Present: Hassell, C.J., Lacy, Keenan, Koontz, Kinser, and
Lemons, JJ., and Compton,* S.J.
MARGUERITE SPENCER
v. Record No. 051044 OPINION BY JUSTICE ELIZABETH B. LACY
April 21, 2006
CITY OF NORFOLK
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal we are asked to consider whether the
evidence is sufficient to sustain a conviction for a violation
of the reckless driving provision of the Norfolk City Code.
We also must determine as a threshold matter whether this case
is within this Court's subject matter jurisdiction.
FACTS
We recite the facts along with all reasonable inferences
fairly deducible therefrom in the light most favorable to the
prevailing party in the proceedings below. Coles v.
Commonwealth, 270 Va. 585, 587, 621 S.E.2d 109, 110 (2005).
On November 19, 2003, Mary Parsons was babysitting
twelve-year-old Kelyn Cusson when Parsons' dog jumped the
fence, and Parsons asked Cusson to retrieve the dog. Cusson
followed the dog into a neighbor's yard. When she attempted
to put a leash on the dog, she heard a loud, long horn coming
from a car parked in the driveway of a house diagonally across
*
Senior Justice Compton participated in the hearing and
decision of this case before his death on April 9, 2006.
the street. Marguerite Spencer was in the car. The dog ran
into the street, and Cusson followed. Spencer drove the car
out of her driveway and in the direction of Parsons' house.
Cusson "walked quickly" towards a van parked in front of
Parsons' home. As Spencer passed Cusson at a "fast" rate of
speed, Cusson "felt the wind coming off the car" that "blew
her and caused her to step back." Cusson estimated Spencer's
car passed her at a distance of "about 3 feet." Cusson then
joined Parsons on Parsons' porch. Parsons called after
Spencer but although Spencer had stopped the car, she pulled
away and did not talk with Parsons. Spencer circled the block
twice before parking again in her driveway.
Spencer was charged with and convicted of reckless
driving in violation of Norfolk City Code § 25-217. The trial
court sentenced Spencer to 10 days imprisonment in the Norfolk
City Jail but suspended the sentence conditioned on Spencer's
good behavior for a period of two years and having no contact
with Cusson or her mother. The trial court also imposed a
fine of $250.00. The Court of Appeals denied Spencer's
petition for appeal by order, Spencer v. City of Norfolk,
Record No. 1312-04-1 (May 2, 2005). We awarded Spencer an
appeal.
As a threshold matter, we must determine whether this
appeal is within the category of cases that this Court may
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consider; that is to say, does this Court have subject matter
jurisdiction? Morrison v. Bestler, 239 Va. 166, 170, 387
S.E.2d 753, 755 (1990) ("a court always has jurisdiction to
determine whether it has subject matter jurisdiction"). Code
§ 17.1-411 provides that this Court may hear an appeal of any
case in which a party is aggrieved by a final decision of the
Court of Appeals except in those cases in which the decision
of the Court of Appeals is made final by Code §§ 17.1-410 or
19.2-408. A judgment of the Court of Appeals is final under
Code § 17.1-410 in traffic infraction and misdemeanor cases
"where no incarceration is imposed." Code § 17.1-410(A)(1).
The City argues that this Court does not have subject
matter jurisdiction to consider this appeal because the trial
court suspended Spencer's jail sentence and therefore imposed
no incarceration. We disagree. The finality provisions of
Code § 17.1-410(A)(1) do not require physical confinement,
only the imposition of incarceration. In this case, the trial
court imposed a 10-day period of incarceration. The
subsequent suspension of the sentence does not eliminate the
imposition of the jail sentence and place this case in a
category of cases in which no incarceration is imposed.
Accordingly, we conclude that this appeal is within the class
of cases that we may consider. We now turn to the merits of
Spencer's appeal.
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Spencer was convicted of violating Norfolk City Code
§ 25-217, which substantially mirrors Code § 46.2-852 in
defining "reckless driving:"
Irrespective of the maximum speeds provided in
this article, any person who drives a vehicle
on any street or highway recklessly or at a
speed or in a manner so as to endanger the
life, limb, or property of any person shall be
guilty of reckless driving.
In Powers v. Commonwealth, 211 Va. 386, 388, 177 S.E.2d 628,
630 (1970), this Court held that " 'recklessly' . . . imparts
a disregard by the driver . . . for the consequences of his
act and an indifference to the safety of life, limb or
property" and that speed alone does not constitute
recklessness unless it endangers life, limb, or property. In
applying these principles and determining whether the evidence
was sufficient to support the conviction, our rules of
appellate review require that we must affirm the conviction
unless it is plainly wrong or without evidence to support it.
Commonwealth v. Presley, 256 Va. 465, 466, 507 S.E.2d 72, 72
(1998).
In this case, Cusson and Spencer were the only
eyewitnesses to the facts surrounding the driving at issue.
Their testimony does not demonstrate that Spencer was driving
erratically, nor does it indicate she lacked control of the
car. Cf. Miles v. Commonwealth, 205 Va. 462, 468, 138 S.E.2d
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22, 27 (1964) (finding recklessness where driver drove
diagonally across road in front of police officer, forcing
officer to brake "violently" in order to avoid collision);
Sheckler v. Anderson, 182 Va. 701, 705-66, 29 S.E.2d 867, 868-
69 (1944) (finding recklessness where driver in residential
neighborhood maintained speed too fast to allow him to stop to
avoid emergency).
Spencer drove out of her driveway and proceeded up the
street. Cusson was aware of Spencer's car before it left the
driveway because she heard the horn blowing. According to
Cusson's testimony, she followed the dog into the street, the
dog ran back to Parsons' house, and then Cusson walked to the
van parked in front of Parsons' house. Thus, at the time the
"wind blew her," Cusson was standing in the street near the
van parked in the street, and when Spencer passed Cusson, her
car was not near the curb but had to be in the travel lane of
the street, three feet beyond the parked van. Though Cusson
testified she had to "step back," she claimed she did so
because of the wind, not because she feared injury or impact
with Spencer's car. "Fast" driving alone, without the element
of endangering life, limb, or property, is not sufficient to
support a conviction for reckless driving. Powers, 211 Va. at
388, 177 S.E.2d at 630.
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This record does not support a conclusion that Spencer
had a disregard for the consequences of her act, was
indifferent to the safety of others, or that her rate of speed
endangered Cusson. Therefore, we will reverse the judgment of
the Court of Appeals, vacate the conviction, and dismiss the
case.
Reversed and final judgment.
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