                               COURT OF APPEALS OF VIRGINIA


Present: Judges Beales, Alston and Senior Judge Annunziata
Argued at Alexandria, Virginia


DAVID NELSON
                                                               MEMORANDUM OPINION * BY
v.     Record No. 2102-08-4                                    JUDGE ROSSIE D. ALSTON, JR.
                                                                   FEBRUARY 2, 2010
COMMONWEALTH OF VIRGINIA


                      FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                                 Marcus D. Williams, Judge

                 Patrick M. Blanch (Office of the Public Defender, on brief), for
                 appellant.

                 John W. Blanton, Assistant Attorney General (William C. Mims,
                 Attorney General; Joshua M. Didlake, Assistant Attorney General,
                 on brief), for appellee.


       David Nelson (appellant) appeals from his conviction of operating a motor vehicle while

intoxicated, the fourth offense in ten years, in violation of Code §§ 18.2-266 and 18.2-270. On

appeal, appellant contends the trial court erred in denying his motion to bifurcate the guilt phase

of trial. Appellant further contends the evidence was insufficient to prove he operated a motor

vehicle within the meaning of Code § 18.2-266, or in the alternative, that Code § 18.2-266 is

unconstitutionally vague. For the reasons that follow, we find the trial court did not err and we

affirm appellant’s conviction.




       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                                          I. BACKGROUND 1

        “On appeal, ‘we review the evidence in the light most favorable to the Commonwealth,

granting to it all reasonable inferences fairly deducible therefrom.’” Archer v. Commonwealth,

26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va. App.

438, 443, 358 S.E.2d 415, 418 (1987)). “Examining the evidence through this evidentiary prism

requires [this Court] to ‘discard the evidence of the accused in conflict with that of the

Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and

all fair inferences to be drawn therefrom.’” Lay v. Commonwealth, 50 Va. App. 330, 333, 649

S.E.2d 714, 715 (2007) (quoting Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755,

759 (1980)).

       So viewed, the evidence showed that at about 4:00 p.m. on September 2, 2007, Officer T.

Benedict found appellant inside a vehicle parked on a residential street in Fairfax County.

Appellant was “slumped over” in the driver’s seat with a cell phone in his hand. The vehicle’s

radio was on, but the engine was not running and the gearshift was in park. Benedict noted that

appellant appeared to be asleep or “passed out.” Appellant’s hair and clothes were disheveled,

and a strong odor of alcohol emanated from the vehicle. Benedict observed a cup containing a

clear liquid in the center console and an empty wine jug in the backseat. Benedict testified that

the vehicle’s key was in the ignition in the position in which “the car is not actually running but

[it enables] you [to] run the radio and use things in the car.” Benedict also testified that in order

to remove the key from the steering column, he had to rotate the key “back to the point where it

would actually release.”



       1
         As the parties are fully conversant with the record in this case, and because this
memorandum opinion carries no precedential value, this opinion recites only those facts and
incidents of the proceedings as are necessary to the parties’ understanding of this appeal.

                                                 -2-
        Benedict woke appellant and asked him to exit the vehicle. Benedict noted that

appellant’s speech was slurred, his eyes were bloodshot, and he smelled of alcohol. Benedict

performed field sobriety tests, all of which appellant failed. A certificate of analysis, admitted at

trial, showed appellant’s blood alcohol concentration was 0.40. 2 Appellant was arrested and

charged with operating a motor vehicle while intoxicated, having previously been convicted of

three similar offenses within the past ten years.

        Prior to appellant’s jury trial, appellant moved to bifurcate the trial into separate

determinations of guilt and recidivism. Specifically, appellant requested that jurors be asked to

determine appellant’s guilt or innocence as to the instant offense of operating a motor vehicle

while intoxicated, and only if the jury found him guilty of the instant offense, would it determine

whether appellant was guilty of a fourth conviction under Code § 18.2-266 within ten years. The

trial court denied appellant’s motion to bifurcate the guilt phase of trial, noting that, “trial courts

don’t have any inherent authority to bifurcate cases beyond what [Code § 19.2-295.1] provides.”

The court did, however, provide a cautionary instruction to the jury stating, “Evidence of prior

convictions is admitted only for the purpose of fixing the quantum of punishment. It is not to be

considered by you as evidence of [appellant’s] guilt in this trial.”

        At trial, appellant moved to strike the evidence, arguing the Commonwealth failed to

show appellant “operated” a motor vehicle within the meaning of Code § 18.2-266. The trial

court denied appellant’s motion to strike the evidence and instructed the jury, “operating a motor

vehicle means manipulating the electrical or mechanical equipment of the vehicle without

actually putting the vehicle in motion. It means engaging the machinery of the vehicle which

alone, or in sequence, will activate the motive power of the vehicle.” The jury found appellant


        2
          At trial, appellant objected to the admission of the certificate of analysis into evidence,
arguing the Commonwealth did not establish a chain of custody. The trial court admitted the
certificate, over objection, and this Court denied appellant’s petition for appeal on the issue.
                                                 -3-
guilty of operating a motor vehicle, his fourth offense in ten years, in violation of Code

§§ 18.2-266 and 18.2-270.

       Appellant filed a motion to set aside the verdict, arguing for the first time that Code

§ 18.2-266 was unconstitutionally vague. The trial court denied appellant’s motion and entered

judgment in accordance with the jury’s verdict. This appeal followed.

                                          II. ANALYSIS

       On appeal, appellant first argues the trial court incorrectly decided that it lacked authority

to bifurcate the determinations of guilt and recidivism and the trial court abused its discretion in

failing to grant his motion to bifurcate. Next, appellant argues the trial court erred in denying his

motion to strike the evidence because the evidence was insufficient to prove appellant “operated”

a motor vehicle. Finally, appellant argues Code § 18.2-266 is unconstitutionally vague because

the term “operating” is not clearly defined so as to put potential defendants on notice of the

proscribed conduct.

                            A. Motion to Bifurcate Guilt Phase of Trial

       This Court recently decided Elem v. Commonwealth, 55 Va. App. 55, 58, 683 S.E.2d

830, 831 (2009), in which we held the trial court did not err in denying the defendant’s motion to

bifurcate the determinations of guilt and recidivism. Finding appellant’s argument in the instant

case is the very same argument made by the defendant in Elem, we hold the trial court did not err

in denying appellant’s motion to bifurcate the guilt phase of trial in this case.

       The Supreme Court of Virginia “has repeatedly held that the prior convictions of a

criminal defendant facing trial as a recidivist may be introduced and proved at the guilt phase of

the trial on the principal offense.” Washington v. Commonwealth, 272 Va. 449, 459, 634 S.E.2d

310, 316 (2006). “[T]he trial court’s decision denying [appellant’s] request for a bifurcated trial

during the guilt phase is an issue of statutory interpretation, which [this Court] review[s] de novo

                                                 -4-
on appeal.” Elem, 55 Va. App. at 56, 683 S.E.2d at 830 (citing Young v. Commonwealth, 273

Va. 528, 533, 643 S.E.2d 491, 493 (2007)).

        In Elem, the defendant argued the trial court incorrectly decided that it lacked authority to

bifurcate the guilt phase of his jury trial for petit larceny, as a third offense, because no statute

prohibits such a procedure. Id. Further, the defendant argued, “the trial court abused its

discretion in refusing to bifurcate the guilt phase of his trial because informing the jury of his

prior larceny convictions prior to the jury determining his guilt of the present larceny charge

undoubtedly caused him great prejudice.” Id.

        The Supreme Court of Virginia first addressed the issue of bifurcation in Brown v.

Commonwealth, 226 Va. 56, 307 S.E.2d 239 (1983).

                “Brown sought a bifurcated trial, but there is no statutory
                authorization for such a procedure in this case. Bifurcated trials
                have been provided by statute only in capital murder cases, . . . and
                in certain traffic cases . . . . There may be sound arguments for the
                extension of such trials to other offenses in Virginia, but these
                arguments should be addressed to the General Assembly.”

Elem, 55 Va. App. at 57, 683 S.E.2d at 831 (quoting Brown, 226 Va. at 59, 307 S.E.2d at 241)

(citations omitted).

        “[S]ubsequent to the Brown decision, the General Assembly enacted Code § 19.2-295.1.

In enacting this provision, ‘the General Assembly created two distinct stages of all felony and

Class 1 misdemeanor trials - the guilt phase and the punishment phase.’” Id. (quoting Ford v.

Commonwealth, 48 Va. App. 262, 268, 630 S.E.2d 332, 336 (2006)). Code § 19.2-295.1

provides, in pertinent part,

                In cases of trial by jury, upon a finding that the defendant is guilty
                of a felony or a Class 1 misdemeanor, or upon a finding in the trial
                de novo of an appealed misdemeanor conviction that the defendant
                is guilty of a Class 1 misdemeanor, a separate proceeding limited
                to the ascertainment of punishment shall be held as soon as
                practicable before the same jury.

                                                  -5-
       Finding no error by the trial court in Elem, this Court reasoned,

               “When the General Assembly acts in an area in which one of its
               appellate courts already has spoken, it is presumed to know the law
               as the court has stated it and to acquiesce therein, and if the
               legislature intends to countermand such appellate decision it must
               do so explicitly.”

55 Va. App. at 57, 683 S.E.2d at 831 (quoting Weathers v. Commonwealth, 262 Va. 803, 805,

553 S.E.2d 729, 730 (2001)).

                       When the legislature enacted and amended Code
               § 19.2-295.1, it was well aware of the appellate decisions
               concerning the manner of proof of the prior convictions for
               recidivist offenses, but it chose not to create a separate bifurcated
               procedure of the guilt phase for these offenses. It is settled under
               Virginia law that the potential prejudice that appellant contends
               would arise from the introduction of his prior convictions prior to
               the point at which the jury decides whether he was guilty of petit
               larceny can be sufficiently solved by an appropriate limiting
               instruction to the jury.

Id. at 58, 683 S.E.2d at 831 (citing Washington, 272 Va. at 459-60, 634 S.E.2d at 316-17).

Because the trial court gave such a limiting instruction in Elem, this Court held the trial court did

not err in denying the defendant’s motion to bifurcate the trial. Id.

        Elem is controlling in our determination and is virtually “on-all-fours” with the instant

case. Herein, the trial court instructed the jury, “Evidence of prior convictions is admitted only

for the purpose of fixing the quantum of punishment. It is not to be considered by you as

evidence of [appellant’s] guilt in this trial.” As stated in Elem, any potential prejudice that

appellant contends would arise from the introduction of his prior convictions prior to the point at

which the jury decides whether he was guilty of the instant offense, was sufficiently solved by

the limiting instruction. Id. Accordingly, the trial court did not abuse its discretion in failing to

bifurcate the determinations of guilt and recidivism in appellant’s trial.




                                                 -6-
                                  B. Sufficiency of the Evidence

       Next, appellant contends the evidence was insufficient to support his conviction of

operating a motor vehicle while intoxicated because he was not “operating” the vehicle, as

required by Code § 18.2-266. That section states, in pertinent part, “It shall be unlawful for any

person to drive or operate any motor vehicle . . . (i) while such person has a blood alcohol

concentration of 0.08 percent or more.” (Emphasis added).

               “Operating” not only includes the process of moving the vehicle
               from one place to another, but also includes starting the engine, or
               manipulating the mechanical or electrical equipment of the vehicle
               without actually putting the car in motion. It means engaging the
               machinery of the vehicle[,] which alone, or in sequence, will
               activate the motive power of the vehicle.

Williams v. City of Petersburg, 216 Va. 297, 300, 217 S.E.2d 893, 896 (1975) (citing Gallagher

v. Commonwealth, 205 Va. 666, 668-70, 139 S.E.2d 37, 39-40 (1964)). An “operator” is “‘one

that produces a physical effect or engages himself in the mechanical aspect of any process or

activity: as . . . one that uses or operates a machine or device . . . sometimes used to distinguish

the user of fixed devices from the driver of automotive devices.’” Stevenson v. City of Falls

Church, 243 Va. 434, 437, 416 S.E.2d 435, 437 (1992) (quoting Webster’s Third New Int’l

Dictionary 1581 (1986) (alterations in Stevenson)).

       In Williams, officers discovered the defendant “slumped over” the steering wheel of his

vehicle. 216 Va. at 298, 217 S.E.2d at 894. The vehicle’s engine was on, and when officers

aroused the defendant, he made a motion toward the gearshift. Id. at 298, 217 S.E.2d at 894-95.

Affirming the defendant’s conviction for operating his vehicle while intoxicated, the Court noted

that from all of the facts, “the trial court could properly find beyond a reasonable doubt that the

defendant was in actual physical control of the vehicle and that he had engaged the machinery of

the vehicle which alone, or in sequence, would have activated its motive power.” Id. at 301, 217

S.E.2d at 896. “[T]he vehicle was movable,” and “[f]rom a mechanical standpoint, it was
                                                -7-
capable of being immediately placed in motion to become a menace to the public, and to its

drunken operator.” Id.

       Applying the standard set out in Williams, this Court has determined that the evidence is

sufficient to support a finding that the defendant was “operating” his vehicle when either the

vehicle’s motor is running or the defendant has in some way manipulated the mechanical or

electrical equipment of the vehicle. See Keesee v. Commonwealth, 32 Va. App. 263, 265, 527

S.E.2d 473, 474 (2000) (finding the defendant was “operating” his vehicle when the vehicle was

found on the highway turned on its side, the defendant was pinned behind the steering wheel, the

keys were in the ignition, the vehicle was in gear, and the vehicle’s taillights were illuminated);

Probst v. Commonwealth, 24 Va. App. 791, 792-95, 485 S.E.2d 657, 658-59 (1997) (finding the

defendant was “operating” his vehicle when the vehicle was found stopped at an intersection, the

defendant was asleep behind the steering wheel with his seat belt fastened, and though the engine

was not running, the key was in the ignition, the vehicle was in gear, and the headlights,

taillights, and dashboard lights were on).

       In contrast, in Stevenson, the Supreme Court of Virginia reversed the defendant’s

conviction for operating a motor vehicle while intoxicated. 243 Va. at 438, 416 S.E.2d at 438.

The defendant in Stevenson was found asleep behind the steering wheel of his vehicle, parked

outside a convenience store. Id. at 435, 416 S.E.2d at 436. The key was in the vehicle’s ignition,

but the officer could not recall whether it was in the “on” or “off” position. Id. The engine of

the vehicle and all of its other mechanical and electrical parts were off. Id. The Supreme Court

of Virginia noted that because “[i]t was not recalled whether the key was in the ‘on’ or ‘off’

position,” “we must assume that the key was in the off position.” Id. at 438, 416 S.E.2d at 438.

Reversing the defendant’s conviction, the Court held, “Because the presence of the key in the

ignition switch in the off position did not engage the mechanical or electrical equipment of [the

                                                -8-
defendant’s] car, [the defendant] did not ‘drive or operate’ the car within the meaning of the

statute[] . . . .” Id.

         In the instant case, appellant was “slumped over” the driver’s seat of his vehicle. The

engine was not running, and the vehicle was not in gear. However, contrary to Stevenson, the

key was in the ignition, turned so the vehicle’s electrical system would work, and the vehicle’s

radio was turned on. Unlike Stevenson, the trial court in this case was presented with facts to

suggest the key was in the “on” or “accessory” position. Officer Benedict testified that the key

was in the ignition in the position in which “the car is not actually running but [it enables] you

[to] run the radio and use things in the car.” In order to remove the key from the steering

column, Benedict had to rotate the key “back to the point where it would actually release.” Thus,

contrary to appellant’s argument, we are not required to assume the key was in the “off” position,

as the Commonwealth presented evidence to support the opposite conclusion.

         Given that appellant used the key to activate the vehicle’s radio, the jury was presented

with sufficient evidence to find appellant manipulated the vehicle’s electrical equipment, and in

doing so, began the sequence of activating the vehicle’s motive power. Accordingly, we find the

evidence sufficient to support appellant’s conviction for operating a motor vehicle while

intoxicated, in violation of Code § 18.2-266.

                                       C. Void for Vagueness

         Appellant argues that if this Court determines the evidence was sufficient to find

appellant operated a motor vehicle under Code § 18.2-266, then it should find the statute is

unconstitutionally vague, because it does not put a reasonable person on notice of the proscribed

conduct. Finding appellant failed to properly present this argument, we are procedurally barred

from considering it.




                                                 -9-
       Appellant raises a constitutional challenge to Code § 18.2-266 in a separate question

presented to this Court on appeal. However, this question was not included in appellant’s

petition for appeal, and the Court neither granted nor denied the issue. Rule 5A:12(c) states,

“The provisions of Rule 5A:18 shall apply to limit those questions which the Court of Appeals

will rule upon on appeal. Only questions presented in the petition for appeal will be noticed by

the Court of Appeals.” Accordingly, appellant did not properly present his constitutional

argument and we do not consider it on appeal.

                                       III. CONCLUSION

       For these reasons, we hold the trial court did not abuse its discretion in denying

appellant’s motion to bifurcate the guilt phase of trial. We further hold the evidence was

sufficient to convict appellant of operating a motor vehicle while intoxicated, his fourth offense

within a ten-year period, in violation of Code §§ 18.2-266 and 18.2-270. Finally, we find

appellant failed to properly present the issue of whether Code § 18.2-266 is unconstitutional,

and, thus, we do not consider the issue on appeal. Accordingly, we affirm appellant’s

conviction.

                                                                                            Affirmed.




                                               - 10 -
