Joey Eugene Hodnett v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Petty, Russell and Malveaux
UNPUBLISHED
Argued at Lexington, Virginia
JOEY EUGENE HODNETT
MEMORANDUM OPINION* BY
v. Record No. 0112-16-3 JUDGE MARY BENNETT MALVEAUX
DECEMBER 20, 2016
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
James J. Reynolds, Judge
Heath L. Sabin for appellant.
Stephen L. Forster, Assistant Attorney General (Mark R. Herring,
Attorney General, on brief), for appellee.
Joey Eugene Hodnett (“appellant”) was convicted of driving after being declared an
habitual offender, second or subsequent offense, in violation of Code § 46.2-357. On appeal, he
argues that the trial court erred in denying his motion to suppress the traffic stop, because the
officer lacked reasonable, articulable suspicion that appellant’s North Carolina temporary license
plate was invalid. Appellant further asserts that any reasonable, articulable suspicion the officer
may have possessed was dispelled once appellant pulled over and the officer could see that the
temporary license plate was unexpired. Because appellant concedes that the officer possessed
the requisite suspicion for the initial traffic stop, and because appellant failed to present to the
trial court his argument that the officer’s suspicion was dispelled before he checked appellant’s
identification, we affirm his conviction.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
I. BACKGROUND
On July 11, 2015, Officer Lancaster of the Danville Police Department, while on patrol,
saw appellant driving a sport utility vehicle bearing a temporary license plate from North
Carolina. Lancaster later testified that whenever he sees such a plate, he automatically checks its
expiration date. From a following distance of approximately thirty feet, appellant’s temporary
plate did not appear to display an expiration date. As Lancaster explained, “[t]here [are] six
boxes above . . . the tag number . . . . There was no expiration date in the boxes where the
expiration date was supposed to have been.” Lancaster initiated a traffic stop.
Once Lancaster parked behind appellant, at a distance of approximately twenty feet, he
could see the issuance date written in the bottom right corner of the plate: July 1, 2015.1 The
officer testified he could not see the issuance date before he stopped appellant.
Lancaster approached appellant and asked for his license and registration. Appellant
produced a North Carolina identification card. When Lancaster checked appellant’s name
against Virginia DMV records, he learned that appellant’s license had been revoked after he was
declared an habitual offender. The officer arrested appellant.
Appellant moved to suppress the traffic stop, arguing that Lancaster lacked reasonable,
articulable suspicion that he was engaged in criminal activity. During a hearing on the motion,
the trial court hypothesized that “the stop maybe is okay because maybe he couldn’t see [the
issuance date] from thirty feet away but once he’s made the stop, as he’s approaching
[appellant], he can read the tag, so then he’s got to just get in his car and drive away.”
Appellant’s counsel responded ambiguously to the court’s suggestion that the initial stop may
have been valid, but ceased to be so once Lancaster could see the temporary license plate was
1
N.C. Gen. Stat. § 20-79.1(e) makes clear that every dealer authorized by the Division of
Motor Vehicles to issue temporary plates “shall write clearly and indelibly on [their] face . . .
[t]he dates of issuance and expiration.” N.C. Gen. Stat. § 20-50(b) provides that such plates may
be issued for a period of “not . . . less than 10 days nor more than 60 days.”
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unexpired. Appellant’s counsel simply stated, “Well, judge, I think it’s unclear. We know he
could read it at twenty [feet]. We didn’t know whether he could read it at thirty [feet].”
The trial court denied appellant’s motion to suppress. In so doing, the court noted that
while appellant probably could not have been convicted of driving with an improper temporary
license plate, “the officer is only required to have reasonable, articulable suspicion to initiate a
traffic stop and I think, based on the evidence adduced here, that officer had that.”
Following a bench trial, appellant was convicted of driving after being declared an
habitual offender, second or subsequent offense, in violation of Code § 46.2-357. This appeal
followed.
II. ANALYSIS
On appeal, appellant argues that Officer Lancaster lacked reasonable, articulable
suspicion of criminal activity upon which to stop his vehicle, and thus the stop violated his rights
under the Fourth Amendment of the United States Constitution. Consequently, the trial court
erred in denying his motion to suppress.
Appellant assigns error to the trial court on the ground that the traffic stop was invalid
from the point of inception. However, at oral argument, he conceded that Lancaster possessed
the requisite suspicion for a valid stop.2 Appellant’s concession of law acts as “a waiver for
purposes of Rule 5A:18 or as an express withdrawal of an appellate challenge to a trial court
judgment.” Logan v. Commonwealth, 47 Va. App. 168, 172 n.4, 622 S.E.2d 771, 773 n.4 (2005)
(en banc). “In either scenario, [this Court] may accept the concession – not as a basis for
2
At oral argument, appellant was asked, “I believe you’ve conceded that [reasonable
suspicion] wasn’t dispelled until after the stop had occurred?” Appellant replied, “Yes.”
Appellant then reiterated his argument that once Lancaster stopped his vehicle and could see the
issuance date on the temporary license plate, “whether or not he’s walking up [to appellant], or
prior to the officer actually getting out of [his] vehicle, the suspicion had already been dispelled.”
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deciding the contested issue of law, but as a basis for not deciding it.” Id. Here, we accept
appellant’s concession and do not address the issue of the validity of the initial stop.
On brief, appellant further argues that the officer’s reasonable, articulable suspicion for
the stop was later “dispelled”:
The only basis for the stop was [that] Officer Lancaster could not
see the expiration date on the temporary tag and once he confirmed
that [it] was a valid temporary tag there was no further
particularized and objective basis for suspecting any legal
wrongdoing.
....
Officer Lancaster’s reasonable articulable suspicion was dispelled
prior [to] his obtaining [appellant’s] license status and he did not
state any other particularized and objective basis for stopping and
detaining [appellant] . . . .
Because Lancaster’s suspicion was dispelled after he made the traffic stop and realized the
temporary license plate was not expired, appellant argues, the officer had no further reason to
detain or question him for suspected criminal activity. Hence, appellant reasons that Lancaster’s
subsequent request for his license and registration was the result of an impermissible seizure, and
the identification information obtained as a result of that seizure was derived through a violation
of his Fourth Amendment rights.
We do not reach the merits of this argument due to appellant’s failure to properly
preserve the issue for appeal. “The Court of Appeals will not consider an argument on appeal
which was not presented to the trial court.” Frango v. Commonwealth, 66 Va. App. 34, 47, 782
S.E.2d 175, 181 (2016) (quoting Ohree v. Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d
484, 488 (1998)). See also Rule 5A:18. Rule 5A:18 makes clear 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
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to attain the ends of justice.”3 The purpose of the rule “‘is to avoid unnecessary appeals by
affording the trial judge an opportunity to rule intelligently on objections,’” since, “[f]or the
[trial] court to rule intelligently, the parties must inform the [trial] court ‘of the precise points of
objection in the minds of counsel.’” Maxwell v. Commonwealth, 287 Va. 258, 264-65, 754
S.E.2d 516, 519 (2014) (first quoting State Highway Comm’r v. Easley, 215 Va. 197, 201, 207
S.E.2d 870, 873 (1974); and then quoting Gooch v. City of Lynchburg, 201 Va. 172, 177, 110
S.E.2d 236, 239-40 (1959)). Further, “[m]aking one specific argument on an issue [at trial] does
not preserve a separate legal point on the same issue for review.” Johnson v. Commonwealth, 58
Va. App. 625, 637, 712 S.E.2d 751, 757 (2011) (quoting Edwards v. Commonwealth, 41
Va. App. 752, 760, 589 S.E.2d 444, 448 (2003) (en banc)). Additionally, “Rule 5A:18 applies to
bar even constitutional claims.” Ohree, 26 Va. App. at 308, 494 S.E.2d at 488.
Here, appellant did not present to the trial court his argument that Lancaster’s reasonable,
articulable suspicion was dispelled during the course of the traffic stop and prior to his request
for appellant’s license and registration. Although, as noted above, the trial court posited this
argument to appellant’s counsel during the hearing on the motion to suppress, appellant’s
counsel did not adopt or advance this argument in the trial court.4 Since appellant raises this
argument only on appeal, and did not present this argument to the trial court for it to consider
and rule upon, this argument was not preserved for consideration by this Court.
3
Appellant offers no argument invoking either the good cause or ends of justice
exceptions to Rule 5A:18.
4
At oral argument, appellant’s counsel conceded that while “the trial court posed the
hypothetical” that the officer’s suspicion dissipated during the stop, that hypothetical was “not
directly answered by counsel” and the argument posited by the trial court “wasn’t adopted” by
appellant. In addition, when asked whether he could point to a specific place “in the record
where the detention – the continued detention as opposed to the initial stop – was argued,”
appellant’s counsel replied, “In all candor, your honor, no.”
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III. CONCLUSION
On appeal, appellant conceded that the officer had reasonable, articulable suspicion for
stopping his vehicle, and therefore we do not address the validity of the initial traffic stop.
Further, appellant’s argument that the officer’s reasonable, articulable suspicion was dispelled
before he asked for appellant’s license and registration was not presented to the trial court and
thus is not before this Court for review. For these reasons, the decision of the trial court is
affirmed.
Affirmed.
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