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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