Juanita Delores Marsh v. Commonwealth ( 2004 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Clements and Felton
Argued by teleconference
JUANITA DELORES MARSH
MEMORANDUM OPINION* BY
v. Record No. 2865-02-1 JUDGE JEAN HARRISON CLEMENTS
FEBRUARY 10, 2004
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Robert W. Curran, Judge
Robert Moody, IV (Cathy E. Krinick; Krinick, Segall, Moody and
Lewis, on brief), for appellant.
Margaret W. Reed, Assistant Attorney General (Jerry W. Kilgore,
Attorney General, on brief), for appellee.
Juanita Delores Marsh was convicted in a bench trial of operating a motor vehicle after
having been declared an habitual offender, subsequent offense, in violation of Code
§ 46.2-357(B)(3). On appeal, Marsh contends the trial court erred in admitting into evidence her
DMV transcript and the attached habitual offender notice as evidence that she was an habitual
offender. Finding appellate review procedurally barred, we affirm Marsh’s 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 proceedings as are necessary to the parties’ understanding of the disposition of this
appeal.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
I. BACKGROUND
At trial, the Commonwealth moved to introduce Marsh’s DMV transcript, which included
an unsigned and undated “Suspension/Revocation/Disqualification Notice,” as Commonwealth’s
“Exhibit 2.” Marsh’s attorney did not object to the admission of the DMV transcript itself. “I
would submit to the Court,” she stated below, “that the transcript itself comes in as signed by the
Commissioner and is accepted in courts everyday.” She did object, however, to the admission of
the notice form. It was inadmissible, she argued, for two reasons as follows:
Number one, I don’t believe that it is a proper part of the D[MV]
transcript. And number two, it is not correct on its face and therefore
should not be allowed to substitute for the testimony of the
officer. . . . [T]his form is not dated and it is not signed by the
officer. So it should not be sufficient on its face. They could bring
the officer in. He’s still with the department and he could have
testified that on such a[nd] such a date he personally gave this form
to Ms. Marsh and that would be a way to prove that fact. But to use
this form to prove that fact, without this form being correct, I would
submit to the Court is not sufficient. . . .
* * * * * * *
. . . I would submit to the Court, that technically, they have
not shown through any of these documents that she has had notice of
being an habitual offender and drove intentionally with that
understanding.
The Commonwealth argued the notice form was admissible because it was part of the
certified DMV record. The Commonwealth further argued that, regardless of the admissibility of
the notice, March received notice of her habitual offender status when she pled guilty in a prior case
to a misdemeanor charge of driving while an habitual offender.
The trial court acknowledged that the lack of a date on the notice form was problematical,
but nonetheless admitted the entirety of Commonwealth’s Exhibit 2, ruling that Marsh’s objections
went to the weight of the evidence, not to the notice form’s admissibility. The court found the
Commonwealth proved Marsh had the requisite notice because, “when a person is convicted of the
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misdemeanor, they are on notice that they’re an habitual offender.” The court subsequently
convicted Marsh of the felony offense of operating a motor vehicle after having been declared an
habitual offender, subsequent offense, in violation of Code § 46.2-357(B)(3), and this appeal
followed.
II. ANALYSIS
In her opening appellate brief, Marsh sets forth a single “Question[] Presented” as follows:
I. Did the Court Err in Overruling the Petitioner’s Motion to Strike
the Commonwealth’s Evidence as Being Insufficient to Prove that
the Petitioner was an Habitual Offender?
In the “Arguments of Law” portion of her brief, however, Marsh solely argues the following
question:
I. Did the Court Err in Admitting the Petitioner’s DMV transcript
and Attached “Notice” as Evidence that she was an Habitual
Offender?
In her petition for appeal, Marsh presented both of the questions set forth above. As Marsh
acknowledged at oral argument, however, a judge of this Court denied her petition on the
sufficiency issue and granted her petition only on the admissibility issue. The sole question before
us, then, is the admissibility of Commonwealth’s Exhibit 2—the DMV transcript and the attached
notice form.
In her brief, Marsh’s entire argument regarding the admissibility issue before us is less than
one page in length. After explaining that, despite finding the notice form problematical because it
was not dated, the trial court admitted the DMV transcript into evidence over Marsh’s “hearsay
objection,” Marsh argues as follows:
The Court erroneously ruled that the Petitioner’s objections went to
weight of the evidence and not to the admissibility (JA 231). The
1
Curiously, page 23 of the joint appendix in this case is a June 5, 2002 order directing
Marsh to appear in court to show cause why she should not be found in contempt of court for her
failure to appear that day in court.
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Petitioner respectfully submits that the Trial Court was incorrect in
both respects and that it was reversible error to admit the contested
documents. Nor was it harmless error to admit those 2 exhibits—
without them, the Commonwealth’s entire case would have rested on
the prior misdemeanor conviction which could not prove that the
Petitioner had not had her driving privileges restored by the date of
this offense. The admission of the DMV transcript and “notice” was
clearly prejudicial to the Petitioner and clear error.
(Footnote added.) This passage represents the entirety of Marsh’s argument in her brief.
Rule 5A:20(e) requires that the appellant’s opening brief include the “principles of law, the
argument, and the authorities relating to each question presented.” Plainly, Marsh’s opening brief
does not meet the requirements of Rule 5A:20(e). Not only does Marsh fail to argue the issue with
any specificity, relying instead on a few broad, conclusory assertions, she also fails to provide any
citation to controlling legal authority that supports her position.
As we noted in Buchanan v. Buchanan, 14 Va. App. 53, 56, 415 S.E.2d 237, 239 (1992),
“[s]tatements unsupported by argument, authority, or citations to the record do not merit appellate
consideration. We will not search the record for errors in order to interpret the appellant’s
contention and correct deficiencies in a brief.” See also Theismann v. Theismann, 22 Va. App. 557,
572, 471 S.E.2d 809, 816 (declining to address an argument on appeal that was inadequately
developed in appellant’s brief), aff’d en banc, 23 Va. App. 697, 479 S.E.2d 534 (1996); Fitzgerald
v. Bass, 6 Va. App. 38, 56 n.7, 366 S.E.2d 615, 625 n.7 (1988) (en banc) (noting it is not this
Court’s “function to comb through the record . . . in order to ferret-out for ourselves the validity of
[appellant’s] claims”).
Hence, we find that Marsh’s claim of trial court error does not warrant appellate
consideration, and we, therefore, do not consider it on appeal.
Accordingly, we affirm Marsh’s conviction.
Affirmed.
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