Harris v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Benton, Elder,
Annunziata, Bumgardner, Frank, Humphreys, Clements,
Felton and Kelsey
Argued at Richmond, Virginia

CHRISTOPHER EDWARD HARRIS
OPINION BY
v. Record No. 1615-01-2 JUDGE ROBERT J. HUMPHREYS
FEBRUARY 4, 2003
COMMONWEALTH OF VIRGINIA

UPON A REHEARING EN BANC

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Walter W. Stout, III, Judge

Gregory W. Franklin, Assistant Public
Defender (Office of the Public Defender, on
briefs), for appellant.

Robert H. Anderson, III, Senior Assistant
Attorney General (Jerry W. Kilgore, Attorney
General, on brief), for appellee.

This matter comes before the Court on a rehearing en banc

from a decision of a divided panel rendered July 2, 2002. See

Harris v. Commonwealth, 02 Vap UNP 1615012 (2002). The panel

affirmed Harris' conviction for driving without a license, in

violation of Code § 46.2-300, finding that the summons upon which

he was tried was sufficient to present the charge for trial. By

order dated August 19, 2002, we granted Harris' petition for a

rehearing en banc, stayed the mandate of that decision, and

reinstated the appeal. Upon rehearing en banc we find that
Harris' objection to his prosecution on the basis of the summons

was procedurally barred and we, therefore, affirm his conviction.

On December 13, 1999, Officer Josh Linger of the Richmond

Police Department came upon Harris' car parked in the travel lane

on Marshall Street in front of Singer Hall on the Virginia

Commonwealth University/Medical College of Virginia campus.

Marshall Street is a one-lane street, and Harris' car was

obstructing traffic. The car was unoccupied, but its hazard

lights were on.

Harris came out of Singer Hall, and Officer Linger asked to

see his driver's license. Officer Linger then ran a check on

Harris' license and determined that his license was suspended.

Officer Linger also observed that the car displayed a state

vehicle inspection rejection sticker noting defective brakes.

Harris admitted that he knew the car had failed inspection,

but denied knowing about the license suspension. He told Officer

Linger he drove the car for work, making deliveries, and that he

had made a delivery in Singer Hall. Officer Linger issued Harris

a summons for driving his car on a suspended license in violation

of Code § 46.2-301.

The district court convicted Harris of driving a motor

vehicle without a license, in violation of Code § 46.2-300.

Harris appealed to the trial court.

Upon the conclusion of the evidence in his bench trial,

Harris moved to strike the charge, arguing that Code § 19.2-81

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required Officer Linger to obtain a warrant to charge a

misdemeanor offense not committed in his presence. 1 The

Commonwealth responded that no warrant was necessary because

Harris told Officer Linger he had been driving; thus, the

requirement that the offense be committed in the officer's

presence, pursuant to Code § 19.2-81, was satisfied. The trial

court denied the motion and convicted Harris under the summons.

Harris subsequently filed a motion to reconsider restating

his contention that Code § 19.2-81 required Officer Linger to

charge Harris on a warrant versus a summons, because the offense

was not committed in Officer Linger's presence. The Commonwealth

responded that the trial court heard adequate evidence that Harris

committed the offense and "[t]hat any defect in the warrant [sic]

which would have rendered defendant's arrest unconstitutional

would necessarily needed to have been addressed by counsel for the

defense in a motion to suppress." The trial court then denied the

motion, finding that the issue was a "statutory question," and

that "even though [Harris] wasn't in the car," the evidence proved

he was driving.

Harris appeals the trial court's finding in this regard,

contending that the court erred in trying Harris on the charge

1
Code § 19.2-81 provides, in relevant part, that police
officers "may arrest, without a warrant, any person who commits
any crime in the presence of the officer and any person whom he
has reasonable grounds or probable cause to suspect of having
committed a felony not in his presence."

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"where the summons issued was not a valid process to present the

charge for trial." In response, the Commonwealth argues, for the

first time on appeal, that Harris procedurally defaulted on this

claim because he failed to raise a defense or objection "based

upon defects in the institution of the prosecution," seven days

prior to trial, as required by Supreme Court of Virginia Rule

3A:9(b) and (c). We agree.

Rule 3A:9 states, in relevant part, as follows:

(b) The Motion Raising Defenses and
Objections.

(1) Defenses and Objections That Must Be
Raised Before Trial. - Defenses and
objections based on defects in the
institution of the prosecution or in the
written charge upon which the accused is to
be tried, other than that it fails to show
jurisdiction in the court or to charge an
offense, must be raised by motion made
within the time prescribed by paragraph (c)
of this Rule. The motion shall include all
such defenses and objections then available
to the accused. Failure to present any such
defense or objection as herein provided
shall constitute a waiver thereof. Lack of
jurisdiction or the failure of the written
charge upon which the accused is to be tried
to state an offense shall be noticed by the
court at any time during the pendency of the
proceeding.

(2) Defenses and Objections That May Be
Raised Before Trial. - In addition to the
defenses and objections specified in
subparagraph (b)(1) of this Rule, any
defense or objection that is capable of
determination without the trial of the
general issue may be raised by motion before
trial. Failure to present any such defense
or objection before the jury returns a

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 verdict or the court finds the defendant
guilty shall constitute a waiver thereof.

* * * * * * *

(c) Time of Filing Notice or Making
Motion. - A motion referred to in
subparagraph (b)(1) shall be filed or made
before a plea is entered and, in a circuit
court, at least 7 days before the day fixed
for trial, and a copy of such motion shall,
at the time of filing, be mailed to the
judge of the circuit court who will hear the
case, if known.

* * * * * * *

(d) Relief From Waiver. - For good cause
shown the court may grant relief from any
waiver provided for in this Rule.

(Emphases added.)

"Rule 3A:9 recognizes a class of defenses and motions which

must be raised before trial, and a separate class which may be

raised before trial." Harward v. Commonwealth, 5 Va. App. 468,

474, 364 S.E.2d 511, 514 (1988). The plain language of the Rule

states that the requirements of Rule 3A:9(b)(1) are mandatory, and

"[f]ailure to raise such [defenses] properly is a waiver," unless

"good cause" is shown. Freeman v. Commonwealth, 14 Va. App. 126,

127, 414 S.E.2d 871, 872 (1992); see also Rule 3A:9(b)-(d).

Because Harris did not comply with the notice provisions of

Rule 3A:9 and did not show "good cause," he waived any

"[d]efense[] [or] objection[] based on defects in the institution

of the prosecution or in the written charge upon which [he was] to

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be tried," including any defense or objection pursuant to Code

§ 19.2-81.

Although the Commonwealth raised this argument for the first

time on appeal, we have long held that "Rule 5A:18 does not

require an appellee to raise an issue at trial before it may be

considered on appeal, where the issue is not offered to support

reversal of a trial court ruling." Driscoll v. Commonwealth, 14

Va. App. 449, 451-52, 417 S.E.2d 312, 313 (1992) ("An appellee is

subject to the limitations of Rule 5A:18 only where it asserts an

error that seeks to reverse a judgment." (citations omitted)).

"The question we must address, therefore, is whether we may apply

the right for the wrong reason rationale to affirm the judgment in

this case." Id. at 452, 417 S.E.2d at 313. "An appellate court

may affirm the judgment of a trial court when it has reached the

right result for the wrong reason." Id. However,

The rule does not always apply. It may not
be used if the correct reason for affirming
the trial court was not raised in any manner
at trial. In addition, the proper
application of this rule does not include
those cases where, because the trial court
has rejected the right reason or confined
its decision to a specific ground, further
factual resolution is needed before the
right reason may be assigned to support the
trial court's decision.

Id. at 452, 417 S.E.2d at 313-14 (citation omitted).

Here, although stating that Harris should have raised the

motion in the form of a motion to suppress, the Commonwealth

clearly argued that in making his argument in the form of a motion

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to strike after the trial had commenced, Harris raised the motion

improperly and, therefore, waived any objections made at such a

"late juncture." Thus, the reason for the proper resolution of

Harris' motion was raised before the trial court, albeit

inartfully, and the facts in the record fully support the

procedural bar. Accordingly, we find the trial court

appropriately denied Harris' motion in this regard as Harris had

waived any objection with respect to the summons and the trial

court.

Therefore, we hold that the trial court was correct, although

for the wrong reason, in denying Harris' motion to strike and

subsequent motion to reconsider. Accordingly, we do not address

the merits of Harris' argument and affirm the judgment of the

trial court.

Affirmed.

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Benton, J., with whom, Elder, J., joins, dissenting.

I.

At the conclusion of the Commonwealth's evidence at the

bench trial, Christopher Harris' attorney moved to strike the

evidence because it proved the officer, in violation of Code

§ 19.2-81, "made the arrest by summons . . . [for] a misdemeanor

committed not in [his] presence." At the conclusion of all the

evidence, Harris renewed his motion to strike. Thus, Harris'

claim that his arrest was void was properly raised prior to "the

court [finding him] guilty." Rule 3A:9(b)(2). Moreover, the

record clearly establishes that on both occasions, the

prosecutor addressed the merits of Harris' motion and did not

argue that the motion was untimely. The issue the Commonwealth

now raises, i.e., that Harris' appeal "is not reviewable"

because the motion was untimely under Rule 3A:9, is meritless.

After the trial judge heard arguments on the motion, he

struck the evidence as to reckless driving and found that the

evidence was sufficient to prove Harris was operating the

vehicle. Thus, he convicted Harris of driving without a license

in violation of Code § 46.2-300. Before the conviction order

became final, Harris' attorney filed a written motion to

reconsider the judge's ruling concerning the arrest and cited

Davis v. Commonwealth, 17 Va. App. 666, 440 S.E.2d 426 (1994),

and Penn v. Commonwealth, 13 Va. App. 399, 412 S.E.2d 189

(1991), aff'd, 244 Va. 219, 420 S.E.2d 713 (1992). The

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prosecutor filed a written response asserting that "any defect

in the warrant . . . needed to have been addressed . . . in a

motion to suppress," that the "challenges should be considered

waived at this late juncture," and that the motion was otherwise

meritless. The prosecutor's written response raised no issue

concerning Rule 3A:9. After argument by counsel, the trial

judge ruled that Harris was raising a "statutory" issue, that

the evidence "would show that [Harris] was driving," and that

the evidence "was sufficient" to support the conviction. For

those reasons, the trial judge overruled the motion to

reconsider.

Even if Rule 3A:9(b)(1) and (c) apply, as the Commonwealth

now contends for the first time on appeal, the trial judge's

ruling disposed of this issue. Rule 3A:9(d) provides that

"[f]or good cause shown the court may grant relief from any

waiver provided for in this Rule." After failing to argue that

Harris' claims in the motions to strike the evidence were

untimely under Rule 3A:9, the prosecutor later objected to the

trial judge's reconsideration of this issue and raised the

matter of timeliness only in a general manner. The trial judge

again ruled on the merits of Harris' claim without addressing

the timeliness issue. The trial judge, therefore, implicitly

waived the requirement of the Rule. "Courts are presumed to act

in accordance with the law and orders of the court are entitled

to a presumption of regularity." Napert v. Napert, 261 Va. 45,

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47, 540 S.E.2d 882, 884 (2001). Because the trial judge ruled

on the merits of the motion, the judge's order "is entitled to a

presumption that the trial court dispensed with the Rule's

requirements." Id. Thus, I would hold that, even if Rule

3A:9(b)(1) and (c) are applicable, implicit in the trial judge's

ruling addressing the merits of the issue was a finding that the

trial judge granted relief from the time constraints of Rule

3A:9.

In addition, it bears noting that the Commonwealth's

contention that Harris' appeal "is not reviewable pursuant to

Rules 3A:9(b) and (c)" is an attempt to appeal an evidentiary

ruling. The Commonwealth failed to assert at trial either that

Rule 3A:9(b)(2) was inapplicable or that Rule 3A:9(c) precluded

consideration of Harris' claim. Thus, by asserting in the

course of Harris' appeal the trial judge's failure to explicitly

address what is implicit in his ruling, the Commonwealth is

merely appealing the trial judge's consideration of the claim on

its merits. See Campbell v. Commonwealth, 246 Va. 174, 187

n.11, 431 S.E.2d 648, 655 n.11 (1993). We have also previously

ruled in other decisions that "the Commonwealth cannot use [the

right result for the wrong reason rule] as a subterfuge for a

constitutionally prohibited cross-appeal." Driscoll v.

Commonwealth, 14 Va. App. 449, 452, 417 S.E.2d 312, 313 (1992).

The rule "may not be used if the correct reason for affirming

the trial court was not raised in any manner at trial." Id.

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 Furthermore, in Neal v. Commonwealth, 27 Va. App. 233, 236

n.1, 498 S.E.2d 422, 424 n.1 (1998), we noted that when the

Commonwealth failed to object to the timeliness of a motion and

the judge ruled on the merits of the motion favorable to the

Commonwealth, the issue of timeliness is moot on appeal. This

rule is consistent with the Supreme Court's holding that

appellate courts should "not . . . permit the Commonwealth to

accomplish indirectly what it cannot do directly." Hart v.

Commonwealth, 221 Va. 283, 290, 269 S.E.2d 806, 811 (1980). For

these reasons, I would reach the merits of this appeal without

revisiting the trial judge's implicit ruling waiving the time

requirement.

II.

The evidence in this case proved the police officer only

saw Harris emerge from the building and did not see him in the

automobile. The officer arrested Harris for violating Code

§ 46.2-301, which prohibits "driv[ing]" a motor vehicle while

his license has been suspended and provides for punishment as a

misdemeanor. In accord with well established principles, we

must strictly construe this criminal statute, Jimenez v.

Commonwealth, 241 Va. 244, 251, 402 S.E.2d 678, 681 (1991), and

give Harris the benefit of any reasonable doubt about the

construction of the statute. Martin v. Commonwealth, 224 Va.

298, 300-01, 295 S.E.2d 890, 892 (1982). As the Supreme Court

has "pointed out . . . 'driving' an automobile means putting it

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in motion." Williams v. City of Petersburg, 216 Va. 297, 300,

217 S.E.2d 893, 896 (1975). The term "driving" denotes a more

narrow set of circumstances than "operating" an automobile. Id.

Indeed, the Supreme Court has adopted the generally accepted

view "that 'operate' has a broader meaning than 'driving' and

includes 'not only the motion of the vehicle but also acts which

engage the machinery of the vehicle that, alone or in sequence,

will set in motion the motive power of the vehicle.'" Gallagher

v. Commonwealth, 205 Va. 666, 669, 139 S.E.2d 37, 39 (1964)

(citation omitted).

Because Harris did not "drive" the automobile in the

officer's presence, the officer could not validly charge him

with a violation of Code § 46.2-301 by means of a summons. See

Code § 19.2-81 (providing that an officer may arrest without a

warrant only when the person commits an offense in the officer's

presence or a felony not in the officer's presence).

It is settled that unless the arrest is
one within the various statutory exceptions
to the general rule, a police officer may
not arrest a misdemeanant without a warrant
except when an officer has personal
knowledge acquired by his personal senses
that an offense was committed in his
presence. See Code § 19.2-81. "An offense
is committed within the presence of an
officer, within the meaning of this rule,
when he has direct personal knowledge,
through his sight, hearing, or other senses
that it is then and there being committed."
Galliher v. Commonwealth, 161 Va. 1014,
1021, 170 S.E. 734, 736 (1933).

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Durant v. City of Suffolk, 4 Va. App. 445, 447, 358 S.E.2d 732,

733 (1987).

Even if we were to assume, however, as the Commonwealth

argues, that the prohibition in Code § 46.2-301 against

"driv[ing]" while unlicensed is broad enough to include

"operating" the automobile, the evidence proved the officer did

not observe Harris operate the automobile, engage the emergency

flashers, or stop the automobile on the street. Although he did

not see Harris perform any of those activities, he nevertheless

arrested Harris on a summons. Thus, the material facts in

Harris' case cannot be distinguished from those in Davis, where

we held that an arrest on a summons for operating an automobile

after a license suspension was invalid. There, the person who

previously operated the automobile and left it on the paved

surface of the road was not operating it in the officer's

presence. 17 Va. App. at 668, 440 S.E.2d at 428. We held as

follows:

The offense of operating a motor vehicle
on a suspended license ended when the
appellant stopped driving the car and did
not continue thereafter. Although the
trooper developed evidence of the commission
of that offense, no part of the offense was
committed in his presence. Therefore, he
lacked authority to arrest the appellant on
that charge without a warrant. The arrest
was unlawful, and the summons issued on that
charge was not a valid process to present

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 that charge for trial. The trial court
erred in trying that charge without a valid
process.

Id. at 672, 440 S.E.2d at 430.

Likewise, the evidence at Harris' trial is consistent with

Overbee v. Commonwealth, 227 Va. 238, 315 S.E.2d 242 (1984),

where the Supreme Court held as follows:

In the present case, . . . Overbee was
not in his vehicle when the officer found
him. The engine was not running; the
ignition key had been removed. Overbee's
possession of the keys may have given him
the means of effecting control over the
truck, but he cannot be said to have been in
actual physical control of the vehicle when
he was standing in front of it on the
highway. We hold that Overbee was not
operating his truck when Trooper Lacey
approached and arrested him.

Id. at 243, 315 S.E.2d at 244.

Absent proof that the motor of the automobile was

activated, the evidence that the emergency flashers were

blinking does not prove the automobile was then being operated.

No evidence proved the emergency flashers "will activate the

motive power of the vehicle." Williams, 216 Va. at 300, 217

S.E.2d at 896. Indeed, in Overbee, the accused's presence at

the front of the truck, where the hood of the truck had been

unlatched and was open, was not proof he was operating the

truck. 227 Va. at 240-41, 315 S.E.2d at 243. Thus, unlike in

Williams, where the "motor of the car was running" and "the

defendant made a 'motion' to the gearshift" before he "cut off"

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the motor, 216 Va. at 301, 217 S.E.2d at 896, no evidence proved

that Harris was "operating" the automobile. "'Operating'

. . . means engaging the machinery of the vehicle which alone,

or in sequence, would have activated its motive power." Id. at

300, 217 S.E.2d at 896. See also Stevenson v. City of Falls

Church, 243 Va. 434, 438, 416 S.E.2d 435, 438 (1992) (holding

that "[b]ecause the presence of the key in the ignition switch

in the off position did not engage the mechanical or electrical

equipment of Stevenson's car, Stevenson[, who was slumped behind

the steering wheel,] did not 'drive or operate' the car within

the meaning of the statutes" (emphasis added)).

For these reasons, even if the prohibition in Code

§ 46.2-301 against "driving" could be read to mean "operating,"

I would reverse the conviction and remand per our holding in

Davis. I would hold, however, that no evidence proved Harris

was driving the car in the officer's presence. Therefore, I

would reverse the conviction for violating Code § 46.2-300 and

remand it to the circuit court.

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