                          COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Annunziata and Agee
Argued at Alexandria, Virginia


DANIEL GEORGE FAHLFEDER
                                             MEMORANDUM OPINION * BY
v.   Record No. 2283-00-4              CHIEF JUDGE JOHANNA L. FITZPATRICK
                                                  JUNE 26, 2001
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
                       Frank A. Hoss, Jr., Judge

          (Myron J. Teluk, on brief), for appellant.
          Appellant submitting on brief.

          H. Elizabeth Shaffer, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief), for
          appellee.


     Daniel George Fahlfeder (appellant) was convicted in a bench

trial of operating a motor vehicle on the public highways of

Virginia after being declared an habitual offender, in violation

of Code § 46.2-357.   On appeal, he contends that (1) the trial

court erred in admitting his DMV record into evidence; and (2) the

evidence was insufficient to convict him.     We agree as to the

second issue and reverse and dismiss his conviction.

                                  I.

     Under familiar principles of appellate review, we view the

evidence in the light most favorable to the Commonwealth, the

prevailing party below, granting to that evidence all reasonable


     * Pursuant to Code § 17.1-413, this opinion is not designated
for publication.
inferences fairly deducible therefrom.    Sears v. Commonwealth, 29

Va. App. 158, 160, 510 S.E.2d 274, 275 (1999).   The judgment of

the trial court, sitting without a jury, shall not be set aside

unless it is plainly wrong or without evidence to support it.

Code § 8.01-680; see also Sears, 29 Va. App. at 160, 510 S.E.2d at

275.

       On January 20, 2000, Officer Howard Michael Perry (Perry) saw

appellant operating a motor vehicle at the intersection of Gabel

Drive and Scott Drive.    Perry followed the vehicle after it

disregarded a stop sign at the intersection and paced the vehicle

at forty miles per hour in a twenty-five mile per hour zone.    When

Perry activated his emergency equipment, the driver accelerated to

fifty miles per hour, turned into a trailer park and abruptly

stopped.   The driver, a man Perry had encountered one week

earlier, jumped out of the car and although Perry ordered him to

stop, ran from the scene.   Perry secured the passengers who were

left in the vehicle, then followed footprints left by the driver

in the snow.   The tracks led directly to appellant's residence.

       Perry arrived at the residence within ten minutes of

observing appellant run from the vehicle.   Perry knocked on the

door, and appellant responded.    When appellant opened the door he

was dressed in long underwear, his cheeks were rosy and he was

slightly out of breath.    Appellant gave Perry permission to search

the residence, and Perry found wet clothes, socks and shoes in the



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washing machine.   There were "shoe size" puddles in the foyer and

snow on the tread of the shoes found in the washing machine.

     Appellant's girlfriend was in the bedroom in bed.      The other

side of the bed was still made.    Appellant denied that the clothes

in the washing machine were his.    The door to the residence did

not fit the frame properly and appeared to have been broken.

                                  II.

     Appellant first contends the trial court erred in admitting

his DMV record because it failed to meet the best evidence rule

and was immaterial and irrelevant.      Appellant argues that the best

evidence rule required the Commonwealth to produce the original

habitual offender order and bars the introduction of the DMV

transcript.   We disagree.

     The best evidence rule provides, "where the contents of a

writing are desired to be proved, the writing [the primary

evidence] itself must be produced or its absence sufficiently

accounted for before other evidence of its contents can be

admitted."    Folson v. Commonwealth, 23 Va. App. 521, 526, 478

S.E.2d 316, 318 (1996) (quoting Butts v. Commonwealth, 145 Va.

800, 816, 133 S.E.2d 764, 769 (1926) (quoting 1 Greenleaf on

Evidence 682 (16th ed.))).   Although appellant correctly asserts

that Reed v. Commonwealth, 15 Va. App. 467, 471-73, 424 S.E.2d

718, 720-221 (1992), held that the Commonwealth must prove

appellant had actual knowledge, not simply constructive knowledge,

that he was declared an habitual offender, Reed does not require

                                - 3 -
that the court order be produced to establish appellant's actual

knowledge.    We have previously held,

             [a] judgment is the determination by a court
             of the rights of the parties, as those rights
             presently exist, upon matters submitted to it
             in an action or proceeding. A written order
             or decree endorsed by the judge is but
             evidence of what the court has decided. . . .
             Here, the Commonwealth was not required to
             prove the contents of a written order
             reflecting the fact of appellant's
             conviction. Rather, it was required to prove
             the fact of the conviction itself [and that
             appellant had actual knowledge of his
             conviction].

Folsom v. Commonwealth, 23 Va. App. 521, 526, 478 S.E.2d 316, 319

(1996) (internal citations omitted).     One manner in which the

Commonwealth may prove an accused has been declared an habitual

offender, continues in that status, and has knowledge of his

status is "to prove through the records of the DMV that

[appellant] had been declared an habitual offender" so long as the

DMV records are properly authenticated under Code § 46.2-215. 1

Hall v. Commonwealth, 15 Va. App. 170, 173-77, 421 S.E.2d 887,

889-91 (1992); see also Smoot v. Commonwealth, 18 Va. App. 562,

445 S.E.2d 688 (1994).    Thus, we hold the best evidence rule is

not applicable to this case and did not bar the introduction of

the DMV transcript by the Commonwealth to establish that appellant




     1
       Appellant does not allege on appeal that the DMV
transcript was not properly authenticated. However, we note
that the DMV record was properly authenticated under Code
§ 46.2-215.

                                 - 4 -
had been adjudicated an habitual offender and appellant was aware

of that adjudication.

        Appellant also contends the DMV transcript was improperly

admitted into evidence because it was immaterial and irrelevant to

the charges against him.    "Evidence is relevant if it has any

logical tendency, however slight, to establish a fact at issue in

the case."    Ragland v. Commonwealth, 16 Va. App. 913, 918, 434

S.E.2d 675, 678 (1993).    "Evidence is material 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).    The Commonwealth was

required to prove beyond a reasonable doubt that appellant

(1) drove a motor vehicle on the highways of the Commonwealth

while (2) an order adjudicating him to be an habitual offender

revoking his driving privileges was in effect and (3) had actual

knowledge that he was adjudicated an habitual offender.    See Code

§ 46.2-357; Hall, 15 Va. App. at 177, 421 S.E.2d at 891; Reed, 15

Va. App. 467, 424 S.E.2d 718.

        While the DMV transcript in the instant case contains

conflicting information, it is still relevant to the court's

determination of whether he had been adjudicated an habitual

offender.    It shows "*** NOTICE OF SUSPENSION/REVOCATION RECEIVED

***."    The transcript indicates appellant was adjudicated an

habitual offender on July 22, 1991 and would be "ELIGIBLE TO

RESTORE UNDER CURRENT LAW" his driving privileges to a restricted

license on July 22, 1994 and to an unrestricted full license on

                                 - 5 -
July 22, 1996.   There is nothing in the DMV transcript to indicate

appellant's habitual offender status was removed by a court order.

Thus, the transcript is relevant and material to establish that

appellant was adjudicated an habitual offender and to determine

whether the order was still in effect on January 20, 2000.

     The DMV transcript is also relevant to the court's

determination of whether the appellant had actual knowledge of his

adjudication.    Although the transcript does not indicate whether

appellant was present in court on the date of his adjudication,

the transcript indicates that appellant was present on March 22,

1996 when he was convicted of "OPERATING AFTER DECLARED

HO - FELONY."    Therefore, the DMV transcript was both relevant and

material to establishing (1) appellant's habitual offender status

and (2) his knowledge of the same.       Thus, the trial court did not

err in admitting appellant's DMV record.

                                  III.

     Appellant also contends that even if admissible, the DMV

record, under the facts of this case, was insufficient to convict

him of operating a motor vehicle after being declared an habitual

offender because the DMV transcript contains conflicting

information regarding his habitual offender status and knowledge

of that status and it was the only evidence presented.      The DMV

transcript indicates appellant was adjudicated an habitual

offender on July 22, 1991.   Appellant's current status was listed

as "SUSPEND/HABITUAL OFFENDER."    There is no indication in the DMV

                                - 6 -
transcript, nor did appellant proffer any evidence to the trial

court that a court had entered an order restoring his driving

privileges.    See Code § 46.2-356.   Thus, the Commonwealth

established beyond a reasonable doubt that appellant was

adjudicated an habitual offender and had not obtained a court

order restoring his privileges.    However, our analysis does not

end there.    Therefore, the only remaining issue is whether

appellant had knowledge that he was still an habitual offender on

January 20, 2000.

     The burden is on the Commonwealth to establish beyond a

reasonable doubt that appellant had knowledge that he remained an

habitual offender on January 20, 2000.     See Reed, 15 Va. App. at

471-73, 424 S.E.2d at 720-221.    In the instant case, the

Commonwealth's sole evidence regarding appellant's habitual

offender status and his knowledge of the same was the DMV

transcript.    The DMV transcript does not reflect personal receipt

of the habitual offender order or physical presence at the hearing

adjudicating him an habitual offender.    The Commonwealth merely

established that appellant was present at a hearing on March, 22,

1996 when he was convicted of "OPERATING AFTER DECLARED HO -

FELONY" and thus appellant knew that at some point he was declared

an habitual offender.    However, the DMV transcript also indicates

that appellant was "ELIGIBLE TO RESTORE UNDER CURRENT LAW" to a

full license on July 22, 1996.    The final entries in the DMV

transcript indicate that appellant "*** COMPLETED APPROVED DRIVER

                                 - 7 -
EDUCATION COURSE ***" and was issued a current unrestricted

driver's license on May 21, 1999.    Thus, the DMV transcript

indicates that appellant was issued a valid, unrestricted driver's

license by the DMV after the date upon which he was eligible to

restore his driving privileges.    The DMV transcript, the only

evidence regarding the status of appellant's driving privileges,

was in a state of equipoise on the element of whether appellant

knew he was still an habitual offender.    The DMV transcript,

standing alone, does not prove beyond a reasonable doubt that

appellant knew he was still classified as an habitual offender on

January 20, 2000 because "[a]s we have stated, the Commonwealth's

evidence must be consistent only with the guilt of the accused."

Moore v. Commonwealth, 254 Va. 184, 189, 491 S.E.2d 739, 742

(1997) (holding that the Commonwealth has not proved a crime

beyond a reasonable doubt when the evidence of guilt is derived

from a single source which is in a state of equipoise on an

essential element of the crime.)    However, in the instant case,

the DMV transcript is consistent with the innocence of the accused

as the transcript does not establish that appellant received the

order declaring him an habitual offender and the transcript

indicated that he "COMPLETED APPROVED DRIVER EDUCATION COURSE" and

appellant at the time of his arrest possessed a current

unrestricted license.

     The Commonwealth argues that appellant's flight from Perry

was evidence that appellant knew he was still classified as an

                              - 8 -
habitual offender.   While flight can be considered evidence of

consciousness of guilt, there is no evidence concerning why

appellant fled.   In fact, Perry testified that prior to initiating

the traffic stop, appellant ran a stop sign and was speeding.

Thus, appellant's flight could have been for any number of

reasons, including an attempt to avoid further traffic tickets for

running a stop sign and speeding and does not necessarily indicate

appellant knew he was still an habitual offender.   Accordingly, we

reverse and dismiss appellant's conviction.

                                         Reversed and dismissed.




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