Clarence Willis Myers v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: May 5, 1998
• Docket: 0590973
• Status: Unpublished

Opinion

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

- 2 - 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.

- 3 - Affirmed.

- 4 -