Ray Milton Pennington, III v. Town of Front Royal

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judge Benton and
Senior Judge Duff
Argued at Alexandria, Virginia

RAY MILTON PENNINGTON, III
MEMORANDUM OPINION * BY
v. Record No. 0559-99-4 CHIEF JUDGE JOHANNA L. FITZPATRICK
FEBRUARY 29, 2000
TOWN OF FRONT ROYAL

FROM THE CIRCUIT COURT OF WARREN COUNTY
Dennis L. Hupp, Judge

Franklin B. Reynolds, Jr., for appellant.

John B. Arledge (Smith and Davenport, on
brief), for appellee.

Ray Milton Pennington, III, (appellant) was convicted in a

jury trial of driving under the influence of alcohol, third

offense, in violation of Front Royal Town Ordinance 156-8. On

appeal, he contends that: (1) the certificate of blood alcohol

analysis was inadmissible; (2) evidence of his two prior

convictions of driving under the influence of alcohol violated

due process; (3) the evidence was insufficient to support the

conviction; (4) his post-trial request for two subpoenas duces

tecum should have been granted; and (5) the enhanced punishment

for a third offense was constitutionally impermissible. For the

following reasons, we affirm.

*
Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
 I.

Under familiar principles of appellate review, we examine

the evidence in the light most favorable to the Town of Front

Royal (Town), the prevailing party below, granting to it all

reasonable inferences fairly deducible therefrom. See Juares v.

Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997).

So viewed, the evidence established that on October 10, 1997, at

approximately 2:00 a.m., Officer Charles Robinson (Robinson) was

conducting a business check at the Grapevine Restaurant in the

Town of Front Royal. While standing in the front parking lot of

the restaurant, Robinson saw a truck turn into the lot, pass by

him, and strike one of the supports on the building. Although

the officer did not see the driver of the truck as it entered

the parking lot, he immediately approached the vehicle and

discovered appellant behind the wheel. Robinson testified: "As

I approached the vehicle, on the driver's side coming up from

the rear, I observed [appellant] sitting behind the driver's

seat." The officer did not see anyone else get out of the truck

or any other vehicles in the parking lot.

Robinson asked appellant to get out of the truck, and he

"immediately detected a strong odor of an alcohol beverage

coming from [appellant's] breath." The officer administered a

preliminary breath test and asked appellant to perform various

field sobriety tests, which appellant failed to complete

satisfactorily. After being advised of the implied consent law

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and Miranda rights, appellant agreed to take a breathalyzer

test, which indicated a blood alcohol concentration of 0.19. At

no time during the investigation did appellant state that

another person was driving the truck.

At trial, the Town presented the testimony of Officer

Robinson, Kirk Kensy (Kensy) and Robert Bird (Bird). Kensy and

Bird, who lived in the apartment above the Grapevine Restaurant,

heard the truck strike the support post on the building. Bird

immediately called 911, but when he saw Officer Robinson outside

he told the dispatcher "that there was a police officer on the

scene" and hung up the telephone. Neither Kensy nor Bird

witnessed any person other than appellant in the truck.

In his defense, appellant called witnesses, including Bruce

Hartz (Hartz) and Shawn Hamrick (Hamrick), who testified that

Hamrick was driving appellant's truck. Hartz, Hamrick and

appellant were drinking at the Mightyfine Restaurant on October

10, 1997. According to Hartz, when the three left the

restaurant at approximately 2:00 a.m., "[Hamrick] got behind the

driver's seat. [Appellant] got in the passenger's seat of his

vehicle. I got into the driver's seat of my vehicle." Hartz

watched as Hamrick drove appellant's truck towards the Grapevine

Restaurant. Both Hamrick and appellant testified that Hamrick

was driving the truck when it entered the parking lot at the

Grapevine Restaurant and struck the support post of the

building.

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 To support the enhanced punished for a third offense, the

Town introduced evidence that on September 27, 1991, appellant

was convicted of driving under the influence of alcohol, in

violation of Code § 18.2-266. Additionally, on December 23,

1993, appellant was charged with driving under the influence of

alcohol, second offense, in violation of Code § 18.2-266. That

charge was reduced, and appellant was convicted on May 20, 1994

of driving under the influence of alcohol, first offense. 1

The jury accepted the Town's evidence and rejected

appellant's testimony. Appellant was found guilty of driving

under the influence of alcohol, third offense, in violation of

Front Royal Town Ordinance 156-8. In a post-trial motion to set

aside the jury's verdict, appellant argued that his 1994

conviction could not be used as one of the predicate offenses

because the conviction was based upon an invalid ordinance.

Additionally, appellant requested the trial court to issue two

subpoenas duces tecum, seeking from the sheriff and police

department records of 911 calls and radio transmissions. 2 The

1
In his post-trial motions and in his brief on appeal,
appellant argued that the May 1994 conviction was based upon a
violation of Town of Warrenton Ordinance 1993-9 and that the
conviction was constitutionally void subject to collateral attack.
Throughout the proceedings, the parties mistakenly believed the
May 1994 conviction was for a violation of the local ordinance;
however, the record before us demonstrates that appellant was
convicted for a violation of Code § 18.2-266, a state statute.
2
Appellant did not include in the Appendix a transcript of
the post-trial hearings and, therefore, we are unable to determine
what arguments were made at that time.

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trial court denied appellant's post-trial motion to set aside

the verdict and granted the Town's motion to quash the request

for subpoenas.

II. Certificate of Analysis

At trial, appellant objected to the admission of the

certificate of analysis because the officer did not witness

appellant operating a motor vehicle "upon a highway." See Code

§ 46.2-100. He contends that Officer Robinson's "testimony

could not form a credible basis for . . . finding that Appellant

actually operated a motor vehicle at any time . . . ." He

asserts that because no credible evidence established that

appellant operated a motor vehicle "upon a highway," the

certificate of analysis was inadmissible. We disagree.

Code § 46.2-100 defines "highway" as:

[T]he entire width between the boundary
lines of every way or place open to the use
of the public for purposes of vehicular
travel in the Commonwealth, including the
streets and alleys, and for law enforcement
purposes, the entire width between the
boundary lines of all private roads or
private streets which have been designated
"highways" by an ordinance adopted by the
governing body of the county, city, or town
in which such private roads or streets are
located.

"[T]he test for determining whether a way is a 'highway' depends

upon the degree to which the way is open to public use for

vehicular traffic." Roberts v. Commonwealth, 28 Va. App. 401,

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403, 504 S.E.2d 890, 891 (1998) (quoting Furman v. Call, 234 Va.

437, 439, 362 S.E.2d 709, 710 (1987)).

We have previously held that a private parking lot of a

business is not a "highway" within the meaning of Code

§ 46.2-100 because "the parking lots were not open to the public

at all times, but instead 'were open to the public upon . . .

invitation.'" Flinchman v. Commonwealth, 24 Va. App. 734, 737,

485 S.E.2d 630, 631 (1997); see also Roberts, 28 Va. App. at

406, 504 S.E.2d at 892 (holding that a convenience store parking

lot was privately owned property and, thus, not a "highway" as

defined by Code § 46.2-100).

In the instant case, we do not reach the question whether

the Grapevine Restaurant parking lot was a "highway" under Code

§ 46.2-100. Officer Robinson testified that he witnessed

appellant's truck being driven on a public roadway before entry

into the parking lot. Shortly thereafter, he approached the

truck where he found appellant, the only occupant, sitting in

the driver's seat. From this evidence, the trial court

concluded that appellant was the person operating the motor

vehicle "upon a highway" when the officer saw it travelling on

the public road and, thus, the certificate of analysis was

properly admitted.

III. Prior Convictions

Appellant next contends that the trial court erred in

admitting his two prior convictions as predicate offenses to the

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instant charge. He argues that our holding in Farmer v.

Commonwealth, 10 Va. App. 175, 390 S.E.2d 775 (1990), was

erroneously decided and that the introduction of the predicate

offenses violated his right to due process. At trial, appellant

did not object to the admission of the two prior convictions and

only did so in his post-trial motion.

"In order to be considered on appeal, an objection must be

timely made and the grounds stated with specificity." McLean v.

Commonwealth, 30 Va. App. 322, 329, 516 S.E.2d 717, 720 (1999)

(en banc). "To be timely, an objection must be made when the

occasion arises -- at the time the evidence is offered or the

statement made." Id. Because the objection was not timely

made, Rule 5A:18 bars our consideration of this issue on appeal.

Moreover, the record does not reflect any reason to invoke the

good cause or ends of justice exception to Rule 5A:18.

IV. Sufficiency of the Evidence

Appellant next contends the evidence was insufficient to

support his conviction. He argues that the Town's evidence was

"internally conflicting as to the amount of time that passed,

the location of the police Officer at the time of the crash, and

the knowledge of the police Officer of [sic] as to how the

incident occurred."

Viewed in the light most favorable to the Town, as the

prevailing party below, the evidence established that Officer

Robinson saw appellant's truck turn off a public roadway into

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the parking lot where he was standing. Although the truck's

headlights temporarily blinded him as it passed by, Robinson

heard the truck strike a support post of the building. After

the truck stopped, and within a matter of "twenty/thirty

seconds," Robinson approached and found appellant sitting in the

driver's seat. Robinson did not see any other vehicles in the

parking lot or any other person exit appellant's truck.

Additionally, two other independent witnesses, Kensy and Bird,

saw no one but appellant in or exiting appellant's truck. The

Town's witnesses were unanimous in their testimony that

appellant was the truck's sole occupant.

The jury believed the Town's evidence and rejected

appellant's evidence that Hamrick had been driving the truck.

See Montgomery v. Commonwealth, 221 Va. 188, 190, 269 S.E.2d

352, 353 (1980) (per curiam) ("[E]ven if the defendant's story

was not inherently incredible, the trier of fact need not have

believed the explanation."); Marable v. Commonwealth, 27 Va.

App. 505, 509-10, 500 S.E.2d 233, 235 (1998) ("In its role of

judging witness credibility, the fact finder is entitled to

disbelieve the self-serving testimony of the accused and to

conclude that the accused is lying to conceal his guilt."). The

Town's evidence was competent, was not inherently incredible,

and was sufficient to prove beyond a reasonable doubt that

appellant was driving the truck.

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 V. Subpoenas Duces Tecum

Appellant next contends the trial court erred in granting

the Town's motion to quash his post-trial request for two

subpoenas duces tecum. Approximately three months after trial,

appellant filed two requests to be served upon the Sheriff of

Warren County and the Front Royal Chief of Police, seeking

records of any 911 calls made regarding appellant's arrest.

Appellant also sought records regarding radio transmissions to

and from the sheriff and police department. In its letter

opinion, the trial court considered appellant's requests as an

attempt to secure new evidence, stating the following:

It appears to me that the Defendant is
seeking to set aside the verdict on grounds
of after-discovered evidence. The evidence
sought certainly could have been discovered
before trial. One of the rules governing
the use of after-discovered evidence as a
basis for setting aside a jury verdict
requires that the evidence "be such as could
not, by the exercise of diligence, have been
discovered before the trial terminated."
Pauley v. Commonwealth, 151 Va. 510 at
517-518 (1928). . . .

The trial court concluded appellant had not shown why the

evidence could not have been secured prior to trial and,

therefore, granted the Town's motion to quash the requests for

the subpoenas.

When a defendant seeks to challenge a verdict with

"after-discovered" evidence, the decision to set aside the

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verdict and grant a new trial is left within the sound

discretion of the trial judge.

The [defendant] bears the burden to
establish that the evidence (1) appears to
have been discovered subsequent to the
trial; (2) could not have been secured for
use at the trial in the exercise of
reasonable diligence by the movant; (3) is
not merely cumulative, corroborative or
collateral; and (4) is material, and such as
should produce opposite results on the
merits at another trial.

Stockton v. Commonwealth, 227 Va. 124, 149, 314 S.E.2d 371, 387

(1984), cert. denied, 469 U.S. 873 (1984). Additionally, when

seeking exculpatory evidence, a defendant "cannot simply allege

the presence of favorable material and win reversal of his

conviction. Rather, a defendant must prove the favorable

character of evidence he claims has been improperly suppressed.

Speculative allegations are not adequate." Hughes v.

Commonwealth, 18 Va. App. 510, 526, 446 S.E.2d 451, 461 (1994)

(en banc) (citations omitted).

In the instant case, appellant failed to establish why he

did not secure the requested evidence prior to trial. While the

Town was obligated to provide appellant with exculpatory

evidence known to it under Brady v. Maryland, 373 U.S. 83

(1963), appellant has not alleged that the Town withheld any

such evidence. Finally, appellant did not show that the

requested evidence was material to the proceedings. "A subpoena

duces tecum should not be used when it is not intended to

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produce evidentiary materials but is intended as a 'fishing

expedition' in the hope of uncovering information material to

the defendant's case." Farish v. Commonwealth, 2 Va. App. 627,

630, 346 S.E.2d 736, 738 (1986). Accordingly, the trial court

did not abuse its discretion in granting the Town's motion to

quash.

VI. Void Conviction

Finally, appellant contends that the enhanced punishment,

as a third offense, was invalid because it was based upon a

prior conviction of driving while intoxicated in violation of

Town of Warrenton Ordinance 1993-9, an ordinance that he argues

is void. See Town of Madison, Inc. v. Ford, 255 Va. 429, 498

S.E.2d 235 (1998); Pound v. Town of Front Royal, Record No.

2148-96-4 (May 5, 1998) (unpublished). However, the record

clearly establishes that appellant was convicted of a state

statute and not a local ordinance. The warrant of arrest

provides: "[O]n or about DEC. 23, 1993 [appellant] did

unlawfully in violation of Section 18.2-266, . . . OPERATE A

MOTOR VEHICLE WHILE UNDER THE INFLUENCE OF ALCOHOL. SECOND

OFFENSE IN THE PAST FIVE YEARS." (Emphasis added). Although the

warrant was amended to a violation of driving under the

influence of alcohol, first offense, there was no amendment

regarding the charged violation. Because appellant was

convicted of Code § 18.2-266, his constitutional challenge to

the Town of Warrenton's local ordinance is without merit.

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 Nonetheless, appellant contends that to attain the "ends of

justice," we should consider "the May 20, 1994 conviction as a

conviction under the Town of Warrenton local ordinance." He

argues that the Town of Warrenton was the prosecuting party,

both parties involved believed the warrant charged a violation

of the local ordinance, and appellant's driving record indicated

that the 1994 conviction was based upon a local ordinance

violation. Accordingly, appellant concludes, we should "make a

determination that the May 20, 1994 conviction was a conviction

under the local Warrenton Ordinance, and therefore Appellant's

arguments regarding the voidness of that Ordinance may be

considered." Appellant cites no cases in support of this

proposition.

Although appellant's driving record indicates that the 1994

conviction was based upon a violation for "LOCAL ORDINANCE:

WARRENTON," the order of conviction clearly establishes that

appellant was charged and convicted for a violation of the

Virginia Code. "When a court not of record tries a defendant on

a criminal charge, it is required to memorialize its judgment by

setting forth '[the defendant's] plea, [the court's] verdict or

findings and the adjudication and sentence." McBride v.

Commonwealth, 24 Va. App. 30, 34-35, 480 S.E.2d 126, 128 (1997)

(quoting Code § 19.2-307) (other citations omitted) (alterations

in original). "A court speaks through its orders and those

orders are presumed to accurately reflect what transpired." Id.

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at 35, 480 S.E.2d at 128 (citations omitted). Because the

record reflects that appellant was found guilty of violating

Code § 18.2-266, and at no time was the warrant amended to

reflect a violation of the local ordinance, appellant has no

basis to challenge that local ordinance. 3

For the foregoing reasons, appellant's conviction is

affirmed.

Affirmed.

3
Assuming, without deciding, that an "ends of justice"
exception applies to this situation, we find no reason to invoke
it. "The defendant, having agreed upon the action taken by the
trial court [in the May 1994 proceedings], should not be allowed
to assume an inconsistent position." Manns v. Commonwealth, 13
Va. App. 677, 679-80, 414 S.E.2d 613, 615 (1992).

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