Butcher v. Commonwealth

• Decision Date: 27 February 2020
• Docket Number: Record No. 181608
• Parties: Calvin Darnell BUTCHER v. COMMONWEALTH of Virginia
• Court: Virginia Supreme Court

838 S.E.2d 538

Calvin Darnell BUTCHER

v.COMMONWEALTH of Virginia

Record No. 181608

Supreme Court of Virginia.

FEBRUARY 27, 2020

Aaron M. Vandenbrook, Assistant Public Defender (Richard G. White, Jr., Assistant Public Defender, on briefs), for appellant.

Virginia B. Theisen, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

PRESENT: Lemons, C.J., Goodwyn, Mims, Powell, Kelsey, and McCullough, JJ., and Koontz, S.J.

OPINION BY JUSTICE D. ARTHUR KELSEY

The trial court convicted Calvin Darnell Butcher of misdemeanor failure to stop at the scene of an accident in violation of Code § 46.2-894, commonly referred to as the hit-and-run statute.¹ The Court of Appeals affirmed Butcher’s conviction, holding that the evidence was sufficient to prove that Butcher had failed to satisfy either of two post-accident reporting requirements in the statute. See Butcher v. Commonwealth , 69 Va. App. 406, 416-21, 819 S.E.2d 862 (2018).

Despite this holding, the Court of Appeals added that the statute required Butcher to satisfy only one of the two reporting requirements: "[W]e hold that, to meet the statutory command, appellant only needed to report forthwith the required information to one person described in the statutory list." Id. at 416, 819 S.E.2d 862. The Court of Appeals made this sua sponte holding after acknowledging that Butcher had expressly conceded on appeal that Code § 46.2-894 required him to satisfy both reporting requirements, not just one of them.²

We agree with the Court of Appeals that the trial court, sitting as factfinder, could have reasonably concluded that Butcher had not complied with either of the two reporting requirements in Code § 46.2-894, see Butcher , 69 Va. App. at 416-21, 819 S.E.2d 862, and we adopt the reasoning of the Court of Appeals on this dispositive issue. On this ground, we affirm the judgment of the Court of Appeals affirming Butcher’s conviction.

We respectfully disagree, however, with the decision of the Court of Appeals to "hold that, to meet the statutory command, appellant only needed to report forthwith the required information to one person described in the statutory list," id. at 416, 819 S.E.2d 862. For two reasons, we vacate that portion of the opinion of the Court of Appeals.

First, Butcher expressly disclaimed the argument that the statute’s reporting requirements are disjunctive during oral argument before the Court of Appeals. See supra note 2 and accompanying text. The Court of Appeals, of course, did not have to agree with that concession of law. We do not permit litigants "to define Virginia law by their concessions." Daily Press, Inc. v. Commonwealth , 285 Va. 447, 454 n.6, 739 S.E.2d 636 (2013). "This principle must be distinguished, however, from an appellant’s concession of law that qualifies either as a waiver for purposes of Rule 5:25, governing arguments not raised below, or as a waiver for purposes of Rules 5:17(c) and 5:27, applicable to arguments not properly raised on appeal." Simms v. Van Son , Record No. 150191, 2016 WL 3208951, at *2 n.4 (Va. Feb. 12, 2016) (per curiam) (unpublished). "In either scenario, we may accept arguendo the concession — not as a basis for deciding the contested issue of law, but as a basis for not deciding it ." Id. (emphasis added); see Logan v. Commonwealth , 47 Va. App. 168, 172 n.4, 622 S.E.2d 771 (2005) (en banc) (articulating the same rule).³

Second, it was logically unnecessary for the Court of Appeals to address this undisputed legal issue. The Court of Appeals found the evidence sufficient to prove that Butcher had complied with neither of the statute’s two reporting requirements. That so, it did not matter whether the statute required him to comply with only one of them. The result would be the same in either event.

"As we have often said, ‘the doctrine of judicial restraint dictates that we decide cases "on the best and narrowest grounds available." ’ " Commonwealth v. White , 293 Va. 411, 419, 799 S.E.2d 494 (2017) (alteration omitted) (quoting Commonwealth v. Swann , 290 Va. 194, 196, 776 S.E.2d 265 (2015) (per curiam)).⁴ The "best" answer to a legal question is the one with which the least number of jurists would disagree or, in other words, the one with which the greatest number of jurists would agree. The "narrowest" answer to a legal question is the one affecting the least number of cases.

Regarding the "best" ground for decision, most jurists would agree that a sua sponte holding would rarely qualify as the best answer to a legal question that neither litigant is asking. That conclusion is particularly true when the holding attempts to resolve a difficult interpretative question and a simpler answer is readily available. In this case, our concurring colleagues offer very different interpretations of Code § 46.2-894 — yet they all rely upon a thorough analysis of the legislative history, a careful study of the peculiarities of the statute’s syntax, and a thoughtful consideration of the underlying legislative policies. These competing interpretations prove only that the attempt to untangle the language of Code § 46.2-894 involves no easy task and results in no confident consensus.

As for the "narrowest ground" for decision, a ruling on the factual sufficiency of a single case will affect far fewer subsequent cases than a broad pronouncement on an open legal question. Given the multitude of factual scenarios — some foreseeable, some not — that can arise in a single legal context, a degree of judicial caution should accompany any holding that reaches out beyond the limits of the particular case to address unnecessary and novel issues.

That caution is particularly prudent in criminal cases where, as here, the reasoning of the Court of Appeals adverse to the Commonwealth is embedded in a published opinion that ends with an affirmance of the criminal defendant’s conviction. When structured that way, a Court of Appeals opinion could make a judicial pronouncement unfavorable to the Commonwealth on an important, hotly disputed legal issue that would be wholly immune from direct appellate review by this Court. In other words, a holding of the Court of Appeals on one issue, if sufficient alone to justify the result, could preclude the appellate process from testing the validity of what purports to be a "holding" on another issue — one perhaps far more important than the first. See Commonwealth v. Harley , 256 Va. 216, 217-20, 504 S.E.2d 852 (1998) (finding that the advisory "ruling" of the Court of Appeals against the Commonwealth on an abstract question of law was "rendered moot" by the dispositive and far more narrow holding in favor of the Commonwealth).⁵ This anomaly could have a long-lasting effect because an unappealable "holding" by the Court of Appeals adverse to the Commonwealth in one case would likely be viewed, correctly or not, as binding on every trial court in all future prosecutions and on every panel of the Court of Appeals hearing later appeals involving the same issue.⁶

For these reasons, we affirm the judgment of the Court of Appeals affirming Butcher’s conviction. We do so based upon the persuasive analysis by the Court of Appeals of the sufficiency of the evidence proving beyond a reasonable doubt that Butcher failed to satisfy either of the two reporting requirements in Code § 46.2-894. Offering no opinion on the competing conjunctive/disjunctive interpretations of the statute, however, we vacate the portion of the opinion of the Court of Appeals addressing that debate.⁷

Judgment affirmed, opinion vacated in part .

JUSTICE McCULLOUGH, with whom JUSTICE MIMS joins, concurring in the judgment affirming the conviction.

The case has been briefed and argued. The decision under review is a published decision of the Court of Appeals of Virginia. Whether the reporting requirements of Code § 46.2-894 should be read in the conjunctive or the disjunctive is a question of some practical significance to the citizens of Virginia, and to members of the bar and bench who must prosecute, defend, and adjudicate these cases. There are accidents, major and minor, every day in the Commonwealth. I regret that the Court is unable to provide an answer to that question and to say what the law is. Whether the statute’s reporting requirements should be read in the conjunctive or in the disjunctive presents a difficult question of statutory interpretation, but in my view the answer is that the reporting requirements should be read in the conjunctive.

In Banks v. Commonwealth , 217 Va. 527, 230 S.E.2d 256 (1976), we concluded that the reporting requirements of former Code § 46.1-176 were to be construed in the conjunctive rather than the disjunctive. Former Code § 46.1-176 was recodified as Code § 46.2-894 following the recodification of the motor vehicle code in 1989. In its report to the General Assembly, the Code Commission explained that it sought to "remove ambiguities, simplify language and structure, and generally improve the clarity of the law." Virginia Code Comm’n, Report Revision of Title 46.1 of the Code of Virginia , House Doc. No. 42, at ii (1989), available at https://rga.lis.virginia.gov/Published/1989/HD42 (last visited Nov. 27, 2019). Among other things, the stated goals of the recodification were the "[s]implification of language wherever possible" and the "[s]ubstitution of commonly used terms for technical jargon in appropriate instances." Id. Former Code § 46.1-176, which addressed the various duties required of persons involved in a vehicular accident and the penalty for the failure to stop and perform those duties, was, as indicated in a revisor’s note, "broken up" into six separate code sections including Code § 46.2-894. Id. at 149-50. The revisor’s note makes no additional comment regarding the resulting statutory language, i.e., it does not indicate any intention to clarify or alter the existing statute.

The relevant portion of former Code § 46.1-176, which became...