Larry Becker v. Commonwealth of Virginia ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Lemons and Frank
Argued at Norfolk, Virginia
LARRY BECKER
MEMORANDUM OPINION * BY
v. Record No. 2230-98-1 JUDGE ROBERT P. FRANK
DECEMBER 28, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
John K. Moore, Judge
Ray W. King (Richard J. Tavss; Tavss,
Fletcher, Maiden & King, P.C., on briefs),
for appellant.
Linwood T. Wells, Jr., Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Larry Becker (appellant) appeals from a bench trial his
conviction for operating a vehicle in violation of the terms of a
state hauling permit under Code § 46.2-1139. On appeal, he
contends that: (1) only the actual operator of the vehicle can be
guilty of this offense and (2) since the driver of the vehicle was
acquitted of the offense, appellant cannot be convicted as an
accessory before the fact. We disagree and affirm the conviction.
FACTS
Appellant is an account representative for W.O. Grubb Steel
Erection (Grubb), which, as part of its business, operates
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
self-propelled cranes. At approximately 5:00 a.m. on November 11,
1997, appellant received a call from Dick Caddle of Atlantic
Industrial requesting a crane at the Norfolk International
Terminals (NIT). Mr. Caddle contacted appellant on prior
occasions when he needed cranes. On this occasion Mr. Caddle said
to appellant, "Larry, I got to have a crane right now; I got to
go; Bye." Caddle did not offer further explanation. In the past,
Mr. Caddle used these words, or similar words, when he needed a
crane for an emergency, and, in this instance, appellant believed
Caddle's request was for such an emergency situation.
Robert Wyatt Belote drove a Grubb-owned Grove TM-9120
self-propelled crane to NIT. The movement of this crane was
controlled by a permit issued to Grubb pursuant to Article 18 of
Chapter 10 of Title 46.2 of the Code of Virginia. The permit
allowed non-emergency movement of the crane on public roads from
one-half hour after sunrise until one-half hour before sunset. In
addition, travel was prohibited on certain sections of Interstate
64 between 7:00 a.m. and 9:00 a.m.
At approximately 6:20 a.m., nineteen minutes before sunrise, 1
Officer Godwin of the Virginia Beach Police Department observed
the crane being driven by Belote traveling west on Interstate 64.
Officer Godwin had the crane stopped and escorted down Interstate
64 to the Northampton Boulevard exit by another officer. After
1
Sunrise occurred at 6:39 a.m. on November 11, 1997.
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speaking with the driver/operator, Belote, and appellant by
telephone, Officer Godwin issued a summons to Belote for violating
Code § 46.2-1139 and a civil summons to Grubb for operating an
overweight vehicle without a permit for operation at that hour of
the morning. On May 14, 1998, appellant also was indicted for
violating Code § 46.2-1139.
Pursuant to Code § 46.2-1135, Grubb paid a civil penalty of
$6,512 for operating the crane on the public roads in a
non-emergency situation without having a permit for operation at
that time of the morning. Belote, the driver of the crane, was
found not guilty of violating Code § 46.2-1139.
Appellant was tried on September 17, 1998. The court found
that the appellant, though not the operator of the crane, violated
or caused the violation of the permit. The court stated "the fact
he wasn't the operator [does not] make any difference under this
statute." The court indicated that the statute's violation did
not depend upon the "operation" of the vehicle but upon "the
violation of the terms" of the permit. The court based this
finding on the statute's language discussing "violation of the
permit," not "operation of a vehicle in violation" of the permit.
ANALYSIS
The standard of review for determining
the sufficiency of evidence on appeal is well
established. We must examine the evidence in
the light most favorable to the Commonwealth,
the prevailing party at trial, and we will
not disturb the trial court's judgment unless
it is plainly wrong or without evidence to
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support it. Goins [v. Commonwealth], 251 Va.
[442,] 466, 470 S.E.2d [114,] 130 [(1996)];
Beavers v. Commonwealth, 245 Va. 268, 281-82,
427 S.E.2d 411, 421, cert. denied, 510 U.S.
859, 114 S. Ct. 171, 126 L.Ed.2d 130 (1993);
Code § 8.01-680.
Hedrick v. Commonwealth, 257 Va. 328, 340, 513 S.E.2d 634, 641
(1999).
Section 46.2-1139 of the Code of Virginia provides, in part:
Permits for excessive size and weight
generally; penalty. -- A. The Commonwealth
Transportation Commission and local
authorities of cities and towns, in their
respective jurisdictions, may upon written
application and good cause being shown, issue
a permit authorizing the applicant to operate
on a highway a vehicle of a size or weight
exceeding the maximum specified in this
title. Any such permit may designate the
route to be traveled and contain any other
restrictions or conditions deemed necessary
by the body granting the permit.
* * * * * * *
C. Every permit issued under this article
for the operation of oversize or overweight
vehicles shall be carried in the vehicle to
which it refers and may be inspected by any
officer. Violation of any term of any permit
issued under this article shall constitute a
Class 1 misdemeanor.
Appellant contends that since the driver of the vehicle was
acquitted of the same charge, appellant cannot be convicted as an
accessory before the fact. Appellant further argues that he
cannot be liable under Code § 46.2-1139 because he was not
"operating" the crane in violation of the permit.
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At common law, there are no accessories in misdemeanors,
"'all concerned being principals.'" Watts v. Commonwealth, 99 Va.
872, 880, 39 S.E. 706, 708 (1901) (citation omitted). In other
words, actions that result in punishment as an accessory when the
crime is a felony result in punishment as a principal when the
crime is a misdemeanor. The elements necessary to establish that
a person acted as an accessory before the fact are instructive in
determining whether appellant acted as a principal in this case.
We have previously defined an accessory as
"one not present at the commission of the
offense, but who is in some way concerned
therein, either before or after, as [a]
contriver, instigator or advisor, or as a
receiver or protector of the perpetrator."
Tolley v. Commonwealth, 216 Va. 341, 348, 218
S.E.2d 550, 555 (1975). See also Foster v.
Commonwealth, 179 Va. 96, 99, 18 S.E.2d 314,
315 (1942); Hitt v. Commonwealth, 131 Va.
752, 759, 109 S.E. 597, 600 (1921). This
definition mandates that in the trial of an
accessory before the fact the Commonwealth
establish the following elements beyond a
reasonable doubt: the commission of the
crime by the principal, the accessory's
absence at the commission of the offense, and
that before the commission of the crime, the
accessory was "in some way concerned
therein . . . as [a] contriver, instigator or
advisor." Tolley, 216 Va. at 348, 218 S.E.2d
at 555.
McGhee v. Commonwealth, 221 Va. 422, 425-26, 270 S.E.2d 729, 731
(1980).
In Dusenberry v. Commonwealth, 220 Va. 770, 771-72, 263
S.E.2d 392, 393 (1980), the Supreme Court of Virginia wrote:
[B]y definition, there can be no accessory
without a principal. Although conviction of
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a principal in the first degree is not a
condition precedent to conviction of an
accessory, . . . , "before the accessory to a
crime can be convicted as such, it must be
shown that the crime has been committed by
the principal." Snyder v. Commonwealth, 202
Va. 1009, 1017, 121 S.E.2d 452, 458 (1961).
Similarly, in Snyder, 202 Va. at 1015, 121 S.E.2d at 456-57,
the Court stated, "It is incumbent upon the Commonwealth, in
proving her case against the defendant as an aider and abettor, to
establish the commission of the substantive offense by . . . the
principal."
The evidence is sufficient to show that the driver of the
vehicle, Belote, committed the offense. The uncontroverted
evidence is that Belote violated the terms of the permit by
operating the vehicle before dawn. It is further uncontroverted
that appellant was not present at the time of the offense. The
third element of accessory before the fact is that the accused was
a contriver, instigator or advisor of the crime committed by the
principal. Appellant, the dispatcher for Grubb, received a phone
call requiring the use of the crane vehicle. Knowing the
limitations of the permit, appellant ordered the driver to drive
the crane on the highways prior to sunrise. Appellant was in fact
the instigator who set the violation in motion.
While appellant is correct in his argument that he cannot be
convicted as an accessory before the fact because the offense is a
misdemeanor, his actions in instigating the operation of the crane
on the highway resulted in a violation of the permit, even though
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he did not physically operate the crane. We, therefore, find that
appellant violated Code § 46.2-1139 as a principal in the
commission of the offense.
For these reasons, we affirm the judgment of the trial court.
Affirmed.
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