Neel v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Haley and Senior Judge Annunziata
Argued at Alexandria, Virginia

JEFFREY EUGENE NEEL
OPINION BY
v. Record No. 0369-06-4 JUDGE LARRY G. ELDER
MARCH 13, 2007
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF FAUQUIER COUNTY
Jeffrey W. Parker, Judge

Jud A. Fischel for appellant.

Josephine F. Whalen, Assistant Attorney General (Robert F.
McDonnell, Attorney General, on brief), for appellee.

Jeffrey E. Neel (appellant) appeals from his jury trial conviction for leaving the scene of

an accident involving personal injury in violation of Code § 46.2-894. On appeal, he concedes

the evidence was sufficient to prove he failed to stop at the scene of an accident involving

property damage, and he does not challenge his conviction for that offense, but he contends the

evidence was insufficient to prove he knew or should have known the accident involved personal

injury. We hold the facts were insufficient to support his conviction. Thus, we reverse the

conviction and dismiss the indictment.

I.

BACKGROUND

At about 5:30 p.m. on August 9, 2004, employees of the Prince William and Fauquier

County Sheriff’s Departments responded to a Fauquier County location where “a woman . . . had

stopped in the middle of the road” and “was blocking traffic.” One deputy spoke with the
woman while a second, Deputy Ron Christefano, directed traffic. Their sheriff’s department

vehicles were parked at the scene with emergency lights flashing.

Deputy Christefano observed a car approach the scene and “slow[] down properly.” That

car was driven by Deanna Swanson. Just as Swanson was coming to a stop about ten feet from

Deputy Christefano, a car driven by appellant approached behind Swanson. Appellant’s car

“slowed down some,” but while still traveling at “a good speed,” it “rear-end[ed]” Swanson’s

car. Swanson described the impact as “rather hard” and said “[i]t pushed [her vehicle forward]

some.” Deputy Christefano described the impact as a “bang.” He said it was “like a crash. A

rear-end. That’s all it was. But I definitely heard it and saw it.”

The accident caused “[n]ot a great deal [of damage to Swanson’s car], but some.” She

described the damage as “a crack in the cover of the light on the back” and said, “I can’t hardly

tell it’s there.” Her insurance company estimated the cost to repair the damage as “$600 and

some.”

“[W]ithin seconds” after the impact, Deputy Christefano approached Swanson’s car and

inquired whether “everybody” in Swanson’s vehicle was “okay” and whether anybody was

“hurting.” Swanson looked at the other occupants of her vehicle, two of her grandchildren, and

responded to Deputy Christefano that “she was fine,” they were “okay.” Deputy Christefano told

Swanson to pull over to the side of the road, and she did so. Deputy Christefano did not know

whether appellant was able to hear his conversation with Swanson. Deputy Christefano did not

assess the damage to Swanson’s vehicle at the time, but he did not recall that “any pieces of

[Swanson’s] car” or any “broken glass that was attributable to this accident” were “in the

roadway” at that time.

Deputy Christefano then went immediately to appellant’s window and asked appellant,

“Is everything okay?” Appellant “really had no response.” Deputy Christefano then “told

-2-
[appellant] to follow behind [Swanson] and pull over on the side of the road.” Deputy

Christefano did not discuss with appellant anything concerning the condition of Swanson or her

passengers.

When Deputy Christefano completed his brief initial conversations with Swanson and

appellant, “an ambulance was on the scene for the original [incident]” that had caused the

officers to stop, and Deputy Christefano “let them know about what happened there.” When

Deputy Christefano turned his back to talk to the other deputy on the scene, appellant drove off.

Deputy Christefano gave chase and apprehended appellant at least a mile from the scene.

When the officers apprehended appellant, they observed that his vehicle had a dent on the hood

and bumper area that was “[n]ot very big,” “approximately twelve inches maybe at the most

across.”

Unbeknownst to Deputy Christefano or appellant, Swanson had “deteriorating discs” and

had undergone neck surgery about eight months prior to the collision at issue. Swanson testified

that between her December 2003 neck surgery and the rear-end collision with appellant on

August 9, 2004, she had experienced no pain in her neck and that after the accident she felt pain

in her neck and head. She testified that as of the date of trial, July 6, 2005, she was “still

hav[ing] problems with [her] neck.” Swanson received medical attention at the scene of the

August 9, 2004 accident, but no evidence indicated she received that attention while appellant

was still present.

Appellant was indicted, inter alia, for violating Code § 46.2-894 by leaving the scene of

an accident in which a person was injured without stopping to report his name, address, and other

personal information or render reasonable assistance to the person injured.

Following the Commonwealth’s presentation of evidence in appellant’s jury trial,

appellant moved to strike, contending, inter alia, that the evidence failed to prove he knew or

-3-
should have known anyone had been injured as a result of the accident. The trial court denied

the motion. At the conclusion of all the evidence, appellant renewed his motion to strike, which

the court again denied. The jury convicted appellant of the charged offenses, and he noted this

appeal.

II.

ANALYSIS

Under familiar principles of appellate review, we examine the evidence in the light most

favorable to the Commonwealth, granting to the evidence all reasonable inferences fairly

deducible therefrom. See, e.g., Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415,

418 (1987). The credibility of a witness, the weight accorded the testimony, and the inferences

to be drawn from proven facts are matters solely for the fact finder’s determination. Long v.

Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473, 476 (1989).

Code § 46.2-894 provides in relevant part as follows:

The driver of any vehicle involved in an accident in which
a person is killed or injured or in which an attended vehicle or
other attended property is damaged shall immediately stop as close
to the scene of the accident as possible without obstructing traffic
. . . and report his name, address, driver’s license number, and
vehicle registration number forthwith to the State Police or local
law-enforcement agency, to the person struck and injured if such
person appears to be capable of understanding and retaining the
information, or to the driver or some other occupant of the vehicle
collided with or to the custodian of other damaged property.

If the accident resulted in injury or death, failure to comply with Code § 46.2-894 is a felony.

Code § 46.2-894. “The identification requirement is intended to facilitate accident investigation

and to preserve public order.” Johnson v. Commonwealth, 14 Va. App. 769, 771, 418 S.E.2d

729, 731 (1992).

In Herchenbach v. Commonwealth, 185 Va. 217, 38 S.E.2d 328 (1946), the Supreme

Court interpreted a predecessor version of this statute as follows:
-4-
 Knowledge necessarily is an essential element of the crime. This
does not mean that the person should have positive knowledge of
the extent of the damage or injuries inflicted. It does mean that, in
order to be guilty of violating the statute, “the driver must be aware
that harm has been done; it must be present in his mind that there
has been an injury; and then, with that in his mind, he must
deliberately go away without making himself known. If an injury
is inflicted under such circumstances as would ordinarily
superinduce the belief in a reasonable person that injury would
flow, or had flowed, from the accident or collision, then it is the
duty of the operator to stop his vehicle.”

Id. at 220, 38 S.E.2d at 329 (quoting 5 Am. Jur. 921). We subsequently interpreted this language

as requiring the Commonwealth to prove “that the defendant possessed actual knowledge of the

occurrence of the accident, and such knowledge of injury which would be attributed to a

reasonable person under the circumstances of the case.” Kil v. Commonwealth, 12 Va. App.

802, 811, 407 S.E.2d 674, 679 (1991). “This approach . . . has been characterized as ‘requiring

subjective knowledge of the collision while holding the driver to a stricter reasonable man

standard as to the fact or extent of the injury’ . . . .” Id. at 810, 407 S.E.2d at 679 (quoting

Commonwealth v. Kauffman, 470 A.2d 634, 637 (Pa. Super. Ct. 1983)).

Knowledge of injury may be imputed to a driver “where the fact of personal injury is

visible or where the seriousness of the collision would lead a reasonable person to assume there

must have been resulting injuries.” People v. Carter, 52 Cal. Rptr. 207, 208 (Cal. Ct. App. 1966)

(citation omitted) (holding that where impact “slightly damaged” bumper or fender of both cars

and bumper had to be pulled away from wheel of one so it could be moved, “collision was not of

sufficient magnitude to compel the conclusion that injuries had probably occurred”); see also

Marjorie A. Caner, Annotation, Necessity and Sufficiency of Showing, in Criminal Prosecution

Under “Hit-and-Run” Statute, Accused’s Knowledge of Accident, Injury, or Damage, 26

A.L.R.5th 1, §§ 26, 29, 30 (1995 & Supp. 2006) (finding relevant the force of impact and amount

of damage sustained by vehicles). “[I]n some cases, such as [those involving] proof of intent or

-5-
knowledge, [circumstantial evidence] is practically the only method of proof.” Parks v.

Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980). “Circumstantial evidence is as

competent and is entitled to as much weight as direct evidence, provided [the evidence as a

whole] is sufficiently convincing to exclude every reasonable hypothesis except that of guilt.”

Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983).

Here, we conclude as a matter of law that the evidence, viewed in the light most

favorable to the Commonwealth, was insufficient to support a finding that appellant knew or

should have known anyone in Swanson’s car was injured. No evidence established that

appellant or Swanson left their cars or that emergency personnel, other than Deputy Christefano,

approached Swanson’s car while appellant was at the scene. Although an ambulance was

present when Deputy Christefano finished his brief conversations with Swanson and appellant

immediately following their rear-end collision, it was undisputed that the ambulance was present

at the scene to respond to the original incident that had disrupted traffic. It was also undisputed

that medical personnel made no effort to attend to Swanson while appellant was at the scene.

Thus, the arrival of an ambulance at the scene of the pre-existing traffic incident almost

immediately following the occurrence of appellant’s rear-end collision with Swanson, viewed in

the light most favorable to the Commonwealth, was not evidence indicating a reasonable person

in appellant’s position knew or should have known before he fled that someone in Swanson’s car

had been injured.1

Further, although the impact from the rear-end collision was audible, described by

Deputy Christefano as a “bang,”2 and pushed Swanson’s car forward, appellant was present as

1
The Commonwealth, in apparent recognition of this lack of relevance, made no attempt
to rely on the presence of the ambulance in arguing to the jury.
2
In ruling on the motion to strike, the trial court cited the occurrence of a “loud bang”
and found this was enough to impose on appellant a duty to investigate in regard to property
-6-
Swanson, while remaining behind the wheel of her own car, spoke to Deputy Christefano and

then pulled her car to the side of the road. Deputy Christefano then came immediately to

appellant’s car rather than attempting to render any type of aid to Swanson or any other

occupants of her car or to call any of the other people then on the scene to render aid to Swanson

or her passengers. Deputy Christefano also called attention to the fact that Swanson moved the

car under her own power, telling appellant to “follow behind her and pull over on the side of the

road.”

Finally, Swanson described the damage to her car as “a crack in the cover of the light on

the back” that was so minor “[she could] hardly tell [it was] there.” Deputy Christefano testified

that he did not recall observing any debris in the roadway as a result of the impact between

Swanson’s and appellant’s vehicles. Thus, the minimal nature of the damage to Swanson’s

vehicle was insufficient to put appellant on notice that she had been injured. Although the

evidence would support a finding that appellant’s front bumper and hood may have sustained

some damage in the collision, no evidence establishes that appellant would have known about

this damage before he fled the scene. Compare Cottee v. Commonwealth, 31 Va. App. 546, 558,

525 S.E.2d 25, 31 (2000) (holding evidence sufficient to prove knowledge where defendant

“revved” engine and drove into the two victims, after which “[s]everal bystanders were shouting

that people were trapped under the car”); Kil, 12 Va. App. at 812-13, 407 S.E.2d at 680 (holding

evidence sufficient to prove knowledge where impact caused extensive damage to right side of

van, scattered numerous glass particles along front seat, threw bodies of three victims distances

of 45 to 135 feet from point of impact, and residents inside nearby homes at time of accident

described impact as “a loud noise”).

damage. However, the only witness who described the accident as causing a “bang” was Deputy
Christefano, who was standing ten feet from the point of impact, and he described the accident as
causing only a “bang,” not a “loud bang.”
-7-
 Viewing the facts in the light most favorable to the Commonwealth, we hold as a matter

of law that the evidence failed to prove appellant knew or should have known personal injury, as

opposed to property damage,3 had resulted from the collision at the time he fled the scene. To

hold otherwise would be to permit a driver involved in any but the most minor of accidents to be

convicted of felony hit-and-run for leaving the scene of the accident without personally

investigating whether injury had occurred, regardless of how unforeseeable an injury was under

the circumstances surrounding the accident. Whatever one’s moral duty may be upon the

occurrence of an accident, the applicable law in the form of the text of the statute itself and

Virginia’s appellate court decisions interpreting it does not permit conviction for felony

hit-and-run based solely upon the happening of an accident and a failure to investigate. Rather,

such a conviction must be based on evidence, viewed in the light most favorable to the

Commonwealth, proving beyond a reasonable doubt the driver knew or should have known that

personal injury, not just property damage, had resulted from the collision. E.g., Kil, 12 Va. App.

at 810-11, 407 S.E.2d at 679.

III.

For these reasons, we hold the evidence was insufficient to support appellant’s felony

conviction for leaving the scene of an accident involving personal injury in violation of Code

§ 46.2-894. Thus, we reverse the challenged conviction and dismiss the indictment.

Reversed and dismissed.

3
As previously mentioned, appellant was convicted for the misdemeanor of leaving the
scene of an accident involving property damage and does not challenge that conviction on
appeal.
-8-
Haley, J., dissenting.

I respectfully dissent.

I.

Although admitting that a “jury’s verdict will not be disturbed unless it is plainly wrong or

without evidence to support it,” Guda v. Commonwealth, 42 Va. App. 453, 457, 592 S.E.2d 748,

750 (2004), the majority nonetheless concludes “as a matter of law that the evidence, viewed in the

light most favorable to the Commonwealth, was insufficient to support a finding that appellant

knew or should have known anyone in [the victim’s] car was injured.” Respecting the jury’s

decision to the contrary, I dissent.

II. FACTS

The following adds to and emphasizes the facts as set forth by the majority.

In December of the year preceding the August 9, 2004 accident, Ms. Swanson had had

two surgeries in which rods were inserted “in [her] upper and lower back” because of

“deteriorating discs.” As to the accident, she testified that there was a “rather hard impact. It

pushed us some” and that she “was frightened. And I felt pain.” After she pulled to the

shoulder, and the appellant had fled, “[t]he people from the emergency vehicles came over.”

After taking her blood pressure, which was found elevated, and upon her telling them of her

pain, medical personnel “took her to the hospital.” At the hospital a CT scan and X-rays were

taken. Though Ms. Swanson was released from the hospital seven hours after arrival, as of the

date of trial, approximately eleven months after the incident, she “still [has] problems with [her]

neck.” The damages to Ms. Swanson’s car totaled approximately $600.

Deputy Ron Christefano heard a “bang” when appellant’s vehicle collided with

Ms. Swanson’s. He testified that Ms. Swanson

said she was okay. I told her to pull on the side of the road. I went
over to the second vehicle and told [appellant] to . . . pull over on
-9-
 the side of the road. When I did that, at that time an ambulance
was on the scene for the original reason4 why I went out there . . . .
When I turned my back to talk to the other deputy, I looked over
my shoulder and the [appellant] in the second vehicle shot off.

III. JURY INSTRUCTIONS

The trial court considered the primary issue, that is, whether knowledge of injury could

be attributable to a reasonable person under the circumstances, as one for jury determination.

Relevant portions of the instructions to the jury follow:5

From Instruction 5 defining the elements of the offense: “(3) That the defendant knew, or

should have known, that another person was injured by the accident.”

Instruction 7: “The word ‘injury’ as used in these instruction[s] means any physical

damage to the body caused by violence or accident.”

From Instruction 8: “the Commonwealth must prove . . . knowledge of injury which

would be attributed to a reasonable person under the circumstances of the case.”6

From Instruction 9: “for an element may also be proved by circumstantial evidence. You

may convict the defendant on circumstantial evidence alone . . . .”

IV. ANALYSIS

The verdict of a jury “cannot be overturned on appeal unless no ‘rational trier of fact’

could have come to the conclusion it did.” Stevens v. Commonwealth, 46 Va. App. 234, 248,

616 S.E.2d 754, 761 (2005) (quoting Kelly v. Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d

4
The dissent acknowledges that the ambulance had been called as a result of the accident
that caused Ms. Swanson to slow and stop before being hit in the rear by the appellant.
Nonetheless, an ambulance was “on the scene” when appellant fled.
5
Appellant took no exception to these instructions.
6
The language of this instruction was taken verbatim from Kil v. Commonwealth, 12
Va. App. 802, 811, 407 S.E.2d 674, 679 (1991) (“and such knowledge of injury which would be
attributed to a reasonable person under the circumstances of the case”).
- 10 -
444, 447 (2003) (en banc)). See also Pease v. Commonwealth, 39 Va. App. 342, 355, 573

S.E.2d 272, 278 (2002) (en banc) (“We let the decision stand unless we conclude no rational

juror could have reached that decision.”), aff’d, 266 Va. 397, 588 S.E.2d 149 (2003); O’Connell

v. Commonwealth, 48 Va. App. 719, 726, 634 S.E.2d 379, 382 (2006). “This familiar standard

gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony,

to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.”

Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis added).

That standard of review does not permit us to “substitute our judgment for that of” a

properly instructed jury. See Wactor v. Commonwealth, 38 Va. App. 375, 380, 564 S.E.2d 160,

162 (2002). It is my view the majority does not honor that standard and engages in the

substitution that standard prohibits. Accordingly, I dissent.

- 11 -