwealth, 281 Va. 212, 215, 707 S.E.2d 815, 816 (2011) (noting that whether evidence established that defendant operated a motor vehicle within the meaning of a statutory prohibition is a mixed question of law and fact).
In 2010, however, the General Assembly enacted
We addressed the new exception in Doulgerakis v. Commonwealth, 61 Va.App. 417, 737 S.E.2d 40 (2013). In Doulgerakis, the defendant was charged with carrying a concealed weapon after a handgun was found in the glove compartment of the car he was driving. The glove compartment was “closed and latched, but not locked.” Id. at 418, 737 S.E.2d at
Appellant argues that the gun in this case was located inside a closed console, and therefore, the handgun was “secured” pursuant to the statutory exception as explained by this Court in Doulgerakis. The Commonwealth responds that “closed” is not synonymous with “secured.” Furthermore, the Commonwealth argues that once the evidence proved that appellant possessed a concealed weapon, the burden shifted to appellant to establish that his possession fell within the statutory exception of
Consistent with Doulgerakis, we agree with the Commonwealth that “secured” is not synonymous with “closed.” To fall within the exception, the container within the vehicle must not only be closed, but also must be latched or otherwise fastened. However, that does not resolve the matter before us.
As noted above, the trial court found that the gun was not secured; however, it based the finding on its conclusion that “defendant‘s gun was immediately accessible to defendant and the cup over the gun showed the gun was intentionally hidden.”3 Given the statutory exception, it was not sufficient to find that the gun was immediately accessible. Although that would have been sufficient before 2010, Leith, 17 Va.App. 620, 440 S.E.2d 152, the exception added by the General Assembly in 2010 requires a change in the analysis.
Having found that the trial court erred in its analysis, we turn to the Commonwealth‘s second argument—that once the evidence proved that appellant possessed a concealed weapon, the burden shifted to appellant to establish that his possession fell within the statutory exception of
Review of such questions is governed by principles set forth in our decision in Mayhew v. Commonwealth, 20 Va.App. 484, 458 S.E.2d 305 (1995). In Mayhew, we noted that
[i]n determining whether specific limiting language is an element of the offense or a statutory defense, a court should look both to the intent of the statute as a whole and the ability of the respective parties to assert the [308] existence or absence of the underlying facts sustaining the applicability of the limitation.
Id. at 490, 458 S.E.2d at 307-08 (emphasis added). Having set forth the general principles, this Court, citing cases from Pennsylvania and Wisconsin, then listed considerations that should inform the application of the general principles.4 Id.
Many of the exceptions found in
Applying the principles of Mayhew to
Unlike the issue in Foley, the evidence required to establish whether a gun is secured within a console is not “peculiarly within the knowledge of the defendant.” Foley, 63 Va.App. at 201, 755 S.E.2d at 481 (internal quotation marks and citation omitted). In general, when officers discover a weapon in the center console of a vehicle, they will have knowledge at least equal to that of the defendant as to whether the console was locked, latched or otherwise secured. In this case, the officers had superior knowledge because the officers actually opened the console. Accordingly, despite an officer not being able to recall at trial whether or not the console was latched, the officers possessed that information at the time that the console was opened.5
While this distinction is sufficient to support the conclusion that the Commonwealth bears the burden on this issue, a review of the statute as a whole, particularly the circumstances surrounding the enactment of
As noted above, the 2010 enactment of this exception represented a significant change in the law of the Commonwealth. Aware of our decisions in Leith and other similar cases,6 the General Assembly chose to effectively reverse those holdings, making the policy choice that, going forward, a weapon, secured in a container (such as a center console) within a vehicle, would not be considered a concealed weapon for the purposes of
Having found that the Commonwealth bore the burden of establishing that the weapon was not secured, it is clear that the evidence at trial was insufficient to support appellant‘s conviction. The testimony established that the console was closed, but Officer Schula could not recall if the console even had a latch, let alone, whether it was, in fact, latched.7 With commendable candor, the Commonwealth conceded at argument that, if the Commonwealth bore the burden of establishing that the gun was not secured, the evidence was insufficient to support the conviction. While we are not bound by this concession,8 the concession, coupled with the silence of the record on the critical question, makes clear that the evidence was insufficient to support appellant‘s conviction for possessing a concealed weapon in violation of
We note that our holding today is a limited one, finding that the Commonwealth bears the burden of establishing that the exemption of
CONCLUSION
For the foregoing reasons, we find the evidence sufficient to sustain appellant‘s conviction for driving on a suspended license in violation of
Affirmed in part, reversed in part, and dismissed in part.