Scott Eric Summers v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bray and Clements
Argued at Alexandria, Virginia
SCOTT ERIC SUMMERS
MEMORANDUM OPINION * BY
v. Record No. 2522-99-4 JUDGE JEAN HARRISON CLEMENTS
APRIL 17, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF STAFFORD COUNTY
Ann Hunter Simpson, Judge
Joseph W. Kaestner (Kaestner, Pitney & Jones,
P.C., on brief), for appellant.
Leah A. Darron, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Scott Eric Summers was tried by jury and convicted of driving
after having been declared an habitual offender in violation of
Code § 46.2-357(B)(1) and driving on a suspended license, second
or subsequent offense, in violation of Code § 46.2-301. On
appeal, he contends the trial court erred (1) in rejecting his
claim that the driving on a suspended license charge should be
stricken on the basis that, as a matter of sound statutory
construction, he no longer had a suspended operator's license when
the offense occurred because it had been extinguished by the
revocation of his license when he was determined to be an habitual
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
offender and (2) in refusing to instruct the jury on the defense
of others. For the reasons that follow, we affirm the
convictions.
As the parties are fully conversant with the record in this
case and because this memorandum opinion carries no precedential
value, this opinion recites only those facts necessary to a
disposition of this appeal.
A. DRIVING ON SUSPENDED LICENSE
Summers first contends on appeal that the trial court erred
in denying his motion to strike the driving on a suspended
license charge. He could not, he claims, properly be convicted
of driving on a suspended license because, having been declared
an habitual offender, his previously suspended operator's
license had been revoked and, thus, was not extant at the time
the charged offenses occurred. Under established rules of
statutory construction, an operator's license cannot, he argues,
be both suspended and revoked at the same time. As defined in
Code § 46.2-100, 1 the revocation of a license, unlike a
1
Code § 46.2-100 reads, in pertinent part, as follows:
"Revoke" or "revocation" means that the
document or privilege revoked is not subject
to renewal or restoration except through
reapplication after the expiration of the
period of revocation.
* * * * * * *
"Suspend" or "suspension" means that
the document or privilege suspended has been
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suspension, extinguishes the license, he asserts. Thus, his
argument continues, "[a] suspended operator's license is
terminated when it is revoked." Hence, because a previously
suspended license no longer exists once it has been revoked, it
is impossible under Virginia law, Summers concludes, to convict
a person declared an habitual offender of driving on a suspended
license. The statutory definitions of "suspension" and
"revocation" clearly express such a legislative intent, he
avers.
The Commonwealth contends that, because Summers did not
make the same argument at trial that he makes here, his argument
regarding the driving on a suspended license charge is
procedurally barred. We agree.
An appellate court will not consider an argument on appeal
that is different from the argument presented to the trial
court, even if it relates to the same issue. See Rule 5A:18;
Buck v. Commonwealth, 247 Va. 449, 452-53, 443 S.E.2d 414, 416
(1994); Ohree v. Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d
484, 488 (1998). The purpose of this rule is to ensure that the
trial court and opposing party are given the opportunity to
intelligently address, examine, and resolve issues in the trial
court, thus avoiding unnecessary appeals and reversals. Lee v.
temporarily withdrawn, but may be reinstated
following the period of suspension unless it
has expired prior to the end of the period
of suspension.
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Lee, 12 Va. App. 512, 514, 404 S.E.2d 736, 737 (1991) (en banc);
Kaufman v. Kaufman, 12 Va. App. 1200, 1204, 409 S.E.2d 1, 3-4
(1991).
Here, Summers did not make the same argument before the
trial court that he makes before us. Nothing in Summers's
argument at trial, which was limited to his claim that the driving
on a suspended license charge should be stricken under the
"doctrine of merger," gave the court or the Commonwealth the
opportunity to consider and address the argument he presents to
us. 2 At no point at trial did he raise his present claim that the
driving on a suspended license charge should, as a matter of
statutory construction, be stricken on the basis of the
definitions of "revocation" and "suspension."
Thus, Summers's failure to raise this argument before the
trial court precludes him from raising it for the first time
before us on appeal. Moreover, the record does not reflect any
reason to invoke the good cause or ends of justice exceptions to
Rule 5A:18. Hence, our consideration of this assignment of error
is procedurally barred.
2
Indeed, Summers argued at trial in support of his "merger
doctrine" claim, that driving on a suspended license is a
lesser-included offense of driving after having been declared an
habitual offender. On appeal, however, having abandoned his
"merger" argument, Summers concedes that driving on a suspended
license is not a lesser-included offense of driving after having
been declared an habitual offender.
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B. DEFENSE OF OTHERS INSTRUCTION
Summers also contends that the trial court erred in refusing
to instruct the jury on the "defense of others" defense. He
argues that the evidence adduced at trial supported such an
instruction and that the jury should have been given the
opportunity to consider whether he operated a motor vehicle in the
reasonable belief that he was doing so in the defense of others.
"On appeal, when the issue is a refused jury instruction, we
view the evidence in the light most favorable to the proponent of
the instruction." Lynn v. Commonwealth, 27 Va. App. 336, 344, 499
S.E.2d 1, 4-5 (1998), aff'd, 257 Va. 239, 514 S.E.2d 147 (1999).
"A party is entitled to have the jury instructed according to the
law favorable to his or her theory of the case if evidence in the
record supports it." Foster v. Commonwealth, 13 Va. App. 380,
383, 412 S.E.2d 198, 200 (1991).
In this case, the record plainly does not support the giving
of a defense of others instruction to the jury. The defense of
others defense applies when a person justifiably uses force to
defend another person. See id. at 385-86, 412 S.E.2d at 201-02.
Here, even when viewed in the light most favorable to Summers's
theory of what occurred, there is no evidence in the record that
Summers used force to protect or defend Michael Shaffer or Jay
Beck. Nor did any of the offenses he was charged with relate to
his using force. Summers merely drove Shaffer from the scene of
the confrontation. Thus, Summers was not entitled to assert a
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claim of defense of others. Hence, the trial judge did not err in
refusing to instruct the jury on that defense.
Accordingly, we affirm Summers's convictions.
Affirmed.
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