COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Alston and Senior Judge Willis
UNPUBLISHED
WILLIAM MICHAEL BERGER
MEMORANDUM OPINION* BY
v. Record No. 0445-12-4 JUDGE ROSSIE D. ALSTON, JR.
FEBRUARY 19, 2013
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAUQUIER COUNTY
Herman A. Whisenant, Jr., Judge Designate
(John Primeau; Law Offices of John Primeau, on brief), for
appellant. Appellant submitting on brief.
(Kenneth T. Cuccinelli, II, Attorney General; Aaron J. Campbell,
Assistant Attorney General, on brief), for appellee. Appellee
submitting on brief.
William Michael Berger (appellant) appeals his conviction for improper driving in
violation of Code § 46.2-869. On appeal, appellant contends that the trial court erred in finding
the evidence presented sufficient to sustain his conviction. For the reasons that follow, we agree
and reverse the judgment of the trial court.
I. BACKGROUND
On appeal, we view “the evidence in the light most favorable to the Commonwealth, the
party prevailing 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) (citing Jay v. Commonwealth, 275 Va. 510, 524, 659 S.E.2d 311,
319 (2008)).
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
So viewed, the evidence showed that on September 14, 2011, Deputy Shane Jacobs of the
Fauquier County Sheriff’s Office arrived at the scene of a single car accident on Route 50. Upon
his arrival, Deputy Jacobs observed that appellant’s car had been pulled out of the median by fire
and rescue personnel. Before Deputy Jacobs had the opportunity to question appellant, appellant
left the scene of the accident. Deputy Jacobs followed appellant and performed a traffic stop.
During the traffic stop, Deputy Jacobs detected the odor of alcohol coming from
appellant. Deputy Jacobs asked appellant whether he had anything to drink, to which appellant
responded, “he had a few beers.” Deputy Jacobs also questioned appellant about the cause of the
accident, to which appellant stated that “he hit a patch of water and hydroplaned into the
median.” Deputy Jacobs observed “very minor” damage to appellant’s car. After Deputy
Jacobs’ investigation, appellant was charged with reckless driving pursuant to Code § 46.2-869.
At the conclusion of the Commonwealth’s case, appellant made a motion to strike, which
the trial court denied. Appellant did not present any evidence and renewed his motion to strike,
which the trial court again denied. The trial court then found appellant guilty of improper
driving in violation of Code § 46.2-869 and fined appellant fifty dollars. This appeal followed.
II. ANALYSIS
Code § 46.2-869 states that “upon the trial of any person charged with reckless driving
where the degree of culpability is slight, the court in its discretion may find the accused not
guilty of reckless driving but guilty of improper driving.” On appeal, appellant contends that the
evidence was insufficient to support his conviction for improper driving because the only
explanation offered at trial was that the accident was the result of a sudden emergency and not
appellant’s negligence or recklessness.
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“On appeal, ‘we review the evidence in the light most favorable to the Commonwealth,
granting to it all reasonable inferences fairly deducible therefrom.’” Archer v. Commonwealth,
26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va. App.
438, 443, 358 S.E.2d 415, 418 (1987)). “When faced with a challenge to the sufficiency of the
evidence, we ‘presume the judgment of the trial court to be correct’ and reverse only if the trial
court’s decision is ‘plainly wrong or without evidence’ to support it.” Myers v. Commonwealth,
43 Va. App. 113, 118, 596 S.E.2d 536, 538 (2004) (quoting Kelly v. Commonwealth, 41
Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) (en banc)).
From the record before us, we cannot find evidence to support appellant’s conviction.1
Accordingly, we reverse the judgment of the trial court.
In reaching this conclusion, we find the Supreme Court’s holding in Bacon v.
Commonwealth, 220 Va. 766, 263 S.E.2d 390 (1980), instructive. There, the defendant was
charged and convicted of improper driving after he lost control of his car and struck multiple
trees and grazed one telephone pole. Id. at 767, 263 S.E.2d at 390-91. “The defendant told the
[investigating] trooper that another car ran him off the road, causing him to hit [a] ditch and to
lose control of the vehicle.” Id. at 767, 263 S.E.2d at 391. Although the investigating officer
detected the odor of alcohol coming from the defendant, the Commonwealth did not allege any
charges involving the use of alcohol, nor did the Commonwealth present evidence that the
defendant “was intoxicated or that he had been affected by the alcohol he had consumed.” Id. at
768, 263 S.E.2d at 391. On appeal, the Supreme Court reversed the defendant’s conviction,
noting that the “[d]efendant’s explanation that he was forced off the highway by another vehicle
1
We note that the transcript from defendant’s trial in the Circuit Court of Fauquier
County mistakenly refers to the General District Court of Fauquier County.
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[wa]s not contradicted.” Id. The Supreme Court concluded that the defendant’s explanation, if
true, demonstrated that he “was confronted with a sudden emergency that was not caused by his
own negligence,” and, if the Court rejected his explanation, then “we are left without any
explanation of how the accident occurred.” Id.
As in Bacon, the record here does not provide sufficient evidence to uphold appellant’s
conviction. While appellant admitted that “he had a few beers,” the record does not include
“evidence that [appellant’s] speech, muscular movement, general appearance, or behavior
indicated that he was intoxicated or that he had been affected by the alcohol he had consumed
prior to the accident.” Id. at 768, 263 S.E.2d at 391. Moreover, the only explanation for
appellant’s accident offered at trial was his statement to Deputy Jacobs that “he hit a patch of
water and hydroplaned into the median.” While appellant’s explanation does not exclude the
possibility that he operated his vehicle in a negligent manner, there is no evidence in the record
that evinces reckless or negligent behavior on his part. Thus, the evidence does not exclude
“every reasonable hypothesis of innocence nor is it consistent only with the guilt of [appellant].”
Id. at 769, 263 S.E.2d at 392. Accordingly, the judgment of the court below is reversed, and this
conviction is dismissed.
Reversed and dismissed.
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CORRECTED COPY
VIRGINIA:
In the Court of Appeals of Virginia on Monday the 11th day of February, 2013.
William Michael Berger, Appellant,
against Record No. 0445-12-4
Circuit Court No. CR11-714
Commonwealth of Virginia, Appellee.
Upon a Petition for Rehearing
Before Judges Elder, Alston and Senior Judge Willis
On December 10, 2012 came appellant, by counsel, and filed a petition praying that the Court set
aside the judgment rendered herein on November 27, 2012, and grant a rehearing thereof.
On consideration whereof, the petition for rehearing is granted, the opinion rendered on November 27,
2012 is withdrawn, the mandate entered on that date is vacated, and the appeal case is reinstated on the
docket of the Court.
A Copy,
Teste:
Cynthia L. McCoy, Clerk
By:
Deputy Clerk
COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Alston and Senior Judge Willis
UNPUBLISHED
WILLIAM MICHAEL BERGER
MEMORANDUM OPINION* BY
v. Record No. 0445-12-4 JUDGE ROSSIE D. ALSTON, JR.
NOVEMBER 27, 2012
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAUQUIER COUNTY
Herman A. Whisenant, Jr., Judge Designate
(John Primeau; Law Offices of John Primeau, on brief), for
appellant. Appellant submitting on brief.
(Kenneth T. Cuccinelli, II, Attorney General; Aaron J. Campbell,
Assistant Attorney General, on brief), for appellee. Appellee
submitting on brief.
William Michael Berger (appellant) was convicted in the trial court of improper driving in
violation of Code § 46.2-869. For the reason that follows, we dismiss this appeal.
In appellant’s petition for appeal, he included a single assignment of error: “The trial
court erred in finding the evidence presented sufficient to sustain the conviction of appellant.”
Rule 5A:12(c)(1)(ii) provides that “[a]n assignment of error . . . which merely states that the
judgment or award is contrary to the law and the evidence is not sufficient” and that “[i]f the
assignments of error are insufficient . . . , the petition for appeal shall be dismissed.” See Davis
v. Commonwealth, 282 Va. 339, 339-40, 717 S.E.2d 796, 796-97 (2011) (holding similar Rule
5:17 “establish[es] the inclusion of sufficient assignments of error is a mandatory procedural
requirement and that the failure to comply with this requirement deprives this Court of its active
jurisdiction to consider the appeal”).
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Appellant’s assignment of error challenges, in general, the sufficiency of the evidence to
support his conviction. In accordance with the Supreme Court’s decision in Davis, we conclude
that appellant’s assignment of error is insufficient under Rule 5A:12(c)(1)(ii), and thus deprives
this Court of active jurisdiction over the appeal. Therefore, we dismiss the appeal.
Dismissed.
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