Christopher T Taylor v. Commonwealth ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Clements, Agee ∗ and Felton
Argued at Richmond, Virginia
CHRISTOPHER T. TAYLOR
MEMORANDUM OPINION ∗∗ BY
v. Record No. 1511-02-2 JUDGE G. STEVEN AGEE
MARCH 25, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF NEW KENT COUNTY
Thomas B. Hoover, Judge
J. Terry Osborne for appellant.
Eugene Murphy, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
Christopher T. Taylor ("Taylor") was convicted in a bench
trial of reckless driving in the Circuit Court of New Kent County.
He was sentenced to sixty days in jail and a $1,000 fine. On
appeal, Taylor asserts that (1) the certificate of calibration was
improperly admitted into evidence, and (2) the evidence was
insufficient to prove that the offense occurred in New Kent County
∗
Justice Agee participated in the hearing and decision of
this case prior to his investiture as a Justice of the Supreme
Court of Virginia.
∗∗
Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
or that he was speeding. For the reasons that follow, we affirm
the decision of the trial court. 1
I. ANALYSIS
A. Admissibility of the Calibration Certificate
Taylor argues on appeal that the trial court erred by
admitting the calibration certificate of Alcohol Beverage
Control Agent Bellows' vehicle into evidence. He asserts that
Code § 46.2-882 and our decision in Gray v. Commonwealth, 18
Va. App. 663, 446 S.E.2d 480 (1994), establish a requirement
that calibration of a police vehicle's speedometer be within six
months prior to the offense date. We disagree.
Code § 46.2-942 provides that "the court shall receive as
evidence a sworn report of the results of a calibration test of
the accuracy of the speedometer in the motor vehicle operated by
the defendant or the arresting officer at the time of the
alleged offense."
Under basic rules of statutory construction,
we examine a statute in its entirety, rather
than by isolating particular words or
phrases. When the language in a statute is
clear and unambiguous, we are bound by the
plain meaning of that language. We must
determine the General Assembly's intent from
the words appearing in the statute, unless a
literal construction of the statute would
yield an absurd result.
1
As the parties are fully conversant with the record in
this case and because this memorandum opinion carries no
precedential value, only those facts necessary to a disposition
of this appeal are recited.
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Cummings v. Fulghum, 261 Va. 73, 77, 540 S.E.2d 494, 496 (2001)
(internal citations omitted); Peacock v. Browning Ferris, Inc.,
38 Va. App. 241, 249, 563 S.E.2d 368, 372 (2002).
The plain language of the statute requires admission into
evidence of the certificate of calibration. Nothing in the
statute requires that the calibration be on the date of the
offense, only that it be of the car used on the offense date.
The phrase "at the time of the alleged offense" modifies "motor
vehicle" so as to specify the car to be calibrated. There is no
language in the statute requiring that a calibration be
performed within a specified time period or whether the
calibration be before or after the offense date.
Taylor asserts that the time limit for calibrations in Code
§ 46.2-882 also applies to speedometers under Code § 46.2-942.
He points to that part of Code § 46.2-882 that provides "[n]o
calibration or testing of such device shall be valid for longer
than six months." (Emphasis added). However, it is clear by
the plain language of the statute that the term "such device"
refers only to any "laser speed determination device, radar, or
microcomputer device as described in this section," not vehicle
speedometers. Code § 46.2-882. The General Assembly, as Code
§ 46.2-882 illustrates, can place an evidentiary limit on
specific speed testing devices, but has clearly chosen not to do
so with regard to speedometer calibrations.
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"'Courts are not permitted to rewrite statutes. This is a
legislative function.'" Barr v. Town & Country Properties,
Inc., 240 Va. 292, 295, 396 S.E.2d 672, 674 (1990) (quoting
Anderson v. Commonwealth, 182 Va. 560, 566, 29 S.E.2d 838, 841
(1944)). If the General Assembly wishes to impose a six-month
requirement on the calibration of speedometers, it could do so,
but clearly has not. Furthermore, as Gray involved the accuracy
of a radar device specified in Code § 46.2-882, that case has no
application to the case at bar. The time span between the
offense date and the calibration date goes to the weight of the
evidence, not its admissibility. Williams v. Commonwealth, 5
Va. App. 514, 519, 365 S.E.2d 340, 343 (1988).
Accordingly, we find no error in the admission into
evidence of the speedometer calibration of Agent Bellows' car.
B. Sufficiency of the Evidence
Taylor asserts that the evidence was insufficient for the
trial court to find that the offense was committed in New Kent
County and, thus, venue was improper. We disagree.
When considering the sufficiency of the evidence on appeal
in a criminal case, this Court views the evidence in the light
most favorable to the Commonwealth, granting to it all
reasonable inferences fairly deducible therefrom. See
Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534,
537 (1975). On review, this Court will not substitute its own
judgment for that of the trier of fact. See Cable v.
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Commonwealth, 243 Va. 236, 239, 415 S.E.2d 218, 220 (1992). The
trial court's judgment will not be set aside unless it appears
that the judgment is plainly wrong or without supporting
evidence. See Martin v. Commonwealth, 4 Va. App. 438, 443, 358
S.E.2d 415, 418 (1987).
The trial court found that the offense occurred in New Kent
County. Agent Bellows testified that he paced Taylor's vehicle
"at a speed of 105 m.p.h. in a posted 65 m.p.h. zone for
approximately one mile within New Kent County . . . ." There is
evidence in the record to support the trial court's finding that
the offense occurred in New Kent County and that venue was
therefore proper.
Taylor also alleges that the evidence was insufficient to
show how fast he was travelling. The speed of Taylor's car was
a determination for the trier of fact. As we previously
resolved, the trial court properly admitted the calibration
certificate into evidence. The results of the calibration,
combined with Agent Bellows' testimony, were sufficient to prove
Taylor's speed. Furthermore, the trial court clearly considered
the 2 m.p.h. variance in the calibration results by finding
Taylor guilty of driving 103 m.p.h. in a 65 m.p.h. zone.
II. CONCLUSION
The trial court properly admitted the calibration
certificate pursuant to Code § 46.2-942, and the evidence was
sufficient to support Taylor's conviction. Finding no error in
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the decision of the trial court, its judgment and Taylor's
conviction are affirmed.
Affirmed.
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