COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Fitzpatrick and Annunziata
Argued at Alexandria, Virginia
PATRICK RAYMOND LONG
OPINION BY
v. Record No. 1824-95-4 JUDGE ROSEMARIE ANNUNZIATA
NOVEMBER 26, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
Alfred D. Swersky, Judge
Alejandra Rueda, Assistant Public Defender,
for appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Following a jury trial, appellant, Patrick Raymond Long, was
convicted of driving after having been adjudicated an habitual
offender and after having been previously convicted of the same
offense. Appellant contends that the trial court erred in
refusing to allow him to present a necessity defense and that the
initial habitual offender order cannot serve as the basis for his
conviction. We disagree and affirm.
I.
At approximately 10:15 a.m. on November 18, 1994, Officer
Sherrie Bishop of the Alexandria Police Department stopped a
vehicle which appellant was driving and in which appellant's
sister, Mary Jacobs, was a passenger. The propriety of the stop
is not at issue. Appellant was unable to produce a driver's
license in response to Bishop's request, but he identified
himself as Jack Keville and provided a date of birth and social
security number. Bishop ran a check on the information appellant
provided and determined appellant was not Jack Keville. Bishop
asked appellant to exit the vehicle and take a seat in her
cruiser. Appellant eventually provided Bishop with his true name
and social security number. Upon running a check based on that
information, Bishop determined that appellant had been
adjudicated an habitual offender. Bishop arrested appellant, and
appellant was later indicted for driving after having been
adjudicated an habitual offender, having been previously
convicted of a like offense in violation of Code § 46.2-357,
which, for all purposes relevant to this appeal, read the same in
1994 as it does today. 1
1
Code § 46.2-357 provides, in part:
A. It shall be unlawful for any person to
drive any motor vehicle . . . on the highways
of the Commonwealth while the revocation of
the person's driving privilege remains in
effect. However, the revocation
determination shall not prohibit the person
from operating any farm tractor on the
highways when it is necessary to move the
tractor from one tract of land used for
agricultural purposes to another tract of
land used for agricultural purposes, provided
that the distance between the said tracts of
land is no more than five miles.
B. Any person found to be an habitual
offender under this article, who is
thereafter convicted of driving a motor
vehicle . . . in the Commonwealth while the
revocation determination is in effect, shall
be punished as follows:
* * * * * * *
[2,3] [In cases of second or subsequent
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Appellant sought to establish the defense of necessity. The
Commonwealth filed a motion in limine seeking to preclude
appellant from offering evidence related to the defense. The
trial court ruled that because the statute addressed necessity in
the context of mitigation of punishment, the legislature intended
to preclude the defense of necessity on the merits. On that
ground, the court refused to admit evidence relating to the
defense. However, the court nonetheless permitted appellant to
relate the facts and circumstances of the offense during the
guilt phase of the trial. The court also allowed appellant to
elicit limited testimony from three witnesses to corroborate his
recitation of the events.
Appellant's motion to dismiss the indictment, in which he
challenged the validity of the order declaring him an habitual
offender, was denied. The trial court found that the order was
clear and unambiguous. The order, entered February 20, 1986,
states, in part, that:
Patrick Rammond [sic] Long is hereby DECLARED
to be a Habitual Offender and this [sic]
his/her privilege to operate a motor vehicle
(..continued)
offense] . . . such person shall be guilty of
a felony punishable by confinement in a state
correctional facility for not less than one
year nor more than five years or . . . by
confinement in jail for twelve months and no
portion of such sentence shall be suspended
except that . . . (ii) in cases wherein such
operation is necessitated in situations of
apparent extreme emergency which require such
operation to save life or limb, said
sentence, or any part thereof may be
suspended.
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in the Commonwealth of Virginia, BE and is
HEREBY REVOKED. . . .
Appellant also challenged the validity of the order in his motion
to strike the Commonwealth's evidence, which the court denied.
Appellant testified that he knew he had been adjudicated an
habitual offender. He testified that he disregarded that fact,
drove the vehicle, and lied about his identity when stopped,
because he believed his sister's health was endangered and she
needed to get to the hospital.
II.
The trial court ruled that the habitual offender statute
abrogates the defense of necessity in such cases and refused to
allow appellant to present a necessity defense. The propriety of
this ruling is a question of law. 2
The common law defense of necessity is premised on a
resolution of conflicting public policy issues.
[It] traditionally addresses the dilemma
created when physical forces beyond the
actor's control renders "illegal conduct the
lesser of two evils." If one who is starving
eats another's food to save his own life, the
defense of necessity may bar a conviction for
the larceny of the other's food. The
essential elements of this defense include:
(1) a reasonable belief that the action was
necessary to avoid an imminent threatened
harm; (2) a lack of other adequate means to
avoid the threatened harm; and (3) a direct
causal relationship that may be reasonably
anticipated between the action taken and the
avoidance of the harm.
2
Because we find that the defense of necessity is unavailable,
we need not decide whether the evidence was sufficient to support
an instruction on that issue.
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Buckley v. City of Falls Church, 7 Va. App. 32, 33, 371 S.E.2d
827, 827-28 (1988) (citations omitted).
The rationale of the necessity defense is not
that a person, when faced with the pressure
of circumstances of nature, lacks the mental
element which the crime in question requires.
Rather, it is this reason of public policy:
the law ought to promote the achievement of
higher values at the expense of lesser
values, and sometimes the greater good for
society will be accomplished by violating the
literal language of the criminal law.
1 W. LaFave & A. Scott, Substantive Criminal Law § 5.4(a), at 629
(1986).
In some sense, the necessity defense allows
us to act as individual legislatures,
amending a particular criminal provision or
crafting a one-time exception to it, subject
to court review, when a real legislature
would formally do the same under those
circumstances.
United States v. Schoon, 971 F.2d 193, 196-97 (9th Cir. 1991),
cert. denied, 504 U.S. 940 (1992).
However, the legislature may abrogate the common law rule by
choosing to resolve the conflicting public policy matters by the
enactment of law. It follows, therefore, that
[t]he defense of necessity is available only
in situations wherein the legislature has not
itself, in its criminal statute, made a
determination of values. If it has done so,
its decision governs.
1 LaFave & Scott, supra, at 629. In other words, where the
legislature has resolved the balance of the harms to be avoided,
an individual is preempted from relying on the defense of
necessity as a means of re-weighing those harms.
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This legislative choice-of-values analysis, while specific
to the defense of necessity, comports with general principles of
Virginia law relating to the construction of statutes in
derogation of the common law.
The common law will not be considered as
altered or changed by statute unless the
legislative intent is plainly manifested. A
statutory change in the common law is limited
to that which is expressly stated or
necessarily implied because the presumption
is that no change was intended. When an
enactment does not encompass the entire
subject covered by the common law, it
abrogates the common-law rule only to the
extent that its terms are directly and
irreconcilably opposed to the rule.
Boyd v. Commonwealth, 236 Va. 346, 349, 374 S.E.2d 301, 302
(1988) (citations omitted). In light of these principles, where
it is apparent that the legislature has made a value judgment
with respect to certain behavior, it follows that the legislature
intended to abrogate to that extent the common law defense of
necessity, which, if not abrogated, would, within limits, allow
individuals to make their own value judgments with respect to
that behavior.
We find that the plain meaning of Code § 46.2-357 clearly
"encompass[es] the entire subject covered by the common law"
3
defense of necessity. The legislature chose to relegate the
3
Appellant argues that the language of the statute is even
more encompassing than the common law defense of necessity.
This, he argues further, is evidence that the legislature
intended not to abrogate the common law defense. Appellant's
argument is untenable. Assuming the statutory language is more
encompassing than the common law, its breadth makes the
legislature's intent to encompass the entire subject of the
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factual circumstances which would give rise to the common law
defense of necessity to the punishment phase of the habitual
offender proceedings. This decision was, in effect, a
determination of values--that there could be no guilt-nullifying
justification for an habitual offender, twice convicted of
driving after having been adjudicated an habitual offender, to
drive. Accordingly, we find that the legislature intended to
abrogate the common law defense of necessity as a justification
for the commission of the criminal act by a twice-convicted
offender. The trial court's refusal to permit evidence related
to this defense was, therefore, not erroneous.
III.
Appellant next contends that the initial order declaring him
an habitual offender is invalid because it fails to incorporate
key provisions of the habitual offender statute and because it is
impermissibly vague. We find that the order was sufficient and
provided appellant proper notice of the conduct he was prohibited
from engaging in as a result of his status as an habitual
offender.
The crime of driving after having been declared an habitual
offender is defined in terms of the order declaring the accused
an habitual offender. Davis v. Commonwealth, 12 Va. App. 246,
249, 402 S.E.2d 711, 712 (1991). In the present case, the order
states that appellant's privilege to operate a motor vehicle is
(..continued)
common law even clearer.
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revoked, and it sets no limit on the prohibition against driving.
See Manning v. Commonwealth, 22 Va. App. 252, 255, 468 S.E.2d
705, 707 (1996) (en banc) ("[Manning] . . . is barred from
operating a motor vehicle . . . and . . . no license to operate
a motor vehicle in the state [shall be] issued to [Manning] for a
period of ten years . . . or until the privilege . . . has been
restored . . ."); cf. Davis, 12 Va. App. at 247, n.2, 402 S.E.2d
at 712, n.2 ("[Davis's] privilege to operate a motor vehicle in
this state is revoked for a period of ten (10) years from the
date of this order"). Thus, under the terms of the order, which
were not limited as to time frame, the prohibition against
driving was in effect when appellant was stopped. Furthermore,
the order did not mislead appellant about whether he remained
under the driving prohibition. See Manning, 22 Va. App. at 256,
468 S.E.2d at 707; cf. Davis, 12 Va. App. at 248-49, 402 S.E.2d
at 712-13. Indeed, appellant's testimony shows he was aware that
he remained under the driving prohibition.
Finally, as noted, the order revoked appellant's "privilege
to operate a motor vehicle." The order clearly and unambiguously
states that appellant was forbidden to drive. Appellant clearly
understood that the order prohibited him from driving.
Accordingly, we find no merit in appellant's argument that the
order prohibiting him from operating a motor vehicle provided no
notice that he was not to drive a motor vehicle.
For the foregoing reasons, appellant's conviction is
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affirmed.
Affirmed.
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