Opinion
Record No. 1208-92-3
March 15, 1994
FROM THE CIRCUIT COURT OF WASHINGTON COUNTY CHARLES H. SMITH, JR., JUDGE.
William P. Sheffield for appellant.
Marla Lynn Graff, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Present: Judges Benton, Koontz and Willis.
Argued at Salem, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Curtis Allen Morrison (Morrison) appeals his conviction by jury for driving after having been adjudicated an habitual offender. Morrison first contends that the trial court erred in failing to quash the indictment. Morrison asserts that the Circuit Court of the City of Richmond, which conducted the original habitual offender adjudication against Morrison in absentia pursuant to Code § 46.2-352, lacked jurisdiction over him because, at the time of the adjudication, he was a resident of Virginia living in a jurisdiction other than the City of Richmond. Morrison further contends that the trial court erred in excluding evidence of the alleged jurisdictional error to show lack of actual notice as to his status as an habitual offender. Finally, Morrison challenges the sufficiency of the evidence. For the reasons that follow, we affirm the conviction.
I. FACTUAL BACKGROUND
The parties are familiar with the facts of this case. Accordingly, we restate only those facts necessary to explain our holding. In considering Morrison's motion to quash the indictment, the court heard testimony from Officer Randall Brickley (Brickley) of the Damascus Police Department. Brickley testified that he stopped Morrison on October 25, 1991 while Morrison was operating an automobile with a defective muffler and cracked taillight. Brickley further testified that Morrison could not produce a driver's license, saying that his license "had been taken." In response to Brickley's request for identification, Morrison gave an address in Mountain City, Tennessee.
After running a DMV check, Brickley arrested Morrison. He also arrested a passenger in Morrison's car on an unrelated charge. Brickley testified that while en route to the police station, Morrison told Ernest Leonard (the other detainee) that he (Morrison) was an habitual offender. Brickley further testified that after overhearing this statement he asked Morrison if he had been adjudicated an habitual offender and Morrison admitted that he had. The Commonwealth then presented evidence that Morrison had been adjudicated an habitual offender by the Circuit Court of the City of Richmond and that notice of that adjudication had been sent to the Mountain City, Tennessee address listed in Morrison's DMV transcript. The notice was returned "attempted — not known."
Leonard testified that Morrison never used the term habitual offender during their conversation. He did not recall Morrison giving any address to Brickley. Leonard admitted that he had not been with Morrison during the initial encounter with Brickley. Morrison's wife and mother testified that he had never lived in Mountain City, Tennessee. Morrison testified that he had never lived in Mountain City, Tennessee. He further testified that he had presented a Virginia State ID card to Brickley showing a Virginia address. The court denied the motion to quash the indictment.
After seating the jury, the Commonwealth again adduced evidence of the circumstances surrounding Morrison's arrest. Morrison then sought to introduce evidence of the lack of jurisdiction in the adjudication of his status as an habitual offender. The trial court ruled that the question of jurisdiction was a matter of law for the court rather than a question of fact for the jury. After the jury returned a verdict of guilty, the bifurcated trial continued with the sentencing phase, and the jury fixed punishment at twelve months in jail. The trial court confirmed the jury's sentence without modification.
II. MOTION TO QUASH
The evidence shows that the Commonwealth, relying on the out-of-state address found in Morrison's DMV records, adjudicated Morrison an habitual offender under the substitute service provisions of Code § 46.2-352. We have held that such reliance is proper. Russ v. Commonwealth, 2 Va. App. 282, 284, 343 S.E.2d 373, 374 (1986). Although the evidence shows that the notice of that adjudication was returned without delivery from the Tennessee address, the testimony of Officer Brickley shows that Morrison had received notice that his license "had been taken" and that he had been adjudicated an habitual offender. The trial judge was required to weigh this evidence against that presented by the defense.
We will not disturb a judgment of the trial court when that judgment is based upon an assessment of the credibility of the witnesses and the weight to be given their evidence, absent a clear showing that the judgment is plainly wrong or without support in the evidence. Speight v. Commonwealth, 4 Va. App. 83, 88, 354 S.E.2d 95, 98 (1987) (en banc). Here, the testimony and evidence presented by the Commonwealth were not inherently incredible, nor was the evidence presented by the defense so overwhelming as to negate the effect of the Commonwealth's evidence. Accordingly, we cannot say that the trial court erred in denying Morrison's motion to quash the indictment.
III. PRESENTATION OF JURISDICTION EVIDENCE TO JURY
Morrison asserts that he should have been allowed to present evidence of his claim that the Circuit Court of the City of Richmond lacked jurisdiction to adjudicate him an habitual offender in support of his further claim that he lacked notice of his habitual offender status. We disagree. The determination of jurisdiction, and through it the legitimacy of the habitual offender adjudication, was a question of law settled by the trial court's denial of Morrison's motion to quash. The question of fact for the jury was whether Morrison had notice of the fact of that adjudication without respect to the manner in which it was accomplished. Evidence is admissible if it is both relevant and material. It is material only if it relates to a matter properly at issue. Evans-Smith v. Commonwealth, 5 Va. App. 188, 196, 361 S.E.2d 436, 441 (1987). Here, the issue of jurisdiction was not materially related to an issue of fact for the jury. Accordingly, it was not error for the trial judge to exclude the evidence concerning Morrison's residence and other matters relating to his claim that he was improperly adjudicated an habitual offender.
IV. SUFFICIENCY
At trial, Morrison's only defense was the he lacked notice that he had been adjudicated an habitual offender. The fact that Morrison had operated a motor vehicle after having been adjudicated an habitual offender was not in dispute. InReed v. Commonwealth, we held that "Code § 46.2-355 requires proof of actual knowledge that one has been declared to be an habitual offender before one can be convicted of driving after having been so declared and ordered not to drive." 15 Va. App. 467, 471, 424 S.E.2d 718, 720 (1992). Accordingly, the sole question of fact presented to the jury was whether the Commonwealth had established that Morrison had actual notice of his habitual offender status.
The evidence presented to the jury established that Morrison had been adjudicated an habitual offender in absentia and that the official notice of that adjudication had been returned as "attempted — not known." Thus, to establish that Morrison had actual notice of his status, the Commonwealth presented the testimony of Officer Brickley that Morrison told Leonard and Brickley that he knew he had been adjudicated an habitual offender.
"The weight which should be given to evidence and whether the testimony of a witness is credible are questions which the fact finder must decide." Bridgeman v. Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598, 601-02 (1986) (citing Sutphin v. Commonwealth, 1 Va. App. 241, 248, 337 S.E.2d 897, 901 (1985)). "When considering the sufficiency of the evidence on appeal of a criminal conviction, we must view all the evidence in the light most favorable to the Commonwealth and accord to the evidence all reasonable inferences fairly deducible therefrom. The jury's verdict will not be disturbed on appeal unless it is plainly wrong or without evidence to support it." Traverso v. Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988) (citations omitted). The jury was privileged to accept officer Brickley's testimony as proof that Morrison was cognizant of his status as an habitual offender. Accordingly, we cannot say that the jury's verdict is plainly wrong or without support in the evidence.
For these reasons, the judgment of the trial court is affirmed.
Affirmed.