Kenneth Leroy Dameron v. Commonwealth ( 2006 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Clements, Haley and Senior Judge Overton
Argued at Richmond, Virginia
KENNETH LEROY DAMERON
MEMORANDUM OPINION* BY
v. Record No. 1118-05-2 JUDGE NELSON T. OVERTON
MAY 9, 2006
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHARLES CITY COUNTY
Thomas B. Hoover, Judge
Jean M. McKeen (Fitzgerald, Tomlin & McKeen, PLLC, on brief),
for appellant.
Eugene Murphy, Senior Assistant Attorney General (Robert F.
McDonnell, Attorney General, on brief), for appellee.
Kenneth Leroy Dameron challenges his conviction for driving after being adjudicated an
habitual offender in violation of Code § 46.2-357. He contends (i) the evidence was insufficient
to prove that he drove after a 10:00 p.m. restriction the general district court placed on his
license, and (ii) the general district court order did not restrict his travel to and from Poplar
Springs Hospital to travel for health care services and, thus, the trial court erred in finding he
drove in excess of the restrictions on his license. We affirm the judgment of the trial court that
Dameron exceeded the 10:00 p.m. time restriction, and we need not address the second question
he presents.
I. BACKGROUND
Our standard of review is well established. “Where the sufficiency of the evidence is
challenged after conviction, it is our duty to consider it in the light most favorable to the
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Commonwealth and give it all reasonable inferences fairly deducible therefrom. We should
affirm the judgment unless it appears from the evidence that the judgment is plainly wrong or
without evidence to support it.” Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d
534, 537 (1975).
Dameron was adjudicated an habitual offender in 1985, and his driving privileges were
suspended for ten years. In August 2003, Dameron’s petition to restore his driving privileges
was granted. The general district court extended Dameron’s driving privileges in February 2004
and again in June 2004, allowing him to travel to and from Poplar Springs Hospital in Petersburg
between the hours of 7:00 p.m. and 10:00 p.m.
On August 17, 2004, at about 10:00 p.m., the date of this offense, Dameron was driving
from Poplar Springs Hospital with a friend. Virginia State Police Trooper Ronald Grammer
observed Dameron’s vehicle had a broken taillight, so he followed Dameron and signaled for
him to stop. After signaling, Grammer followed Dameron for forty-five seconds to about one
minute to find a safe place to pull over. Both vehicles stopped on Route 5 near the Westover
Parish Church.
When Grammer approached the vehicle, Dameron “immediately jumped out of the
driver’s door.” Grammer was startled. He told Dameron, “let me see your hands,” and
instructed him to not “jump out of a vehicle like that.” Grammer informed Dameron why he
stopped Dameron, and Grammer “detected a slight odor of an alcoholic beverage coming from
[Dameron’s] person.” When Grammer asked how much he had to drink, Dameron replied he
had one beer at about 2:00 p.m. Grammer administered several field sobriety tests, which
Dameron passed.
When Grammer asked Dameron for his driver’s license, Dameron stated he did not have
it in his possession. He explained to Grammer that he was coming from Poplar Springs Hospital,
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where he had been visiting his passenger’s daughter. The passenger had been driving, but
Dameron drove when she became upset after becoming lost.
Grammer informed Dameron he was going to issue him a summons for defective
equipment. When Grammer checked Dameron’s license with the dispatcher, he discovered
Dameron had been adjudicated an habitual offender with two previous convictions. Grammer
issued the summons, and placed Dameron under arrest. Grammer noted the time he issued the
summons at 10:10 p.m.1
When testifying at the general district court, Grammer stated he could have conducted the
stop at “10:00 o’clock, or maybe a couple of minutes before.” However, at trial, Grammer
testified, “[A]t 10:04 p.m., I was on routine patrol on Route 5 in Charles City County when I got
in behind a red Ford passenger vehicle . . . .” Later, the Commonwealth asked Grammer:
[COMMONWEALTH]: Okay. There’s some question about the
time that you stopped him. Did you -- in the course of making this
stop, what did you do that evening about contacting your
dispatcher, if anything?
[GRAMMER]: It’s the policy of the Virginia State Police,
anytime you get out of your vehicle on a traffic stop, you mark out
with the dispatcher.
The dispatch office has a CAD System, which is a Computer
Aided Dispatch System. Once you key your mic[rophone], your
unit number and the time is marked on the computer on tape of the
time of the stop.
The Commonwealth introduced a copy of the CAD System report, and Grammer testified
the time of the call was “when I contacted the dispatcher that I was making a traffic stop with
Mr. Dameron,” at 10:04 p.m. Dameron testified the stop occurred at about 9:45 or 9:50 p.m. and
that he was aware of the time because of the 10:00 p.m. restriction.
1
The summons was not introduced into evidence.
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II. ANALYSIS
Code § 46.2-357(A) provides, in relevant part:
It shall be unlawful for any person determined or adjudicated an
habitual offender to drive any motor vehicle . . . on the highways
of the Commonwealth while the revocation of the person’s driving
privilege remains in effect.
The trial judge found that Dameron violated the statute by exceeding both restrictions on
his license: driving after 10:00 p.m. and driving for an unauthorized purpose, i.e., a social visit
at the hospital. Dameron asserts that because Grammer testified the stop lasted approximately
twenty minutes, and because he wrote “10:10 p.m.” as the time he issued Dameron the summons,
the Commonwealth failed to exclude the reasonable hypothesis the stop occurred prior to
10:00 p.m.
It is well established that “[c]ircumstantial evidence is competent and is entitled to as
much weight as direct evidence provided that the circumstantial evidence is sufficiently
convincing to exclude every reasonable hypothesis except that of guilt.” Dowden v.
Commonwealth, 260 Va. 459, 468, 536 S.E.2d 437, 441 (2000). Equally well established is that
when prosecuting a case based solely on circumstantial evidence, the Commonwealth must
exclude all reasonable hypotheses of innocence that flow from the evidence. Id.However, the standard articulated in Dowden and other cases applies to those instances
when the proof is “solely circumstantial.” Id.; see also Dukes v. Commonwealth, 227 Va. 119,
122, 313 S.E.2d 382, 383 (1984); Rice v. Commonwealth, 16 Va. App. 370, 372, 429 S.E.2d
879, 880 (1993). Contrary to Dameron’s assertion, Grammer’s testimony constituted direct, not
circumstantial evidence of the time of the stop. As Grammer testified, he remembered making
the 10:04 p.m. call “when I contacted the dispatcher that I was making a traffic stop with Mr.
Dameron.” As a result, the six-minute interval between the stop and the time Grammer issued
the summons did not create a reasonable doubt as to the time of the stop. The trial judge, sitting
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as fact finder, resolved any inconsistencies regarding the time written on the summons and the
length of the stop in favor of the Commonwealth. Higginbotham, 216 Va. at 352, 218 S.E.2d at
537.
Because we affirm the decision based on Dameron’s exceeding the 10:00 p.m. restriction,
we need not address whether he violated his travel restriction by going to the hospital for a social
visit. Accordingly, we affirm the judgment of the trial court.
Affirmed.
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