COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Bumgardner and Frank
Argued at Salem, Virginia
DALLAS MONROE BAUGUESS, S/K/A
DALLAS MONROE BAUGESS
MEMORANDUM OPINION * BY
v. Record No. 0585-00-3 JUDGE ROSEMARIE ANNUNZIATA
FEBRUARY 13, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
James F. Ingram, Judge
S. Jane Chittom, Appellate Defender (Elwood
Earl Sanders, Jr.; Public Defender
Commission, on brief), for appellant.
Virginia B. Theisen, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Appellant, Dallas Monroe Bauguess, was convicted in a bench
trial for driving after being adjudged an habitual offender,
second offense, in violation of Code § 46.2-357 and driving
while intoxicated, fourth offense, in violation of Code
§ 18.2-266. He was sentenced to serve two years in prison on
each charge. He contends on appeal that, because the evidence
placed him in the driver's seat of a stationary vehicle with the
ignition engaged, the trial court erred in denying the motion to
strike the Commonwealth's evidence in support of both charges.
For the reasons stated in this opinion, we affirm.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
On appeal we view the evidence in the light most favorable
to the Commonwealth, the party prevailing below, together with
all reasonable inferences that may be drawn from such evidence.
Cressell v. Commonwealth, 32 Va. App. 744, 763-64, 531 S.E.2d 1,
10 (2000). On August 27, 1999, Officer William Chaney of the
Danville Police Department observed Bauguess sitting behind the
wheel of a motor vehicle in a roadway, at a stop sign on Edmonds
Street, in the City of Danville. Chaney knew that Bauguess was
prohibited from driving, so he stationed his patrol car parallel
to Bauguess' vehicle and asked him to turn off the ignition;
Bauguess complied. The vehicle was also occupied by another
individual sitting in the front passenger seat. After Chaney
parked his patrol car behind Bauguess' vehicle, he approached
the driver's window. Chaney smelled alcohol on Bauguess, and
discerned that his eyes were bloodshot and that he was unsteady
on his feet.
After Bauguess performed field sobriety tests
unsatisfactorily, Chaney arrested Bauguess and administered a
breath test at 11:50 p.m. The latter test revealed that
Bauguess' blood alcohol content exceeded the legal limit of
.08%. Bauguess denied he was intoxicated, stating variously
that he only had drunk one beer seven hours earlier and that he
had had two 32-ounce malt liquors since 4:40 p.m. on the date in
question. His motions to strike the evidence on the ground that
the vehicle was stationary and remained stationary were made
- 2 -
after the Commonwealth's case-in-chief and after all the
evidence was submitted and were both denied.
ANALYSIS
Procedural Default
In order to preserve an issue of sufficiency of the
evidence in a bench trial, the defendant must move to strike the
evidence at the conclusion of all the evidence, make a specific
argument in his summation to the court, or present a specific
and timely motion to set aside the verdict. Rule 5A:18;
Campbell v. Commonwealth, 12 Va. App. 476, 478-81, 405 S.E.2d 1,
1-3 (1991) (en banc); McGee v. Commonwealth, 4 Va. App. 317,
321-22, 357 S.E.2d 738, 739-40 (1987). The same grounds in
support of a claim of insufficiency must be presented to the
trial court and appellate court. Taylor v. Commonwealth, 21 Va.
App. 557, 565-66, 466 S.E.2d 118, 122 (1996).
In the instant case, Bauguess made a motion to strike the
evidence following the close of the Commonwealth's
case-in-chief. He argued that the Commonwealth failed to
establish a prima facie case for both offenses on the ground
that the officer testified that Bauguess' vehicle was stationary
and that he did not witness Bauguess turn off the ignition.
Bauguess then testified. At the conclusion of all the evidence,
Bauguess renewed his motion to strike, making the following
argument:
- 3 -
Again, the question is, from the
officer . . . the conflict in the evidence
as to whether the car was running or not
running . . . the officer indicates he felt
that it was, and that my client was behind
the wheel. My client indicates at the time,
the keys weren't even in the car. . . .
[I]f you choose to believe [the officer],
does his description of what he saw, for
purposes of an habitual offender operation
of a vehicle, rise to the statutory level in
the case law? I concede that for purposes
of the DUI, it very well may, but at the
moment my mind draws a blank as to whether
it really rises, for purposes of habitual
offender charges.
(Emphasis added). Bauguess failed to raise before the trial
court the argument he makes here. Specifically, he did not
argue that to convict him of violating Code § 46.2-357, the
Commonwealth was required to prove that he was "driving" or
"moving the vehicle down the highway by its own power," because
when the legislature recodified the habitual offender statute in
1989, it substituted the word "drive" for the word "operate."
We therefore find the issue was not properly preserved for
appeal. Rule 5A:18.
We further find that the "ends of justice" exception to the
requirement under Rule 5A:18 that a proper objection be made to
a claimed error at the trial level does not apply. "[T]he ends
of justice exception is narrow and is to be used sparingly
. . . ." Brown v. Commonwealth, 8 Va. App. 126, 132, 380 S.E.2d
8, 11 (1989). The exception applies only "when the record
affirmatively shows that a miscarriage of justice has occurred,
- 4 -
not when it merely shows that a miscarriage might have
occurred." Mounce v. Commonwealth, 4 Va. App. 433, 436, 357
S.E.2d 742, 744 (1987) (emphasis in original).
Even under Bauguess' claimed construction of Code
§ 46.2-357 and its use of the term "drive" rather than
"operate," it is clear his conduct was in violation of the
statute. When Officer Chaney encountered Bauguess, he was
behind the wheel of a vehicle stopped in the roadway at the
intersection of two streets, at a stop sign, with the motor
running. When Officer Chaney asked Bauguess to turn off the car
engine, he did so. From this evidence, the fact finder
reasonably could conclude that Bauguess drove the vehicle to
that location. Lyons v. City of Petersburg, 221 Va. 10, 12-13,
266 S.E.2d 880, 881-82 (1980); Propst v. Commonwealth, 24 Va.
App. 791, 793, 485 S.E.2d 657, 659 (1997).
Finally, Bauguess conceded during argument at trial that
the evidence was sufficient to prove the driving while
intoxicated charge; therefore, he did not preserve this issue
for appeal. Cottee v. Commonwealth, 31 Va. App. 546, 559-60,
525 S.E.2d 25, 31-32 (2000) (appellate review barred where
defendant conceded issue at trial level); Lester v.
Commonwealth, 30 Va. App. 495, 506, 518 S.E.2d 318, 323 (1999).
His convictions are affirmed.
Affirmed.
- 5 -
Dallas Monroe Bauguess, s/k/a, etc. v. Commonwealth
Combined Opinion