Calvin Darnell Butcher v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Chafin, Russell and Senior Judge Clements
Argued at Richmond, Virginia
PUBLISHED
CALVIN DARNELL BUTCHER
OPINION BY
v. Record No. 0974-16-2 JUDGE WESLEY G. RUSSELL, JR.
NOVEMBER 6, 2018
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
Joseph M. Teefey, Jr., Judge
Richard G. White, Jr., Assistant Public Defender (Shaun R. Huband,
Deputy Public Defender, on brief), for appellant.
David M. Uberman, Assistant Attorney General (Mark R. Herring,
Attorney General, on brief), for appellee.
Calvin Darnell Butcher, appellant, was convicted of misdemeanor failure to stop at the
scene of an accident in violation of Code § 46.2-894.1 On appeal, he contends that the trial court
erred by convicting him because “the evidence was insufficient to prove [he] failed to stop and
failed to exchange information.” For the reasons that follow, we affirm.
1
Appellant was charged with felony hit and run in violation of Code § 46.2-894 and
felony destruction of property in violation of Code § 18.2-137. Violation of each statute can
result in a conviction for a misdemeanor or, if certain aggravating factors are met, a felony.
Here, appellant was charged with felonies under each statute based on the Commonwealth’s
allegation that appellant’s actions resulted in more than $1,000 in property damage. At the
conclusion of the Commonwealth’s evidence, appellant moved to strike the charges on multiple
grounds, including that the Commonwealth’s evidence failed to establish that $1,000 in property
damage had occurred. The trial court granted the motion to strike on that basis and convicted
appellant of the lesser-included misdemeanors found in both statutes. Appellant appealed both
misdemeanor convictions to this Court; however, his petition for appeal was granted only with
regard to the conviction for hit and run in violation of Code § 46.2-894. Accordingly, his
conviction for violating Code § 18.2-137 is not before us.
BACKGROUND
“Under well-settled principles of appellate review, we consider the evidence presented at
trial in the light most favorable to the Commonwealth, the prevailing party below.” Bolden v.
Commonwealth, 275 Va. 144, 148, 654 S.E.2d 584, 586 (2008). So viewed, the evidence
establishes that, on March 14, 2015, at approximately 12:30 a.m., Alicia Pegram (Alicia)2 arrived
home from work and saw appellant standing outside of his car in her driveway. The two had
been dating “[o]ff and on for about a year and a half or two years,” until Alicia ended their
relationship on March 13, 2015. Alicia had not invited appellant to her house, so rather than
confront appellant, she drove past her house and appellant followed her. Alicia drove at speeds
of sixty to seventy miles per hour on roads with a speed limit of twenty-five to thirty-five miles
per hour to “get away” from appellant.
Appellant caught up with Alicia and swerved his car into the front driver’s side of her
vehicle. Alicia ran off the road and stopped in a neighbor’s yard near a tree. Appellant got out
of his car and approached Alicia’s car and began yelling and banging on her car window “like he
was in a rage.” Alicia called 911, and the dispatcher advised her to stay where she was. Because
Alicia did not feel safe, she ignored the dispatcher’s advice and left the scene in an attempt to get
away from appellant. Initially, appellant followed her, but eventually he gave up the pursuit.
Gary Pegram (Gary), Alicia’s father, testified that he owned the car Alicia was driving on
March 14. He stated that appellant called him that morning between 1:30 and 2:00 a.m. When
asked what appellant said during that conversation, Gary said appellant offered to pay for half of
the damage that had been done to Gary’s vehicle. Gary asked appellant “who was going to pay
for the other half, and [appellant] couldn’t answer that so the conversation didn’t go any further
2
Because there are two witnesses with the last name Pegram, we refer to them by their
first names in this opinion to provide clarity.
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than that.” Appellant attempted to speak to Gary about appellant’s relationship with Alicia, but
Gary “advised [appellant he] didn’t want to hear about a relationship between him and [his]
daughter.” Significantly, having been asked to relay what appellant said in the conversation,
Gary did not testify that appellant had provided his address, driver’s license number, or vehicle
registration number.
Officer Compere of the Petersburg Police Department also testified. Shortly after
1:00 a.m. on the day of the accident, he “received a call to respond to headquarters for a hit and
run.” When he reported to headquarters, he met with Alicia and Gary. After speaking with
them, Compere went to the accident scene to further his investigation.
Regarding any attempt by appellant to provide his address, driver’s license number, or
vehicle registration number, Compere testified that he received no call from appellant, that no
note containing such information had been left at the accident scene, and that he “did not have
that information” when he sought warrants against appellant at 5:52 that morning.
Appellant presented no evidence and moved to strike all of the charges on multiple
grounds. Pertinent to his ultimate conviction for misdemeanor hit and run, appellant argued that
the evidence established that he had stopped and attempted to communicate with Alicia and that
the evidence did not exclude the possibility that he had contacted some law enforcement official
other than Compere and reported the information required by Code § 46.2-894. Appellant also
argued that, given his prior relationship with Alicia, she knew his identity, and therefore, the
purpose of the communication provisions of Code § 46.2-894 was satisfied.
The trial court denied the motion to strike and convicted appellant of the offenses. The
trial court found that appellant did not communicate the necessary information to any of the
parties listed in the statute.
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This appeal followed. Appellant challenges the sufficiency of the evidence for his
conviction on the same grounds he asserted in his motion to strike in the trial court.
ANALYSIS
I. Standard of review
When reviewing a challenge to the sufficiency of the evidence, this Court considers the
evidence in the light most favorable to the Commonwealth, the prevailing party below, and
reverses the judgment of the trial court only when its decision is plainly wrong or without
evidence to support it. Farhoumand v. Commonwealth, 288 Va. 338, 351, 764 S.E.2d 95, 102
(2014). “[I]f there is evidence to support the conviction, the reviewing court is not permitted to
substitute its judgment, even if its view of the evidence might differ from the conclusions
reached by the finder of fact at trial.” Linnon v. Commonwealth, 287 Va. 92, 98, 752 S.E.2d
822, 826 (2014) (quoting Lawlor v. Commonwealth, 285 Va. 187, 224, 738 S.E.2d 847, 868
(2013)). This standard requires us to “discard the evidence of the accused in conflict with that of
the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth
and all fair inferences to be drawn therefrom.” Parks v. Commonwealth, 221 Va. 492, 498, 270
S.E.2d 755, 759 (1980) (emphasis and internal quotation marks omitted). However, to the extent
“an appeal presents the question whether the facts proved, and the legitimate inferences drawn
from them, fall within the language of a statute, we must construe statutory language to answer
the question. That function presents a pure question of law which we consider de novo on
appeal.” Smith v. Commonwealth, 282 Va. 449, 453-54, 718 S.E.2d 452, 454 (2011).
II. Requirements of Code § 46.2-894
Code § 46.2-894 states, in pertinent part:
The driver of any vehicle involved in an accident . . . in which an
attended vehicle or other attended property is damaged shall
immediately stop as close to the scene of the accident as possible
without obstructing traffic . . . and report his name, address,
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driver’s license number, and vehicle registration number forthwith
to the State Police or local law-enforcement agency, to the person
struck and injured if such person appears to be capable of
understanding and retaining the information, or to the driver or
some other occupant of the vehicle collided with or to the
custodian of other damaged property.
Here, there is no dispute that appellant was involved in an accident falling within the purview of
the statute. The sole question posed on appeal is whether appellant complied with the
requirement to “report his name, address, driver’s license number, and vehicle registration
number forthwith” to an appropriate person.
By its plain language, the statute provides multiple people to whom a driver may report
the specified information and thus satisfy the statutory obligation. The information can be
provided to “the State Police or local law-enforcement agency, to the person struck and injured if
such person appears to be capable of understanding and retaining the information, or to the
driver or some other occupant of the vehicle collided with or to the custodian of other damaged
property.” Code § 46.2-894 (emphasis added).
The General Assembly’s repeated use of the coordinating conjunction “or” in its listing
of people to whom a driver must report the specified information makes clear that reporting the
information to any one of the identified people satisfies the statutory mandate. Statutory lists
containing the word “or” generally are understood as being in the disjunctive, meaning that
satisfying one of the listed conditions satisfies the statutory command. See, e.g., Sansom v. Bd.
of Supervisors, 257 Va. 589, 595, 514 S.E.2d 345, 349 (1999); Harris v. DiMattina, 250 Va. 306,
314-15, 462 S.E.2d 338, 341 (1995).
In the habeas context, the Supreme Court has noted that the reporting requirement of
Code § 46.2-894 is in the disjunctive. Although the habeas challenge dealt with other elements
of the statute, the Supreme Court summarized all of the elements, noting that to convict, “the
jury or fact-finder must find [among other things] . . . that the defendant . . . failed to . . . report
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his identification information to law enforcement or the other person involved in the accident.”
Clarke v. Galdamez, 292 Va. 228, 236, 789 S.E.2d 106, 109-10 (2016) (emphasis added); see
also Medwid v. Commonwealth, No. 1382-15-2, 2016 Va. App. LEXIS 334, at *7 n.3
(Va. Ct. App. Dec. 6, 2016) (recognizing that the reporting requirement is satisfied if any one of
the listed individuals is provided the information). Accordingly, the statutory reporting
requirement is satisfied if a driver “forthwith” reports the required information to any one of the
following: the State Police, a local law enforcement official, the person struck, the driver of the
vehicle struck, another occupant of the car struck, or the custodian of the damaged property.
Although this may seem obvious from the statutory text, both the Commonwealth and
appellant have asserted in this appeal that the reporting requirement is in the conjunctive,
meaning that a driver in a covered accident must report the required information to both law
enforcement and a person involved in the accident or the custodian of the damaged property.3
This misapprehension of the statutory requirements stems from the Supreme Court’s decision in
Banks v. Commonwealth, 217 Va. 527, 230 S.E.2d 256 (1976).
In Banks, the Supreme Court addressed a constitutional challenge to the reporting
requirement found in then Code § 46.1-176, the predecessor statute to Code § 46.2-894. In
rendering its decision, the Supreme Court quoted the pertinent language of then Code § 46.1-176
as follows:
The driver of any vehicle involved in an accident in which a person
is . . . injured . . . shall immediately stop as close to the scene of the
accident as possible without obstructing traffic and report
forthwith to the police authority; and, in addition, to the person . . .
injured if such person appears to be capable of understanding and
retaining the information, or to the driver or some other occupant
of the vehicle collided with . . . his name, address, operator’s or
chauffeur’s license number and the registration number of his
vehicle.
3
The Commonwealth asserted this position in its brief. At oral argument in this Court,
appellant stated his agreement with the Commonwealth’s position.
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Id. at 528, 230 S.E.2d at 257 (ellipses in original) (emphasis added). Based on the General
Assembly’s use of the conjunction “and” in the list of people to whom the required information
was to be reported, the Supreme Court concluded that “[t]he statute is in the conjunctive and
requires a report to the police and the injured party.” Id. at 532, 230 S.E.2d at 260 (emphasis in
original).
The Supreme Court correctly noted that the language of then Code § 46.1-176 was in the
conjunctive; however, Code § 46.1-176 was not readopted verbatim when the General Assembly
recodified the motor vehicle code in 1989. See 1989 Va. Acts ch. 727. Although much of what
was required by Code § 46.1-176 was incorporated into the new Code § 46.2-894, the
conjunctive “and in addition to” regarding to whom a driver must report the required information
was replaced by a series of disjunctive “or”s. When the General Assembly changes statutory
language in this manner, we presume it intends to change the substantive law. Va. Ret. Sys. v.
Blair, 64 Va. App. 756, 764, 772 S.E.2d 26, 30 (2015). Because the reporting requirement is no
longer “in the conjunctive” and no longer “requires a report to the police and the injured
party[,]” Banks, 217 Va. at 532, 230 S.E.2d at 260 (emphasis in original), Banks’ holding on this
discrete issue was superseded by the change in statutory language, and therefore, it is no longer a
correct statement of the law.4
Accordingly, consistent with the statutory text, we hold that, to meet the statutory
command, appellant only needed to report forthwith the required information to one person
described in the statutory list. We now address whether the evidence was sufficient to establish
that he failed to do so.
4
We have cited with approval portions of Banks after the statutory change. See Smith v.
Commonwealth, 66 Va. App. 382, 391 n.2, 785 S.E.2d 500, 504 n.2 (2016), a case that did not
address whether the reporting requirement was in the conjunctive or the disjunctive. As a
decision of the Supreme Court, Banks remains binding authority on this Court in all respects
except for the portion that was based on the statutory language that was changed.
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III. Sufficiency of the evidence regarding the reporting requirement
Appellant argues that the evidence was insufficient to prove that he failed to make the
required report to the driver of the other car (Alicia), the custodian of the property (Gary), or law
enforcement. We address each contention in turn.
A. Alicia
Appellant argues that the Commonwealth did not prove that he failed to provide the
required information to Alicia. He notes he stopped at the accident scene and approached her car
in an attempt to communicate with her. He reasons that, because Alicia indicated she did not
understand what he was saying when he approached the car, the Commonwealth did not exclude
the possibility that he was providing the required information. He also argues that Alicia’s
decision to leave the scene of the accident frustrated his ability to comply with the statutory
command.
Although it is true that Alicia testified she could not hear the specifics of what appellant
was saying when he approached the car, context provides a sufficient basis for the factfinder to
conclude that appellant was not providing his driver’s license number or vehicle registration
number. The evidence established that appellant, after midnight, was waiting for Alicia to return
home. His presence at her home was unannounced, and, when she started to drive away, he
engaged in a high-speed chase and ran her off the road. When he approached Alicia in her
wrecked vehicle, he was yelling, banging on her car window, and “was in a rage.” From the
totality of these circumstances the factfinder reasonably could, and in fact did, infer that he was
not yelling his driver’s license number or vehicle registration number. Accordingly, the
evidence was sufficient to establish that appellant did not report the required information to
Alicia.
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Under the facts of this case, it is of no moment that, having been approached by a
belligerent appellant who had run her off the road, Alicia did not remain at the scene of the
accident. Given the facts noted above, the evidence does not even suggest that appellant was
attempting to comply with the reporting requirement when he approached Alicia, and therefore,
her departure from the scene did not frustrate an attempt to do so. Furthermore, the statute
contemplates situations in which communicating with the other driver is impossible, noting that a
report to the person struck is not necessary unless “such person appears to be capable of
understanding and retaining the information.” Such a scenario does not obviate the reporting
requirement, but rather, requires that the driver notify one of the other listed people. Thus, even
assuming an inability of appellant to report the information to Alicia because she left the scene,
appellant was still required to notify one of the other people when he did not provide the
information to Alicia.
B. Gary
Appellant asserts that, as the vehicle’s owner, Gary was the “custodian of other damaged
property” for the purposes of Code § 46.2-894. From this he argues that the evidence did not
establish that he did not provide the required information to Gary in the phone conversation they
had sixty to ninety minutes after the accident. Assuming without deciding that, as the owner of
the vehicle, Gary was the “custodian” of the property at the time of the accident for the purposes
of Code § 46.2-894, we conclude the evidence was sufficient to establish that appellant’s phone
conversation with Gary did not satisfy appellant’s reporting obligation under the statute.
The statute requires that the information be provided “forthwith.” Black’s Law
Dictionary defines forthwith as: “1. Immediately; without delay. 2. Directly; promptly; within
a reasonable time under the circumstances; with all convenient dispatch.” Forthwith, Black’s
Law Dictionary (10th ed. 2014).
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As the definition indicates, the outer boundary of what can constitute communicating
“forthwith” will depend on the circumstances. The statutory text recognizes that there are valid
reasons to explain something other than an immediate report, providing that
Where, because of injuries sustained in the accident, the driver is
prevented from complying with the foregoing provisions of this
section, the driver shall, as soon as reasonably possible, make the
required report to the State Police or local law-enforcement agency
and make a reasonable effort to locate the person struck, or the
driver or some other occupant of the vehicle collided with, or the
custodian of the damaged property, and report to such person or
persons his name, address, driver’s license number, and vehicle
registration number.
Code § 46.2-894. However, absent this or another similar circumstance that makes an immediate
report impossible or wholly impractical, the statutory command that the report be made
“forthwith” requires an immediate report.5
No such circumstance is present here. The evidence established that appellant did not
suffer an injury in the accident that prevented an immediate report. He was able to get out of his
car and bang on the windows of Alicia’s car. He was able to drive from the accident scene
without assistance. Furthermore, as appellant notes on brief, he knew how to contact Gary
because of his familairty with both Gary and Alicia before the accident. Accordingly, his contact
was not delayed by a need to learn how to do so. Thus, his contact with Gary more than an hour
after the accident did not comply with the statutory command that the report be made
“forthwith,” and therefore, that contact, regardless of what was said, did not satisfy his statutory
obligation.
5
Appellant also notes that the evidence established that he attempted to contact Gary on
multiple occasions in the days and weeks after the accident, but that Gary refused to interact with
him. Definitionally, if a contact within sixty to ninety minutes is not “forthwith,” contacts days
later cannot satisfy the statutory command.
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Even if the contact could be deemed timely, the evidence is sufficient to establish that
appellant did not provide Gary with the required information in the phone call. Appellant
emphasizes that the Commonwealth, in questioning Gary about the phone conversation, never
specifically asked “did [appellant] tell you his driver’s license number?” or “did he tell you his
vehicle identification number?” Although true, it ignores what the Commonwealth did ask.
After establishing that appellant had called Gary the morning of the accident, the
Commonwealth asked Gary “What did [appellant] say?” Gary then detailed the conversation,
which ranged in topics from appellant’s offer to pay for half of the damage to Gary’s car to his
desire to speak with Gary about appellant’s relationship with Alicia. The factfinder reasonably
could conclude that the question “What did [appellant] say?” was asking for all of the things that
appellant said to Gary in the conversation and that Gary’s response, which covered multiple
topics, detailed everything that appellant said. Accordingly, because there was no mention of
appellant providing Gary with either his driver’s license number or the vehicle registration
number, the factfinder reasonably could conclude that appellant did not provide that information
to Gary during the telephone conversation the morning of the accident.
C. Law enforcement
Appellant argues that the evidence did not exclude the possibility that he immediately
notified law enforcement and provided a law enforcement official with the information. He
notes that Officer Compere testified that he received no call from appellant and was never
provided the relevant information. He argues that the purported failure of the Commonwealth’s
evidence to negate the possibility that he contacted some law enforcement officer somewhere
leaves open the reasonable hypothesis of innocence that he did. We disagree.
For a hypothesis of innocence to be reasonable, it must flow from the evidence actually
presented; it cannot spring forth from the imagination of an appellant or his counsel. Welshman
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v. Commonwealth, 28 Va. App. 20, 36, 502 S.E.2d 122, 130 (1998). Here, there is not even a
scintilla of evidence that was presented to suggest that appellant contacted anyone to report any
of the required information. The only contacts even suggested by the evidence are his
confronting Alicia at the scene and the subsequent phone call to Gary. His failure to report the
required information in those contacts further undermines the purported reasonableness of his
purely hypothetical call to law enforcement.
Furthermore, Officer Compere’s testimony was that he was called to headquarters
regarding the incident approximately thirty minutes after it occurred. He was the officer
assigned to the case and conducted the investigation regarding the incident. He testified that he
never received a call from appellant and that he never was provided the information specified in
the statute. Absent even a suggestion to the contrary, the factfinder reasonably could infer that,
if appellant made any such call to law enforcement, the information would have been provided to
the investigating officer. Accordingly, the evidence was sufficient to establish that appellant did
not report the required information to law enforcement.
If this inference were not reasonable, proving the offense would be virtually impossible
as a practical matter. Even assuming that the phrase “local law enforcement agency” limits the
people who may be contacted to satisfy the statutory requirement to the law enforcement
employees of the locality where the accident occurred, there is no such limitation in the statute as
to the State Police. Accordingly, to demonstrate that a defendant did not contact a listed law
enforcement official, the Commonwealth would need testimony from every law enforcement
officer in the locality and every member of the State Police stating that they did not receive the
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specified information from the defendant.6 Such a result of the statute is manifestly absurd, and
we decline to adopt it here.
IV. Appellant’s identity was known
Appellant also argues that he cannot be convicted of violating the statute in these
circumstances because, given their prior relationship, Alicia knew his “name and address, which
satisfie[d] the first two parts of the information required to be shared by the hit and run statute.”
In short, he argues that, because Alicia had this knowledge, the purposes of the statute were
achieved, and therefore, he cannot be convicted of violating the statute.
The essence of appellant’s argument is that Alicia’s pre-existing knowledge of some of
the information he was required to provide was close enough to compliance with the statutory
requirements to excuse his failure to provide the rest of the required information. Providing the
statutorily required information is neither a game of horseshoes nor hand grenades; close enough
is not good enough. The fact that Alicia knew appellant’s name and address does not excuse his
failure to provide his driver’s license number or the vehicle registration number.7
Furthermore, we previously have rejected the argument that the statutory obligations are
satisfied if the driver’s identity is known to the victim. In Johnson v. Commonwealth, 14
Va. App. 769, 418 S.E.2d 731 (1992), a case in which Johnson struck his mother-in-law with his
car, we rejected the argument that “because the victim already knew who [the driver] was, [the
6
Appellant argues that his construction of the statute would not require that all of these
law enforcement officials be called to testify. He argues that testimony from the 911 dispatcher
that appellant did not call 911 would be sufficient. However, the statute does not require that the
report be made by telephone or through the 911 system. If appellant’s general position were
correct, the 911 dispatcher’s testimony would be insufficient because appellant could argue, with
no basis in the evidence, that he called the non-emergency number, made the report by e-mail, or
made it in person.
7
Not even appellant contends that, as a result of their relationship, Alicia knew this
information.
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driver] was not required to identify himself . . .” or otherwise provide the information required
by the statute. See also Medwid, 2016 Va. App. LEXIS 334, at *9 (rejecting “appellant’s
argument that the statute is satisfied when the parties involved in an accident know each other”
in a case where the victim was the husband of the driver). Accordingly, the fact that appellant
was known to both Alicia and Gary did not excuse his failure to provide all of the required
information.
CONCLUSION
For the foregoing reasons, the evidence was sufficient to allow the trial court to conclude
beyond a reasonable doubt that appellant failed to comply with Code § 46.2-894. Accordingly,
the judgment of the trial court is affirmed.
Affirmed.
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