PRESENT: All the Justices
BRIAN PATRICK RILEY
OPINION BY
v. Record No. 080920 JUSTICE CYNTHIA D. KINSER
APRIL 17, 2009
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
Brian Patrick Riley was convicted in a bench trial in the
Circuit Court of the City of Alexandria of driving while
intoxicated in violation of Code § 18.2-266 and maiming another
person as a result of driving while intoxicated in violation of
Code § 18.2-51.4. The primary issue in this appeal is whether
Riley met his burden to present evidence sufficient to establish
the affirmative defense of unconsciousness predicated upon
sleepwalking.
Because the circuit court did not make a factual finding
that Riley was sleepwalking at the time of the charged offenses,
and because Riley's unconsciousness defense was predicated
solely on the assumption that he was in fact sleepwalking, Riley
failed to meet his burden to establish his unconsciousness
defense. Without that defense, the evidence established merely
voluntary intoxication and was otherwise sufficient to sustain
his conviction for maiming. We will thus affirm the judgment of
the Court of Appeals of Virginia upholding Riley's convictions.
I. RELEVANT FACTS AND PROCEEDINGS 1
Riley drove his vehicle after admittedly ingesting three or
four sleeping pills, an antihistamine, and a pain reliever.
While driving, Riley struck and severely injured Paris
Gebrekidan, hit two other vehicles, and then drove off the
street onto grass, coming to a stop after striking a tree. As a
result of the accident, which occurred at approximately 7:00
p.m. on January 27, 2006, amputation of Gebrekidan's left leg
below the knee was required.
Immediately prior to the accident, Hiwot Gebrekidan, the
victim's sister, had parked her vehicle beside the victim's
vehicle in order to transfer shopping items from one car to the
other. Hiwot turned on her hazard lights, and the two sisters
exited Hiwot's vehicle to begin their task. Moments later,
Hiwot heard a "big sound" and observed her sister lying on the
ground. The accident took place at a dead-end street bordered
by parked cars. Hiwot testified that she did not hear any sound
of braking before the vehicle struck her sister, and Officer
Eric Lemke, one of the police officers who responded to the
accident, testified there were no skid marks on the roadway
leading to the point of impact.
1
We will recite the evidence presented at trial in the
light most favorable to the Commonwealth, the prevailing party
before the circuit court. Gunn v. Commonwealth, 272 Va. 580,
583 n.3, 637 S.E.2d 324, 325 n.3 (2006).
2
Hiwot identified Riley as the driver of the vehicle that
struck her sister. Hiwot testified that after the accident, she
yelled for Riley, "asking where he was," but he did not respond.
Instead, he followed Hiwot as she went to her apartment complex
to seek assistance.
Joseph Minasie, the victim's 15-year-old nephew, observed
Riley after the accident and testified that Riley was "just
standing there numb as if nothing happened." When Minasie asked
Riley whether he caused the accident, Riley first responded with
statements that did not make any sense, but Riley finally
admitted that he did, stating "it was just a chain reaction."
Several police officers spoke to and observed Riley at the
scene of the accident. Officer Lemke noted that Riley was
wearing sweatpants and a t-shirt despite the fact that it was
30-35 degrees outside. Officer Melvin Brooks testified that he
observed Riley swaying back and forth and speaking incoherently.
The officer asked Riley if he was the driver of the gray Honda
involved in the accident; Riley responded incoherently, telling
the officer "a friend of his had been driving his car earlier."
The officer repeated the question, and Riley stated that he "was
the driver of the vehicle in the accident, but [he did not]
3
recall what happened." Riley also informed Officer Brooks that
he had consumed "two shots of whiskey" and was a diabetic. 2
Riley acknowledged to Officer George Ladislaw that he was
involved in the accident. Pointing to the gray Honda involved
in the accident, Officer Ladislaw asked Riley if the vehicle was
his. Riley said it was not his vehicle. When asked where his
vehicle was, Riley pointed to the other side of the street and
stated his car was a "346" and "[i]t is either green or green."
According to the officer, there was no such vehicle on the
street.
Because Riley appeared intoxicated, Officer Brooks
administered field sobriety tests. Officer Brooks explained
each test to Riley, and Riley indicated that he understood the
instructions and, according to Officer Brooks, "appeared to be"
trying to follow the instructions.
The officer administered four tests, the "alphabet test,
the number count test, [the] finger touch . . . test and the
one-legged stand test." Riley's responses to the "alphabet
test" and the "number count test" were erratic. Riley refused
to perform the "finger touch test." Officer Brooks demonstrated
the "one-legged stand test" to Riley. The officer testified
2
The parties stipulated that another police officer also
heard Riley state he was a diabetic. They further stipulated
that Riley is, in fact, not a diabetic.
4
that Riley, instead of standing on one foot and counting as
instructed, "picked up his right foot off the ground and . . .
put it right back down on the ground immediately and then . . .
started walking forward." Officer Brooks then placed Riley
under arrest.
Subsequently, Officer Brooks took Riley to a local hospital
to have a blood test administered. The results of Riley's blood
test showed he had no alcohol in his system but had .04 mg. per
liter of diphenhydramine, an antihistamine; .06 mg. per liter of
propoxyphene, a pain reliever; and 0.56 mg. per liter of
zolpidem, a sleeping pill.
While at the hospital, Riley told two different officers
that he had been drinking with friends at "Zig's Bar." 3 Riley
stated to one of the officers that he thought the accident
occurred off Interstate 395. When that officer tried to explain
to Riley about the accident, Riley just stared at the officer.
Riley told the other officer that he had been working in Front
Royal that day and had returned home using Interstate 66 to
Interstate 395. When the officer informed Riley that those two
highways did not intersect, Riley insisted he had taken this
impossible route.
3
Officer Lemke found no evidence suggesting that Riley had
gone to Zig's Bar on the night of the accident.
5
Riley's fiancée, Melanie Walck, who resided with Riley,
testified that she spoke with Riley on the day of the accident
at about 5:00 p.m. According to Walck, Riley told her that he
was going to have dinner and then take a nap until she arrived
home. When Walck arrived at approximately 10:30 p.m., she found
the burners on the stove turned on, food on the kitchen counter,
and plates on the table. When she checked the bedroom to see if
Riley was there, she found the bed disheveled, magazines on the
bed, and the bedside light on. She testified that Riley reads a
paper or a magazine when he lies down to sleep. She further
testified that Riley always wears sweatpants and a t-shirt when
sleeping and he would never leave the house dressed in his
nightclothes or without his wallet and cellular telephone. 4
Walck could not find Riley in the apartment and became
concerned that he was sleepwalking or had suffered a seizure
because the circumstances were similar to those of a prior
incident when Walck believed Riley had been sleepwalking. After
calling some friends who lived nearby, Walck learned about the
accident and went to the scene, which was approximately a
quarter mile from her and Riley's apartment. Upon arriving,
Walck met Officer Lemke and advised him that Riley's behavior
was consistent with prior episodes when Riley had taken sleeping
4
When arrested, Riley had neither his wallet nor his
cellular telephone on his person.
6
pills. Walck also stated Riley had abused sleeping pills in the
past, causing a problem in their relationship.
Shortly after she arrived on the scene, Walck and Officer
Lemke returned to her and Riley's apartment. Walck retrieved
from a briefcase several "blister packs" of medication,
including "Ambien," "Lunesta," and "Sonata," as well as Riley's
empty prescription bottle for Sonata.
According to Walck, Riley has a history of seizures and
sleep problems. Walck testified that during her relationship
with Riley, he rarely slept seven or eight hours until he
received a prescription for Sonata. Walck further testified
that Riley previously had several episodes that Walck described
as sleepwalking. She explained that four of those episodes
lasted about ten to fifteen minutes each during which Riley
seemed "foggy" and talked to people who were not there. Walck
testified about three longer episodes that lasted up to three
hours. In one such episode, Riley got out of bed, went
downstairs, turned on the stove burners, and started cooking
food. Walck stated that Riley eventually went back to bed and
returned to normal sleep. Riley never left the apartment during
any of the episodes, and he had no recollection of them when he
awakened.
Riley also testified he had a history of epileptic seizures
and was prescribed Sonata for sleep apnea. The sleep apnea was
7
diagnosed when Riley underwent a sleep study; sleepwalking was
not observed during the testing. Riley acknowledged that he had
also taken Ambien intermittently over the last five to six years
but claimed he did not suspect his use of sleeping pills was
associated with the episodes described as sleepwalking. Riley
admitted he was aware of the episodes and his bizarre behavior
during them.
He further testified that on the night of the accident, he
did not intend to leave the apartment and was going to bed at
5:00 p.m. for the evening. 5 Riley stated he took "probably three
pills" of Ambien, but admitted on cross-examination that "based
on the testing . . . it's quite obvious[]" that he took at least
four pills. Riley claimed that he took more than one pill of
Ambien because he wanted to be able to sleep and one pill would
not have accomplished that purpose. Riley remembered taking the
Ambien pills and going to bed. He stated that the next thing he
remembered was being in jail.
Riley acknowledged he did not have a prescription for
Ambien but had obtained samples of the medication from doctors'
offices and from colleagues who are pharmaceutical
representatives. Riley did, however, previously have
5
Riley testified he had no recollection of his conversation
with Walck two hours before the accident during which he stated
he was going to take a nap.
8
prescriptions for Ambien. He admitted that when he was
prescribed Ambien, the directions were to take one pill at a
time, not to take the drug with other medications, and not to
drive or operate any type of machinery. Finally, Riley
acknowledged that on the evening of the accident, he took
"Benadryl and a prescription pain killer" along with the Ambien
and that doing so was against his doctor's instructions.
The Commonwealth called Dr. Joseph Saady, who qualified as
an expert in the field of forensic toxicology and pharmacology,
to testify concerning the results of Riley's blood test. Dr.
Saady testified that, according to the certificate of analysis,
three substances were found in Riley's blood, "diphenhydramine,"
an antihistamine frequently sold under the trade name of
"Benadryl"; "propoxyphene," a pain reliever usually sold under
the trade name of "Darvon"; and "zolpidem," a sleeping pill sold
under the trade name of "Ambien." 6 According to Dr. Saady, the
concentration level of the first two medications found in
Riley's blood was the expected level if someone had taken a
single dose of the medication. Dr. Saady, however, testified
that Riley had a concentration level of Ambien that was "rather
excessive." Dr. Saady opined that "a normal-size individual
6
Riley was taking Darvon for back pain related to a
laminectomy he underwent in 2003. The record does not indicate
whether he had a prescription for this drug.
9
[would] have to take four [Ambiens] in order to achieve a .56
[mg. per liter concentration level] about an hour to an hour and
a half later."
Dr. Saady explained that a patient is instructed to take
Ambien just before going to bed because the medication takes
effect on the individual in about 15 minutes and reaches it peak
level of concentration approximately one hour after ingestion. 7
He further testified that an individual should only take Ambien
if the person can get eight hours of sleep and even the next
morning, the individual, in Dr. Saady's words, "should gain
experience taking the drug before . . . operat[ing] machinery or
do[ing] anything that requires extensive coordination and
thought processes."
Continuing, Dr. Saady testified that Ambien is
"pharmacologically designed to induce sleepiness" but for an
individual who is awake, the medication can cause drowsiness,
confusion, somnolence, and coordination problems. Somnolence,
according to Dr. Saady, occurs when an individual becomes less
interactive and quiet. All these side effects, in Dr. Saady's
opinion, would affect a person's ability to operate a motor
vehicle. Dr. Saady further opined that Riley's reported
7
According to the certificate of analysis, Riley's blood
was drawn at the hospital at 8:35 p.m. on the night of the
accident.
10
behavior on the night of the accident was consistent with an
excessive dose of Ambien. He stated that the antihistamine in
Riley's system "would exacerbate" the effect of the Ambien
because the antihistamine may also cause drowsiness.
With regard to Riley's assertion that he was sleepwalking
when the accident occurred, Dr. Saady testified it was "rare,
but there are reports in the medical literature of individuals
sleepwalking who have consumed" Ambien. Dr. Saady further
testified that he "could find no articles on sleep driving at
all." An article on sleepwalking, according to Dr. Saady,
stated sleep driving could occur but was "very, very rare."
Dr. Steven Brown, who qualified as an expert in sleep,
sleep disorders, and sleepwalking, testified on behalf of Riley.
Dr. Brown explained that sleepwalking "is an unwelcome[,]
undesirable[,] involuntary and unpredictable intrusion of
arousal . . . or a degree of wakefulness into the middle of
sleep." He opined that people who are sleepwalking engage in
"[s]tereotypical activities" such as "cooking a meal, driving to
work, [or] taking a shower." According to Dr. Brown, a person
who is sleepwalking will not offer spontaneous speech but will
only speak when responding to questions.
Dr. Brown further opined there are a number of triggers for
sleepwalking, but they are unpredictable. He stated a person
could not be induced to sleepwalk, but a person is more likely
11
to sleepwalk if suffering from sleep deprivation for a long
period of time or having irregular sleep habits. He also stated
"there are many medications which can trigger sleepwalking which
is different than being impaired from medication."
According to Dr. Brown, the hypnotic class of medications,
which includes Ambien, can trigger sleepwalking. Dr. Brown
stated that an insert accompanying Ambien described sleepwalking
as being a rare central nervous system side effect – rare
meaning less than one in a thousand cases. Dr. Brown also
testified that there is no known correlation between excessive
doses of Ambien versus a single dose in terms of its likelihood
to trigger sleepwalking.
In response to a hypothetical question, which was based on
Riley's medical history, the events on the evening of the
accident, and Riley's observed behavior after the accident, Dr.
Brown opined that Riley was "sleepwalking at the time that he
was driving his car." He further opined that Riley's behavior,
including the inability to answer questions, the blank stares,
the incoherence, and the lack of memory, were consistent with
sleepwalking. Riley's prior episodes described as sleepwalking
also contributed to Dr. Brown's opinion that Riley was
sleepwalking on the night of the accident, rather than being
merely intoxicated on Ambien.
12
Dr. Brown admitted on cross-examination that "sleep
driving," as compared to other sleepwalking activities, is much
less common. He also acknowledged that ingesting an excessive
amount of Ambien would interfere with a person's ability to
perform field sobriety tests because the medication affects
motor coordination and impairs memory. Dr. Brown concurred with
Dr. Saady's opinion that the concentration level of Ambien in
Riley's blood was excessive.
During closing argument for the defense, the circuit court
inquired whether Riley would be immune from criminal liability
"if he were sleepwalking." The circuit court posed certain
hypothetical questions, inquiring whether Riley would be
criminally liable if he had set the apartment building on fire
and killed twenty people or if he had killed his fiancé in a
state of sleepwalking. Riley's counsel responded that Riley
would have absolutely no criminal liability for those actions,
and the circuit court then stated, "Okay. We understand each
other." When Riley's counsel claimed that Riley had previously
engaged in sleepwalking, the circuit court declared, "It
happened many times and he knew it happened and he knew he
engaged in bizarre behavior when it did happen." Also during
closing argument for the defense, the circuit court expressed
its belief that this was a case of voluntary intoxication,
13
stating, "He took an overdose of pills. It certainly was
voluntary."
After the close of the evidence and hearing the parties'
arguments, the circuit court rejected Riley's unconsciousness
defense and found him guilty of both charges. The court stated:
The fact remains in this case the Defendant did
have a long history of sleep disorders. He had a long
history of what has been described as sleepwalking. A
long history of bizarre behavior during those
episodes.
It is also I believe uncontested and clear that
he took a significant overdose voluntarily of Ambien
coupled with two other drugs. One of which was an
antihistamine that aggravated the effects of Ambien.
There's medical expert testimony.
I find that he either knew or should have known
what the probable consequences were or if he didn't,
taking voluntarily such an overdose of a drug which he
certainly knew or should have known had a lot of side
effects including sleepwalking if, in fact, he was,
was in itself reckless disregard.
For that reason, I'm satisfied the Commonwealth
has proven its case. [I f]ind the Defendant guilty of
driving in a manner so gross, wanton and culpable as
to show a reckless disregard of a human life and he
did unintentionally cause serious bodily injury
resulting in permanent and significant physical
impairment.
I likewise [find] him guilty of count two that he
did operate a motor vehicle while under the influence
of intoxicants.
14
At the sentencing hearing, 8 the circuit court made the
following additional remarks:
Your crime, I believe, was indiscriminately
taking an overdose of non[-]prescribed drugs,
essentially having no idea what might happen, not that
you knew it was happening, but you set in motion an
indiscriminate act that had those consequences . . . .
Riley appealed his convictions to the Court of Appeals,
claiming the circuit court erred in rejecting his
unconsciousness defense as to both charges and challenging the
sufficiency of the evidence to sustain the maiming conviction.
The Court of Appeals affirmed Riley's convictions in an
unpublished opinion. Riley v. Commonwealth, Record No. 2409-06-
4 (April 8, 2008). Riley argued to the Court of Appeals he had
established, as a matter of law, that because he was
sleepwalking, he was unconscious, and thus could not be guilty
of either offense. Id., slip op. at 2. The Court of Appeals
rejected his argument, holding that the circuit court never made
the factual finding that Riley was sleepwalking at the time of
the accident. Id. Noting that the circuit court found this
8
On the maiming conviction, the circuit court sentenced
Riley to two years in the penitentiary, all but six months of
which was suspended for a period of four years on condition of
supervised probation for four years. The court sentenced Riley
to twelve months in jail on the driving under the influence
conviction. The court suspended all but six months of that
sentence under the same conditions, but with the additional
condition that Riley complete the Alcohol Safety Action Program.
The court ordered the sentences to run concurrently.
15
case was one of voluntary intoxication, the Court of Appeals
concluded that the affirmative defense of unconsciousness was
not available to Riley. Id. The Court of Appeals also
concluded the evidence was sufficient to sustain Riley's
conviction for maiming another person as a result of driving
while intoxicated. Id. at 5. Riley now appeals to this Court.
II. ANALYSIS
Riley assigns error to the Court of Appeals' holding that
the circuit court did not find Riley was sleepwalking at the
time he committed the charged offenses. Next, Riley asserts the
circuit court erred in rejecting his affirmative defense of
unconsciousness as to both charges. Finally, Riley challenges
the sufficiency of the evidence with regard to his conviction
for maiming another person as a result of driving while
intoxicated. We will first address Riley's unconsciousness
defense and then consider the sufficiency of the evidence with
regard to the maiming conviction.
A. Unconsciousness Defense
This Court has defined the term "unconsciousness" as "a
state of mind of persons of sound mind suffering from some
voluntary or involuntary agency rendering them unaware of their
acts." Greenfield v. Commonwealth, 214 Va. 710, 714, 204 S.E.2d
414, 417 (1974). "Where not self-induced, unconsciousness is a
16
complete defense to a criminal homicide." 9 Id. Voluntary
intoxication, however, is generally not an excuse for any crime.
Swisher v. Commonwealth, 256 Va. 471, 488, 506 S.E.2d 763, 772
(1998) (citing Wright v. Commonwealth, 234 Va. 627, 629, 363
S.E.2d 711, 712 (1988)). "[T]he only exception to this general
rule is in cases involving deliberate and premeditated murder."
Id.
When asserting an affirmative defense, such as insanity,
self-defense, or unconsciousness, the burden is on the defendant
to present evidence establishing such defense to the
satisfaction of the fact finder. Shifflett v. Commonwealth, 221
Va. 760, 769, 274 S.E.2d 305, 310 (1981); see also Commonwealth
v. Cary, 271 Va. 87, 99, 623 S.E.2d 906, 912 (2006) (recognizing
that the burden of establishing the affirmative defense of self-
defense rests on the defendant); Commonwealth v. Sands, 262 Va.
724, 729, 553 S.E.2d 733, 736 (2001) (same); Lucchesi v.
Commonwealth, 122 Va. 872, 883, 94 S.E. 925, 928 (1918) (stating
that the defendant had the burden to prove his affirmative
defense). In this case, Riley's unconsciousness defense was
predicated on his assertion that he was in fact sleepwalking
when the accident occurred. Thus, Riley had the burden to
present evidence, to the satisfaction of the circuit court
9
We assume, without deciding, that unconsciousness is a
defense to criminal charges other than just homicide.
17
sitting as the fact finder, that he was sleepwalking at the time
he committed the charged offenses.
Contrary to the Court of Appeals' conclusion, Riley asserts
that the circuit court did, in fact, find that he was
sleepwalking at the time of the accident in question. Pointing
to the hypothetical questions posed by the circuit court and the
circuit court's comments about Riley's history of sleepwalking
episodes and his bizarre behavior accompanying those episodes,
Riley asserts, "none of this discussion would have mattered if
the court did not believe Mr. Riley had been sleepwalking."
Riley also emphasizes the circuit court's statement during
sentencing that "the worse case scenario did happen, not that
you knew it was happening." He asserts that if the circuit
court did not believe that Riley was actually sleepwalking, the
court would specifically have made such a finding and held that
"Riley was in knowing operation of his vehicle." We do not
agree with Riley's position.
Riley's argument overlooks the significance of the circuit
court's final statements before finding him guilty of the
charged offenses:
I find that he either knew or should have known
what the probable consequences were or if he didn't,
taking voluntarily such an overdose of a drug which he
certainly knew or should have known had a lot of side
effects including sleepwalking if, in fact, he was,
was in itself reckless disregard.
18
(Emphasis added.).
This portion of the circuit court's ruling clearly
indicates the court did not make a factual finding that Riley
was sleepwalking. The circuit court's statement, "if, in fact,
he was" sleepwalking, negates any argument to the contrary. At
most, the circuit court made an alternative holding that if
Riley was in fact sleepwalking, then his voluntary overdose of a
medication he knew or should have known had side effects
exhibited a reckless disregard for human life. The comments
made by the circuit court concerning Riley's prior history of
episodes described as sleepwalking and the bizarre behavior that
accompanied those episodes support the court's alternative
holding.
The hypothetical questions posed to defense counsel were
exactly that, hypothetical questions; and they do not in any way
establish the circuit court made a factual finding that Riley
was sleepwalking. Finally, the statement by the circuit court
during the sentencing hearing that Riley did not know what was
happening does not alter our conclusion. A voluntarily
intoxicated individual may not be aware of what is happening but
would nevertheless be responsible for his conduct while in such
a state. See Chittum v. Commonwealth, 211 Va. 12, 17, 174
S.E.2d 779, 782 (1970) (approving a jury instruction that
stated, "A person cannot voluntarily make himself so drunk as to
19
become on that account irresponsible for his conduct during such
drunkenness. He may be perfectly unconscious of what he does
and yet be responsible."); Gills v. Commonwealth, 141 Va. 445,
450, 126 S.E. 51, 53 (1925) ("If a man voluntarily makes himself
[intoxicated] he must take the consequences of his voluntary
act, while [intoxicated], otherwise many crimes would go
unpunished.").
We thus hold that the Court of Appeals did not err in
concluding that the circuit court made no factual finding that
Riley was sleepwalking at the time he committed the charged
offenses. Riley, however, assumed that the circuit court did so
and argued before the Court of Appeals he was entitled to an
unconsciousness defense as a matter of law. Because the circuit
court did not make a factual finding that Riley was
sleepwalking, the factual predicate underpinning his
unconsciousness defense was missing. In other words, Riley
failed to meet his burden to present evidence, to the
satisfaction of the circuit court, that he was in fact
unconscious due to sleepwalking. See Shifflett, 221 Va. at 769,
274 S.E.2d at 310. Therefore, his defense was reduced, as the
circuit court recognized, to merely voluntary intoxication.
It is well settled that voluntary intoxication
furnishes no excuse for the commission of a criminal
offense. Swisher, 256 Va. at 488, 506 S.E.2d at 772
20
(generally, voluntary intoxication is no defense to any
crime; the only exception being deliberate and premeditated
murder); Wright, 234 Va. at 629, 363 S.E.2d at 712 (same);
Director, Dep't of Corrections v. Jones, 229 Va. 333, 339,
329 S.E.2d 33, 36-37 (1985) (voluntary intoxication is no
defense to the crimes of robbery or use of a firearm while
committing robbery); Griggs v. Commonwealth, 220 Va. 46,
52, 255 S.E.2d 475, 479 (1979) (voluntary "intoxication,
whether from drugs or alcohol, is no defense to a criminal
charge"); Jordan v. Commonwealth, 181 Va. 490, 494, 25
S.E.2d 249, 250 (1943) (voluntary intoxication, even when
it may have "produced temporary insanity during the
existence of which the criminal act was committed . . .
would afford no excuse"); State v. McKeon, 38 P.3d 1236,
1238-39 (Ariz. Ct. App. 2002) ("temporary intoxication is
not a defense for a criminal act or requisite state of mind
if it results from the abuse of prescribed medications");
People v. Turner, 680 P.2d 1290, 1293 (Colo. Ct. App. 1983)
("where no controverting evidence is presented, a trial
court would be correct in finding that excessive use of a
prescription drug constituted voluntary intoxication");
Hicks v. State, 328 N.E.2d 219, 221 (Ind. Ct. App. 1975)
(approving, as an accurate statement of law, a jury
instruction stating that, "Temporary mental incapacity, as
21
a result of being under the influence of a narcotic or
dangerous drug taken voluntarily and not on the
prescription of a physician, furnishes no legal excuse for
the commission of a crime" (internal quotation marks
omitted)); Commonwealth, DOT, Bureau of Driver Licensing v.
Lello, 571 A.2d 562, 563 (Pa. Commw. Ct. 1990) ("the person
who exceeds his recommended dosage [of a prescription
medication] is no different than the person who has had one
drink too many . . . . In both cases there exists a
situation where the prospective loss of mental and physical
capacity was a foreseeable consequence when the driver
undertook consumption." (internal quotation marks
omitted)).
Accordingly, and contrary to Riley's argument on
appeal, the circuit court did not err in rejecting his
unconsciousness defense. 10
B. Sufficiency Of The Evidence
Riley challenges the sufficiency of the evidence only with
regard to his conviction for maiming another person as a result
10
We do not decide today whether a person who ingests
medication in accordance with a doctor's or a manufacturer's
instructions and then experiences some type of reaction, which
could not have reasonably been anticipated and which renders
that person unconscious or impaired, loses the unconsciousness
defense or the intoxication defense because that person
voluntarily ingested the medication.
22
of driving while intoxicated in violation of Code § 18.2-51.4.
In reviewing the sufficiency of the evidence, "[w]e consider the
evidence in the light most favorable to the Commonwealth, the
prevailing party in the circuit court, and we accord the
Commonwealth the benefit of all reasonable inferences deducible
from the evidence." Britt v. Commonwealth, 276 Va. 569, 573,
667 S.E.2d 763, 765 (2008); accord Jay v. Commonwealth, 275 Va.
510, 524, 659 S.E.2d 311, 319 (2008); Bolden v. Commonwealth,
275 Va. 144, 148, 654 S.E.2d 584, 586 (2008).
"When a defendant challenges the sufficiency of the
evidence, we accord the judgment of a circuit court sitting
without a jury the same weight as a jury verdict." Britt, 276
Va. at 573-74, 667 S.E.2d at 765 (citing Tarpley v.
Commonwealth, 261 Va. 251, 256, 542 S.E.2d 761, 763 (2001) and
Hickson v. Commonwealth, 258 Va. 383, 387, 520 S.E.2d 643, 645
(1999)). "We will affirm the circuit court's judgment unless it
is plainly wrong or without evidence to support it." Id. at
574, 667 S.E.2d at 765 (citing Code § 8.01-680; Jay, 275 Va. at
524, 659 S.E.2d at 319; Bolden, 275 Va. at 148, 654 S.E.2d at
586; Tarpley, 261 Va. at 256, 542 S.E.2d at 763; and
Commonwealth v. Taylor, 256 Va. 514, 518, 506 S.E.2d 312, 314
(1998)).
The statute under which Riley was convicted of maiming,
Code § 18.2-51.4, provides in relevant part:
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Any person who, as a result of driving while
intoxicated in violation of § 18.2-266 or any local
ordinance substantially similar thereto in a manner so
gross, wanton and culpable as to show a reckless
disregard for human life, unintentionally causes the
serious bodily injury of another person resulting in
permanent and significant physical impairment shall be
guilty of [the maiming of another as a result of
driving while intoxicated].
As the Court of Appeals held, this statute incorporates, by
its terms, the culpability standard found in common law criminal
negligence. See Riley, slip op. at 4. "Conduct that is 'gross,
wanton and culpable' demonstrating a 'reckless disregard for
human life' is synonymous with 'criminal negligence.' " Jones
v. Commonwealth, 272 Va. 692, 701, 636 S.E.2d 403, 408 (2006)
(quoting Cable v. Commonwealth, 243 Va. 236, 240, 415 S.E.2d
218, 220 (1992)). "Criminal negligence is judged under an
objective standard and, therefore, may be found to exist where
the offender either knew or should have known the probable
results of his acts." Id. (internal quotation marks omitted).
This Court has defined criminal negligence in terms of
gross negligence, stating:
" 'Gross negligence' is culpable or criminal when
accompanied by acts of commission or omission of a
wanton or wilful nature, showing a reckless or
indifferent disregard of the rights of others, under
circumstances reasonably calculated to produce injury,
or which make it not improbable that injury will be
occasioned, and the offender knows, or is charged with
the knowledge of, the probable result of his acts."
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Cable, 243 Va. at 240, 415 S.E.2d at 220 (quoting Bell v.
Commonwealth, 170 Va. 597, 611-12, 195 S.E. 675, 681 (1938)).
The level of intoxication is "relevant to a determination
of the degree of the defendant's negligence: whether ordinary,
gross, or wanton." Essex v. Commonwealth, 228 Va. 273, 283, 322
S.E.2d 216, 221-22 (1984). "It may serve to elevate the
defendant's conduct to the level of 'negligence so gross,
wanton, and culpable as to show a reckless disregard of human
life.' " Id. at 283, 322 S.E.2d at 222 (quoting King v.
Commonwealth, 217 Va. 601, 607, 231 S.E.2d 312, 316 (1977)).
We hold that the evidence was sufficient to convict Riley
of maiming another person as a result of driving while
intoxicated. Riley voluntarily ingested an overdose of Ambien
in conjunction with other medications, one of which enhanced the
effect of the Ambien. He did not have a prescription for the
Ambien. His blood test revealed an excessive amount of Ambien
in his system indicating that he had ingested at least four
times the regularly prescribed dose. See Stevens v.
Commonwealth, 272 Va. 481, 488, 634 S.E.2d 305, 310 (2006)
(holding that defendant's high level of intoxication alone
justified a finding that his conduct was gross, wanton, and
culpable). Riley admitted knowing that he was supposed to take
only one pill of Ambien at a time and avoid driving or operating
any type of machinery. He also admitted that by taking the
25
Ambien along with an antihistamine and a pain reliever, he was
violating his doctor's instructions. Riley, in this intoxicated
state, nevertheless drove his vehicle and struck the victim and
two other vehicles before hitting a tree, all without any
apparent braking. The victim suffered serious injuries
requiring the amputation of her left leg.
After the accident, Riley failed several field sobriety
tests. Witnesses who observed Riley at the scene of the
accident and at the hospital testified about his unusual
behavior. Riley could not accurately recall the events that had
transpired subsequent to, and even prior to, ingesting the
Ambien. He did not seem to know what had happened or that he
had caused the accident, and he gave bizarre responses to
questions asked of him. Dr. Saady testified that Riley's
behavior after the accident was consistent with an individual
who had taken an overdose of Ambien. Further, Walck informed
police at the scene of the accident that Riley's behavior that
evening was similar to his behavior on other occasions when he
had ingested sleeping pills.
We hold that the circuit court's judgment was not plainly
wrong or without evidence to support it. See Code § 8.01-680;
Britt, 276 Va. at 574, 667 S.E.2d at 765. Riley's conduct on
the evening in question was wilful in nature, "showing a
reckless or indifferent disregard of the rights of others," and
26
was committed under "circumstances reasonably calculated to
produce injury," or which made it "not improbable that injury
[would] be occasioned," and Riley knew, "or is charged with the
knowledge of, the probable result of his acts." Cable, 243 Va.
at 240, 415 S.E.2d at 220. See also Stevens, 272 Va. at 488,
634 S.E.2d at 310 (while the defendant's high level of
intoxication alone justified a finding that his conduct was
gross, wanton, and culpable, the fact that the defendant ran a
red light, failed to apply his brakes before the collision, and
did not know what he had struck were additional circumstances
supporting the finding).
III. CONCLUSION
For these reasons, we will affirm the judgment of the Court
of Appeals upholding Riley's convictions for driving while
intoxicated and maiming another person as a result of driving
while intoxicated.
Affirmed.
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