Jeffrey D. Wells v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Huff, Judges Petty and Alston
PUBLISHED
Argued at Chesapeake, Virginia
JEFFREY D. WELLS
OPINION BY
v. Record No. 0611-15-1 JUDGE WILLIAM G. PETTY
JANUARY 26, 2016
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
H. Vincent Conway, Jr., Judge Designate
Heather M. Barnes, Assistant Public Defender, for appellant.
Susan Baumgartner, Assistant Attorney General (Mark R. Herring,
Attorney General, on brief), for appellee.
Jeffrey Wells was convicted of reckless driving by speeding in violation of Code
§ 46.2-862 on April 13, 2015. On appeal, Wells argues that the trial court erred in finding him
guilty because the Commonwealth failed to present evidence to establish that the radar device
used to determine Wells’s speed was properly calibrated. For the following reason, we affirm
Wells’s conviction.
I. BACKGROUND
“On appeal, we review the evidence in the light most favorable to the Commonwealth,
granting to it all reasonable inferences fairly deducible therefrom.” Martin v. Commonwealth, 4
Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).
On May 2, 2014, Virginia State Trooper Napier was operating stationary radar on
Interstate 64.1 He observed an SUV traveling past him at a high rate of speed. His radar
1
There is no transcript of the trial. The facts are set out in two written statements of facts
and incidents of trial that were filed with the record.
indicated the speed of the car was ninety-four miles per hour. The posted speed limit at that
location was sixty miles per hour. Trooper Napier stopped the SUV and identified the operator
as Wells.
At trial, Trooper Napier testified that his stationary radar “was working properly” and
that it displayed a speed of ninety-four miles per hour. Wells made no objection to Trooper
Napier’s testimony concerning the accuracy of the radar unit or the speed it displayed, and he
asked no questions on cross-examination. At the conclusion of the evidence, Wells made a
motion to strike the Commonwealth’s evidence. He argued that there was insufficient evidence
to convict him because the Commonwealth had not introduced evidence to prove that the radar
had been calibrated within six months of the stop and because no calibration certificate had been
presented. The trial court denied the motion.
The trial court found Wells guilty of reckless driving pursuant to Code § 46.2-862,
sentenced him to sixty days in jail, imposed a fine of $1,000, and suspended his license to
operate a motor vehicle for ninety days. Wells appealed.
II. ANALYSIS
Wells assigns error to the trial court’s finding of guilt “because no evidence was
presented to prove that the radar was properly calibrated.” He argues that the court should have
granted his motion to strike because the Commonwealth’s failure to offer evidence that the radar
had been properly set up, adjusted, and tested for accuracy rendered the evidence as a whole
insufficient for a conviction. We disagree.
“When a defendant on appeal challenges the sufficiency of the evidence to sustain a
conviction, we must examine the evidence that supports the conviction and allow the conviction
to stand unless it is plainly wrong or without evidence to support it.” Vincent v. Commonwealth,
276 Va. 648, 652, 668 S.E.2d 137, 139-40 (2008). “[W]e review ‘the evidence in the light most
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favorable to the Commonwealth, the prevailing party in the [trial] court’ and ‘accord the
Commonwealth the benefit of all reasonable inferences deducible from the evidence.’” Noakes
v. Commonwealth, 280 Va. 338, 345, 699 S.E.2d 284, 288 (2010) (second alteration in original)
(quoting Brown v. Commonwealth, 278 Va. 523, 527, 685 S.E.2d 43, 45 (2009)). During such a
review we determine “whether ‘any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.’” Commonwealth v. McNeal, 282 Va. 16, 20, 710
S.E.2d 733, 735 (2011) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Finally, when
reviewing the evidence for sufficiency, we must consider all the evidence admitted at trial,
including evidence admitted erroneously. See Jennings v. Commonwealth, 65 Va. App. 669,
681, 779 S.E.2d 864, ___ (2015) (“In appeals to the Court of Appeals or the Supreme Court,
when a challenge to a conviction rests on a claim that the evidence was insufficient because the
trial court improperly admitted evidence, the reviewing court shall consider all evidence
admitted at trial to determine whether there is sufficient evidence to sustain the conviction.”
(quoting Code § 19.2-324.1)).
Here, Wells was convicted of reckless driving under Code § 46.2-862, which provides,
A person shall be guilty of reckless driving who drives a motor
vehicle on the highways in the Commonwealth (i) at a speed of
twenty miles per hour or more in excess of the applicable
maximum speed limit or (ii) in excess of eighty miles per hour
regardless of the applicable maximum speed limit.
The only element at issue in this case is the speed at which Wells was traveling. No particular
method of determining speed is required by Code § 46.2-862. To that end, Code § 46.2-882
provides several methods by which the Commonwealth may prove the speed of a motor vehicle.
In relevant part, Code § 46.2-882 states that “[t]he speed of any motor vehicle may be
determined by the use of . . . (ii) radar,” and “[t]he results of such determinations shall be
accepted as prima facie evidence of the speed of such motor vehicle in any court or legal
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proceeding where the speed of the motor vehicle is at issue.” The statute further establishes a
hearsay exception regarding the admissibility of evidence that the radar unit was calibrated and
working properly.
In any court or legal proceeding in which any question arises about
the calibration or accuracy of any . . . radar . . . used to determine
the speed of any motor vehicle, a certificate, or a true copy thereof,
showing the calibration or accuracy of (i) the speedometer of any
vehicle, (ii) any tuning fork employed in calibrating or testing the
radar . . . or (iii) any other method employed in calibrating or
testing any laser speed determination device, and when and by
whom the calibration was made, shall be admissible as evidence of
the facts therein stated. No calibration or testing of such device
shall be valid for longer than six months.
Id. (emphasis added).
Despite having raised no objection as to either the accuracy or the admissibility of the
radar unit measurement, Wells nevertheless argues that the Commonwealth’s evidence could not
constitute sufficient evidence to convict because there was no testimony that the radar unit was
properly set up, adjusted, or that it had been recently tested for accuracy. The fallacy of this
argument, however, is that it assumes that accuracy of the radar unit is an element of the offense,
as opposed to a prerequisite for the admission into evidence of its speed measurement.
“The admissibility of evidence and the sufficiency of evidence are distinct issues.”
Banks v. Mario Indus., 274 Va. 438, 455, 650 S.E.2d 687, 696 (2007). “For any type of
evidence to be admissible, its offeror need only prove that it is ‘material—tending to prove a
matter . . . properly at issue in the case—and relevant.’” Crawley v. Commonwealth, 29
Va. App. 372, 377, 512 S.E.2d 169, 172 (1999) (alteration in original) (quoting Johnson v.
Commonwealth, 2 Va. App. 598, 601, 347 S.E.2d 163, 165 (1986)). “When scientific evidence
is offered, the court must make a threshold finding of fact with respect to the reliability of the
scientific method offered” before the result can be deemed relevant and admitted into evidence.
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Spencer v. Commonwealth, 240 Va. 78, 97, 393 S.E.2d 609, 621 (1990). However, “once the
[radar reading] is admitted into evidence, its weight is a matter for the jury to determine.” Tipton
v. Commonwealth, 224 Va. 256, 261, 295 S.E.2d 880, 883 (1982).
In contrast, “[t]he standard for judging the sufficiency of evidence to prove identity or any
other key fact in a criminal case is much higher—the Commonwealth must prove that fact
beyond a reasonable doubt.” Crawley, 29 Va. App. at 377-78, 512 S.E.2d at 172. When we
consider the admissibility of the evidence we consider each piece of evidence individually, but
“when we consider the sufficiency of the evidence we do not consider each piece of evidence in
isolation. Instead, we review the totality of the evidence to determine whether it was sufficient
to prove an offense.” Bowling v. Commonwealth, 51 Va. App. 102, 107, 654 S.E.2d 354, 356
(2007).
It therefore “follows that objections to the admissibility of evidence and the sufficiency
of evidence are also distinguishable.” Banks, 274 Va. at 455, 650 S.E.2d at 696. Specifically,
[a]n objection to the admissibility of evidence must be made when
the evidence is presented. The objection comes too late if the
objecting party remains silent during its presentation and brings the
matter to the court’s attention by a motion to strike made after the
opposing party has rested.
Kondaurov v. Kerdasha, 271 Va. 646, 655, 629 S.E.2d 181, 185 (2006); see also Burns v. Bd. of
Supervisors, 227 Va. 354, 363, 315 S.E.2d 856, 862 (1984) (holding that the appellant’s “silence
. . . amounts to a waiver of its hearsay objection,” and therefore the trial court did not err when it
admitted the testimony). Moreover, any evidence presented without objection will be deemed to
be properly before the trial court. See Gregory v. Commonwealth, 22 Va. App. 100, 111, 468
S.E.2d 117, 122-23 (1996) (holding that because the appellant failed to object when the
statement at issue was presented at trial the statement was properly before the trial court).
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An objection to the sufficiency of the evidence, on the other hand, “is properly made by a
motion to strike, rather than when the evidence is first offered. Obviously, the objecting party
cannot be sure, nor can the court decide, until the offering party has rested, whether the various
fragments of evidence have added up to a justiciable whole.” Kondaurov, 271 Va. at 655, 629
S.E.2d at 185 (citation omitted). Under well-settled principles:
When the sufficiency of a plaintiff’s evidence is challenged
by a motion to strike, the trial court should resolve any reasonable
doubt as to the sufficiency of the evidence in plaintiff’s favor and
should grant the motion only when it is conclusively apparent that
plaintiff has proven no cause of action against defendant, or when
it plainly appears that the trial court would be compelled to set
aside any verdict found for the plaintiff as being without evidence
to support it.
Banks, 274 Va. at 454-55, 650 S.E.2d at 696 (quoting Saks Fifth Ave., Inc. v. James, Ltd., 272
Va. 177, 188, 630 S.E.2d 304, 311 (2006)). And “[w]hen determining the sufficiency of the
evidence, we consider all admitted evidence, including the evidence appellant here asserts was
inadmissible.” Lunsford v. Commonwealth, 55 Va. App. 59, 62, 683 S.E.2d 831, 833 (2009);
see Code § 19.2-324.1 (stating in relevant part, “In appeals . . . , when a challenge to a conviction
rests on a claim that the evidence was insufficient because the trial court improperly admitted
evidence, the reviewing court shall consider all evidence admitted at trial to determine whether
there is sufficient evidence to sustain the conviction”).
Although the radar reading was admitted into evidence without objection, Wells relies
upon Royals v. Commonwealth, 198 Va. 876, 96 S.E.2d 812 (1957), and Gray v.
Commonwealth, 18 Va. App. 663, 446 S.E.2d 480 (1994), to argue that the Commonwealth did
not meet its burden of proving that the radar device had been properly set up and tested. His
argument, however, ignores that under the facts of Royals and Gray, the appellants made
objections to the admissibility of the radar evidence, something Wells failed to do.
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In Royals, the appellant’s final assignment of error was “that the evidence of the reading
of the speedmeter of the radar machine was inadmissible against him because the
Commonwealth failed to prove that the machine was properly set up and tested.” Royals, 198
Va. at 879, 96 S.E.2d at 814 (emphasis added). At trial, Royals had both objected to the
introduction of the trooper’s testimony, and cross-examined the trooper on his methods of testing
the machine. Id. at 880, 96 S.E.2d at 814-15. In Gray, the appellant argued that under Code
§ 46.2-882 “the Commonwealth was required to prove the accuracy of both” tests performed by
the trooper and that “the lack of a ‘true copy’ of the tuning fork accuracy certificate prevented
the Commonwealth from meeting that burden.” 18 Va. App. at 665, 446 S.E.2d at 482. At trial
Gray had objected to both “the introduction of the calibration certificate on the ground that it was
not a true copy of the original,” as well as “to the introduction of the evidence of the radar
device’s use” by the trooper to measure Gray’s speed. Id. at 644-65, 446 S.E.2d at 481. This
trend is followed in numerous other cases that cite to Royals. See Biesser v. Holland, 208 Va.
167, 168, 156 S.E.2d 792, 793 (1967) (“The defendant objected to all testimony of the officer on
the ground that it was hearsay.”); Untiedt v. Commonwealth, 18 Va. App. 836, 838, 447 S.E.2d
537, 538 (1994) (“Untiedt objected to the photocopy’s admission . . . .”); cf. Farmer v.
Commonwealth, 205 Va. 609, 610, 139 S.E.2d 40, 41 (1964) (stating that the facts of the case
were presented on appeal in an agreed statement of facts, which “lack[ed] some of the desired
details pertinent to the questions presented,” but indicated that Farmer had at least
cross-examined the trooper on his testimony).
Simply put, under the facts of the above recited case law and Code § 46.2-882, the
question of calibration under Code § 46.2-882 must be addressed within the context of an
objection to admissibility, not in the context of a motion to strike. Specifically, Code § 46.2-882
by its express terms only addresses presentation of a calibration certificate, “[i]n any court or
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legal proceeding in which any question arises about the calibration or accuracy of any . . . radar
. . . used to determine the speed of any motor vehicle.” (Emphasis added).2 While Wells
“couches [the radar unit’s accuracy] as a challenge to the sufficiency of the evidence, it presents
only a question regarding the admissibility of [the radar reading], which was waived because the
objection was not timely raised during the trial.” Bitar v. Rahman, 272 Va. 130, 140, 630 S.E.2d
319, 325 (2006).
By waiting to raise the issue of the radar system calibration until his motion to strike,
Wells ultimately failed to properly preserve an objection to the admissibility of Trooper Napier’s
testimony. See Kondaurov, 271 Va. at 655, 629 S.E.2d at 185 (“An objection to the
admissibility of evidence must be made when the evidence is presented. The objection comes
too late if the objecting party remains silent during its presentation and brings the matter to the
court’s attention by a motion to strike made after the opposing party has rested.”). Rule 5A:183
requires an appellant to “challenge the admissibility of the evidence in the trial court to preserve
his argument on appeal.” Arrington v. Commonwealth, 53 Va. App. 635, 641, 674 S.E.2d 554,
2
On brief, Wells argues that failure to require the Commonwealth to affirmatively prove
the accuracy of the radar unit would impermissibly shift to him the burden of proving it was not
accurate. This argument fails to recognize that the only burden placed on Wells was that
imposed by Rule 5A:18; he was required to make a timely objection to the introduction of the
evidence. The burden of proving, by otherwise admissible evidence, that the radar unit was
properly calibrated and accurate remained on the Commonwealth once a proper objection was
made.
3
Rule 5A:18 states that “[n]o ruling of the trial court . . . will be considered as a basis for
reversal unless an objection was stated with reasonable certainty at the time of the ruling, except
for good cause shown or to enable the Court of Appeals to attain the ends of justice.” “The main
purpose of requiring timely specific objections is to afford the trial court an opportunity to rule
intelligently on the issues presented, thus avoiding unnecessary appeals and reversals. In
addition, a specific, contemporaneous objection gives the opposing party the opportunity to meet
the objection at that stage of the proceeding.” Weidman v. Babcock, 241 Va. 40, 44, 400 S.E.2d
164, 167 (1991) (citation omitted).
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557 (2009). And “[b]y failing to object to the evidence . . . [an appellant] deprives the trial court
of the opportunity to consider the admissibility of the evidence, thus waiving his argument on
appeal.” Id. at 642, 674 S.E.2d at 557. Wells has therefore waived under Rule 5A:18 any
argument pertaining to the admissibility of that evidence.
“When determining the sufficiency of the evidence, we consider all admitted evidence,
including the evidence appellant here asserts was inadmissible.” Lunsford, 55 Va. App. at 62,
683 S.E.2d at 833. We therefore consider all of Trooper Napier’s testimony when determining
sufficiency, including his testimony that the radar recorded Wells’s speed as ninety-four miles
per hour and that the radar was “working properly.” This evidence was sufficient for the trial
court to find Wells guilty.
III. CONCLUSION
For the foregoing reason, we hold that the trial court did not err when it found Wells
guilty of reckless driving. We therefore affirm Wells’s conviction.
Affirmed.
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