Moses Virgil Campbell, Jr v. Commonwealth ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Annunziata and Clements
Argued at Richmond, Virginia
MOSES VIRGIL CAMPBELL, JR.
MEMORANDUM OPINION * BY
v. Record No. 1764-01-2 JUDGE JEAN HARRISON CLEMENTS
APRIL 29, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF MADISON COUNTY
Daniel R. Bouton, Judge
Charles L. Weber, Jr., for appellant.
Eugene Murphy, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
Moses Virgil Campbell, Jr., was convicted in a bench trial of
operating a motor vehicle after having been declared an habitual
offender, second offense, in violation of Code § 46.2-357. On
appeal, he contends the trial court erred in finding the evidence
sufficient to prove that the order of revocation issued by the
Department of Motor Vehicles (DMV) was in effect at the time he
was driving a motor vehicle. Finding appellate review of
Campbell's claim procedurally barred, we affirm his conviction.
As the parties are fully conversant with the record in this
case and because this memorandum opinion carries no precedential
value, this opinion recites only those facts and incidents of the
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
proceedings as are necessary to the parties' understanding of the
disposition of this appeal.
The facts in this appeal are not in dispute. On May 8, 2000,
Campbell, who was operating a motor vehicle in Madison County, was
stopped by Trooper Eugene W. Metz and charged with reckless
driving and operating a motor vehicle after having been declared
an habitual offender, second offense.
At trial, the court received into evidence, without
objection, Campbell's DMV record and evidence of a prior
conviction for operating a motor vehicle after having been
declared an habitual offender. However, when the Commonwealth
offered for admission into evidence an order of revocation issued
by the DMV on February 22, 1999, informing Campbell that he had
been declared an habitual offender and that his operator's license
was revoked as a result, Campbell objected to the admissibility of
the document because there was no "documentation attached to [the
revocation order] identifying a certified mailing with return
receipt indicating that it had been received." In support of the
objection, Campbell's attorney argued that "an individual [who]
has been identified as an habitual offender [must] have knowledge
of that."
Responding to the objection, the trial judge stated:
That's an element of defense, though.
That's got nothing to do with whether or not
he is an habitual offender. That's a
separate element the Commonwealth has to
prove. That wouldn't go to the admissibility
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of whether he's an habitual offender, would
it?
Campbell's attorney responded:
I defer to the Court. But clearly where
this document does not show knowledge I would
suggest that that would go to the weight of
this document. But where this refers
specifically to a determination, the Code--
specifically to a determination process and
46.2-357 refers to determination or
adjudication, I would suggest to the Court
that this document is not relevant.
Asked for his view of the matter, the attorney for the
Commonwealth stated that the document was not being offered to
prove notice, but rather to prove Campbell had been declared an
habitual offender. The trial court then overruled the objection
and admitted the document, adding, "The issue of notice is a
separate issue. That hasn't been ruled on."
At the conclusion of the Commonwealth's evidence, Campbell's
attorney moved to strike the Commonwealth's case, arguing that,
because the Commonwealth did not produce a "copy of the certified
mailing with return receipt" for the revocation order, the
Commonwealth failed to prove that Campbell "had notice of being an
habitual offender." The trial court denied the motion and
subsequently found Campbell guilty of the offense charged. 1
Campbell's sole contention, on appeal, is that the trial
court erred in finding the evidence sufficient to convict him of
driving after having been declared an habitual offender because
1
Campbell was also convicted of reckless driving.
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the Commonwealth failed to prove the DMV strictly complied with
the mailing requirements of former Code § 46.2-352 "necessary to
place the revocation order in effect." Consequently, Campbell
argues, the evidence presented by the Commonwealth was
insufficient to prove beyond a reasonable doubt that the order of
revocation issued by the DMV on February 22, 1999, was in effect
on May 8, 2000, when he was operating a motor vehicle.
The Commonwealth contends Campbell's claim is procedurally
barred by Rule 5A:18 because he did not present the argument he
makes on appeal to the trial court. We agree with the
Commonwealth.
"The Court of Appeals will not consider an argument on appeal
which was not presented to the trial court." Ohree v.
Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998);
see also Rule 5A:18. The purpose of this rule is to insure that
the trial court and opposing party are given the opportunity to
intelligently address, examine, and resolve issues in the trial
court, thus avoiding unnecessary appeals. Lee v. Lee, 12 Va. App.
512, 514, 404 S.E.2d 736, 737 (1991); Kaufman v. Kaufman, 12
Va. App. 1200, 1204, 409 S.E.2d 1, 3-4 (1991).
At trial, Campbell challenged the admissibility of the order
of revocation on the grounds it was not relevant because the
Commonwealth failed to show he had received notice of that order
in compliance with former Code § 46.2-352. Campbell further
argued at the close of the Commonwealth's case that the
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Commonwealth's evidence was insufficient to prove his guilt
because it failed to prove he "had notice of being an habitual
offender." At no point during the trial, however, did Campbell
make the argument that the Commonwealth's evidence was
insufficient to prove the order of revocation was in effect on May
8, 2000. As a result, neither the trial court nor the
Commonwealth had the opportunity to address, examine, or resolve
that issue below. Hence, we will not consider Campbell's claim on
appeal.
Moreover, our review of the record in this case does not
reveal any reason to invoke the "good cause" or "ends of justice"
exceptions to Rule 5A:18.
Accordingly, we affirm Campbell's conviction.
Affirmed.
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