Hodges v. Commonwealth

• Decision Date: 05 May 2015
• Docket Number: Record No. 1243–14–3.,No. 1243–14–3.,1243–14–3.
• Citation: 771 S.E.2d 693,64 Va.App. 687
• Court: Virginia Court of Appeals
• Parties: Steven Lee HODGES v. COMMONWEALTH of Virginia.

64 Va.App. 687

771 S.E.2d 693

Steven Lee HODGES

v.COMMONWEALTH of Virginia.

No. 1243–14–3.

Record No. 1243–14–3.

Court of Appeals of Virginia, Salem.

May 5, 2015.

Cerid E. Lugar (Copenhaver, Ellett & Derrico, on brief), for appellant.

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.

Opinion

RUSSELL, Judge.

Steven Lee Hodges, appellant, was convicted in a bench trial of driving while his license has been suspended in violation of Code § 46.2–301 and of misdemeanor possession of a concealed weapon in violation of Code § 18.2–308. On appeal, he challenges the sufficiency of the evidence to prove the violation of Code § 46.2–301 and argues that the trial court misapplied a statutory exception in convicting him pursuant to Code § 18.2–308. For the reasons stated, we affirm his conviction for driving while his license has been suspended, but reverse the conviction for possession of a concealed weapon and dismiss that charge against him.

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).

So viewed, the evidence establishes that, on December 5, 2013, Federal Park Service Officer Pete Schula observed appellant's car parked at Cahas Knob Overlook on the Blue Ridge Parkway in an area not designated for parking. Officer Schula approached the vehicle and found appellant asleep behind the wheel with the engine running. After backup officers arrived, Officer Schula opened the passenger side door, turned off the engine, and removed the keys from the ignition. Appellant woke up and was told to place his hands on the steering wheel. Appellant then was taken out of the vehicle and placed in handcuffs.

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 Code § 46.2–416.

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 Code § 18.2–308(C)(10), which exempts from the concealed weapons prohibition “[a]ny person who may lawfully possess a firearm and is carrying a handgun while in a personal, private motor vehicle or vessel and such handgun is secured in a container or compartment in the vehicle or vessel.” The trial court found that the gun was not “secured ... [because] defendant's gun was immediately accessible to defendant and the cup over the gun showed the gun was intentionally hidden.” The trial court convicted appellant of carrying a concealed weapon.

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 sequitur,

’ ” id. (quoting Thomas, 48 Va.App. at 608, 633 S.E.2d at 231 ).

Code § 46.2–301 provides in relevant part:

[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 Code § 46.2–301, the Commonwealth must prove that appellant previously had received actual notice that his license had been suspended when he drove on December 5, 2013. Bibb v. Commonwealth, 212 Va. 249, 250, 183 S.E.2d 732, 733 (1971) (decided under former Code §§ 46.1–350 and 46.1–423.1). Appellant argues on appeal that the DMV transcript, standing alone, did not show that he had actual knowledge of his suspension.

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 LAW ENFORCEMENT” on September 3, 2013, that his license had been suspended. There being no analogous ambiguity in this case, the reasoning of Bishop does not control.

Furthermore, unlike in Bishop, the Commonwealth here relies on the provisions of Code § 46.2–416(A), which provides, in pertinent part, that:

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 Code § 46.2–416 that the certified driving record in this case is “prima facie evidence” of the violation of Code § 46.2–301, the evidence at trial was sufficient to allow the factfinder to conclude that the Commonwealth had proven that appellant was guilty of driving on a suspended license after having previously been notified of the suspension. Accordingly, we affirm appellant's conviction for violation of Code § 46.2–301.

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).

Code § 18.2–308(A) provides, in pertinent part, that “[i]f any person carries about his person, hidden from common observation, (i) any pistol, revolver, or other weapon designed or intended to propel a missile of any kind by action of an explosion of any combustible material ... he is guilty of a Class 1 misdemeanor.” ...