Kenneth Leroy Dameron v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: May 9, 2006
• Docket: 1118052
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Clements, Haley and Senior Judge Overton Argued at Richmond, Virginia

KENNETH LEROY DAMERON MEMORANDUM OPINION* BY v. Record No. 1118-05-2 JUDGE NELSON T. OVERTON MAY 9, 2006 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF CHARLES CITY COUNTY Thomas B. Hoover, Judge

Jean M. McKeen (Fitzgerald, Tomlin & McKeen, PLLC, on brief), for appellant.

Eugene Murphy, Senior Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

Kenneth Leroy Dameron challenges his conviction for driving after being adjudicated an

habitual offender in violation of Code § 46.2-357. He contends (i) the evidence was insufficient

to prove that he drove after a 10:00 p.m. restriction the general district court placed on his

license, and (ii) the general district court order did not restrict his travel to and from Poplar

Springs Hospital to travel for health care services and, thus, the trial court erred in finding he

drove in excess of the restrictions on his license. We affirm the judgment of the trial court that

Dameron exceeded the 10:00 p.m. time restriction, and we need not address the second question

he presents.

I. BACKGROUND

Our standard of review is well established. “Where the sufficiency of the evidence is

challenged after conviction, it is our duty to consider it in the light most favorable to the

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. Commonwealth and give it all reasonable inferences fairly deducible therefrom. We should

affirm the judgment unless it appears from the evidence that the judgment is plainly wrong or

without evidence to support it.” Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d

534, 537 (1975).

Dameron was adjudicated an habitual offender in 1985, and his driving privileges were

suspended for ten years. In August 2003, Dameron’s petition to restore his driving privileges

was granted. The general district court extended Dameron’s driving privileges in February 2004

and again in June 2004, allowing him to travel to and from Poplar Springs Hospital in Petersburg

between the hours of 7:00 p.m. and 10:00 p.m.

On August 17, 2004, at about 10:00 p.m., the date of this offense, Dameron was driving

from Poplar Springs Hospital with a friend. Virginia State Police Trooper Ronald Grammer

observed Dameron’s vehicle had a broken taillight, so he followed Dameron and signaled for

him to stop. After signaling, Grammer followed Dameron for forty-five seconds to about one

minute to find a safe place to pull over. Both vehicles stopped on Route 5 near the Westover

Parish Church.

When Grammer approached the vehicle, Dameron “immediately jumped out of the

driver’s door.” Grammer was startled. He told Dameron, “let me see your hands,” and

instructed him to not “jump out of a vehicle like that.” Grammer informed Dameron why he

stopped Dameron, and Grammer “detected a slight odor of an alcoholic beverage coming from

[Dameron’s] person.” When Grammer asked how much he had to drink, Dameron replied he

had one beer at about 2:00 p.m. Grammer administered several field sobriety tests, which

Dameron passed.

When Grammer asked Dameron for his driver’s license, Dameron stated he did not have

it in his possession. He explained to Grammer that he was coming from Poplar Springs Hospital,

-2- where he had been visiting his passenger’s daughter. The passenger had been driving, but

Dameron drove when she became upset after becoming lost.

Grammer informed Dameron he was going to issue him a summons for defective

equipment. When Grammer checked Dameron’s license with the dispatcher, he discovered

Dameron had been adjudicated an habitual offender with two previous convictions. Grammer

issued the summons, and placed Dameron under arrest. Grammer noted the time he issued the

summons at 10:10 p.m.1

When testifying at the general district court, Grammer stated he could have conducted the

stop at “10:00 o’clock, or maybe a couple of minutes before.” However, at trial, Grammer

testified, “[A]t 10:04 p.m., I was on routine patrol on Route 5 in Charles City County when I got

in behind a red Ford passenger vehicle . . . .” Later, the Commonwealth asked Grammer:

[COMMONWEALTH]: Okay. There’s some question about the time that you stopped him. Did you -- in the course of making this stop, what did you do that evening about contacting your dispatcher, if anything?

[GRAMMER]: It’s the policy of the Virginia State Police, anytime you get out of your vehicle on a traffic stop, you mark out with the dispatcher.

The dispatch office has a CAD System, which is a Computer Aided Dispatch System. Once you key your mic[rophone], your unit number and the time is marked on the computer on tape of the time of the stop.

The Commonwealth introduced a copy of the CAD System report, and Grammer testified

the time of the call was “when I contacted the dispatcher that I was making a traffic stop with

Mr. Dameron,” at 10:04 p.m. Dameron testified the stop occurred at about 9:45 or 9:50 p.m. and

that he was aware of the time because of the 10:00 p.m. restriction.

1 The summons was not introduced into evidence.

-3- II. ANALYSIS

Code § 46.2-357(A) provides, in relevant part:

It shall be unlawful for any person determined or adjudicated an habitual offender to drive any motor vehicle . . . on the highways of the Commonwealth while the revocation of the person’s driving privilege remains in effect.

The trial judge found that Dameron violated the statute by exceeding both restrictions on

his license: driving after 10:00 p.m. and driving for an unauthorized purpose, i.e., a social visit

at the hospital. Dameron asserts that because Grammer testified the stop lasted approximately

twenty minutes, and because he wrote “10:10 p.m.” as the time he issued Dameron the summons,

the Commonwealth failed to exclude the reasonable hypothesis the stop occurred prior to

10:00 p.m.

It is well established that “[c]ircumstantial evidence is competent and is entitled to as

much weight as direct evidence provided that the circumstantial evidence is sufficiently

convincing to exclude every reasonable hypothesis except that of guilt.” Dowden v.

Commonwealth, 260 Va. 459, 468, 536 S.E.2d 437, 441 (2000). Equally well established is that

when prosecuting a case based solely on circumstantial evidence, the Commonwealth must

exclude all reasonable hypotheses of innocence that flow from the evidence. Id.

However, the standard articulated in Dowden and other cases applies to those instances

when the proof is “solely circumstantial.” Id.; see also Dukes v. Commonwealth, 227 Va. 119,

122, 313 S.E.2d 382, 383 (1984); Rice v. Commonwealth, 16 Va. App. 370, 372, 429 S.E.2d

879, 880 (1993). Contrary to Dameron’s assertion, Grammer’s testimony constituted direct, not

circumstantial evidence of the time of the stop. As Grammer testified, he remembered making

the 10:04 p.m. call “when I contacted the dispatcher that I was making a traffic stop with Mr.

Dameron.” As a result, the six-minute interval between the stop and the time Grammer issued

the summons did not create a reasonable doubt as to the time of the stop. The trial judge, sitting

-4- as fact finder, resolved any inconsistencies regarding the time written on the summons and the

length of the stop in favor of the Commonwealth. Higginbotham, 216 Va. at 352, 218 S.E.2d at

537.

Because we affirm the decision based on Dameron’s exceeding the 10:00 p.m. restriction,

we need not address whether he violated his travel restriction by going to the hospital for a social

visit. Accordingly, we affirm the judgment of the trial court.

Affirmed.

-5-