Bishop v. Com.
| Decision Date | 11 January 2008 |
| Docket Number | Record No. 070640. |
| Citation | 654 S.E.2d 906,275 Va. 9 |
| Parties | Mark Dywayne BISHOP v. COMMONWEALTH of Virginia. |
| Court | Virginia Supreme Court |
Benjamin H. Katz, Asst. Atty. Gen. (Robert F. McDonnell, Atty. Gen., on brief), for appellee.
Present: All the Justices.
OPINION BY Chief Justice LEROY R. HASSELL, SR.
I.
Code § 46.2-357(A) states in relevant part:
"It shall be unlawful for any person determined or adjudicated an habitual offender to drive any motor vehicle or self-propelled machinery or equipment on the highways of the Commonwealth while the revocation of the person's driving privilege remains in effect."
The sole issue that we consider in this appeal of a judgment from the Court of Appeals is whether the Commonwealth proved beyond a reasonable doubt that a defendant, who was convicted for a violation of Code § 46.2-357, received actual notice that he had been determined to be an habitual offender.
II.
Mark Dywayne Bishop was convicted in the Circuit Court of 28 the City of Williamsburg and County of James City of driving a motor vehicle after having been declared an habitual offender in violation of Code § 46.2-357. Bishop appealed and asserted in the Court of Appeals that the Commonwealth failed to prove that he had received actual notice of a determination or adjudication as an habitual offender and, therefore, the Commonwealth did not establish that he violated Code § 46.2-357. The Court of Appeals affirmed the conviction. Bishop v. Commonwealth, 49 Va.App. 251, 639 S.E.2d 683 (2007). Bishop appeals.
III.
A.
Applying well-settled principles of appellate review, we will state the evidence in the light most favorable to the Commonwealth, the prevailing party in the circuit court. Pruitt v. Commonwealth, 274 Va. 382, 384, 650 S.E.2d 684, 684 (2007); Viney v. Commonwealth, 269 Va. 296, 299, 609 S.E.2d 26, 28 (2005).
The following evidence was adduced at a bench trial in the circuit court. In December 2004, two police officers went to Bishop's home in James City County to serve him with an arrest warrant. Bishop was not present when the officers arrived. The officers parked their cars behind a residence so that Bishop would not be able to see them upon his arrival.
Subsequently, the officers observed Bishop drive a motor vehicle on a public street and enter a driveway on Bishop's property. Bishop parked the car and began to walk towards his house.
The police officers approached Bishop and informed him that they had a warrant for his arrest. Initially, the defendant denied that he was Mark Bishop and stated that his name was Eric. One of the officers informed Bishop that he was under arrest, and a scuffle ensued. The officers managed to subdue Bishop and arrest him.
The Commonwealth also introduced in evidence Bishop's lengthy driving record from the Department of Motor Vehicles. The following entries on that record constitute the sole evidence relating to the notice that Bishop received regarding his status as an habitual offender:
B.
Bishop asserts in this Court, as he did in the circuit court and the Court of Appeals, that the Commonwealth failed to establish that he received actual notice of his adjudication as an habitual offender and, therefore, he could not be convicted of a violation of Code § 46.2-357. We agree with Bishop's contentions.
"It is elementary that the burden is on the Commonwealth to prove every essential element of the offense beyond a reasonable doubt." Powers v. Commonwealth, 211 Va. 386, 388, 177 S.E.2d 628, 629 (1970). This fundamental precept has been the bedrock of Virginia's criminal jurisprudence since the inception of this Commonwealth. For example, in Savage v. Commonwealth, 84 Va. 582, 585, 5 S.E. 563, 564 (1888), we stated: "In a criminal case, the defendant is entitled to an acquittal, unless his guilt is established beyond a reasonable doubt."
We recently restated this elemental precept in Ellison v. Commonwealth, 273 Va. 254, 257-58, 639 S.E.2d 209, 212 (2007): "Because of the stringent standard of proof the law imposes upon the prosecution, [finders of fact] must acquit unless they find each element of the crime charged to have been proved beyond a reasonable doubt." In Washington v. Commonwealth, 273 Va. 619, 623, 643 S.E.2d 485, 487 (2007), we stated:
" "
In order to obtain a conviction against a defendant charged with a violation of Code § 46.2-357, the Commonwealth must prove, beyond a reasonable doubt, that the defendant drove a motor vehicle on a public highway while his driving privilege was revoked; that the defendant had been determined or adjudicated an habitual offender; and that the defendant received actual notice of his status as an habitual offender. See Reed v. Commonwealth, 15 Va.App. 467, 471-72, 424 S.E.2d 718, 720-21 (1992). The only issue in this appeal is whether the Commonwealth proved beyond a reasonable doubt that the defendant, Bishop, received actual notice that he had been adjudicated an habitual offender.
The Commonwealth does not dispute that it was required to prove beyond a reasonable doubt that Bishop received actual notice of his adjudication as an habitual offender in order to establish a violation of Code § 46.2-357. However, the Commonwealth, relying upon the following entry in the records from the Department of Motor Vehicles, claims that it satisfied this proof burden:
We disagree with the Commonwealth's contention.
The first entry, "Revocation ISS 1997/04/28 Effective: 1997/05/28 For HO Determination Process," is confusing and does not contain any information about Bishop's status as an habitual offender. The next entry states: "Notified: 2001/03/10 by law enforcement." This entry does not specify the content of any notification that may have been provided to Bishop, and this entry does not identify the person, agency, or entity that constituted "law enforcement."
The final entry states, "Order delivery date: Order mailed." This entry provides absolutely no proof of actual notice to anyone. Indeed, the above-referenced entries in the Department of Motor Vehicles' transcript are devoid of proof beyond a reasonable doubt, which is the only standard that can be applied in a criminal proceeding, that Bishop received actual notice of his adjudication as an habitual offender.
We reject the Commonwealth's contention and the holding of the Court of Appeals that defendant's counsel, during his closing argument in the circuit court and in a pleading filed in the Court of Appeals, made a factual concession that Bishop received actual notice that he had been determined or adjudicated an habitual offender. Bishop's counsel made the following argument at trial:
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