Bernard Luther Dennis v. Commonwealth of Virginia ( 2008 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Kelsey, Petty and Senior Judge Willis
Argued at Chesapeake, Virginia
BERNARD LUTHER DENNIS
MEMORANDUM OPINION * BY
v. Record No. 2256-07-1 JUDGE JERE M. H. WILLIS, Jr.
DECEMBER 9, 2008
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
C. Peter Tench, Judge
Charles E. Haden for appellant.
Virginia B. Theisen, Senior Assistant Attorney General (Robert F.
McDonnell, Attorney General, on briefs), for appellee.
Amicus Curiae: The City of Newport News (Collins L. Owens, Jr.,
Deputy City Attorney, on brief), for appellee.
On appeal from his conviction of driving while under the influence of alcohol (DUI) in
violation of Code § 18.2-266, a second such offense committed within five to ten years, Bernard
Luther Dennis contends (1) that the trial court erred in denying his motion to dismiss because the
charging warrant referenced an invalid local ordinance, and (2) that the evidence was insufficient to
support his conviction of a second offense. 1 We affirm the judgment of the trial court.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
The original order of conviction, dated August 24, 2007, captioned the case to show
“City of Newport News” as prosecuting authority and recited the appearance of the
Commonwealth’s attorney on behalf of the city. By order entered November 12, 2008, nunc pro
tunc August 24, 2007, pursuant to Code § 8.01-428(B), the trial court identified and corrected a
clerical error and modified the order to identify the Commonwealth as the prosecuting authority,
being represented in that regard by the Commonwealth’s attorney.
Facts
“On appeal, ‘we review the evidence in the light most favorable to the Commonwealth,
granting to it all reasonable inferences fairly deducible therefrom.’” Archer v. Commonwealth,
26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va. App.
438, 443, 358 S.E.2d 415, 418 (1987)).
About 2:30 a.m. on September 23, 2006, Officer A.L. Hoxter stopped Dennis’s vehicle
because he was driving without his headlights illuminated. Hoxter noted a strong odor of alcohol
about Dennis. Dennis stated he had drunk a beer an hour earlier. Hoxter removed Dennis from
the vehicle and administered a series of field sobriety tests, which Dennis failed to complete
satisfactorily. When Dennis blew into an “alcosensor” machine, it gave a reading of .11.
Hoxter obtained a warrant charging Dennis with DUI, in violation of sections “26-8,
18.2-266/18.2-270, Code or Ordinances of this city, county or town[.]” 2 The warrant charged
Dennis committed the offense “after having committed one prior violation of § 18.2-266 or an
offense set forth in subsection E of § 18.2-270 during a period of five to ten years from the date
of the current offense.” Describing the charged offense with language nearly identical to that
contained in Code § 18.2-266, the Virginia statute prohibiting DUI, the warrant alleged appellant
had
2
Section 26-8(a) of the Code of Ordinances of the City of Newport News (Newport
News Code) provided in pertinent part:
Pursuant to the authority of Sections 46.2-1313 and 1-220 of the
Code of Virginia, all of the provisions and requirements of the
laws of the state contained in Title 46.2 of the Code of Virginia, as
amended, except those provisions and requirements the violation
of which constitutes a felony, and except those provisions and
requirements which, by their very nature, can have no application
to or within the city, are hereby adopted and incorporated in this
chapter by reference and made applicable within the city. The
incorporation by reference contained in this section shall include
any future amendments to laws or regulations so referenced.
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drive[n] or operate[d] a motor vehicle while having a blood alcohol
concentration of 0.08 percent or more by weight by volume or 0.08
grams or more per 210 liters of breath; or while under the influence
of alcohol; or while under the influence of a narcotic drug or other
self-administered intoxicant or drug, or a combination of drugs, to
a degree which impaired the accused’s ability to drive or operate a
motor vehicle safely; or while under the combined influence of
alcohol and a drug or drugs to a degree which impaired the
accused’s ability to drive or operate a motor vehicle safely.
The Newport News General District Court found Dennis guilty as charged. He appealed
to the trial court. In the trial court, Dennis moved to dismiss the charge, contending Newport
News Code § 26-8 was invalid as violating Dillon’s Rule. He argued that Newport News Code
§ 26-8 did not incorporate by reference Title 18.2 of the Code of Virginia and did not adopt
future amendments to the Code of Virginia. The trial court denied the motion to dismiss and
amended the warrant to eliminate the reference to Newport News Code § 26-8.
At trial, the Commonwealth introduced a certified copy of Dennis’s 1997 conviction of
DUI in the Newport News General District Court. The warrant underlying that conviction
charged him with “driv[ing] or operat[ing] a motor vehicle while under the influence of alcohol
. . . to a degree which impaired [his] ability to drive or operate a motor vehicle.” The warrant
charged he had violated sections “26-72/18.2-266, Code or Ordinances of this city.” 3 Dennis
argued that Newport News Code § 26-8 was invalid, rendering his 1997 conviction invalid and
insufficient to constitute a prior conviction. 4 The trial court rejected this argument and found
Dennis guilty of DUI in violation of Code § 18.2-266, a second offense committed within five to
ten years.
3
Newport News Code § 26-72 incorporated by reference “Article 2 (Section 18.2-266 et
seq.) of Chapter 7 of Title 18.2, Code of Virginia, as amended and as they shall be amended in
the future . . . .”
4
Appellant’s argument in the trial court, and on appeal, seemingly ignores the fact that
the 1997 conviction order refers to Newport News Code § 26-72, not Newport News Code
§ 26-8.
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I.
Dennis contends the trial court erred in amending the warrant to eliminate reference to
Newport News Code § 26-8.
Under Rule 3A:4, an arrest warrant must describe the
offense charged. This description must comply with Rule 3A:7(a),
which deals with the description of the charge that must be
contained in an indictment. We have held under this rule that an
indictment must give an accused notice of the nature and character
of the offense. Wilder v. Commonwealth, 217 Va. 145, 225 S.E.2d
411 (1976). The same, therefore, is true of warrants.
Greenwalt v. Commonwealth, 224 Va. 498, 501, 297 S.E.2d 709, 710-11 (1982). Notice ensures
that the accused “can adequately prepare to defend against his accuser.” Willis v.
Commonwealth, 10 Va. App. 430, 437-38, 393 S.E.2d 405, 409 (1990).
“[T]rial courts have substantial discretion to amend warrants.” Rawls v. Commonwealth,
272 Va. 334, 344, 634 S.E.2d 697, 702 (2006). Code § 16.1-137 provides that “[u]pon the trial
of the warrant on appeal the [circuit] court may, upon its own motion or upon the request either
of the attorney for the prosecution or for the accused, amend the form of the warrant in any
respect in which it appears to be defective.” Moreover, if a warrant charges a defendant under an
improper or invalid county or municipal ordinance, the circuit court may amend it to charge the
defendant under the relevant state statute. See Robinson v. Commonwealth, 206 Va. 766, 769,
146 S.E.2d 197, 200 (1966).
Prior to the amendment, the warrant, by its reference to Code § 18.2-266, provided
Dennis with notice of the nature and character of the offense with which he was charged. The
description of the offense contained language identical in all pertinent respects to Code
§ 18.2-266. The amendment of the warrant did not change the nature and character of the
offense charged. Dennis claimed no surprise regarding the charge he was facing, nor did he
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request a continuance to prepare for trial. Thus, the trial court did not err in amending the
warrant and in denying Dennis’s motion to dismiss.
II.
Dennis contends the trial court erred in permitting the Commonwealth to establish his
prior DUI conviction with the 1997 order. He argues the prior judgment was void because of the
alleged invalidity of Newport News Code § 26-8. 5
Notwithstanding the inclusion of a reference to a Newport News ordinance, the warrant
upon which Dennis pled guilty and was convicted in 1997 charged him with committing DUI in
violation of Code § 18.2-266. He raises no challenge to the validity of Code § 18.2-266. “By
the citation of the statute in the [warrant] [Dennis] was informed of the essential elements of the
case against him.” Reed v. Commonwealth, 3 Va. App. 665, 667, 353 S.E.2d 166, 168 (1987).
The citation to the Newport News ordinance was mere surplusage, neither adding to nor
subtracting from the sufficiency of the charge.
Code § 19.2-226 provides that “[n]o indictment or other accusation shall be quashed or
deemed invalid” due to “omission or insertion of any other words of mere form or surplusage[.]”
Accordingly, the trial court did not err in admitting the 1997 order and finding it sufficient to
prove the prior offense.
Conclusion
The judgment of the trial court is affirmed.
Affirmed.
5
Appellant’s argument does not challenge the validity of Newport News Code § 26-72,
the ordinance cited in the 1997 conviction.
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