Yoder v. Commonwealth

Decision Date11 December 2018
Docket NumberRecord No. 1023-17-3
PartiesMICHELLE DAWN YODER v. COMMONWEALTH OF VIRGINIA
CourtVirginia Court of Appeals

UNPUBLISHED

Present: Chief Judge Huff, Judges Beales and Decker

Argued at Salem, Virginia

MEMORANDUM OPINION* BY JUDGE MARLA GRAFF DECKER

FROM THE CIRCUIT COURT OF AUGUSTA COUNTY

Victor V. Ludwig, Judge

Eric M. Anderson, Assistant Public Defender, for appellant.

Rachel L. Yates, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Michelle Dawn Yoder appeals her conviction for driving after forfeiture of her license, a third such offense within ten years, in violation of Code § 18.2-272(A). She argues that the evidence was insufficient to support the conviction. Based on a review of the record and relevant law, we conclude that the evidence was sufficient to prove the offense. Consequently, we affirm the conviction.

I. BACKGROUND1

The appellant was charged with driving while she "was deprived of the right to do so," a third or subsequent offense within ten years. At trial, the Commonwealth presented evidencethat Deputy C.T. Rosemeier of the Augusta County Sheriff's Office encountered the appellant during a traffic stop on June 18, 2016.

Rosemeier noticed the appellant driving a gray Toyota van with a license plate that was "suspicious" because it was "only affixed at one screw position at an angle." The deputy ran the license plate which came back registered to a gold Buick. Rosemeier then initiated a traffic stop of the van.

Deputy Rosemeier testified that when he asked for identification, the appellant gave him "an ID card." He checked the status of her driver's license and learned that it had been revoked.2 The deputy "ran a driver transcript on [his] terminal" in the police car and identified "three previous convictions." The Commonwealth submitted into evidence certified copies of two prior conviction orders for the appellant's violations of Code § 18.2-272.

During the proceedings, the appellant made a motion to strike and renewed that motion at the completion of all of the evidence. She argued, in pertinent part, that the Commonwealth had not adequately proven notice of the revocation. The trial court denied the motions.

After the trial court overruled the appellant's motions to strike and before finding her guilty, the appellant's attorney "ask[ed] the Court to establish the evidence is sufficient today and to set it over with a presentence investigation to see what the appropriate next step is."

The trial court found the appellant guilty of driving after forfeiture of her license, a third offense within ten years, in violation of Code § 18.2-272(A). She was sentenced to two years in prison, with one year and one month suspended.

II. ANALYSIS

The appellant argues that the Commonwealth failed to present sufficient evidence to support her conviction. The Commonwealth counters that the appellant "invited the error that she now complains of on appeal" and, alternatively, that the evidence was sufficient.

A. Invited Error

The Commonwealth initially argues that this appeal is barred by the invited error doctrine because the appellant's counsel asked the trial court to find that the evidence was sufficient to support the conviction.

A longstanding principle of law is that a party may not "invite error and then attempt to take advantage of the situation created by his own wrong." Rowe v. Commonwealth, 277 Va. 495, 502, 675 S.E.2d 161, 164 (2009) (quoting Cangiano v. LSH Bldg. Co., 271 Va. 171, 181, 623 S.E.2d 889, 895 (2006)). The invited error doctrine is applicable when a party advocates for an action and then subsequently alleges that same action to be error. See id. at 502-03, 675 S.E.2d at 165; Hansen v. Stanley Martin Cos., 266 Va. 345, 358, 585 S.E.2d 567, 575 (2003); see also Cohn v. Knowledge Connections, Inc., 266 Va. 362, 367, 585 S.E.2d 578, 581 (2003) (applying the invited error doctrine because the defendant agreed to the appealed ruling).

In this case, the appellant clearly argued in her two motions to strike that the evidence was insufficient to support the conviction. However, after the trial court denied her second motion, the appellant's counsel "ask[ed]" the judge to "establish the evidence is sufficient" and to order the presentence investigation. The conviction order reflects that the appellant moved to strike the Commonwealth's evidence, and that motion was denied. It further indicates that the motion was renewed and denied again "for reasons stated [in] the record." Nothing in the order suggests that the appellant invited the circuit court to find the evidence sufficient to support her conviction.

The appellant "clearly and consistently argued" her position "throughout the proceedings below" that the evidence was insufficient to support her conviction. See Everett v. Carome, 65 Va. App. 177, 184, 775 S.E.2d 449, 453 (2015). Consequently, "[t]he trial court could not have been in doubt about" her position. See id. (holding that the party did not invite the alleged error in part because it was "clear from the context of the record" that the party's agreement to dismissal was "simply acknowledg[ment] that . . . there was . . . no point in continuing the litigation in the circuit court"). Viewing the record as a whole, the appellant's request that the judge "establish the evidence is sufficient" was not an invitation to convict her but, rather, a suggestion to complete the guilt phase of the trial in order to prepare for the sentencing phase. Based on this record, the invited error doctrine does not apply to bar this appeal.3

B. Sufficiency of the Evidence

The appellant argues that the evidence was insufficient to support her conviction. She contends that the evidence did not establish beyond a reasonable doubt that she received proper notice of her license revocation or that any notice included the information that her driving status remained forfeited on the date of the instant offense. The appellant also argues that the evidence in the record did not adequately establish the predicate convictions necessary for a third or subsequent offense.

Our analysis is informed by well-established precedent. In this Court's review of the sufficiency of the evidence, 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.'" Commonwealth v. Moseley, 293 Va. 455, 463, 799 S.E.2d 683, 686 (2017) (quoting Williams v. Commonwealth, 278 Va. 190, 193, 677 S.E.2d 280, 282 (2009)). In conducting our review, we view the evidence and all reasonable inferences flowing from it in the light most favorable to the Commonwealth. Peters v. Commonwealth, 66 Va. App. 743, 745 n.1, 791 S.E.2d 764, 765 n.1 (2016). In addition, this Court considers all of the evidence together and does not view separate aspects of the record in isolation. Moseley, 293 Va. at 466, 799 S.E.2d at 688. However, 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). 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).

1. Notice

Code § 18.2-272(A) provides, in pertinent part, that "[a]ny person who drives or operates any motor vehicle . . . in the Commonwealth during the time for which [she] was deprived of the right to do so" is guilty of a misdemeanor. In order to obtain a conviction for driving after forfeiture of one's license, whether "suspended or revoked . . . , in violation of this section of the Code, the Commonwealth must prove that the defendant had actual notice that [she] no longer had the privilege to drive in the Commonwealth when the offense occurred." Peters, 66Va. App. at 746, 791 S.E.2d at 765-66; see also Bishop v. Commonwealth, 275 Va. 9, 13, 654 S.E.2d 906, 908 (2008) (requiring the Commonwealth to prove actual notice in the context of a conviction for driving a motor vehicle after having been declared a habitual offender in violation of Code § 46.2-357); Hodges v. Commonwealth, 64 Va. App. 687, 692, 771 S.E.2d 693, 695 (2015) (evaluating the sufficiency of the evidence proving notice in the context of driving on a suspended license in violation of Code § 46.2-301).

"Actual notice" is "[n]otice given directly to, or received personally by, a party." Notice, Black's Law Dictionary (10th ed. 2014). As with any other element of a crime, actual notice may be proven by circumstantial evidence. Hofheimer v. Booker, 164 Va. 358, 366, 180 S.E. 145, 147 (1935); see Haskins v. Commonwealth, 44 Va. App. 1, 6, 602 S.E.2d 402, 404 (2004). Evidence relevant to proving notice in the context of a driving offense includes a transcript of the defendant's driver history reflecting such notice obtained from the Department of Motor Vehicles and any statements made by the defendant indicating knowledge.4 See, e.g., Bishop, 275 Va. at 13-14, 654 S.E.2d at 908-09; Peters, 66 Va. App. at 750, 791 S.E.2d at 767. In addition, in certain instances, depending on the facts of the case, a defendant's presence at a prior trial for driving on a suspended or revoked license may be relevant to proving notice. Peters, 66 Va. App. at 749-50, 791 S.E.2d at 767.

Notice may also be proven by showing that the party had actual knowledge of the fact. See Pitchford v. Commonwealth, 2 Va. App. 377, 381, 344 S.E.2d 924, 926 (1986) (holding that the fact that the defendant learned in person from a deputy that his license was suspended...

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