Marius Hamilton Stafford v. Commonwealth of Virginia ( 2015 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, McCullough and Decker
UNPUBLISHED
Argued at Norfolk, Virginia
MARIUS HAMILTON STAFFORD
MEMORANDUM OPINION* BY
v. Record No. 1066-14-1 JUDGE ROBERT J. HUMPHREYS
APRIL 7, 2015
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
Randall D. Smith, Judge
Robert L. Wegman (The Law Office of Robert L. Wegman, P.L.C.,
on brief), for appellant.
Kathleen B. Martin, Senior Assistant Attorney General (Mark R.
Herring, Attorney General, on brief), for appellee.
Marius Hamilton Stafford (“Stafford”) appeals his conviction for felony habitual offender
in violation of Code § 46.2-357 by the Circuit Court of the City of Chesapeake (the “trial court”).
Stafford claims the trial court erred in not dismissing the charge because the
Commonwealth failed to prove that he received actual notice of his status as an habitual
offender. When the sufficiency of the evidence is challenged on appeal, our review is guided by
well-established principles—“[t]his Court ‘must examine the evidence that supports the
conviction and allow the conviction to stand unless it is plainly wrong or without evidence to
support it.’” Commonwealth v. McNeal, 282 Va. 16, 20, 710 S.E.2d 733, 735 (2011) (quoting
Vincent v. Commonwealth, 276 Va. 648, 652, 668 S.E.2d 137, 139-40 (2008)). On appeal, we
consider the evidence in the light most favorable to the Commonwealth and give it the benefit of
all reasonable inferences fairly deducible therefrom. Id. “The weight which should be given to
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
evidence and whether the testimony of a witness is credible are questions which the fact finder
must decide.” Bridgeman v. Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598, 601 (1986).
The relevant inquiry is whether “any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.” Kelly v. Commonwealth, 41 Va. App. 250, 257, 584
S.E.2d 444, 447 (2003) (en banc) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
Code § 46.2-357 provides in relevant part that “it is unlawful for any person determined
or adjudicated an habitual offender to drive any motor vehicle . . . on the highways of the
Commonwealth while the revocation of the person’s driving privilege remains in effect.” Code
§ 46.2-357(A). “If the offense of driving while a determination as an habitual offender is in
effect is a second or subsequent such offense,” the offense is a felony. Code § 46.2-357(B)(3).
To convict a defendant under this statute, the Commonwealth must “prove beyond a reasonable
doubt that, at the time of an alleged driving offense, a defendant was adjudicated a habitual
offender and his/her privilege to operate a motor vehicle was revoked.” Commonwealth v.
Norman, 268 Va. 539, 544-45, 604 S.E.2d 82, 85 (2004). The statute also requires “proof of
actual knowledge that one has been declared to be an habitual offender before one can be
convicted of driving after having been so declared and ordered not to drive.” Reed v.
Commonwealth, 15 Va. App. 467, 471, 424 S.E.2d 718, 720 (1992).
Stafford argues that the Department of Motor Vehicles (“DMV”) transcript does not
show he received actual notice of his habitual offender status.1 We disagree. The DMV
1
Stafford claims for the first time at oral argument that the DMV transcript had been
improperly admitted at trial. At trial, Stafford objected to the DMV transcript only “to the fact
that it doesn’t prove notice,” not because it was improperly admitted. Further, Stafford argued
for the first time at oral argument that the fact the revocation order and DMV transcript had
different zip codes listed for Stafford’s address proved he never received notice. However, these
arguments were not properly preserved for appellate review. See Buck v. Commonwealth, 247
Va. 449, 452-53, 443 S.E.2d 414, 417 (1994) (holding that the appellant’s failure to raise the
same arguments “before the trial court precludes him from raising them for the first time on
appeal”).
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transcript, which was offered as an exhibit at trial, shows that Stafford was determined to be an
habitual offender on June 21, 1996. The administrative revocation order specifically advised
Stafford that he had been determined to be an habitual offender and that his “privilege to operate
motor vehicles in Virginia” was “revoked indefinitely effective July 21, 1996.” The order
further explained that Stafford would need to petition the circuit court to regain his driving
privilege in the future. The DMV transcript states Stafford’s driver’s license status was
“REVOKED HABITUAL OFFENDE[R]” and indicates “NOTICE OF
SUSPENSION/REVOCATION RECEIVED.”
The 1996 version of Code § 46.2-353(A) required the DMV to notify a person of his/her
habitual offender determination and the revocation of his/her driving privilege by certified mail
sent to the person’s address of record. As a public official, the Commissioner of the DMV is
presumed to have obeyed the law. See Clements v. Commonwealth, 43 Va. App. 56, 60, 596
S.E.2d 88, 89 (2004). “In the absence of clear evidence to the contrary, courts may presume that
public officers have properly discharged their official duties.” Robertson v. Commonwealth, 12
Va. App. 854, 856-57, 406 S.E.2d 417, 418 (1991). At trial, Stafford did not offer any evidence
that the Commissioner violated his statutory duty to mail the revocation notice and the public
record reflects that the notice was both mailed and received. Thus, the trial court was justified in
concluding that the revocation order was properly sent and was received by Stafford in 1996.
Moreover, this Court has held that notice given pursuant to the statute is not the exclusive
method by which notice may be provided. In Pitchford v. Commonwealth, 2 Va. App. 377, 381,
344 S.E.2d 924, 926 (1986), we held that a deputy sheriff informing the defendant his license
was suspended and providing a copy of the defendant’s DMV record was sufficient to show the
defendant had actual knowledge of his suspended license, even though the DMV record could
not definitively show that the defendant had personally received the notices sent to him by the
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DMV. Even if Stafford never received the revocation order the DMV transcript reflects was
sent, he still had actual notice of his status as an habitual offender on October 4, 2013 when he
was charged with his first offense of driving as an habitual offender in the Chesapeake General
District Court. At that time, Stafford never disputed his habitual offender status or that he had
received notice of such determination. Nevertheless, he continued to drive in the
Commonwealth.
A reasonable fact finder could conclude that the June 21, 1996 revocation order the DMV
sent Stafford informing him of his habitual offender status and that his driver’s license was
revoked indefinitely proved that Stafford had actual notice of his status and that he was not
permitted to drive when he was involved in the car accident on December 8, 2013.
Alternatively, the evidence supports the conclusion that, at the very least, Stafford received
actual notice of his status when he was charged with driving as an habitual offender, first
offense, on October 4, 2013, especially given the fact that Stafford never objected to or contested
notice of his habitual offender status. Finding sufficient evidence in the record to establish
Stafford had actual notice of his status as an habitual offender, we affirm his conviction.
Affirmed.
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