Cleveland v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Willis and Clements
Argued at Salem, Virginia

KENNETH CHARLES CLEVELAND
OPINION BY
v. Record No. 0379-01-3 JUDGE JAMES W. BENTON, JR.
APRIL 30, 2002
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF CAMPBELL COUNTY
J. Samuel Johnston, Jr., Judge

Grady W. Donaldson, Jr. (Schenkel &
Donaldson, P.C., on brief), for appellant.

Robert H. Anderson, III, Senior Assistant
Attorney General (Randolph A. Beales,
Attorney General, on brief), for appellee.

The trial judge convicted Kenneth Charles Cleveland of a

felony offense, under Code § 46.2-357(B)(2), of driving while

having the status of an habitual offender. Cleveland contends

the trial judge rendered impermissible, inconsistent verdicts by

convicting him of a felony after acquitting him of violating

Code § 18.2-266, which is an element of the felony offense. We

disagree and affirm the conviction.

I.

A grand jury indicted Cleveland on four offenses. One

indictment charged him with driving a vehicle while having the

status of an habitual offender and while violating Code

§ 18.2-266. This felony indictment alleged, in accordance with
Code § 46.2-357(B)(2), that Cleveland's habitual offender

adjudication was supported by an underlying conviction of

driving in violation of Code § 18.2-266. In pertinent part,

Code § 46.2-357(B) provides, as follows:

[A]ny person found to be an habitual
offender under this article, who is
thereafter convicted of driving a motor
vehicle or self-propelled machinery or
equipment in the Commonwealth while the
revocation determination is in effect, shall
be punished as follows:

1. If such driving does not, of itself,
endanger the life, limb, or property of
another, such person shall be guilty of a
misdemeanor punishable by confinement in
jail for no more than ninety days and a fine
of not more than $2,500, either or both.
However, ten days of any such confinement
shall not be suspended except in cases
designated in subdivision 2 (ii) of this
subsection.

2. If such driving of itself endangers the
life, limb, or property of another or takes
place while such person is in violation of
§ 18.2-266, irrespective of whether the
driving of itself endangers the life, limb
or property of another and one of the
offender's underlying convictions is for
§§ 18.2-36.1, 18.2-266 or a parallel local
ordinance, 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, in the
discretion of the jury or the court trying
the case without a jury, by confinement in
jail for twelve months and no portion of
such sentence shall be suspended.

Other indictments charged Cleveland with driving under the

influence of alcohol in violation of Code § 18.2-266(i),

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reckless driving in violation of Code § 46.2-852, and attempting

to elude a police officer in violation of Code § 46.2-817.

At trial, a deputy sheriff testified that on June 30, 2000,

at 2:00 a.m., he saw a vehicle traveling at a high rate of speed

and weaving across lanes. The deputy sheriff followed the

vehicle for approximately one mile, saw only one occupant in the

vehicle, and watched the vehicle weave over the center line

several times. After the deputy sheriff activated his lights

and siren, the vehicle slowed to eighty miles per hour but did

not stop. The speed limit on the road was forty-five miles per

hour. After the vehicle failed to stop at a stop sign, it

entered a residential area and stopped in a cul-de-sac.

The deputy sheriff testified that a man exited from the

driver's door and fled into a wooded area. The deputy sheriff

ran to the vehicle, saw no one inside, and pursued the driver.

He identified Cleveland at trial as the driver he apprehended in

the wooded area and arrested. The deputy sheriff also testified

that Cleveland smelled strongly of alcohol, had bloodshot eyes,

and staggered as they returned to the patrol car. A breath test

administered at the police station showed Cleveland's blood

alcohol concentration to be .09 by weight by volume. The

evidence further proved that Cleveland's driver's license had

been revoked under the habitual offender statute and that

Cleveland had a prior conviction for driving under the influence

of alcohol on June 15, 1995.

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 At the conclusion of the evidence, the prosecutor asked the

trial judge to convict Cleveland on all four charges. The judge

indicated that he could not convict Cleveland of both driving

under the influence and reckless driving. In response, the

prosecutor requested the judge to convict Cleveland of "the

habitual offender, the DUI, and the attempting to elude." The

judge, however, convicted Cleveland "of habitual offender,

reckless driving, and attempting to elude" a police officer, and

he made the following findings:

The elements of attempting to elude and
reckless driving are different. After
receiving a distinct audible or visible
signal from the officer, he attempted to
evade or elude, which it is clear he did
that. Reckless driving, he ran a stop sign
doing 80 miles an hour, at least 80 miles an
hour in a 45 zone. That's reckless in and
of itself. And he's clearly an habitual
offender at the time. So I'm going to find
him--I'm going to dismiss the DUI. It's
close on--I could do DUI or reckless. I
choose the reckless.

At the sentencing hearing, Cleveland contended that the

judge could not convict and sentence him as a felon under the

habitual offender statute after acquitting him of a violation of

Code § 18.2-266. The trial judge ruled that because the law

required him to dismiss either the reckless driving charge or

the driving under the influence charge, he decided to "give

[Cleveland] a break even though [he thought Cleveland] was under

the influence." The judge then sentenced Cleveland to five

years in prison on the habitual offender charge, twelve months

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in jail on the reckless driving charge, and twelve months in

jail on the attempt to elude a police officer charge. The judge

suspended four years of the five year sentence and both twelve

month sentences on the condition that Cleveland serve twelve

months in jail. He also ordered a period of probation upon

Cleveland's release from jail.

II.

Cleveland appeals only from the felony conviction for

driving while an habitual offender. Cleveland did not argue at

trial, and does not argue on appeal, that a felony conviction

under Code § 46.2-357(B)(2) requires a separate indictment under

Code § 18.2-266. Indeed, he responded as follows to the trial

judge's inquiry:

[JUDGE]: Well, what if they charged him
with felony habitual offender . . . while
operating in violation of [Code §] 18.2-266
and they come in and prove [he has] a [blood
alcohol concentration of] .30, don't even
charge him with DUI though, can I not
convict him of a felony habitual offender?

[DEFENSE COUNSEL]: Well, perhaps under
those instances . . . you could argue that
he was in violation of the DUI, but in this
case the Court dismissed the DUI . . . .

Cleveland contends that the trial judge rendered inconsistent

verdicts by sentencing him as a felon under Code § 46.2-

357(B)(2) after acquitting him of the charge of driving while

intoxicated and that, therefore, the felony conviction should be

reversed.

The Commonwealth contends the evidence was sufficient to

prove all the elements of each charged offense. The Commonwealth

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argues the record establishes that the judge did not reject the

evidence of driving under the influence and that the judge gave

an explanation, which established that the verdicts were not

truly inconsistent.

In Akers v. Commonwealth, 31 Va. App. 521, 528-32, 525

S.E.2d 13, 18 (2000), we adopted the rationale of the Maryland

Court of Appeals for addressing inconsistencies in verdicts

rendered by a trial judge. Citing Shell v. State, 512 A.2d 358

(Md. 1986), we ruled as follows:

"[C]onvictions based on inconsistent jury
verdicts are tolerated because of the
singular role of the jury in the criminal
justice system. . . . [T]here is a
'reluctance to interfere, with the results
of unknown jury interplay,' at least without
proof of 'actual irregularity.' . . .
[I]nconsistencies may be the product of
lenity, mistake, or a compromise to reach
unanimity, and . . . the continual
correction of such matters would undermine
the historic role of the jury as arbiter of
questions put to it. In the present case,
however, the inconsistent verdicts were
rendered by a judge, not by a jury. [The
above rationale] does not justify
inconsistent verdicts from the trial judge."

* * * * * * *

"'There is no need to permit inconsistency
. . . so that the judge may reach unanimity
with himself; on the contrary, he should be
forbidden this easy method for resolving
doubts. . . . We do not believe we would
enhance respect for the law or for the
courts by recognizing for a judge the same
right to indulge in "vagaries" in the
disposition of criminal charges that, for
historic reasons, has been granted the
jury.'"

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Akers, 31 Va. App. at 531, 525 S.E.2d at 18 (quoting Shell, 512

A.2d at 362-63). We also recognized, however, that in its

previous ruling of Johnson v. State, 209 A.2d 765, 773 (Md.

1965), the Maryland court held that an inconsistent verdict

would be sustained "where the trial judge on the record explains

an apparent inconsistency in the verdicts, and where the

explanation shows that the trial court's action was 'proper' and

that there was no 'unfairness.'" Akers, 31 Va. App. at 532 n.5,

525 S.E.2d at 18 n.5 (citation omitted).

Even if we assume, as Cleveland argues, that the verdicts

are inconsistent, the trial judge gave a valid explanation on

the record for the verdicts. Acknowledging he could not convict

Cleveland of both reckless driving and driving under the

influence of alcohol arising from the same act, see Code

§ 19.2-294.1, the trial judge said he "[c]hose to give

[Cleveland] a break even though [the evidence proved Cleveland]

was under the influence." This statement indicates the judge

considered his ruling to be an act of lenity, and it clearly

establishes that the ruling was not a product of confusion.

Thus, unlike in Akers, the trial judge made a specific finding

concerning the reason he convicted Cleveland of reckless driving

and dismissed the driving under the influence charge.

In addition, this is not a case where the judge

"'appear[ed] to have rejected the only evidence that would

support the conviction.'" Akers, 31 Va. App. at 531, 525 S.E.2d

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at 18 (citation omitted). The trial judge specifically found

that the evidence proved Cleveland "was under the influence."

Furthermore, the evidence at trial was uncontested that

Cleveland's blood alcohol level exceeded the statutory level of

.08. See Code § 18.2-266(i). We hold that the trial judge gave

a valid explanation for rendering the felony conviction even

though he acquitted Cleveland of the charge of driving under the

influence.

In short, the trial judge found that the evidence was

sufficient to convict Cleveland of either reckless driving or

driving under the influence. Under Virginia law he could not

convict Cleveland of both. Significantly, Cleveland does not

dispute that the evidence proved beyond a reasonable doubt his

blood alcohol content was .09 by weight by volume and that the

judge "was giving [Cleveland] a break by dismissing the DUI."

Accordingly, we hold that the record discloses no unfairness or

violation of principles consistent with the proper

administration of justice and, thus, presents no reversible

error.

For these reasons, we affirm the judgment.

Affirmed.

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