Roy Edgar Morrisette v. Commonwealth of Virginia ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Humphreys and Senior Judge Overton
Argued at Chesapeake, Virginia
ROY EDGAR MORRISETTE
MEMORANDUM OPINION * BY
v. Record No. 1648-99-1 JUDGE ROBERT J. HUMPHREYS
AUGUST 8, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF WILLIAMSBURG
AND COUNTY OF JAMES CITY
Samuel Taylor Powell, III, Judge
Fredrick A. Reese (Horne, West & Luck, P.C.,
on brief), for appellant.
Eugene Murphy, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Roy Edgar Morrisette appeals from his conviction in a bench
trial for driving on a suspended license. The sole question on
appeal is whether the evidence was sufficient to establish that
Morrisette had notice that his driver's license was suspended.
For the reasons that follow, we find that the evidence was
sufficient and affirm his conviction.
I. Background
The parties are fully conversant with the facts of this
case, and this memorandum opinion recites only those facts
necessary to the disposition of this appeal.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
On December 13, 1998, Morrisette was involved in an
accident with another vehicle. Morrisette left the scene of the
accident after it occurred. Morrisette was then stopped by a
police officer shortly after driving away from the accident
scene. During the traffic stop, the police officer determined
that Morrisette's driver's license was suspended and arrested
Morrisette for driving on a suspended license. 1
At trial, the prosecutor introduced an abstract of
Morrisette's driving record from the Department of Motor
Vehicles (DMV). At the conclusion of the Commonwealth's
case-in-chief, Morrisette moved to strike the Commonwealth's
evidence on the charge of driving with a suspended license,
citing the failure of the Commonwealth to produce evidence that
Morrisette had received notice of the suspension of his license.
The prosecutor agreed that the Commonwealth "had not met its
burden" with respect to the charge of driving on a suspended
license. However, the trial court disagreed and directed the
attention of counsel to the DMV abstract, in evidence as
Commonwealth Exhibit 3, which reflected that Morrisette had been
notified by District Court Form DC225, on November 17, 1998,
that his license was suspended. The trial court then denied
Morrisette's motion to strike.
1
Morrisette was also arrested for driving under the
influence of alcohol but his conviction of that offense is not
part of this appeal.
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II. Analysis
When the sufficiency of the evidence is challenged on
appeal, "we review the evidence in the light most favorable to
the Commonwealth, granting to it all reasonable inferences
fairly deducible therefrom." Archer v. Commonwealth, 26 Va.
App. 1, 11, 492 S.E.2d 826, 831 (1997) (citation omitted). "We
will not reverse the judgment of the trial court, sitting as the
finder of fact in a bench trial, unless it is plainly wrong or
without evidence to support it." Reynolds v. Commonwealth, 30
Va. App. 153, 163, 515 S.E.2d 808, 813 (1999) (citing Martin v.
Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987)).
Morrisette argues that the prosecutor's agreement with his
argument, that the Commonwealth had failed to prove Morrisette
received notice of the license suspension, constituted a
"stipulation" which the trial court was bound to accept. We
disagree.
The Supreme Court of Virginia has held that a stipulation
contemplates "an agreement between counsel respecting business
before a court." Burke v. Gale, 193 Va. 130, 137, 67 S.E.2d
917, 920 (1951). Stipulations ordinarily reflect agreements
between parties as to facts to be considered by the trier of
fact, without the necessity for further proof or further
foundation. We have reviewed the context of the statement made
by the prosecutor and note that the DMV abstract was offered by
the prosecutor as an exhibit and admitted without objection by
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the appellant. We therefore find the statement of the
prosecutor in this instance to be in the nature of a concession,
involving a purely legal argument, rather than a factual
agreement. Turning to the effect of such a concession, the
Supreme Court of Virginia has noted that, "concessions in
respect to conclusions of law are not binding upon the parties
or the court." Glasco v. Commonwealth, 257 Va. 433, 447 n.7,
513 S.E.2d 137, 145 n.7 (1999) (Lacy, J. concurring) (citations
omitted).
Morrisette's license was suspended for non-payment of fines
pursuant to Code § 46.2-395(C1) which states:
Whenever a person provides for payment of a
fine, costs, forfeiture, restitution or
penalty other than by cash and such
provision for payment fails, the clerk of
the court that convicted the person shall
send to the person written notice of the
failure and of the suspension of his license
or privilege to drive in Virginia [District
Court Form DC225]. The license suspension
shall be effective ten days from the date of
the notice. The notice shall be effective
notice of the suspension and of the person's
ability to avoid the suspension by paying
the full amount owed by cash, cashier's
check or certified check prior to the
effective date of the suspension if the
notice is mailed by first class mail to the
address provided by the person to the court
pursuant to subsection C or § 19.2-354.
(Emphasis added). The statute thus provides that the notice is
sufficient as a matter of law when mailed. Here, the DMV
abstract clearly established that the notice was mailed on
November 17, 1998, and since the abstract was admitted into
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evidence without objection by Morrisette, the trier of fact was
entitled to consider as evidence any pertinent information
contained therein.
We therefore find, notwithstanding the concession by the
prosecutor to the contrary, the trial court did not err in
finding the evidence established Morrisette was on notice that
his driver's license was suspended.
Affirmed.
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