                                COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Frank and Humphreys
Argued by teleconference


ALLEN EDWARD WOOD
                                                                MEMORANDUM OPINION * BY
v.      Record No. 1548-10-3                                     JUDGE ROBERT P. FRANK
                                                                    DECEMBER 6, 2011
COMMONWEALTH OF VIRGINIA


                     FROM THE CIRCUIT COURT OF CAMPBELL COUNTY
                                   John T. Cook, Judge

                  Joseph A. Sanzone (Sanzone & Baker, P.C., on brief), for appellant.

                  Erin M. Kulpa, Assistant Attorney General (Kenneth T. Cuccinelli,
                  II, Attorney General; Richard B. Smith, Special Assistant Attorney
                  General, on brief), for appellee.


        Allen Edward Wood, appellant, was convicted, in a bench trial, of driving after having been

declared an habitual offender, second offense, in violation of Code § 46.2-357. On appeal,

appellant challenges the sufficiency of the evidence, contending that the Commonwealth failed to

produce an habitual offender declaration showing that his status as an habitual offender remained in

full force and effect. For the reasons stated, we affirm the trial court.

                                           BACKGROUND

        On October 20, 2009, Deputy B. Hubbard of the Campbell County Sheriff’s Office

stopped appellant for speeding. After asking appellant for his driver’s license, appellant told

Hubbard that his license was suspended. Upon further investigation, Hubbard charged appellant

with driving after being declared an habitual offender, second offense.



        *
            Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       At trial, the Commonwealth introduced into evidence a transcript from the Department of

Motor Vehicles (DMV) showing that DMV declared appellant an habitual offender in 1997.

Attached to that exhibit was an “Order of Revocation” addressed to appellant that stated, “Your

privilege to operate motor vehicles in Virginia is revoked indefinitely effective April 16, 1997 at

12:01 a.m. because you were determined on March 12, 1997 to be an habitual offender.”

(Emphasis added).

       The record at trial also showed that appellant was convicted of driving after being

declared an habitual offender in 2000 and in 2005. Appellant was also convicted of driving after

being declared an habitual offender, subsequent offense, in 2007. Appellant was granted a

restricted license on May 22, 2008 permitting him to drive to his job. By the terms of the order,

the restricted license expired on November 13, 2008. On July 1, 2008 the court revised

appellant’s restriction by granting him a restricted license until November 13, 2008 for travel

associated with a new job. The order provided that five years had not passed “from the date on

which Petitioner was adjudged/determined to be an habitual offender.” The order also stated that

appellant was not to consume any alcohol while driving and continued the case on the docket.

On September 11, 2008 the Campbell County Circuit Court entered an order removing the case

from the docket without restoring appellant’s privilege to drive.

       Appellant testified that he was declared an habitual offender in 1997 and acknowledged

his convictions for driving after having been declared an habitual offender. Appellant testified

he twice received a restricted permit allowing him to drive for work-related travel. Appellant

stated he knew he had to go back to court to get his full privileges restored. He explained that he

never returned to court because he was never given a court date.

       The trial court found appellant guilty, and this appeal follows.




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                                               ANALYSIS

        Appellant argues the evidence was insufficient to prove his status as an habitual offender

at the time of the traffic stop. In particular, he claims that because the Commonwealth failed to

produce the “original habitual offender order,” it is impossible to determine if the order remained

in effect as of October 20, 2009. He concludes that since that order is not in evidence, we do not

know if the order limited the duration of the habitual offender status. The record belies this

assertion because the DMV transcript clearly showed his status as “indefinite[].”

        ‘“On review of a challenge to the sufficiency of the evidence, we view the evidence in the

light most favorable to the Commonwealth, the prevailing party, and grant to it all reasonable

inferences fairly deducible therefrom.”’ Hagy v. Commonwealth, 35 Va. App. 152, 157, 543

S.E.2d 614, 616 (2001) (quoting Robertson v. Commonwealth, 31 Va. App. 814, 820, 525

S.E.2d 640, 643 (2000)). In considering such an appeal, we presume the judgment of the trial court

to be correct and reverse only if the trial court’s decision is plainly wrong or without evidence to

support it. Davis v. Commonwealth, 39 Va. App. 96, 99, 570 S.E.2d 875, 876-77 (2002).

        Further, we will not “substitute our judgment for that of the trier of fact, even were our

opinion to differ.” Wactor v. Commonwealth, 38 Va. App. 375, 380, 564 S.E.2d 160, 162 (2002).

“Instead, the relevant question is whether, after viewing the evidence in the light most favorable to

the prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original).

“This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve

conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts

to ultimate facts.” Id.

        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 or self-propelled
                                                   -3-
                machinery or equipment on the highways of the Commonwealth
                while the revocation of the person’s driving privilege remains in
                effect.

        The statute does not specify any particular manner in which the Commonwealth must

prove the act of driving occurred “while the revocation of the [defendant’s] driving privilege

remain[ed] in effect.” See Code § 46.2-357. Thus, this element of the offense, like any element

of a crime, may be proved by circumstantial evidence, as long as the evidence as a whole is

sufficiently convincing to exclude all reasonable hypotheses of innocence. Coleman v.

Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983). “[T]he Commonwealth need only

exclude reasonable hypotheses of innocence that flow from the evidence, not those that spring

from the imagination of the defendant.” Hamilton v. Commonwealth, 16 Va. App. 751, 755, 433

S.E.2d 27, 29 (1993). Whether a hypothesis of innocence is reasonable is a question of fact.

Cantrell v. Commonwealth, 7 Va. App. 269, 290, 373 S.E.2d 328, 339 (1988).

        Here, appellant told Deputy Hubbard that he did not have a license. He admitted at trial

that he was declared an habitual offender in 1997 and that he had previously been convicted of

driving after having been declared an habitual offender. He acknowledged that he twice

petitioned the court for a restricted driver’s license allowing work-related travel and that neither

of those restricted licenses had been renewed. He also conceded that he knew he had to return to

court to “get [his] full privileges.” Despite such knowledge, appellant never petitioned for the

full restoration of his operator’s license.

        Without objection, the trial court accepted appellant’s DMV transcript as evidence and

made it part of the record. The transcript included a notice to appellant in 1997 that indicated his

privilege to drive is revoked “indefinitely.” There was no objection to this exhibit, so the trial

court was free to consider the transcript as evidence. Because appellant admitted to never going




                                                -4-
back to court, it was reasonable for the trial court to find that when appellant drove on October

20, 2009, his status as an habitual offender was still in full force and effect.

        Citing Davis v. Commonwealth, 12 Va. App. 246, 402 S.E.2d 711 (1991), appellant

contends that, absent introduction of the order adjudicating him an habitual offender, a possibility

exists that the order does not contain essential language that causes his license to be revoked until

restored. In Davis, the order declaring Davis an habitual offender contained language limiting the

period under which his habitual offender status remained in effect. Although Code § 46.2-356

stated that the revocation would remain effective “until the privilege of the person to drive a motor

vehicle . . . has been restored by an order of a court entered in a proceeding as provided in this

article,” the order entered by the court in Davis’s case contained no such provision. 12 Va. App. at

249, 402 S.E.2d at 713. To the contrary, it limited the habitual offender period to ten years. This

Court reversed Davis’s conviction, explaining that the trial court was required to “[g]iv[e] full force

and effect to the order as it reads” and that “[h]ad the order provided,” as required by the Habitual

Offender Act, “that the revocation would remain in force until the privilege was restored, the

conviction would stand.” Id.

        Here, appellant contends that because there is no habitual offender order, there is no way to

determine what language was used in that order and whether the order was still in effect after a

period of more than ten years. This argument ignores the fact that appellant’s habitual offender

status was “indefinite[],” with no limitations as to the duration.

        In Sears v. Commonwealth, 29 Va. App. 158, 510 S.E.2d 274 (1999), we rejected a similar

argument. There, appellant contended the Commonwealth must affirmatively establish, as an

element of the offense, that his license had not been restored. The evidence established Sears had

been declared an habitual offender and was prohibited from operating a motor vehicle for ten years

and until his driving privileges were restored by the court. We concluded:

                                                  -5-
                        Nothing in the instant record suggests that “a Court of
                Record” had restored defendant’s privileges or that he otherwise
                possessed a valid driver’s license. Under such circumstances, the
                Commonwealth’s evidence established a prima facie case that
                defendant remained under the disability of the order, “casting upon
                [him] . . . the burden of going forward with evidence raising a
                reasonable doubt as to the illegality of his [conduct].” Mejia v.
                Commonwealth, 23 Va. App. 173, 177-78, 474 S.E.2d 866, 868
                (1996). See Mayhew v. Commonwealth, 20 Va. App. 484, 492,
                458 S.E.2d 305, 309 (1995) (While “circumstances[] within the
                knowledge of the accused . . . may be raised as . . . defenses,” they
                “are not negative elements of the offense [which] must be proven
                by the Commonwealth.”).

Sears, 29 Va. App. at 162, 510 S.E.2d at 276.

        As in Sears, nothing in this record suggests any limitation on the duration of the habitual

offender status nor that appellant’s driving privileges have been restored.

        The award of a restricted operator’s license does not terminate the habitual offender

status. “[I]f a circuit court chooses to issue a restricted license . . . that restricted license will

never mature into a full restoration of driving privileges.” Commonwealth v. Norman, 268 Va.

539, 547, 604 S.E.2d 82, 86 (2004). Appellant’s status as an habitual offender continued despite

his limited driving privileges. Travis v. Commonwealth, 20 Va. App. 410, 415, 457 S.E.2d 420,

422 (1995).

        Under Code § 46.2-356, in order to have his privilege to drive restored, the habitual

offender must petition the circuit court for such relief. As the Supreme Court of Virginia stated

in Varga v. Commonwealth, 260 Va. 547, 536 S.E.2d 711 (2000):

                [I]t is clear that once a person is declared an habitual offender by
                order of a trial court, he retains that status and loses his driving
                privilege for so long as the order is effective. Thus, unless the trial
                court specifically limits the duration of the effect of the order, as
                was the case in Davis, the habitual offender status of the person so
                declared continues until that person successfully petitions the court
                to have that status removed and his privilege to drive restored
                under one of the code sections permitting such petitions. See



                                                   -6-
                Manning v. Commonwealth, 22 Va. App. 252, 255-56, 468 S.E.2d
                705, 707 (1996).

Varga, 260 Va. at 551, 536 S.E.2d at 714.

        Here, the DMV transcript indicated the termination was “indefinite[]” and appellant

admitted he never petitioned the court for restoration of his license. Thus, there was sufficient

evidence for the trial court to conclude appellant’s status as an habitual offender remained in

effect at the time of appellant’s arrest.

                                            CONCLUSION

        For the foregoing reasons, we find the trial court did not err in finding appellant guilty of

driving after having been declared an habitual offender. Therefore, appellant’s conviction is

affirmed.

                                                                                           Affirmed.




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