COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Humphreys and Kelsey
Argued at Richmond, Virginia
JOHN TERRY DUGGER
OPINION BY
v. Record No. 1708-02-2 JUDGE D. ARTHUR KELSEY
MAY 20, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Michael C. Allen, Judge
Linwood T. Wells, III, for appellant.
Kathleen B. Martin, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
John Terry Dugger, the appellant, claims the jury erred when
it convicted him of driving under the influence of alcohol (second
or subsequent offense) in violation of Code §§ 18.2-266 and
18.2-270(B), as well as operating a vehicle as an habitual
offender in violation of Code § 46.2-357. Appellant admits that,
while sitting in the passenger seat of a vehicle, he forcibly took
control of the steering wheel from the driver and caused the
vehicle to go off the road and into a guardrail. This momentary
exercise of control, he argues, falls outside the scope of the DUI
and habitual offender statutes as a matter of law. We disagree
and affirm the trial court.
I.
On appeal, we review the evidence "in the light most
favorable to the Commonwealth." Morrisette v. Commonwealth, 264
Va. 386, 389, 569 S.E.2d 47, 50 (2002). That 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
that may be drawn therefrom." Holsapple v. Commonwealth, 39
Va. App. 522, 528, 574 S.E.2d 756, 758-59 (2003) (en banc)
(citation omitted); see also Wactor v. Commonwealth, 38 Va. App.
375, 380, 564 S.E.2d 160, 162 (2002).
After attending a funeral on September 28, 2001, appellant
and several of his family members visited the home of Marlena
Baker, his sister, in Petersburg. Around 10:00 p.m. that
evening, appellant and two of his brothers borrowed a car
belonging to another of his sisters, Pamela Dugger. Though the
men were to return shortly after getting gas for Pamela's car,
they did not arrive back at the house until 1:00 or 2:00 a.m.
the following morning. The men had been drinking and appellant,
a passenger in the car, was intoxicated.
"Very angry" with her brothers, Pamela and appellant were
still arguing about the incident when they began the drive back
to Richmond in Pamela's car at 3:00 a.m. Pamela was behind the
wheel, with appellant in the right front passenger seat. As the
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two drove north along Interstate 95, the argument "heated up."
Appellant got "real excited" and "grabbed the wheel" of the car.
Pamela's first thought was that her brother was "trying to harm
us." Appellant, steering from the passenger seat, caused the
car to veer off the interstate and into a guardrail.
Virginia State Trooper Bruce Thomas arrived at the scene
about five minutes later. Thomas initially questioned Pamela,
who reported that her brother caused the accident. Thomas then
approached appellant, who was handcuffed and seated in a police
car, cursing loudly. Appellant's "eyes were glassy" and a
"strong odor of alcohol" surrounded him. He admitted that "he'd
been drinking for hours" and was "drunk." A breath test later
revealed his blood alcohol level to be .15%, almost twice the
legal limit.
Appellant initially explained to Trooper Thomas that he had
been "fighting" with his sister and had "grabbed the wheel and
caused her to wreck." As the night progressed, however,
appellant's version of the events changed. He later told Thomas
that, as a mere "passenger in a car," he did nothing to "cause
the accident." Appellant also said, at one point, that he had
been "waving his finger in her face" and may have accidentally
"hit her hand on the wheel." Finally, before the magistrate,
appellant claimed to be "in the back seat asleep at the time of
the accident."
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At trial, appellant offered yet another version of what
happened: He took over the steering wheel to avoid an imminent
collision with a tractor-trailer truck that his sister had not
noticed. Appellant conceded that he had not given this
explanation to Trooper Thomas, but claimed he chose not to do so
because the officer treated him like a "criminal" and failed to
show him proper "respect."
At trial, Pamela attempted to corroborate in part her
brother's latest version. She admitted, however, that she had
seen several trucks that night, but not the one her brother
claimed he saw just before taking over the steering wheel. She
also said she may have been "swerving" in and out of her lane
prior to the incident, implying that this justified her
brother's intervention.
Without objection, the Commonwealth introduced into
evidence a prior DUI conviction, two habitual offender
adjudication orders, a misdemeanor conviction for driving in
violation of the habitual offender orders, and two convictions
for driving on a suspended license.
At the close of the case in chief and again after the
presentation of all the evidence, appellant moved to strike on
the ground that he had not operated the vehicle within the
meaning of the DUI and habitual offender statutes. The trial
court took both motions under advisement, noting that the
evidence showed appellant had seized the steering wheel and had
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thereby directed the "mode of progress of the vehicle, if you
will, by his actions."
The jury returned a verdict of guilty on both charges. The
jury recommended a thirty-day sentence for the DUI (second or
subsequent offense) and a one-year sentence for the habitual
offender conviction. Appellant moved the trial court to set
aside the verdicts, which the court also took under advisement.
At a later sentencing hearing, the trial court denied the motion
to set aside the verdicts, imposed the thirty-day DUI sentence,
and suspended the one-year prison term on the habitual offender
conviction.
II.
Appellant argues that his momentary, but deliberate,
assertion of physical control over his sister's vehicle does not
fall within the scope of the DUI and habitual offender statutes as
a matter of law. We disagree, finding that the trial court
correctly determined the issue to be one of fact for the jury.
The DUI statute makes it "unlawful for any person to drive
or operate" a vehicle while intoxicated. Code § 18.2-266. The
habitual offender statute makes it "unlawful for any person
determined or adjudicated an habitual offender to drive any
motor vehicle" while his license remains revoked. Code
§ 46.2-357(A).
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Code § 46.2-100 defines the terms operator and driver to
include "every person" who "drives or is in actual physical
control" of a vehicle. This statutory definition applies to the
habitual offender statute. Rosenbaum v. Commonwealth, 12
Va. App. 61, 63, 402 S.E.2d 498, 499-500 (1991). And, while not
controlling, Reynolds v. City of Virginia Beach, 31 Va. App.
629, 631, 525 S.E.2d 65, 66 (2000), Code § 46.2-100's statutory
definition serves as a valuable interpretative guide to the DUI
statute, Stevenson v. City of Falls Church, 243 Va. 434, 437,
416 S.E.2d 435, 437 (1992) (relying on former Code § 46.1-1(17),
predecessor of Code § 46.2-100, for interpreting DUI statute);
Leake v. Commonwealth, 27 Va. App. 101, 108, 497 S.E.2d 522, 526
(1998).
Under this standard, for example, we have held that
operating a vehicle does not necessarily require "moving the
vehicle from one place to another." Keesee v. Commonwealth, 32
Va. App. 263, 268, 527 S.E.2d 473, 476 (2000) (driver behind
wheel, key in ignition, engine not running, but vehicle in gear
and one taillight illuminated). Nor does it mean the vehicle's
engine must be running. Propst v. Commonwealth, 24 Va. App.
791, 794-95, 485 S.E.2d 657, 659 (1997) (sitting behind the
steering wheel of vehicle stopped in an intersection, with keys
in the ignition, headlights on, but engine off constituted
"operating"); see also Leake, 27 Va. App. at 108, 497 S.E.2d at
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526 ("operating" found when driver was standing on the road, but
leaning into parked, running car).
We have never addressed whether a passenger who forcibly
seizes control of the steering wheel of a moving vehicle
exercises sufficient control to fall within the scope of the DUI
and habitual offender statutes as a matter of law. To answer
this question, we begin with the premise that a statute should
be construed to "promote the end for which it was enacted, if
such an interpretation can reasonably be made from the language
used." Alger v. Commonwealth, 40 Va. App. 89, 93, 578 S.E.2d
51, 53 (2003) (quoting Mayhew v. Commonwealth, 20 Va. App. 484,
489, 458 S.E.2d 305, 307 (1995)) (internal quotation marks
omitted). "Thus, a statute should be read to give reasonable
effect to the words used and to promote the ability of the
enactment to remedy the mischief at which it is directed." Id.
While we will strictly construe a penal statute to resolve
any "ambiguity or reasonable doubt as to its meaning" in the
accused's favor, that does not mean the accused "is entitled to
a favorable result based upon an unreasonably restrictive
interpretation of the statute." Ansell v. Commonwealth, 219 Va.
759, 761, 250 S.E.2d 760, 761 (1979) (citations omitted); see
also Armstrong v. Commonwealth, 263 Va. 573, 581, 562 S.E.2d
139, 144 (2002); McCray v. Commonwealth, 37 Va. App. 202, 204,
556 S.E.2d 50, 51 (2001).
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Guided by these interpretative principles, the mischief
addressed by the DUI statute is the risk of harm posed by
vehicles under the control of intoxicated individuals. Whether
that risk comes from an inebriated passenger (who forcibly takes
control of the steering wheel) or from a drunk driver should not
matter. The brevity of actual control likewise does not place
the risk of harm outside the intended scope of the statute. See
In re Queen T., 14 Cal. App. 4th 1143, 1144-45, 17 Cal. Rptr. 2d
922, 923 (1993) (a passenger "steering a vehicle, without
controlling the accelerator or brakes" may be deemed a driver
under DUI statute); Dep't of Transp., Bureau of Driver Licensing
v. Hoover, 637 A.2d 721, 723 (Pa. Commw. Ct. 1994) (a passenger
"grabbing the steering wheel" operates the vehicle for DUI
purposes). We view the habitual offender statute no
differently. Here too, the mischief addressed by that statute
does not exclude, as a matter of law, brief exercises of
physical control over a vehicle's operation. 1
In this case, even though appellant had only momentary
control over his sister's vehicle, he nonetheless managed to
steer it off the interstate and into a guardrail. True,
appellant claimed he did so to avoid an imminent accident with a
1
For similar policy reasons, the legislature abrogated the
common law doctrine of necessity as a defense to an habitual
offender charge. See Long v. Commonwealth, 23 Va. App. 537,
543-44, 478 S.E.2d 324, 326-37 (1996).
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truck —— one his sister, the driver, testified she never saw.
The jury was entitled to disbelieve appellant's self-serving
testimony and accept his sister's initial reaction that he
"grabbed" the wheel in an irrational effort "to harm" them. 2
In short, for purposes of the DUI and habitual offender
statutes, appellant exercised sufficient control over the vehicle
to support convictions under both statutes. By forcibly taking
the steering over from the driver, appellant manipulated perhaps
the most fundamental feature of a moving vehicle —— the direction
in which it would travel. That deliberate act placed him in
actual physical control of the vehicle.
III.
Neither the jury's guilty verdicts nor the trial court's
refusal to set them aside constituted error as a matter of law.
We thus affirm appellant's conviction for driving under the
influence of alcohol (second or subsequent offense) in violation
2
A fact finder may discount an accused's self-serving
explanation as a mere effort at "lying to conceal his guilt."
Shackleford v. Commonwealth, 262 Va. 196, 209, 547 S.E.2d 899,
907 (2001); see also Mughrabi v. Commonwealth, 38 Va. App. 538,
548, 567 S.E.2d 542, 546 (2002); Morrison v. Commonwealth, 37
Va. App. 273, 284, 557 S.E.2d 724, 730 (2002); Dowden v.
Commonwealth, 260 Va. 459, 469, 536 S.E.2d 437, 442 (2000);
Black v. Commonwealth, 222 Va. 838, 842, 284 S.E.2d 608, 610
(1981). "A defendant's false statements are probative to show
he is trying to conceal his guilt, and thus is evidence of his
guilt." Emmett v. Commonwealth, 264 Va. 364, 372, 569 S.E.2d
39, 45 (2002) (quoting in parenthetical from Rollston v.
Commonwealth, 11 Va. App. 535, 548, 399 S.E.2d 823, 831 (1991)).
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of Code §§ 18.2-266 and 18.2-270(B), as well as operating a
vehicle as an habitual offender in violation of Code § 46.2-357.
Affirmed.
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