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MYERS v. COMMONWEALTH OF VA


MYERS v. COMMONWEALTH OF
VA

(unpublished)


MAY 5, 1998
Record No. 0590-97-3

CLARENCE WILLIS MYERS

v.

COMMONWEALTH OF VIRGINIA

MEMORANDUM OPINION[1]
BY JUDGE RUDOLPH BUMGARDNER, III
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE

James F. Ingram, Judge
Present: Judges Benton, Coleman and Bumgardner
Argued at Salem, Virginia

Elwood Earl Sanders, Jr., Director Capital/Appellate Services
(Public Defender

Commission, on briefs), for appellant.

H. Elizabeth Shaffer, Assistant Attorney General (Richard
Cullen, Attorney General, on brief), for appellee.


Clarence Myers was convicted of driving after being declared
an habitual offender, driving under the influence of alcohol, and
refusing to submit to a breath test. He appealed only the
conviction of driving after being declared an habitual offender.
He asserts that there was insufficient evidence that he knew he
was an habitual offender. Finding that there was evidence to
prove that element of the offense beyond a reasonable doubt, we
affirm.

The defendant was declared an habitual offender February 7,
1972. The order declaring him to be so was mailed to his
residence in Eden, N.C., but was returned unclaimed. On September
7, 1996 at 2:45 p.m., the defendant, who was alone in his car,
collided with another vehicle. His car came off the shoulder of
the road, through his lane of travel, and struck an oncoming car.
At first the defendant claimed that his wife was driving though
there was no one else in the car. Then he said it was a
girlfriend, and then someone he had picked up down the street. He
offered the driver of the vehicle he hit $100 to "forget all
of this."

Mark Hendrix, a detective with the Danville Police Department,
testified that he had spoken with the defendant several times in
June 1996. He was investigating a murder, and the defendant was a
potential witness. On one occasion, the defendant told Hendrix
that he was an habitual offender. Hendrix noted that fact in case
he ever saw the defendant driving in the future.

The defendant is a resident of North Carolina. He argues that
the statement he made about being an habitual offender does not
show actual knowledge that he was an habitual offender in
Virginia. He argues that because he is a resident of North
Carolina his understanding of the term might be different. He
further argues that unless the Commonwealth showed that the North
Carolina habitual offender law was the same as Virginia law, his
statement would not be proof of his actual knowledge. The
Commonwealth presented no evidence comparing the habitual
offender laws of the two states. The defendant’s argument is not
persuasive.

The Commonwealth conceded that it must prove actual knowledge.
The Commonwealth met this burden by presenting testimony that the
defendant himself admitted to that status. Words or phrases such
as "habitual offender" should be given their common,
ordinary meaning. "Words are not to be construed according
to the secret intent of the speaker, but from the expression used
in accordance with their usual meaning and common
acceptation." Cook v. Patterson Drug Co., 185 Va.
516, 521, 39 S.E.2d 304, 307 (1946). From Myers’ statement that
he was an habitual offender, the finder of fact could find that
the Commonwealth proved that element and that it had carried its
burden of persuasion. No evidence proved that the phrase had some
latent meaning that it did not have ordinarily.

"’Prima facie evidence is evidence which on
its first appearance is sufficient to raise a presumption of fact
or establish the fact in question unless rebutted. It imports
that the evidence produces for the time being a certain result,
but that the result may be repelled.’" Commonwealth v.
Dalton
, 11 Va. App. 620, 623, 400 S.E.2d 801, 803 (1991)
(quoting Babbitt v. Miller, 192 Va. 372, 379?80, 64
S.E.2d 718, 722 (1951)).

Since the Commonwealth had presented prima facie
evidence, the trier of fact could find that the defendant had
knowledge. See Moses v. Commonwealth, 20 Va. App.
27, 31, 455 S.E.2d 251, 253 (1995). This the trial court did.
From the evidence presented, ordinary men could find beyond a
reasonable doubt that the defendant knew his status. Accordingly,
we affirm the conviction.

Affirmed.

 

 

 

 

FOOTNOTES:

[1] Pursuant to Code
Sect. 17?116.010 this opinion is not designated for
publication.

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