COURT OF APPEALS OF VIRGINIA

Present: Chie f Judge Felton, Judges Frank and Petty Argued at Richmond, Virginia

MATHURIN NGOMONDJAMI OPINION BY v. Record No. 0500-08-4 CHIEF JUDGE WALTER S. FELTON, JR. JUNE 30, 2009 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF ARLINGTON COUNTY Joanne F. Alper, Judge Amy K. Stitzel, Assistant Public Defender (Office of the Public Defender, on briefs), for appellant. John W. Blanton, Assistant Atto rney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

After a jury trial, Mathurin Ngomondjami (“ appellant”) was convicted of driving under the influence of alcohol (DUI) in vi olation of Code § 18.2- 266. On appeal, appellant contends the

evidence was insuffic ient as a matter of law to convict him of DUI, arguing it failed to prove he “operated” a motor vehicle while un der the influence of alcohol. He also contends the trial court erred in refusing his proffered ju ry instruction defining the term “operating a motor vehicle” within the meaning of Code § 18.2-266. Additionally, he contends th e trial court erred during the sentencing phase of his trial by admitting into evidence his Department of Motor Vehicles driving record (DMV record) pursuant to Code § 46.2- 943, arguing the Commonwea lth failed to comply with the notice requirement s of Code § 19.2-295.1. I. Background “Where the sufficiency of the evidence is challenged after convict ion, it is our duty to consider it in the light most favorable to the Commonwealth and give it a ll reasonable inferences- 2 - fairly deducible therefrom.” Higginbotham v. Commonwealth , 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). We must “examine the evidence th at tends to support the conviction[] and to permit the conviction[] to stand unless [it is] pl ainly wrong or without evidentiary support.”

Commonwealth v. Jenkins , 255 Va. 516, 520, 499 S.E.2d 263, 265 (1998) (citing Code § 8.01-680). So viewed, the evidence proved that in the early morning hours of October 29, 2006, Corporal Arthur Tate of the Arlington County Police Department found appellant, unconscious,

reclined in the driver’s seat of a car with its engine running in a school parking lot. Appellant was its only occupant. After several attempts to get appellant’s atte ntion by knocking on the driver’s door window, Tate opened the unl ocked driver’s door and woke him. Corporal Tate determined that appellant had slurred speech, was unsteady on his feet, and had bloodshot eyes. He asked appellant if he w ould take field sobriety tests, and appellant agreed to do so. However, appellant laughed at Corporal Tate when he demonstrated the one-legged stand test, and refused to attempt it, stating he thought Tate wanted to make fun of him. Appellant also refused to attempt the heel-to-toe test an d the alphabet te st. Although he previously told Tate he had a degree in electric al engineering, appellant told Tate he had no

education and therefore could not perform the alphabet test. Appellant spoke in a soft voice but was bellig erent, and repeatedly threatened Corporal Tate, stating he “prayed that [Tat e’s] wife and kids would die with in three days . . . . ” After talking with appellant for approximately 15 mi nutes, Corporal Tate arrested him for DUI. At trial, appellant testified he was sleeping in his car because he was in the process of divorcing his wife and that he was home less. He denied being intoxicated. After the trial court denied appellant’s mo tion to strike the Commonwealth’s evidence, the jury found appellant guilty of DUI. During the sentencing phase, the Commonwealth sought- 3 - to introduce appellant’s DMV record, pursuant to Code § 46.2-943, for consideration by the jury in fixing his sentence. Appella nt objected, contending the Common wealth failed to provide him with notice pursuant to Code § 19.2-295.1 of its intent to intr oduce his driving record at sentencing. 1 Appellant also objected to the trial court permitting the jury to consider his DMV record, arguing it was “unreliable and much more unrelia ble than an actual re cord of conviction. That’s . . . why there is a surprise and it is pr ejudicial to the defendant without being able to investigate by looking at the ac tual record of conviction to see what occurred in court.” Appellant’s counsel told the trial court that prior to trial she “ got [her] own [copy of appellant’s]

DMV record and it was different from [the] one” offered by the Commonwealth. The only

DMV record contained in the record on a ppeal is the DMV record offered by the

Commonwealth. The trial court overruled appellant’s object ions and admitted his DMV record, concluding it was admissible under Code § 46.2-943 and that stat ute did not contain a notice requirement. It also refused to grant appellant’s proffered jury instruction defining “operating” a motor vehicle. The jury fixed appellant’s sentence at an $800 fine. II. Analysis A. Jury Instruction On appeal, appellant first contends the trial court erred in not granting his proffered jury instruction defining “operating a motor vehicle.” “The trial judge has broad discretion in gi ving or denying instru ctions requested.” Gaines v.

Commonwealth , 39 Va. App. 562, 568, 574 S.E.2d 775, 778 (2003) ( en banc ). “A reviewing

1 Appellant acknowledged that he was provided notice more than fourteen days prior to the start of trial that the Co mmonwealth’s Attorney had an “open file” policy and that the Commonwealth’s Attorney’s file included appellant’s DMV record.- 4 - court’s responsibility in reviewing ju ry instructions is ‘to see that th e law has been cl early stated and

that the instructions cove r all issues which the evid ence fairly raises.’” Darnell v. Commonwealth , 6 Va. App. 485, 488, 370 S.E. 2d 717, 719 (1988) (quoting Swisher v. Swisher , 223 Va. 499, 503, 290 S.E.2d 856, 858 (1982)). “‘When granted instructions fully and fairly cover a principle of law, a trial court does not abuse its discretion in refusing another instruction relating to the same legal principle.’” Gaines , 39 Va. App. at 568, 57 4 S.E.2d at 778 (quoting Stockton v. Commonwealth , 227 Va. 124, 145, 314 S.E.2d 371, 384 (1984)). Code § 18.2-266 provides, in pertinent part, that “[i]t shall be unlaw ful for any person to

drive or operate any motor vehicle . . . while such person is under the influence of alcohol . . . . ” (Emphasis added). An “operator” of a car is defined as any person “who either [] drives or is in actual physical control of a motor vehicle . . . . ” Code § 46.2-100. “Ope rating” a car within the meaning of Code § 18.2-266 “not only includes the process of moving the vehicle from one place to another, but also includes starting the engine, or manipulating the mechanical or elec trical equipment of the vehicle without actually putting the car in motion. It means engaging the machinery of the vehicle which alone, or in sequence, will activate the motive power of the vehicle. ” Stevenson v. City of Falls Church , 243 Va. 434, 438, 416 S.E.2d 435, 438 (1992) (quoting Williams v. City of Petersburg , 216 Va. 297, 300, 217 S. E.2d 893, 896 (1975)). The trial court declined to gi ve appellant’s proffered instruction, which provided that: “Operating a motor vehicle means starting the engine or manipulati ng the electrical or mechanical equipment of the vehicle wit hout actually putting the vehicle in motion but with the purpose of putting it in motion .” (Emphasis added). It granted the Commonwealth’s jury instruction on that issue, whic h provided that: “Operating a mo tor vehicle not only includes the process of moving the vehicle from one place to a nother, but also includes starting the engine, or- 5 - manipulating the mechanical or electrical equipm ent of the vehicle without actually putting the

car in motion.” Appellant’s proffered instruction was not an accurate statem ent of the law. See Mouberry v.

Commonwealth , 39 Va. App. 576, 582, 57 5 S.E.2d 567, 569 (2003) (“No instruction should be given that ‘incorrectly states the applicable law or which would be confusing or misleading to the jury.’” (quoting Bruce v. Commonwealth , 9 Va. App. 298, 300, 387 S.E.2d 279 , 280 (1990))). Consistent with prior decisions of this Court and the Supreme Court, it was not nece ssary that the jury find appellant acted “with the purpose of putti ng [a car] in motion” to find he “operated” a car within the meaning of Code § 18.2-266. See Stevenson , 243 Va. at 438, 416 S.E.2d at 438. The instruction granted by th e trial court fully and fairly covered the principles of law relevant to the question of whether appellant oper ated the car in which hewas found, intoxicated and while the engine was running. We conclude th e trial court did not err in refusing to grant appellant’s proffered jury instruction. See Gaines , 39 Va. App. at 568, 574 S.E.2d at 778. B. Sufficiency of the Evidence Appellant also contends the Commonwealth’s evidence was insu fficient as a matter of law to prove he “operat[ed] [the vehicle,] because th ere is no evidence that supports a reasonable inference that he had any purpose to put his vehicle in motion on a highway.” We find appellant’s argument to be without merit. The evidence at trial proved appellant was in his ca r and was intoxicated, that the key was in the ignition switch of his car , turned to the on positio n, and the car’s engine wa s running. From this evidence, the jury could r easonably conclude appellant was in ac tual physical control of the car, and was “operating” it within the meaning of Code § 18.2-266. Acco rdingly, we find the jury did not err in finding the evidence sufficient to co nvict appellant of DUI in violation of- 6 - Code § 18.2-266. See Stevenson , 243 Va. at 438, 416 S.E.2d at 438; see also Gallagher v.

Commonwealth , 205 Va. 666, 139 S.E.2d 37 (1964), citing with approval State v. Sweeney , 187 A.2d 39, 45 (N.J. Super. Ct. Ap p. Div. 1962) (holding “defenda nt’s acts, while intoxicated, in entering the automobi le, turning on the ignition , starting and maintaining the motor in operation, and remaining in the driver’s seat behind the st eering wheel, where he was found by the police, justify his conviction as the op erator of the automobile”). C. Admission of Appellant’s DMV Record Appellant also contends the tr ial court erred at the sentencing phase of his bifurcated jury trial by admitting his DMV record into eviden ce pursuant to Code § 46.2-943, arguing it was

error to do so because the Commonwealth did no t comply with the notice provisions of Code § 19.2-295.1. 2 We disagree, finding that Code § 4 6.2-943, rather than Code § 19.2-295.1, is the controlling statute in this case. “‘The admissibility of evidence is within the broad discretion of the trial court, and [its ruling thereon] will not be disturbed on appeal in the absence of an abuse of discretion.’” Jones v. Commonwealth , 38 Va. App. 231, 236, 563 S.E.2d 364, 366 (2002) (quoting Blain v.Commonwealth , 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988)). However, “a trial court ‘by definition abuses its discretion when it makes an error of law.’” Shooltz v. Shooltz , 27 Va. App. 264, 271, 498 S.E.2d 437, 441 (1998) (quoting Koon v. United States , 518 U.S. 81, 100 (1996)). “In determining whether the trial court made an error of law, ‘we review the trial court’s statutory interpretations and legal conclusions de novo .’” Rollins v. Commonwealth , 37 Va. App. 73, 79, 554 S.E.2d 99, 102 (2001) (quoting Timbers v. Commonwealth , 28 Va. App. 187, 193, 503 S.E.2d 233, 236 (1998)). Auer v. Commonwealth , 46 Va. App. 637, 643, 621 S.E.2d 140, 142-43 (2005).

2 Code § 19.2-295.1 provides for jury sentencing in a proceeding separate from the guilt phase of the trial when the jury finds the defenda nt guilty of a Class 1 misdemeanor or a felony.- 7 - Code § 46.2-943 provides that “[w]hen any person is found guilty of a traffic offense, the court or jury trying the case may consider the prior traffic record of the defendant before imposing sentence as provided by law.” The term “traffic offense,” within the meaning of Code § 46.2-943, is defined as “any moving traffic violation described or enumerated in subdivisions 1 and 2 of § 46.2-382,” 3 and includes the offens e of DUI, of which appellant was convicted. See Code § 46.2-382; see also Farmer v. Commonwealth , 10 Va. App. 175, 180, 390 S.E.2d 775, 777 (1990), aff’d en banc , 12 Va. App. 337, 404 S.E.2d 371 (1991). The term “prior traffic record,” within the meaning of Code § 46.2-943, is defined as “the record of prior suspensions and revocations of a driver’s license, and the record of prior

convictions of traffic offenses described in [Code § 46.2-943].” Code § 46.2-943. A DMV

record is admissible evidence of a defendant’s prior traffic record. See Code § 46.2-384; see also Mwangi v. Commonwealth , 277 Va. 393, 395, 672 S.E.2d 888, 890 (2009). Accordingly, when the jury found appellant guilty of DUI, Code § 46.2-943 authorized the admission of his DMV record into evidence during the sentencing phase as evidence of his prior traffic record.

3 Code § 46.2-382 enumerates the followi ng as moving traffic violations: 1. . . . (i) a violation of any law of the Commonwealth pertaining to the operator or operation of a mo tor vehicle; (ii) a violation of any ordinance of any county, cit y, or town pertaining to the operator or operation of any mo tor vehicles, except parking regulations; (iii) any th eft of a motor vehicle or unauthorized use thereof or theft of any part attached to it; or (iv) a violation of § 18.2-36.2, subsection B of § 29.1-738, or § 29.1-738.02, 29.1-738.2, or 29.1-738.4; 2. . . . [M]anslaughter or any other felony in the commission of which a motor vehicle was used . . . .- 8 - Appellant contends, nevertheless, that the tr ial court erred by admitting his DMV record

into evidence because the Commonwealth did no t comply with the notice provisions of Code § 19.2-295.1. He argues that Code § 19.2-295.1 and Code § 46.2-943 address similar subjects, i.e., the introduction of evidence of prior offens es during the sentencing phase of a bifurcated trial, and contends the trial court should have harmonized the two statutes by applying the Code § 19.2-295.1 notice requirements to Code § 46.2-9 43, which contains no notice requirement. “Under well-settled principles of statut ory construction, we may not adopt an interpretation of one statut e that conflicts with the pl ain language of another.” Washington v.

Commonwealth , 272 Va. 449, 458-59, 634 S.E.2d 310, 315-16 (2006) (internal citations omitted). “Courts cannot ‘add language to the statute the General Assembly has not seen fit to

include.’” Id. at 459, 634 S.E.2d at 316 (quoting Holsapple v. Commonwealth , 266 Va. 593, 599, 587 S.E.2d 561, 564-65 (2003)). “[N]or are they permitted to accomplish the same result by judicial interpretation.” Id. (quoting Burlile v. Commonwealth , 261 Va. 501, 511, 544 S.E.2d 360, 365 (2001) (internal quotation marks omitted)).

For the trial court to find that the Code § 19.2-295.1 notice requirements applied as a prerequisite to the admission of appellant’s DM V transcript into evidence pursuant to Code § 46.2-943, it would have to read those requi rements into Code § 46.2-943, which does not contain a notice requirement. To do so would be to impermissibly add language to a statute that the General Assembly has not seen fit to include. See Washington , 272 Va. at 458-59, 634

S.E.2d at 315-16. Appellant also argues that Code § 19.2-295.1 is the controlling statute because it “provides very specific provision s on introduction of criminal histories” during the sentencing phase of a bifurcated trial, while “[Code §] 46.2-943 generally authorizes introduction of traffic histories during sentencing.”- 9 - [W]hen one statute speaks to a s ubject generally and another deals with an element of that subject spec ifically, . . . if they conflict, the more specific statute prevails. This is so because a specific statute cannot be controlled or nullified by a statute of general application unless the legislature clearl y intended such a result.

Commonwealth v. Brown , 259 Va. 697, 706, 529 S.E.2d 96, 101 (2000) (internal citations omitted). Here, contrary to appellant’s argument othe rwise, Code § 46.2-943 is the more specific

statute. Prior to the 1994 en actment of Code § 19.2-295.1, “[b]ifurcated trials [were] provided by statute only in capital murder cases . . . a nd in certain traffic cases, Code § 46.1-347.2,” the predecessor of Code § 46.2-943. Brown v. Commonwealth , 226 Va. 56, 59, 307 S.E.2d 239, 240-41 (1983). Code § 46.2-943 permitted the trie r of fact to conduct “an individualized assessment of a defendant’s [prior traffic record] in the context of the subject offense, thereby promoting a more informed determination of sentence.” Gilliam v. Commonwealth , 21 Va. App. 519, 523, 465 S.E.2d 592, 594 (1996). Code § 19.2-295.1 expanded the use of bifurcated jury

trials to all trials in which the defendant is found guilty of a Class 1 misdemeanor or a felony. Code § 19.2-295.1 is a statute of more general ap plication than Code § 46.2-943, which pertains solely to trials involving tr affic offenses, including DUI. We additionally note that the “implied repeal of an earlier statute by a later enactment is not favored,” and we “assume that a legislativ e body, when enacting new legislation, was aware of existing laws pertaining to the same subject matter . . . .” Sexton v. Virginia Cornett , 271 Va. 251, 257, 623 S.E.2d 898, 901 (2006); see also Code § 1-239. We conclude that since the General Assembly did not expressly refer to Code § 46.2-943, a statute related to sentencing proceedings in bifurcated trials for traffic of fenses, when it enacted Code § 19.2-295.1, it did not- 10 - intend to impose the Code § 19.2-295.1 notice requirements as a prerequisite for the admissibility of a defendant’s prior traffic r ecord into evidence pursuant to Code § 46.2-943. 4 We conclude that the Code § 19.2-295.1 notice requirements do not apply to the admission of a defendant’s prior traffic reco rd into evidence pursu ant to Code § 46.2-943. Accordingly, we conclude the trial court did not err by admitting appellant’s DMV record into

evidence. 5

III. Conclusion For the foregoing reasons, we affirm appellant’s conviction and sentence.

Affirmed.

4 We note that the 1994 legislation enac ting Code § 19.2-295.1 reflects no language by the General Assembly to amend or re peal Code § 46.2-943 by that enactment. See 1994 Acts, chs. 828, 860, 862, and 881. We also note that th e General Assembly subsequently amended Code § 19.2-295.1 at its 1995, 1996, 2001, and 2007 sessions . None of the le gislation enacting those amendments made reference to Code § 46.2-943.

5 For the first time on appeal, appellant also contends the trial court erred in admitting his DMV record into evidence because it contained improper character evidence. Because this argument was not presented to the trial co urt, we will not consider it on appeal. See Rule 5A:18; Ohree v. Commonwealth , 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998).