Home / Uncategorized / FAHLFEDER v. COMMONWEALTH (56648)

FAHLFEDER v. COMMONWEALTH (56648)


NOTICE: The opinions posted here are
subject to formal revision. If you find a typographical error or
other formal error, please notify the Virginia Court of Appeals.


FAHLFEDER

v.

COMMONWEALTH


JUNE 26, 2001

Record No. 2283-00-4

Present: Chief Judge Fitzpatrick, Judges
Annunziata and Agee

Argued at Alexandria, Virginia

DANIEL GEORGE FAHLFEDER

v.

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY

Frank A. Hoss, Jr., Judge


MEMORANDUM OPINION[1] BY CHIEF JUDGE JOHANNA L. FITZPATRICK

(Myron J. Teluk, on brief), for appellant.
Appellant submitting on brief.

H. Elizabeth Shaffer, Assistant Attorney
General (Mark L. Earley, Attorney General, on brief), for
appellee.

Daniel George Fahlfeder (appellant) was
convicted in a bench trial of operating a motor vehicle on the
public highways of Virginia after being declared an habitual
offender, in violation of Code ? 46.2-357. On appeal, he
contends that (1) the trial court erred in admitting his DMV
record into evidence; and (2) the evidence was insufficient to
convict him. We agree as to the second issue and reverse and
dismiss his conviction.

I.

Under familiar principles of appellate review,
we view the evidence in the light most favorable to the
Commonwealth, the prevailing party below, granting to that
evidence all reasonable inferences fairly deducible therefrom. Sears
v. Commonwealth
, 29 Va. App. 158, 160, 510 S.E.2d 274, 275
(1999). The judgment of the trial court, sitting without a jury,
shall not be set aside unless it is plainly wrong or without
evidence to support it. Code ? 8.01-680; see also Sears,
29 Va. App. at 160, 510 S.E.2d at 275.

On January 20, 2000, Officer Howard Michael
Perry (Perry) saw appellant operating a motor vehicle at the
intersection of Gabel Drive and Scott Drive. Perry followed the
vehicle after it disregarded a stop sign at the intersection and
paced the vehicle at forty miles per hour in a twenty-five mile
per hour zone. When Perry activated his emergency equipment, the
driver accelerated to fifty miles per hour, turned into a trailer
park and abruptly stopped. The driver, a man Perry had
encountered one week earlier, jumped out of the car and although
Perry ordered him to stop, ran from the scene. Perry secured the
passengers who were left in the vehicle, then followed footprints
left by the driver in the snow. The tracks led directly to
appellant’s residence.

Perry arrived at the residence within ten
minutes of observing appellant run from the vehicle. Perry
knocked on the door, and appellant responded. When appellant
opened the door he was dressed in long underwear, his cheeks were
rosy and he was slightly out of breath. Appellant gave Perry
permission to search the residence, and Perry found wet clothes,
socks and shoes in the washing machine. There were "shoe
size" puddles in the foyer and snow on the tread of the
shoes found in the washing machine.

Appellant’s girlfriend was in the bedroom in
bed. The other side of the bed was still made. Appellant denied
that the clothes in the washing machine were his. The door to the
residence did not fit the frame properly and appeared to have
been broken.

II.

Appellant first contends the trial court erred
in admitting his DMV record because it failed to meet the best
evidence rule and was immaterial and irrelevant. Appellant argues
that the best evidence rule required the Commonwealth to produce
the original habitual offender order and bars the introduction of
the DMV transcript. We disagree.

The best evidence rule provides, "where
the contents of a writing are desired to be proved, the writing
[the primary evidence] itself must be produced or its absence
sufficiently accounted for before other evidence of its contents
can be admitted." Folson v. Commonwealth, 23 Va. App.
521, 526, 478 S.E.2d 316, 318 (1996) (quoting Butts v.
Commonwealth
, 145 Va. 800, 816, 133 S.E.2d 764, 769 (1926) (quoting
1 Greenleaf on Evidence 682 (16th ed.))). Although
appellant correctly asserts that Reed v. Commonwealth, 15
Va. App. 467, 471-73, 424 S.E.2d 718, 720-221 (1992), held that
the Commonwealth must prove appellant had actual knowledge, not
simply constructive knowledge, that he was declared an habitual
offender, Reed does not require that the court order be
produced to establish appellant’s actual knowledge. We have
previously held,

[a] judgment is the determination by a court of
the rights of the parties, as those rights presently exist, upon
matters submitted to it in an action or proceeding. A written
order or decree endorsed by the judge is but evidence of what the
court has decided. . . . Here, the Commonwealth was not
required to prove the contents of a written order reflecting the
fact of appellant’s conviction. Rather, it was required to prove
the fact of the conviction itself [and that appellant had actual
knowledge of his conviction].

Folsom v. Commonwealth, 23 Va. App. 521,
526, 478 S.E.2d 316, 319 (1996) (internal citations omitted). One
manner in which the Commonwealth may prove an accused has been
declared an habitual offender, continues in that status, and has
knowledge of his status is "to prove through the records of
the DMV that [appellant] had been declared an habitual
offender" so long as the DMV records are properly
authenticated under Code ? 46.2-215.
[2] Hall v.
Commonwealth
, 15 Va. App. 170, 173-77, 421 S.E.2d 887, 889-91
(1992); see also Smoot v. Commonwealth, 18 Va. App.
562, 445 S.E.2d 688 (1994). Thus, we hold the best evidence rule
is not applicable to this case and did not bar the introduction
of the DMV transcript by the Commonwealth to establish that
appellant had been adjudicated an habitual offender and appellant
was aware of that adjudication.

Appellant also contends the DMV transcript was
improperly admitted into evidence because it was immaterial and
irrelevant to the charges against him. "Evidence is relevant
if it has any logical tendency, however slight, to establish a
fact at issue in the case." Ragland v. Commonwealth,
16 Va. App. 913, 918, 434 S.E.2d 675, 678 (1993). "Evidence
is material if it relates to a matter properly at issue." Evans-Smith
v. Commonwealth
, 5 Va. App. 188, 196, 361 S.E.2d 436, 441
(1987). The Commonwealth was required to prove beyond a
reasonable doubt that appellant

(1) drove a motor vehicle on the highways of
the Commonwealth while (2) an order adjudicating him to be an
habitual offender revoking his driving privileges was in effect
and (3) had actual knowledge that he was adjudicated an habitual
offender. See Code

? 46.2-357; Hall, 15 Va. App. at
177, 421 S.E.2d at 891; Reed, 15 Va. App. 467, 424 S.E.2d
718.

While the DMV transcript in the instant case
contains conflicting information, it is still relevant to the
court’s determination of whether he had been adjudicated an
habitual offender. It shows "*** NOTICE OF
SUSPENSION/REVOCATION RECEIVED ***." The transcript
indicates appellant was adjudicated an habitual offender on July
22, 1991 and would be "ELIGIBLE TO RESTORE UNDER CURRENT
LAW" his driving privileges to a restricted license on July
22, 1994 and to an unrestricted full license on July 22, 1996.
There is nothing in the DMV transcript to indicate appellant’s
habitual offender status was removed by a court order. Thus, the
transcript is relevant and material to establish that appellant
was adjudicated an habitual offender and to determine whether the
order was still in effect on January 20, 2000.

The DMV transcript is also relevant to the
court’s determination of whether the appellant had actual
knowledge of his adjudication. Although the transcript does not
indicate whether appellant was present in court on the date of
his adjudication, the transcript indicates that appellant was
present on March 22, 1996 when he was convicted of
"OPERATING AFTER DECLARED

HO – FELONY." Therefore, the DMV
transcript was both relevant and material to establishing (1)
appellant’s habitual offender status and (2) his knowledge of the
same. Thus, the trial court did not err in admitting appellant’s
DMV record.

III.

Appellant also contends that even if
admissible, the DMV record, under the facts of this case, was
insufficient to convict him of operating a motor vehicle after
being declared an habitual offender because the DMV transcript
contains conflicting information regarding his habitual offender
status and knowledge of that status and it was the only evidence
presented. The DMV transcript indicates appellant was adjudicated
an habitual offender on July 22, 1991. Appellant’s current status
was listed as "SUSPEND/HABITUAL OFFENDER." There is no
indication in the DMV transcript, nor did appellant proffer any
evidence to the trial court that a court had entered an order
restoring his driving privileges. See Code
? 46.2-356. Thus, the Commonwealth established beyond a
reasonable doubt that appellant was adjudicated an habitual
offender and had not obtained a court order restoring his
privileges. However, our analysis does not end there. Therefore,
the only remaining issue is whether appellant had knowledge that
he was still an habitual offender on January 20, 2000.

The burden is on the Commonwealth to establish
beyond a reasonable doubt that appellant had knowledge that he
remained an habitual offender on January 20, 2000. See Reed,
15 Va. App. at 471-73, 424 S.E.2d at 720-221. In the instant
case, the Commonwealth’s sole evidence regarding appellant’s
habitual offender status and his knowledge of the same was the
DMV transcript. The DMV transcript does not reflect personal
receipt of the habitual offender order or physical presence at
the hearing adjudicating him an habitual offender. The
Commonwealth merely established that appellant was present at a
hearing on March, 22, 1996 when he was convicted of
"OPERATING AFTER DECLARED HO – FELONY" and thus
appellant knew that at some point he was declared an habitual
offender. However, the DMV transcript also indicates that
appellant was "ELIGIBLE TO RESTORE UNDER CURRENT LAW"
to a full license on July 22, 1996. The final entries in the DMV
transcript indicate that appellant "*** COMPLETED APPROVED
DRIVER EDUCATION COURSE ***" and was issued a current
unrestricted driver’s license on May 21, 1999. Thus, the DMV
transcript indicates that appellant was issued a valid,
unrestricted driver’s license by the DMV after the date upon
which he was eligible to restore his driving privileges. The DMV
transcript, the only evidence regarding the status of appellant’s
driving privileges, was in a state of equipoise on the element of
whether appellant knew he was still an habitual offender. The DMV
transcript, standing alone, does not prove beyond a reasonable
doubt that appellant knew he was still classified as an habitual
offender on January 20, 2000 because "[a]s we have stated,
the Commonwealth’s evidence must be consistent only with the
guilt of the accused." Moore v. Commonwealth, 254 Va.
184, 189, 491 S.E.2d 739, 742 (1997) (holding that the
Commonwealth has not proved a crime beyond a reasonable doubt
when the evidence of guilt is derived from a single source which
is in a state of equipoise on an essential element of the crime.)
However, in the instant case, the DMV transcript is consistent
with the innocence of the accused as the transcript does not
establish that appellant received the order declaring him an
habitual offender and the transcript indicated that he
"COMPLETED APPROVED DRIVER EDUCATION COURSE" and
appellant at the time of his arrest possessed a current
unrestricted license.

The Commonwealth argues that appellant’s flight
from Perry was evidence that appellant knew he was still
classified as an habitual offender. While flight can be
considered evidence of consciousness of guilt, there is no
evidence concerning why appellant fled. In fact, Perry testified
that prior to initiating the traffic stop, appellant ran a stop
sign and was speeding. Thus, appellant’s flight could have been
for any number of reasons, including an attempt to avoid further
traffic tickets for running a stop sign and speeding and does not
necessarily indicate appellant knew he was still an habitual
offender. Accordingly, we reverse and dismiss appellant’s
conviction.

Reversed and dismissed.

FOOTNOTES:

[1] Pursuant to Code
? 17.1-413, this opinion is not designated for publication.

[2] Appellant does not allege
on appeal that the DMV transcript was not properly authenticated.
However, we note that the DMV record was properly authenticated
under Code ? 46.2-215.

 

 

Scroll To Top