Clarence Willis Myers v. Commonwealth of Virginia ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Bumgardner
Argued at Salem, Virginia
CLARENCE WILLIS MYERS
MEMORANDUM OPINION * BY
v. Record No. 0590-97-3 JUDGE RUDOLPH BUMGARDNER, III
MAY 5, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
James F. Ingram, Judge
Elwood Earl Sanders, Jr., Director
Capital/Appellate Services (Public Defender
Commission, on briefs), for appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (Richard Cullen, Attorney General, on
brief), for appellee.
Clarence Myers was convicted of driving after being declared
an habitual offender, driving under the influence of alcohol, and
refusing to submit to a breath test. He appealed only the
conviction of driving after being declared an habitual offender.
He asserts that there was insufficient evidence that he knew he
was an habitual offender. Finding that there was evidence to
prove that element of the offense beyond a reasonable doubt, we
affirm.
The defendant was declared an habitual offender February 7,
1972. The order declaring him to be so was mailed to his
residence in Eden, N.C., but was returned unclaimed. On
September 7, 1996 at 2:45 p.m., the defendant, who was alone in
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
his car, collided with another vehicle. His car came off the
shoulder of the road, through his lane of travel, and struck an
oncoming car. At first the defendant claimed that his wife was
driving though there was no one else in the car. Then he said it
was a girlfriend, and then someone he had picked up down the
street. He offered the driver of the vehicle he hit $100 to
"forget all of this."
Mark Hendrix, a detective with the Danville Police
Department, testified that he had spoken with the defendant
several times in June 1996. He was investigating a murder, and
the defendant was a potential witness. On one occasion, the
defendant told Hendrix that he was an habitual offender. Hendrix
noted that fact in case he ever saw the defendant driving in the
future.
The defendant is a resident of North Carolina. He argues
that the statement he made about being an habitual offender does
not show actual knowledge that he was an habitual offender in
Virginia. He argues that because he is a resident of North
Carolina his understanding of the term might be different. He
further argues that unless the Commonwealth showed that the North
Carolina habitual offender law was the same as Virginia law, his
statement would not be proof of his actual knowledge. The
Commonwealth presented no evidence comparing the habitual
offender laws of the two states. The defendant's argument is not
persuasive.
The Commonwealth conceded that it must prove actual
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knowledge. The Commonwealth met this burden by presenting
testimony that the defendant himself admitted to that status.
Words or phrases such as "habitual offender" should be given
their common, ordinary meaning. "Words are not to be construed
according to the secret intent of the speaker, but from the
expression used in accordance with their usual meaning and common
acceptation." Cook v. Patterson Drug Co., 185 Va. 516, 521, 39
S.E.2d 304, 307 (1946). From Myers' statement that he was an
habitual offender, the finder of fact could find that the
Commonwealth proved that element and that it had carried its
burden of persuasion. No evidence proved that the phrase had
some latent meaning that it did not have ordinarily.
"'Prima facie evidence is evidence which on its first
appearance is sufficient to raise a presumption of fact or
establish the fact in question unless rebutted. It imports that
the evidence produces for the time being a certain result, but
that the result may be repelled.'" Commonwealth v. Dalton, 11
Va. App. 620, 623, 400 S.E.2d 801, 803 (1991) (quoting Babbitt v.
Miller, 192 Va. 372, 379-80, 64 S.E.2d 718, 722 (1951)).
Since the Commonwealth had presented prima facie evidence,
the trier of fact could find that the defendant had knowledge.
See Moses v. Commonwealth, 20 Va. App. 27, 31, 455 S.E.2d 251,
253 (1995). This the trial court did. From the evidence
presented, ordinary men could find beyond a reasonable doubt that
the defendant knew his status. Accordingly, we affirm the
conviction.
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Affirmed.
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