Keith A. Carpenter v. Commonwealth of Virginia ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Lemons and Senior Judge Hodges
Argued at Alexandria, Virginia
KEITH A. CARPENTER
MEMORANDUM OPINION * BY
v. Record No. 2842-97-4 JUDGE DONALD W. LEMONS
DECEMBER 8, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Michael P. McWeeny, Judge
M. Dale Phelps (Ann H. Potter, Assistant
Public Defender; Office of the Public
Defender, on brief), for appellant.
Daniel J. Munroe, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Keith A. Carpenter appeals his conviction for driving after
having been declared an habitual offender as a second or
subsequent offense. He alleges that the trial court erred by
admitting evidence of his consumption of alcoholic beverages and
evidence of the presence of alcoholic beverages in the truck he
was driving. Finding no error, we affirm the jury's verdict and
the trial court's order of conviction.
On April 23, 1997 at 2:00 a.m., Fairfax County Police
Officer Jeffrey Snodgrass noticed a pickup truck being operated
erratically. The officer followed the truck and observed it
cross over traffic lines approximately 25 times in a three-mile
stretch. The vehicle did not stop when Officer Snodgrass first
*
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
activated his emergency lights.
While illuminated by the police car's high beam headlights
and accessory spotlight, the vehicle stopped and Carpenter exited
the truck from the driver's seat and looked at the officer. The
officer ordered him back into the truck, but Carpenter ran from
the scene. After a chase in which the officer used pepper spray,
Carpenter was apprehended and placed under arrest. The officer
noticed a "strong of odor of alcoholic beverage" from Carpenter.
When asked for his name and personal information, Carpenter
said, "no comment." The officer retrieved an ID card in the name
of Keith Carpenter from Carpenter's pocket. The officer saw no
other person associated with the truck that evening.
At trial, Officer Lawrence Henderson testified that he
responded to the scene and found three beer cans inside the blue
Chevrolet truck. One can was open and empty, one was open in the
cup holder by the driver's seat and about three-quarters full,
and the third was unopened on the bench seat in the back. The
second and third cans were cold to the touch.
Yosuf Mir testified on Carpenter's behalf and claimed
ownership of the truck. He stated that on that evening he had
given the keys to his truck to his nephew, Khalid Seyed. He said
that he saw Seyed drive the truck away that evening with
Carpenter as his passenger. Mir testified that the truck was
difficult to steer and that the passenger door was not easy to
open.
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Khalid Seyed, Carpenter's co-worker, testified that he and
Carpenter had gone to meet a potential customer on the evening of
April 22, 1997. He said that he was driving Mir's truck when he
noticed a police officer behind him. He said that he stopped,
jumped out and hid underneath the truck, where he remained until
he saw Carpenter run away with the police officer in pursuit.
Carpenter testified that he was a passenger in the truck.
He stated that he had taken anti-depressant medication earlier
that evening and was sleeping on the front seat when Seyed said
"police." He said that he observed Seyed get out of the truck
and run away. He testified that he ran away as well because he
was on probation and did not want to get in trouble for
"nothing."
"A trial court has broad discretion in determining whether
evidence is admissible, and its ruling will not be disturbed
absent an abuse of discretion." Miller v. Commonwealth, 15 Va.
App. 301, 304, 422 S.E.2d 795, 797 (1992). Evidence is relevant
if it has "any tendency to establish a fact which is properly at
issue." Wise v. Commonwealth, 6 Va. App. 178, 187, 367 S.E.2d
197, 202-03 (1988); see generally C. Friend, The Law of Evidence
in Virginia § 11-1 (4th ed. 1993) ("[E]vidence is relevant if it
tends to establish the proposition for which it is offered. If
it has any probative value, however slight - i.e., if it has any
tendency whatsoever to prove or disprove the point upon which it
is introduced - it is relevant."). Although generally
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inadmissible, evidence tending to show an accused committed other
bad acts at other times is admissible "if it tends to prove any
relevant element of the offense charged," so long as its
"legitimate probative value outweighs the incidental prejudice to
the accused." Woodfin v. Commonwealth, 236 Va. 89, 95, 372
S.E.2d 377, 380-81 (1988) (citations omitted).
Carpenter denied that he was operating the truck. Operating
a motor vehicle is an essential element of the offense of driving
after having being declared an habitual offender. See Code
§ 46.2-357. In addition to the officer's testimony that
Carpenter was the only person associated with the truck at the
scene of the arrest, the Commonwealth was entitled to offer proof
of this essential element by introducing evidence that:
1. the officer saw the vehicle being driven in a manner
consistent with driving under the influence of alcohol;
2. Carpenter had the odor of alcohol on his person; and
3. three beer cans were in the truck, one can open and
empty, one open in the cup holder by the driver's seat
and about three quarters full, and the third unopened
on the bench seat of the truck. The second and third
cans were cold to the touch.
The probative value of this evidence outweighs any
incidental prejudice to the accused. The conviction is affirmed.
Affirmed.
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