Rodney Lee Rucker, a/k/a Ronnie L. Rucker v. CW ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Bumgardner and Lemons
Argued at Salem, Virginia
RODNEY LEE RUCKER, A/K/A
RONNIE LEE RUCKER
MEMORANDUM OPINION * BY
v. Record No. 1343-97-3 JUDGE SAM W. COLEMAN III
DECEMBER 1, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
Mosby G. Perrow, III, Judge
Joseph A. Sanzone for appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Rodney Lee Rucker was convicted in a bench trial for driving
after having been adjudicated an habitual offender in violation
of Code § 46.2-357. Rucker contends the trial court erred in
enforcing the 1979 order declaring him an habitual offender
because (1) the order misstated his name, and (2) he believed in
good faith, based on information from the Department of Motor
Vehicles (DMV), that the habitual offender order was no longer in
effect. Finding no error, we affirm the conviction.
On June 18, 1979, Amherst County Circuit Court adjudicated
Rucker an habitual offender under the name "Ronnie Lee Rucker."
On October 22, 1986, the same court, Judge Goade presiding,
convicted "Ronnie Lee Rucker" of driving after having been
*
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
declared an habitual offender, for which Rucker served a
penitentiary sentence.
The case which is the subject of this appeal arose on
November 25, 1996, when Rucker was arrested for driving after
having been declared an habitual offender. Subsequently, a grand
jury indicted appellant as "Ronnie Lee Rucker." Throughout the
trial, however, the court, both parties, and all paperwork
referred to appellant as "Rodney Lee Rucker." At trial, Rucker
did not object to the admission of the 1979 order declaring
"Ronnie Lee Rucker" to be an habitual offender, the 1986
conviction order for "Ronnie Lee Rucker," or the 1997 DMV
transcript for "Ronnie Lee Rucker."
Rucker testified that according to the DMV's records he was
eligible at the time of the alleged offense to obtain a driver's
license. Based on this information, Rucker attempted the
driver's test three times -- once prior to his arrest and twice
after his arrest. According to Rucker, he passed the exam on his
third attempt and had obtained a license at the time of trial.
Rucker argues that the 1979 order declaring "Ronnie Lee
Rucker" an habitual offender is insufficient to prove that he is
an habitual offender because it inaccurately reports his name and
the evidence fails to show that they are the same person. The
Commonwealth responds that Rule 5A:18 bars appellant from arguing
that the order does not apply to him because he did not object to
its introduction at trial. Indeed, appellant did not, nor does
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he now, object to the admissibility of the habitual offender
order. Appellant did, however, argue at trial, as he does now,
that the misnomer casts doubt on whether he is an habitual
offender and whether the habitual offender order is enforceable
against him. Appellant's arguments at trial were sufficient to
preserve the issue for appeal.
Nevertheless, we reject Rucker's argument. The evidence at
trial, viewed in the light most favorable to the Commonwealth,
Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534,
537 (1975), was sufficient to establish that the 1979 habitual
offender order for "Ronnie Lee Rucker" applied to the appellant,
Rodney Lee Rucker. The evidence proves that the appellant was
the same individual named in the 1979 order. Despite the
misnomer, appellant was aware that he had been adjudicated an
habitual offender in 1979 in the name "Ronnie Lee Rucker." The
1997 DMV transcript (for "Ronnie Lee Rucker") lists both the June
18, 1979 adjudication as an habitual offender, and the October
22, 1986 conviction for driving after having been declared an
habitual offender. Significantly, the date of birth and the
Social Security number on the "Ronnie Lee Rucker" DMV transcript
correspond to those that this appellant gave the arresting
officer. In addition, the prior address and the date of birth on
the DMV transcript match those on the 1979 habitual offender
order. Finally, in reference to the 1986 conviction, appellant
conceded that he was the "same fellow Judge Goade sent to the
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penitentiary for two years after having been adjudicated" an
habitual offender. Ample evidence establishes that the
appellant, Rodney Lee Rucker, is the same person as "Ronnie Lee
Rucker" who was declared an habitual offender in 1979, convicted
in 1986, and now charged again in 1996. Accordingly, because the
record establishes that Rucker was present at, and therefore
aware of, his 1979 adjudication as an habitual offender, the
trial court did not err in giving full effect to the 1979
habitual offender order despite the misnomer.
Next, Rucker contends that he did not have the requisite
mens rea to commit the offense because he believed in good faith
that he was no longer an habitual offender. To convict appellant
of driving after having been declared an habitual offender, the
Commonwealth must prove that Rucker knew at the time of the
offense that he was prohibited from driving by an habitual
offender order. See Reed v. Commonwealth, 15 Va. App. 467, 468,
424 S.E.2d 718, 718 (1992). Viewing the evidence in the light
most favorable to the Commonwealth, Higginbotham, 216 Va. at 352,
218 S.E.2d at 537, it proved that appellant knew he was subject
to a valid habitual offender order. The 1979 habitual offender
order states that appellant was present at his habitual offender
adjudication. Therefore, he had actual notice of the order.
Proof of actual notice of the proceeding establishes the
knowledge necessary to prove mens rea or scienter. Cf. Reed,
15 Va. App. at 473, 424 S.E.2d at 722 (finding the Commonwealth's
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failure to prove actual notice of an order adjudicating a
defendant an habitual offender grounds for reversal); Bibb v.
Commonwealth, 212 Va. 249, 183 S.E.2d 732 (1971) (holding that
defendant who had attended a hearing regarding driving on a
suspended license, but was unaware of the hearing's outcome,
lacked the required notice for conviction of driving with a
suspended license).
Rucker's belief that his habitual offender status had been
lifted, even though based on information from the DMV, does not
shield him from conviction of driving after having been
adjudicated an habitual offender. By statute, an individual
subject to an habitual offender order may only have his privilege
to drive restored by court order. See Code § 46.2-356. At
trial, Rucker admitted that, at the time of the offense, he had
not obtained a license or a court order restoring his privilege
to drive. Having been duly notified of his status as an habitual
offender, and having failed to have his eligibility to drive
restored by a court order, appellant's misunderstanding of the
license restoration process is no defense to his conviction.
Additionally, evidence that the DMV, apparently mistakenly,
issued the appellant a license subsequent to the arrest has no
impact on appellant's status at the time of the offense.
Accordingly, we affirm the conviction.
Affirmed.
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