Peters v. Commonwealth
| Decision Date | 08 November 2016 |
| Docket Number | Record No. 1577–15–4. |
| Citation | 791 S.E.2d 764,66 Va.App. 743 |
| Parties | Richard Daniel Peters, Jr. v. Commonwealth of Virginia. |
| Court | Virginia Court of Appeals |
Kevin J. Gerrity, Deputy Public Defender, for appellant.
Leah A. Darron, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Present: HUFF, C.J., and DECKER and O'BRIEN, JJ.
DECKER
, Judge.
Richard Daniel Peters, Jr., appeals his conviction for driving “during the time for which he was deprived of the right to do so,” third or subsequent offense, in violation of
. He argues that the Commonwealth failed to prove that he had received notice of the revocation of his driving privileges. We hold that the trial court's finding that the appellant had received notice that he did not have a valid license at the time of the offense was not plainly wrong and was supported by the evidence in the record. Consequently, we affirm the conviction.
In presenting its case that the appellant was guilty of driving “during the time for which he was deprived of the right to do so,” third or subsequent offense, the Commonwealth introduced evidence that Deputy Jeffrey Butler of the Fauquier County Sheriff's Department conducted a traffic stop of the appellant on February 8, 2015. During the encounter, the appellant did not provide “any kind of driver's license” or other paperwork. Deputy Butler specifically testified that the appellant “said he did not have a driver's license.”
In addition to Butler's testimony, the Commonwealth presented evidence of the appellant's three previous violations of Code § 18.2–272
. The dates of those prior convictions were July 19, 2013, September 12, 2013, and December 18, 2013. The Commonwealth also introduced the appellant's Department of Motor Vehicles (DMV) transcript showing his driving record in great detail, including revocations and notifications.
The trial court found the appellant guilty of driving on a suspended license, third or subsequent offense, in violation of Code § 18.2–272
.2 He was sentenced to five years imprisonment, with three years six months of the sentence suspended.
The appellant argues that the evidence was insufficient to prove that he had notice that his privilege to drive in the Commonwealth was revoked on February 8, 2015, the date that his offense occurred. Our analysis of this issue is guided by well-established appellate principles. In this Court's review of the sufficiency of the evidence to support a conviction, we affirm the decision unless the trial court was plainly wrong or the conviction lacks evidence to support it. See, e.g. , Seaborn v. Commonwealth , 54 Va.App. 408, 414, 679 S.E.2d 565, 568 (2009)
. The dispositive question that we must resolve “is whether ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” Id. at 413–14, 679 S.E.2d at 568 (quoting Bolden v. Commonwealth , 49 Va.App. 285, 292, 640 S.E.2d 526, 530 (2007) ). The appellant was tried by the circuit court, sitting without a jury. Consequently, that court was the fact finder, and its judgment is afforded the same weight as a jury verdict. Preston v.
Commonwealth , 281 Va. 52, 57, 704 S.E.2d 127, 129 (2011).
, in pertinent part, prohibits a driver from operating a motor vehicle in the Commonwealth “during the time for which he was deprived of the right to do so” based upon a prior violation of Code § 18.2–270, which proscribes driving while intoxicated. “Any person convicted of three violations of [Code § 18.2–272 ] committed within a 10–year period is guilty of a Class 6 felony.” Code § 18.2–272(A).
In order to obtain a conviction for driving on a suspended or revoked license, third or subsequent offense, in violation of this section of the Code, the Commonwealth must prove that the defendant had actual notice that he no longer had the privilege to drive in the Commonwealth when the offense occurred.3 SeeHodges v. Commonwealth , 64 Va.App. 687, 692, 771 S.E.2d 693, 695 (2015)
(); see also
Commonwealth , 275 Va. 9, 13, 654 S.E.2d 906, 908 (2008) (); Carew v. Commonwealth , 62 Va.App. 574, 578–79, 750 S.E.2d 226, 228 (2013) ().
The appellant contends that the evidence did not conclusively establish that he received actual notice of his license revocation or the fact that it remained invalid on the date of the instant offense. The law is clear that “when the evidence is susceptible [to] two interpretations, the fact finder cannot arbitrarily adopt the one that incriminates the defendant.” Clanton v. Commonwealth , 53 Va.App. 561, 573, 673 S.E.2d 904, 910 (2009)
(en banc ). However, the trier of fact's “determination cannot be overturned as arbitrary unless no rational factfinder would have [adopted the incriminating interpretation].” Id. (quoting Haskins v. Commonwealth , 44 Va.App. 1, 9, 602 S.E.2d 402, 406 (2004) ). That simply is not the case here, where the evidence entirely supports the trial court's decision.
The appellant specifically acknowledged to Deputy Butler at the time of the stop that “he did not have a driver's license.” This statement, viewed in the light most favorable to the Commonwealth and in the context of his previous convictions and the DMV transcript, demonstrated the appellant's knowledge that he was not legally permitted to drive in the Commonwealth at the time of the offense.
The Commonwealth introduced as evidence copies of the conviction orders from general district court of the appellant's three previous convictions under Code § 18.2–272
for driving on a suspended license. The dates for those convictions are July 19, September 12, and December 18, 2013. Each order reflects that the appellant was present at trial. Those offenses were under the same section of the Code as challenged in this appeal. By definition, the Commonwealth established for each of those three convictions that the appellant knew at those times that his driver's license had either been revoked or suspended by the Commonwealth. See
Palmer v.
Commonwealth , 269 Va. 203, 207, 609 S.E.2d 308, 310 (2005) ().
The Commonwealth also introduced into evidence a transcript of the appellant's driver history obtained from the DMV. The transcript notes that the appellant's driver's license status was “REVOKED” and contains the representation that “NOTICE OF SUSPENSION / REVOCATION RECEIVED.” It reflects the July 19, September 12, and December 18, 2013 convictions. Each of those offenses carried with it a three-year license revocation. The revocation term accompanying the July 19 conviction was set to expire July of 2016. Following the September 12 conviction, the appellant's license was revoked through September of 2016. As a result of the appellant's December 18 conviction, the transcript lists the revocation order as lasting until December 16, 2016. The transcript shows that notice for each of these revocations was delivered by first-class mail. Further, each of these revocation entries on the appellant's driving transcript provided that the revocation was “FOR DRV UNDER SUS/REVO 2ND/SUB.”
Actual notice of a single one of these three revocations supports the notice element of the charge, because they all encompassed the date of the instant offense. The address contained in the DMV record for the appellant was the same address that he certified as his mailing address on the summons that resulted in the July 19 conviction.4 Under Code § 46.2–203.1
, that notice was “deemed to have been accepted by the person at that address.”5
See Code § 46.2–203.1 (). This entry shows notice for purposes of the relevant date.
The evidence, viewed in its entirety, supports the trial court's factual finding that the appellant knew on February 8, 2015, the date of the instant offense, that his license was revoked.
The appellant relies on Bishop v. Commonwealth , 275 Va. 9, 654 S.E.2d 906 (2008)
, for the proposition that the transcript of his driver history did not sufficiently prove notice. In Bishop, the Supreme Court of Virginia reversed the defendant's conviction for driving after having been declared a habitual offender. Id. at 16, 654 S.E.2d at 909. The Court held that the following DMV transcript notation on the defendant's record did not prove actual notice of his habitual offender status:
Bishop , 275 Va. at 14, 654 S.E.2d at 908
. The Court reasoned that the entry was “confusing,” “d[id] not contain any information about [the defendant's] status as a[ ] habitual offender,” “d[id] not specify the content of any notification ... provided to [the defendant],” and “d[id] not identify the person, agency or entity that constituted ‘law enforcement.’ ” Id. The Court concluded that the mailing of the order did not constitute proof beyond a reasonable doubt of actual notice. Id.
Unlike in Bishop
, the record in this case contains significant evidence of notice and does not rely on the DMV transcript alone. The appellant's statement to the deputy that “he did not have a driver's license,” coupled with his presence at his previous trials for driving on a...
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...had actual notice that he no longer had the privilege to drive in the Commonwealth when the offense occurred," Peters v. Commonwealth , 66 Va. App. 743, 746, 791 S.E.2d 764 (2016), but the statute does not require any particular form of notice and does not mandate any degree of specificity ......
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