FROM THE CIRCUIT COURT OF FLOYD COUNTY. Marcus H. Long, Jr., Judge.
Affirmed in part, reversed in part, and dismissed in part.
Cerid E. Lugar (Copenhaver, Ellett & Derrico, on brief), for appellant.
Victoria Johnson, Assistant Attorney General (Mark R. Herring, Attorney General; Steven A. Witmer, Senior Assistant Attorney General, on brief), for appellee.
Present: Chief Judge
Huff, Judges Chafin and Russell.
[64 Va.App. 689] WESLEY
G. RUSSELL, JR, JUDGE
Steven Lee Hodges, appellant, was convicted in a bench trial of driving while his license has been suspended in violation of Code § 46.2-301 and of misdemeanor possession of a concealed weapon in violation of Code § 18.2-308. On appeal, he challenges the sufficiency of the evidence to prove the violation of Code § 46.2-301 and argues that the trial court misapplied a statutory exception in convicting him pursuant to Code § 18.2-308. For the reasons stated, we affirm his conviction for driving while his license has been suspended, but reverse the conviction for possession of a concealed weapon and dismiss that charge against him.
" 'Under well-settled principles of appellate review, we consider the evidence presented at trial in the light most favorable to the Commonwealth, the prevailing party below.'" Smallwood v. Commonwealth, 278 Va. 625, 629, 688 S.E.2d 154, 156 (2009) (quoting Bolden v. Commonwealth, 275 Va. 144, 148, 654 S.E.2d 584, 586 (2008)). This principle requires us to " discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom." Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980) (emphasis and internal quotation marks omitted).
[64 Va.App. 690] So viewed, the evidence establishes that, on December 5, 2013, Federal Park Service Officer Pete Schula observed appellant's car parked at Cahas Knob Overlook on the Blue Ridge Parkway in an area not designated for parking. Officer Schula approached the vehicle and found appellant asleep behind the wheel with the engine running. After backup officers arrived, Officer Schula opened the passenger side door, turned off the engine, and removed the keys from the ignition. Appellant woke up and was told to place his hands on the steering wheel. Appellant then was taken out of the vehicle and placed in handcuffs.
Officers searched the vehicle and located a handgun inside the center console. The barrel was pointing down, and the handgrip was covered by a large plastic cup. Officer Schula recalled that the console's lid was closed when he turned off the engine, but he could not remember " if the console had a latch or a lock." Appellant did not have a concealed weapon permit.
At trial, the Commonwealth introduced a Department of Motor Vehicles printout of appellant's driving history without objection. The printout indicated that appellant's driver's license was suspended and that appellant had been notified of the suspension " BY LAW ENFORCEMENT" before December 5, 2013. It also bore the certificate of the
Commissioner of the Department of Motor Vehicles referenced in Code § 46.2-416.
At the close of the evidence, appellant moved to strike the evidence on the driving charge, arguing that the DMV transcript alone was insufficient to prove that he had received notice of the suspension. The trial court disagreed and convicted appellant of driving on a suspended license.
Appellant also moved to strike the evidence as to the handgun arguing that he was allowed to transport the gun in the console pursuant to the exception found in Code § 18.2-308(C)(10), which exempts from the concealed weapons prohibition " [a]ny person who may lawfully possess a firearm and is carrying a handgun while in a personal, private motor vehicle [64 Va.App. 691] or vessel and such handgun is secured in a container or compartment in the vehicle or vessel." The trial court found that the gun was not " secured . . . [because] defendant's gun was immediately accessible to defendant ...