COURT OF APPEALS OF VIRGINIA
Present: Judges McClanahan, Petty and Senior Judge Annunziata
Argued at Alexandria, Virginia
GREGORY LEON HAMMER
MEMORANDUM OPINION * BY
v. Record No. 1147-07-4 JUDGE WILLIAM G. PETTY
MARCH 18, 2008
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PAGE COUNTY
John J. McGrath, Jr., Judge
Charles A. Butler, Jr., for appellant.
Robert H. Anderson, III, Senior Assistant Attorney General
(Robert F. McDonnell, Attorney General, on brief), for appellee.
Gregory Leon Hammer appeals his conviction of feloniously operating a motor vehicle after
having been declared an habitual offender in violation of Code § 46.2-357(A).1 On appeal,
Hammer presents three questions: (1) whether the trial court correctly overruled his hearsay
objection to testimony by a witness that he heard a magistrate previously inform Hammer of his
habitual offender status; (2) whether the trial court properly granted jury instruction 6 as modified;
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
Hammer was also convicted of driving under the influence; however, he did not
challenge this conviction.
and (3) whether the evidence was sufficient to demonstrate that he had actual notice of his habitual
offender adjudication when he operated his motor vehicle?2
For reasons expressed below, we affirm.
I. BACKGROUND
Under settled principles, we review the evidence in the light most favorable to the
Commonwealth, the party prevailing below. Commonwealth v. Hudson, 265 Va. 505, 514, 578
S.E.2d 781, 786 (2003). That principle requires us 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.” Parks v. Commonwealth,
221 Va. 492, 498, 270 S.E.2d 755, 759 (1980) (emphasis and citation omitted).
The Commonwealth presented the following evidence at a jury trial in the trial court.
While on patrol on January 8, 2006, Page County Deputy Sheriff J.C. Long encountered a
motorcycle that swerved into his lane, nearly striking the front of his police car. The incident
occurred at about 1:00 a.m., and Deputy Long pursued the motorcycle with his lights and
emergency equipment on, at speeds of approximately 80-85 mph for about one mile. He followed
the motorcycle as it pulled into a driveway and behind a residential trailer where the operator,
Gregory Hammer, abandoned the motorcycle and ran into a nearby wooded area. Deputy Long
apprehended Hammer and arrested him for driving under the influence. He was subsequently
indicted for driving under the influence and feloniously operating a motor vehicle after having been
declared an habitual offender.
2
Hammer is precluded from raising the first two issues because he is asserting different
arguments on appeal than were presented and preserved at trial. “The Court of Appeals will not
consider an argument on appeal which was not presented to the trial court.” Ohree v.
Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998). See Rules 5A:18 and
5A:20(c). Moreover, any claimed error concerning these non-constitutional matters was
harmless. See Proctor v. Commonwealth, 40 Va. App. 233, 242, 578 S.E.2d 822, 827 (2003).
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At trial, the Commonwealth introduced evidence that Hammer had previously been
adjudicated an habitual offender and provided proof that Hammer had actual notice of this fact.
Rockingham County Deputy Sheriff Randall Hensley testified that on December 8, 2005, he
engaged Hammer while he was operating his motorcycle in Rockingham County. Deputy Hensley
advised Hammer that he was an habitual offender and showed him the DMV transcript to confirm
his habitual offender status. Moreover, Deputy Hensley testified that the magistrate informed
Hammer that he was an habitual offender. Later, on cross-examination, Hammer explained that on
December 9, 2005, the magistrate told him:
I was at the jail, and the magistrate told . . . me, said, You’re lucky
he didn’t charge you with the felony habitual offender. He said,
Did you know that you were a habitual offender? I said, No, I
didn’t know I was an habitual offender. I said, I know I didn’t
have no license, though.
And the magistrate, Well you’re luck[y], he’s cutting you a break
if he’s ain’t [sic] charging you with DUI. That would have made it
a felony habitual offender. Because, if you ain’t drinking, it’s a
misdemeanor habitual offender. And I didn’t even know I was a
habitual offender.
(Emphasis added).
Further, Hammer acknowledged that on December 9, 2005, Deputy Hensley served a
warrant on him charging him with a misdemeanor habitual offender offense. Hammer also
acknowledged when he appeared at court in Rockingham County on December 19, 2005, he knew
he was an habitual offender.
II. ANALYSIS
When considering the sufficiency of the evidence presented at trial, we “presume[] [a
jury verdict] to be correct” and will not disturb it unless it is “‘plainly wrong or without evidence
to support it.’” Viney v. Commonwealth, 269 Va. 296, 299, 609 S.E.2d 26, 28 (2005) (quoting
Code § 8.01-680). The credibility of the witnesses, the weight accorded testimony, and the
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inferences drawn from proven facts are matters to be determined by the fact finder. Long v.
Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473, 476 (1989).
Thus, we do not “substitute our judgment for that of the trier of fact.” 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). “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.
To convict a defendant of violating Code § 46.2-357, the Commonwealth must prove,
beyond a reasonable doubt, that the defendant drove a motor vehicle on a public highway while
his driving privilege was revoked, that the defendant had been determined or adjudicated an
habitual offender, and that defendant received actual notice of his status as an habitual offender.
See Reed v. Commonwealth, 15 Va. App. 467, 471-72, 424 S.E.2d 718, 720-21 (1992).
Hammer contends the evidence was insufficient to prove he received actual notice that he
had been declared an habitual offender. He asserts that because the December 2005 misdemeanor
habitual offender offense was nolle prosequied for lack of actual notice, he “misunderstood” his
status as an habitual offender. Hammer’s argument overlooks that the Commonwealth proved at
trial that he knew he was an habitual offender in December 2005 and further that a magistrate had
informed him of this fact.
Therefore, the nature of the evidence presented at trial demonstrated that Hammer had
actual notice of his habitual offender adjudication before he operated his motorcycle on a public
highway in Page County. While Hammer alleges he misunderstood the effect of the nolle prosequi
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of the Rockingham County charge, his alleged misunderstanding concerned a question of fact and
credibility for the jury to resolve. Jackson, 443 U.S. at 319.
III. CONCLUSION
For these reasons, we hold the evidence was sufficient to establish that Hammer feloniously
operated a motor vehicle after having been declared an habitual offender.
Affirmed.
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