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. 1341-00-2 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.
Steven A. Witmer, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Venessa M. Monger was convicted in a bench trial of operating
a motor vehicle after having been declared an habitual offender,
in violation of Code § 46.2-357. On appeal, she contends the
trial court erred (1) in finding the evidence sufficient to prove
she had actual notice of her habitual offender status and (2) in
refusing to admit into evidence a tape-recorded telephone
conversation between her son and attorney. For the reasons that
follow, we affirm the conviction.
As the parties are fully conversant with the record in this
case and because this memorandum opinion carries no precedential
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
value, this opinion recites only those facts and incidents of the
proceedings as necessary to the parties' understanding of the
disposition of this appeal.
I. SUFFICIENCY OF THE EVIDENCE
Monger contends the evidence presented at trial was
insufficient to sustain her conviction because it failed to prove
beyond a reasonable doubt that she had actual notice of having
been declared an habitual offender and ordered not to drive.
The Commonwealth initially argues that this issue is
procedurally barred on appeal because it was not presented to the
trial court. We have held that, "in a bench trial, where a
defendant wishes to preserve a sufficiency motion after presenting
evidence, the defendant must make a motion to strike at the
conclusion of all the evidence, present an appropriate argument in
summation, or make a motion to set aside the verdict." Howard v.
Commonwealth, 21 Va. App. 473, 478, 465 S.E.2d 142, 144 (1995).
Here, Monger did not move to strike the evidence or set aside
the verdict at trial. Her attorney did, however, raise the issue
of notice during closing argument. He argued that the evidence
presented "raise[d] a doubt in the mind about [Monger] knowing
that she was declared a[n] habitual offender." We find that this
argument gave the trial court and the Commonwealth the opportunity
to intelligently address, examine, and resolve this issue at the
trial level. The issue was, therefore, preserved and is properly
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before us on appeal. See Lee v. Lee, 12 Va. App. 512, 514, 404
S.E.2d 736, 737 (1991) (en banc); Rule 5A:18.
When the sufficiency of the evidence is challenged on appeal,
we review the evidence "in the light most favorable to the
Commonwealth, granting to it all reasonable inferences fairly
deducible therefrom." Bright v. Commonwealth, 4 Va. App. 248,
250, 356 S.E.2d 443, 444 (1997). "In so doing, we must 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 that may be
drawn therefrom." Watkins v. Commonwealth, 26 Va. App. 335, 349,
494 S.E.2d 859, 866 (1998). We are further mindful that the
"credibility of a witness, the weight accorded the testimony, and
the inferences to be drawn from proven facts are matters solely
for the fact[ ]finder's determination." Keyes v. City of Virginia
Beach, 16 Va. App. 198, 199, 428 S.E.2d 766, 767 (1993). We will
not disturb the conviction unless it is plainly wrong or
unsupported by the evidence. Sutphin v. Commonwealth, 1 Va. App.
241, 243, 337 S.E.2d 897, 898 (1985).
"The Commonwealth bears the burden of 'proving beyond a
reasonable doubt each and every constituent element of a crime
before an accused may stand convicted of that particular
offense.'" Bruce v. Commonwealth, 22 Va. App. 264, 268, 469
S.E.2d 64, 67 (1996) (quoting Martin v. Commonwealth, 13 Va. App.
524, 529, 414 S.E.2d 401, 403 (1992) (en banc)), aff'd, 256 Va.
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371, 506 S.E.2d 318 (1998). Thus, to convict Monger of operating
a motor vehicle after having been declared an habitual offender,
in violation of Code § 46.2-357, the Commonwealth had to prove
beyond a reasonable doubt, inter alia, that Monger had actual
knowledge that she had been declared an habitual offender and
ordered not to drive. See Reed v Commonwealth, 15 Va. App. 467,
471, 424 S.E.2d 718, 720 (1992).
Here, the evidence proved that on April 3, 1997, the
Department of Motor Vehicles (DMV) determined Monger to be an
habitual offender and ordered her not to drive effective May 7,
1997. 1 The DMV sent notice of that determination, along with
notice of the revocation of her driving privilege, to Monger by
certified mail on April 7, 1997. The DMV subsequently received
a return receipt allegedly bearing Monger's signature.
On June 25, 1998, Monger was arrested for driving after
having been declared an habitual offender and released on a
summons. At trial, Monger acknowledged her signature on the
summons. The charge was later dismissed. On January 6, 1999,
Monger was again arrested for driving after having been declared
an habitual offender and again released on a summons. At trial,
Monger acknowledged her signature on the summons. This charge
1
Monger appealed to the trial court, which affirmed the
determination. By a separate opinion this day, we affirmed the
decision of the trial court.
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was also later dismissed. In each case, Monger was represented
by an attorney.
On July 12, 1999, a grand jury indicted Monger for
operating a motor vehicle on January 16, 1999, after having been
declared an habitual offender, in violation of Code § 46.2-357.
At trial, Monger testified that, prior to January 23, 1999,
she did not know she had been declared an habitual offender and
ordered not to drive. According to her, the police officers who
stopped her on June 25, 1998 and January 6, 1999 told her only
that her license was suspended. She further testified she did
not read the summons she had signed and she could not recall
that the judge or her attorney ever told her that she was
charged with driving after having been declared an habitual
offender. Moreover, Monger denied that the signature on the
return receipt received by the DMV was hers. She said the
signature was that of her estranged husband, who regularly
forged her name.
The trier of fact is not required to accept a party's
evidence in its entirety, but is free to believe or disbelieve,
in part or in whole, the testimony of any witness. Rollison v.
Rollison, 11 Va. App. 535, 547, 399 S.E.2d 823, 830 (1991).
Thus, the trial court was not required to accept Monger's
version of what occurred or her testimony that she had no actual
knowledge of her habitual offender status. "In its role of
judging witness credibility, the fact finder is entitled to
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disbelieve the self-serving testimony of the accused and to
conclude that the accused is lying to conceal his [or her]
guilt." Marable v. Commonwealth, 27 Va. App. 505, 509-10, 500
S.E.2d 233, 235 (1998).
In determining that Monger had actual notice that she had
been declared an habitual offender, the trial court noted the
similarities, particularly in the first names, between the
signature on the return receipt card returned to the DMV and
Monger's signatures on the two traffic summons. The trial court
also noted that Monger had signed the two summons, both of which
described the referenced charge as "habitual offender," and had
taken part, while represented by counsel, in "two prior
proceedings which involved charges of operating a motor vehicle
after having been declared a[n] habitual offender."
Based on our review of the record, we cannot say that the
trial court's determination was plainly wrong or without
evidence to support it. In light of Monger's two prior arrests
for driving after having been declared an habitual offender and
the obvious similarities between the signatures on the summons
and the return receipt, the trial court was entitled to
disbelieve Monger's claim that she was unaware of her habitual
offender status. We hold, therefore, that the evidence was
sufficient to prove beyond a reasonable doubt that Monger had
actual notice of her habitual offender status and of having been
ordered not to drive.
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II. ADMISSIBILITY OF TELEPHONE CONVERSATION
Monger denied she drove her car on January 16, 1999. She
testified that her nineteen-year-old son, Octavius, drove her to
the video store. On their way home, he pulled into the
convenience store's parking lot because of car trouble.
Octavius then walked home to check on Monger's younger son,
while Monger arranged to have the car moved and have someone
pick her up.
Arguing that Octavius's testimony would corroborate her
testimony that Octavius alone drove her car that night, Monger
moved to admit into evidence a tape-recorded telephone
conversation between Octavius and her attorney. The
conversation was admissible "as a residual exception to the
hearsay rule," Monger maintained, because Octavius was in the
military service and, thus, was unavailable as a witness at
trial. The trial court denied the motion.
On appeal, Monger contends that, under the guidance
provided by Code § 8.01-420.2, the tape-recorded telephone
conversation should have been admitted into evidence because the
identities of all the parties to the conversation were known and
all the parties to the conversation were aware that the
conversation was being recorded.
Upon our review of the record, we find that the argument
Monger makes on appeal was never made at trial. In accordance
with Rule 5A:18, we will not consider an argument on appeal that
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is different from the argument presented to the trial court,
even if it relates to the same issue. See Buck v. Commonwealth,
247 Va. 449, 452-53, 443 S.E.2d 414, 416 (1994); Ohree v.
Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998).
The purpose of this rule is to ensure that the trial court and
opposing party are given the opportunity to intelligently
address, examine, and resolve issues in the trial court, thus
avoiding unnecessary appeals and reversals. Lee, 12 Va. App. at
514, 404 S.E.2d at 737; Kaufman v. Kaufman, 12 Va. App. 1200,
1204, 409 S.E.2d 1, 3-4 (1991).
Accordingly, Rule 5A:18 bars our consideration of this
assignment of error on appeal. Moreover, we find no reason in
the record to invoke the "good cause" or "ends of justice"
exceptions to Rule 5A:18.
For these reasons, we affirm Monger's conviction.
Affirmed.
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