COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Elder and Clements
Argued at Richmond, Virginia
VENESSA M. MONGER
MEMORANDUM OPINION * BY
v. Record No. 1926-00-2 JUDGE JEAN HARRISON CLEMENTS
NOVEMBER 20, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HALIFAX COUNTY
William L. Wellons, Judge
Randall J. Trost (Randall J. Trost, P.C., on
brief), for appellant.
Jeffrey A. Spencer, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Venessa M. Monger appeals from an order of the trial court
affirming the decision of the Department of Motor Vehicles
declaring her an habitual offender pursuant to Code § 46.2-351. 1
On appeal, Monger contends the trial court erred (1) in ruling
that the second and third convictions upon which the habitual
offender determination was based resulted from offenses that arose
"out of separate acts," within the meaning of Code § 46.2-351; (2)
in ruling that Code § 46.2-351 did not violate the Equal
Protection Clause; and (3) by not allowing the rebuttal testimony
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
1
Code § 46.2-351 was repealed in 1999.
of Officer Redd. Finding no error, we affirm the decision of the
trial court.
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 necessary to the parties' understanding of
the disposition of this appeal.
Under well-settled principles of appellate review, we
examine the evidence and all reasonable inferences fairly
deducible therefrom in the light most favorable to the
Commonwealth, the prevailing party below. Burlile v.
Commonwealth, 32 Va. App. 796, 798, 531 S.E.2d 26, 27 (2000).
In determining whether the trial court made an error of law, "we
review the trial court's statutory interpretations and legal
conclusions de novo." Timbers v. Commonwealth, 28 Va. App. 187,
193, 503 S.E.2d 233, 236 (1998).
The facts relative to the matters before us are not in
dispute. On November 25, 1992, Monger was convicted in the
General District Court of Halifax County of driving under a
suspended license on September 3, 1992, in violation of Code
§ 46.2-301. On March 17, 1997, Monger was convicted in the
General District Court of Halifax County of driving while
intoxicated on October 25, 1996, in violation of Code
§ 18.2-266, and of driving under a suspended license on October
25, 1996, in violation of a Halifax local ordinance. The latter
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two offenses occurred simultaneously. On April 3, 1997, the
Department of Motor Vehicles declared Monger an habitual
offender. Monger appealed to the trial court, which affirmed
the determination. This appeal followed.
I. HABITUAL OFFENDER DETERMINATION
As pertinent to this case, an habitual offender is defined
under Code § 46.2-351 as one who has accumulated within ten
years:
1. Three or more convictions, . . .
singularly or in combination, of the
following separate offenses arising out of
separate acts:
* * * * * * *
b. Driving or operating a motor
vehicle while under the influence of
intoxicants or drugs in violation of
§ 18.2-266 or subsection A of § 46.2-341.24;
c. Driving a motor vehicle while his
license, permit, or privilege to drive a
motor vehicle has been suspended or revoked
in violation of §§ 18.2-272, 46.2-301,
46.2-302, or former § 46.1-350 or
§ 46.1-351; . . . .
Monger contends that, because her 1997 convictions for
driving while intoxicated and driving under a suspended license
resulted from offenses that occurred simultaneously during the
same act of driving, they did not arise "out of separate acts,"
as required by Code § 46.2-351. Thus, she argues, for purposes
of the Habitual Offender Act, her second and third convictions
should count as only a single conviction. Accordingly, she
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concludes, the trial court erred in affirming the Department of
Motor Vehicles' determination that she is an habitual offender.
The Virginia Supreme Court addressed the same argument in
Estes v. Commonwealth, 212 Va. 23, 181 S.E.2d 622 (1971).
There, the Court, in adopting the analysis used for a similar
provision in the predecessor to Code § 19.2-294, said that "one
occasion of driving an automobile may give rise to several acts
and offenses and that the test of whether there are separate
acts sustaining several offenses 'is whether the same evidence
is required to sustain them.'" Id. at 24, 181 S.E.2d at 623-24
(quoting Hundley v. Commonwealth, 193 Va. 449, 451, 69 S.E.2d
336, 337 (1952)). Applying that test, the Court went on to hold
that, for purposes of the Habitual Offender Act, defendant's
convictions for driving under the influence and driving under a
suspended license, although resulting from offenses that were
committed at the same time, "arose 'out of separate acts'—one
out of the act of driving under the influence and the other out
of the act of driving on a suspended license." Id. at 24-25,
181 S.E.2d at 624. "Therefore," the Supreme Court concluded,
"the convictions must be counted individually as second and
third convictions, thereby constituting the defendant an
habitual offender." Id. at 25, 181 S.E.2d at 624.
Monger acknowledges on appeal that the instant case is
squarely on point with Estes. She contends, however, that the
Supreme Court implicitly overruled Estes in ruling in Padgett v.
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Commonwealth, 220 Va. 758, 761, 263 S.E.2d 388, 389 (1980) (per
curiam), that the language "the same act or acts" in Code
§ 19.2-294.1 means the "same act or acts of driving."
We do not share Monger's view. For one thing, the Supreme
Court was asked in Padgett solely to interpret Code § 19.2-294.1 2
relative to a defendant who, as a result of a high speed chase
across jurisdictional lines, was convicted of reckless driving
in one venue and of driving while intoxicated in another. In
order to give effect to the statute, the Supreme Court construed
the statute's language, "'the same act or acts,' to mean 'the
same act or acts' of driving and to contemplate a continuous,
uninterrupted course of operation of a motor vehicle, without
regard to the crossing of the boundary line between two
localities." Id. at 761, 263 S.E.2d at 389-90. Without such a
construction, the statute would be rendered essentially
meaningless by the usual interpretation of "same act" that is
utilized in Code § 19.2-294 and double jeopardy analyses.
Furthermore, Code § 19.2-294.1 "deals only with the
offenses of driving while intoxicated and reckless driving; it
applies to no other criminal offenses." Lash v. County of
2
Code § 19.2-294.1 provides, in pertinent part:
Whenever any person is charged with
[driving while intoxicated] and reckless
driving growing out of the same act or acts
and is convicted of one of these charges,
the court shall dismiss the remaining
charge.
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Henrico, 14 Va. App. 926, 930, 421 S.E.2d 851, 853 (1992) (en
banc). It reflects the fundamental similarity of the two
offenses, see Harris v. City of Virginia Beach, 19 Va. App. 214,
216-17, 450 S.E.2d 401, 402 (1994) (noting that "the commonality
of the underlying offending conduct . . . invokes the preclusive
effect of the statute"), and creates, as to those two offenses,
a "special case of the general policy against conviction for two
statutory offenses growing from the same act which is announced
by Va. Code § 19.2-294," John L. Costello, Virginia Criminal Law
and Procedure § 27.1-1 (2nd ed. 1995).
Consequently, we do not believe that the legislature or
Supreme Court intended that the Supreme Court's interpretation
in Padgett of Code § 19.2-294.1, limited in application as it
was to the two offenses specified in that statute, should be
extended to the offenses and statute now before us.
Accordingly, we conclude that Padgett has not overruled Estes,
implicitly or otherwise. This view is buttressed by the fact
that this Court has, subsequent to Padgett, employed the Estes
test in cases involving driving offenses under Code § 19.2-294,
see Slater v. Commonwealth, 15 Va. App. 593, 596, 425 S.E.2d
816, 817-18 (1993); Treu v. Commonwealth, 12 Va. App. 996, 997,
406 S.E.2d 676, 677 (1991), and rejected the idea of extending
the Supreme Court's interpretation of Code § 19.2-294.1 in
Padgett to Code § 19.2-294, cf. Slater, 15 Va. App. at 597, 425
S.E.2d at 818 (Benton, J., dissenting).
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Thus, following Estes, we conclude that Code § 46.2-351
requires that the three convictions necessary for an habitual
offender determination arise from three separate acts, rather
than from three separate acts of driving, as Monger contends.
Here, the record establishes that Monger was convicted of three
separate offenses arising from three separate acts. We hold,
therefore, that the trial court did not err in affirming the
Department of Motor Vehicles' habitual offender determination.
II. EQUAL PROTECTION CLAUSE
As pertinent here, Code § 46.2-351 provides:
Where more than one offense included in
subdivision 1, 2, or 3 is committed within a
six-hour period, multiple offenses shall, on
the first such occasion, be treated for the
purposes of this article as one offense
provided the person charged has no record of
prior offenses chargeable under this
article.
Monger contends that this provision violates the Equal
Protection Clause of the Fourteenth Amendment to the United
States Constitution because it discriminates against those who
have prior offenses under the Habitual Offender Act. We
disagree.
As we stated in Salama v. Commonwealth, 8 Va. App. 320,
322-23, 380 S.E.2d 433, 434 (1989) (citations and internal
quotation marks omitted):
The fourteenth amendment does not
prohibit classifications in legislative
enactments. Legislative classifications
are, however, subject to judicial review.
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. . . [C]lassifications not involving
fundamental rights or inherently suspect
classifications will survive an equal
protection challenge if they bear a
reasonable relation to a legitimate
governmental objective. This standard of
review is highly deferential and such
legislative classifications are presumed
valid. Classifications will not be deemed
unconstitutional just because they result in
some statutory discrimination or inequality.
Monger acknowledges that the privilege of driving, while
important, is not a fundamental right. See Lockett v.
Commonwealth, 17 Va. App. 488, 491, 438 S.E.2d 497, 499 (1993).
Accordingly, the appropriate legal standard for determining
whether the statutory classification challenged by Monger
violates the Equal Protection Clause is the "rational basis"
test. See Etheridge v. Med. Ctr. Hosps., 237 Va. 87, 103, 376
S.E.2d 525, 534 (1989). "The rational basis test is satisfied
'if the legislature could have reasonably concluded that the
challenged classification would promote a legitimate state
purpose.'" Id. at 104, 376 S.E.2d at 534 (quoting Exxon Corp.
v. Eagerton, 462 U.S. 176, 196 (1983)).
It is within the public safety function of the legislature
to pass laws determining who may or may not drive based upon a
person's driving history and to treat those who repeatedly
violate the law differently from those who do not. The purpose
of the Habitual Offender Act is to protect the public by
preventing those who repeatedly commit the offenses described in
the Act from driving. See Nesselrodt v. Commonwealth, 19 Va.
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App. 448, 450, 452 S.E.2d 676, 677 (1994) (en banc). Here, in
enacting the subject provision of Code § 46.2-351, the
legislature simply carved out an exception precluding the
unintended result of having a driver with no prior qualifying
convictions under the Habitual Offender Act adjudged an habitual
offender solely on the basis of a single act of driving, rather
than on his or her driving history.
We find that the challenged provision is rationally related
to a legitimate government interest. We hold, therefore, that
Monger's claim under the Equal Protection Clause of the United
States Constitution is without merit.
III. ADMISSIBILITY OF OFFICER REDD'S TESTIMONY
At trial, the Commonwealth presented evidence of Monger's
March 17, 1997 conviction of driving under a suspended license
in violation of a Halifax local ordinance. Monger called
Officer R.E. Redd, a narcotics investigator for the Town of
South Boston, as a rebuttal witness. The following exchange
took place between Monger's counsel and Redd:
Q. Officer, you work in the South
Boston, Halifax area, correct?
A. That's correct.
Q. And in that connection, have you
had occasion to be familiar with South
Boston's ordinances?
A. Yes, sir, I have.
Q. And in that connection, you're
aware of the fact that there are no
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ordinances concerning traffic infractions of
Halifax County?
At that point, the Commonwealth objected. The trial court
sustained the Commonwealth's objection, ruling that the
testimony of the witness was not the appropriate method of
proving the existence or nonexistence of the ordinance.
Monger contends the trial court erred in not permitting
Redd to testify regarding the local ordinance that served as the
basis for Monger's second qualifying offense under Code
§ 46.2-351. Such testimony, Monger argues, should have been
allowed because it would have rebutted the Commonwealth's prima
facie case that she had been convicted of three qualifying
offenses.
Code § 8.01-386 provides the mechanism for the court to
take judicial notice of a local ordinance. Monger, however, did
not pursue this statutory method. Instead, she sought to prove
the nonexistence of the ordinance by attempting to introduce the
hearsay testimony of Officer Redd.
"The admissibility of evidence is within the broad
discretion of the trial court, and a ruling will not be
disturbed on appeal in the absence of an abuse of discretion."
Blain v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842
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(1988). We hold the trial court did not abuse its discretion by
not allowing the hearsay testimony of Officer Redd. 3
Accordingly, we affirm the decision of the trial court.
Affirmed.
3
Because it was never presented to the trial court, we do
not address Monger's further argument that Redd should have been
allowed to testify about the local ordinance because he was an
expert witness. See Rule 5A:18.
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