Hall v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Benton, Coleman, Elder,
Bray, Annunziata, Bumgardner and Senior Judge Overton
Argued at Richmond, Virginia

FRANKLIN EUGENE HALL
OPINION BY
v. Record No. 1280-98-4 CHIEF JUDGE JOHANNA L. FITZPATRICK
JUNE 20, 2000
COMMONWEALTH OF VIRGINIA

UPON A REHEARING EN BANC

FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
Frank A. Hoss, Jr., Judge

Gregory E. Stambaugh for appellant.

Virginia B. Theisen, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.

Franklin Eugene Hall (appellant) was convicted in a jury

trial of aggravated involuntary manslaughter, in violation of

Code § 18.2-36.1(B). Appellant argued that the trial court

erred in: (1) admitting the results of the preliminary

alco-sensor test; (2) allowing testimony during the

Commonwealth's case-in-chief that appellant was previously

convicted of an unrelated offense of driving under the

influence; (3) denying his motion to strike the evidence; and

(4) refusing appellant's jury instruction on causation. A

divided panel of this Court reversed appellant's conviction and

remanded the case for a new trial. See Hall v. Commonwealth,
Record No. 1280-98-4, 1999 WL 1133268, September 28, 1999. On

the Commonwealth's motion, we stayed the mandate of that

decision and granted a rehearing en banc. Upon rehearing en

banc, we find no reversible error and affirm appellant's

conviction.

I. FACTS

On February 2, 1997, shortly after 8:00 p.m., a pickup

truck driven by appellant and a motorcycle driven by Wayne A.

Holmes collided at the intersection of Occoquan and Horner Roads

in Prince William County. Holmes died in the crash. In the

Commonwealth's case-in-chief, Mike Arnold testified that he was

driving about forty miles per hour westbound on Occoquan Road in

the left lane and he was slowing down as he approached an

intersection. Arnold said he was fifty feet from the

intersection at Horner Road when he saw in his rearview mirror a

motorcycle approaching in the right lane. He testified that the

traffic light at the intersection controlling his travel

direction was green. As Arnold slowed, the motorcycle continued

in the right lane past his car. Arnold testified that a pickup

truck, driven by appellant eastward on Occoquan Road, made a

left turn onto Horner Road, across the westbound travel lanes of

Occoquan Road. Arnold testified that he was thirty feet away

from the intersection when the truck turned, that the truck had

given no turn signal, and that the truck did not make a proper

turn -- "it cut the corner." Arnold saw the collision between

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the motorcycle and the truck. He estimated that thirty seconds

passed between the time he first saw the motorcycle in his

rearview mirror and the time of the collision.

Connie Stewart was a passenger in a car, which turned onto

Occoquan Road at Route One and began travelling westbound toward

Horner Road. She saw the motorcycle turn onto westbound

Occoquan Road from Route One. The car in which Stewart was a

passenger was travelling west in the left lane of Occoquan Road,

and the motorcycle was travelling west in the right lane of

Occoquan Road. As the car in which Stewart was riding was

moving at thirty-five miles per hour, the motorcycle passed the

car. The motorcyclist gave a hand signal and drove into the

left westbound lane. The motorcyclist passed a car in the right

westbound lane, gave a hand signal, and moved again to the right

westbound lane. Stewart estimated the speed of the motorcycle

as forty to forty-five miles per hour. Stewart testified that

as they were approaching the intersection, the light "had turned

green." Her car was in the left travel lane, and the motorcycle

was in the right travel lane. As the motorcycle passed to the

right of a vehicle in front of Stewart's car, Stewart "saw the

motorcycle flying up in the air." She did not witness the

actual collision and said it was dark at the time of the

accident.

Officer J.S. Scalici, who examined the crash scene one-half

hour following the accident, opined that if appellant's truck

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had not hit the motorcycle at the point of impact, the truck

would have traveled into oncoming traffic on Horner Road. The

officer testified that the motorcycle was travelling between

thirty-five and forty miles per hour and that appellant's truck

was travelling between thirty and thirty-five miles per hour.

He admitted, however, that his estimates of speed were

"guess[es]."

When the officer interviewed appellant, appellant said he

was returning from a bowling alley when the accident occurred.

After the officer told appellant the bowling alley was in the

opposite direction, appellant said he left the bowling alley,

went to a friend's house, and was returning from the friend's

house when the accident occurred. Appellant told the officer he

had consumed three beers between 5:15 p.m. to 8:00 p.m. The

officer also testified that appellant "had an odor of a strong

alcohol beverage about his person."

When the officer made inquiry concerning appellant's

driving status, appellant gave him an Alabama driver's license.

Appellant said the license was suspended for failure to pay

fines, that he had just returned from Alabama, and that "he had

taken care of the fines." When the officer asked appellant if

he had ever had a Virginia driver's license, appellant responded

that he had not. Over objection, the officer testified that he

told appellant the Department of Motor Vehicles records

indicated appellant's Virginia driver's license had been

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suspended for a conviction. When asked about the conviction,

the officer testified that appellant's Virginia license was

suspended for "DWI" and that appellant's Alabama license had

been revoked "for driving while intoxicated," not for failure to

pay fines. Appellant unsuccessfully objected to the

introduction of evidence concerning the prior convictions.

Officer Christopher Lando testified that he arrived at the

accident scene at 8:30 p.m., obtained appellant's Alabama

driver's license, and determined that it was suspended. When he

asked appellant to complete a "statement form," appellant wrote

that "'[he] was taking a left on' -- '[he] had the green'

-- '[he] was making a left' -- '[Holmes] hit [him].'" After

Lando "detected a very strong odor of an alcoholic beverage

about [appellant's] person" and was told by appellant that he

had consumed three beers at a bowling alley, he had appellant

perform several "field dexterity tests." Appellant was

unsuccessful in those tests. Lando testified that he then gave

appellant a "field alco-sensor test," which he identified as a

device that can determine a person's blood alcohol concentration

at the scene of the accident. Appellant objected to testimony

concerning the results of the alco-sensor test. The trial judge

overruled the objection. Lando then testified that when

appellant's reading reached .200, he stopped the test and

arrested appellant. After the officer transported appellant to

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the police headquarters, appellant's breath was again tested and

indicated an alcohol content of .22.

A forensic toxicologist tested fluid recovered from Holmes'

body and concluded that Holmes' blood alcohol level was .13. He

agreed that at .13, a person's "vision, judgment, and ability to

execute or act on that judgment . . . would be a little

impaired." He further testified that at .22, appellant's blood

alcohol level, a person would suffer "incoordination of the

muscle, . . . disorientation, . . . [a]nd confusion." Over

appellant's objection, the toxicologist opined that a man of

appellant's size would have to have consumed "more than 10

beers" to reach an alcohol level of .22.

At the conclusion of the Commonwealth's case, appellant

testified that he went to a friend's house after leaving the

bowling alley on the night of the accident. He left the

friend's house and drove east on Occoquan Road. When he arrived

at the intersection with Horner Road, he was in the left turn

lane and the light was red. He testified that when the light

controlling his travel lane turned to a green arrow, he turned

left and was struck by a motorcycle. On cross-examination,

appellant conceded that he had consumed more than three beers

that night and was not sure how many beers he actually had.

Appellant testified he had a prior felony conviction.

Elizabeth Tuialana testified that prior to the collision,

she was driving north on Horner Road in the left lane. As she

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approached the intersection of Horner and Occoquan Roads,

intending to turn left onto westbound Occoquan Road, the light

controlling her lane of travel turned yellow. She stopped

before entering the intersection because the light turned red.

She saw a truck on Occoquan Road ready to turn onto Horner Road.

After looking into her rearview mirror to see if her friend was

behind her, she saw a truck on Occoquan Road turning onto Horner

Road, saw "something coming down Occoquan and then the accident

occurred." She recalled that the accident occurred within "a

matter of seconds" of the time she arrived at the intersection.

Rachael Robinson testified that she was behind Tuialana's

car going north on Horner Road. She stopped when Tuialana

stopped, and she recalled that the light was yellow. When she

stopped, she saw a truck stopped on Occoquan Road to her left in

a turning lane. She testified that the accident then occurred

within "seconds. It was fairly quickly."

John Olivo, a traffic signal supervisor for the Virginia

Department of Transportation (VDOT), testified to the signal

sequence at the intersection. He stated that after the signal

light controlling Horner Road traffic turns red, if a vehicle is

in the left turn lane at Occoquan Road, the next sequence of

lights would display a green turn arrow for that lane of travel.

The green arrow would be displayed for seven to twelve seconds,

depending on the number of vehicles in the turn lane. He also

testified it was impossible for the green turn arrow to display

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while a solid green light is displaying for traffic coming from

the opposite direction. After a maximum of twelve seconds, the

green arrow becomes yellow for four seconds and then becomes a

solid green ball. He also testified that it was possible for a

green turn arrow to display if a vehicle was also making a left

turn coming from the opposite direction.

At the conclusion of all the evidence, the trial judge

refused an instruction tendered by appellant concerning the

statutory element of causation that must be shown between

appellant's intoxication and the death of Holmes. The trial

judge ruled that the tendered instruction was redundant because

the finding instruction contained the requisite elements of the

offense. Following its deliberations, the jury convicted

appellant of aggravated involuntary manslaughter, in violation

of Code § 18.2-36.1(B).

II. EVIDENCE OF ALCO-SENSOR TEST

Following the collision, the police officer used an

"alco-sensor" to perform a preliminary test of appellant's

breath-alcohol content. Over appellant's objection, the trial

judge permitted the officer to testify concerning the result of

appellant's preliminary breath test. Appellant contends that

Code § 18.2-267 bars that testimony in a prosecution under Code

§ 18.2-36.1. The Commonwealth argues that Code § 18.2-267 only

bars introduction of the results of the test in a prosecution

under Code § 18.2-266 or Code § 18.2-266.1.

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 The Commonwealth indicted and tried appellant for

aggravated manslaughter, which is statutorily defined as

follows:

A. Any person who, as a result of driving
under the influence in violation of
subdivision (ii), (iii), or (iv) of [Code]
§ 18.2-266, unintentionally causes the death
of another person, shall be guilty of
involuntary manslaughter.

B. If, in addition, the conduct of the
defendant was so gross, wanton and culpable
as to show a reckless disregard for human
life, he shall be guilty of aggravated
involuntary manslaughter, a felony
punishable by a term of imprisonment of not
less than one nor more that twenty years,
one year of which shall be a mandatory,
minimum term of imprisonment.

Code § 18.2-36.1.

Code § 18.2-267(A) permits a preliminary breath analysis of

a "person who is suspected of a violation of [Code] § 18.2-266

or [Code] § 18.2-266.1." However, another provision of that

statute states that "[t]he results of the breath analysis shall

not be admitted into evidence in any prosecution under [Code]

§ 18.2-266 or [Code] § 18.2-266.1, the purpose of this section

being to permit a preliminary analysis of the alcoholic content

of the blood of a person suspected of having violated the

provisions of [Code] § 18.2-266 or [Code] § 18.2-266.1." Code

§ 18.2-267(E).

The manslaughter statute under which appellant was tried

expressly references a violation of Code § 18.2-266 as the

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predicate for the prosecution of aggravated manslaughter. By

the express wording of the statute, a prosecution for a

violation of Code § 18.2-36.1 is necessarily a "prosecution

under [Code] § 18.2-266." Code § 18.2-267(E). The Commonwealth

can prove a violation of Code § 18.2-36.1 if and only if it

proves a violation of Code § 18.2-266. Thus, we hold that Code

§ 18.2-267(E) applies to bar introduction of the results of the

preliminary analysis because a prosecution under Code

§ 18.2-36.1 includes as an element of the offense proof of a

violation of Code § 18.2-266. Accordingly, under the

circumstances of this case, the trial court erred in admitting

the results of the preliminary alco-sensor breath test.

However, our inquiry does not end there. We must decide

whether the error requires reversal. Our determination of

whether the error is harmless is guided by familiar principles.

Non-constitutional error "is harmless '[w]hen it plainly appears

from the record and the evidence given at the trial that the

parties have had a fair trial on the merits and substantial

justice has been reached.'" Lavinder v. Commonwealth, 12 Va.

App. 1003, 1005, 407 S.E.2d 910, 911 (1991) (en banc) (quoting

Code § 8.01-678) (emphasis added in Lavinder). To determine

whether an error is harmless, the Court "must review the record

and the evidence and evaluate the effect the error may have had

on how the finder of fact resolved the contested issues." Id.

at 1007, 407 S.E.2d at 912. "An error does not affect a verdict

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if a reviewing court can conclude, without usurping the jury's

fact finding function, that, had the error not occurred, the

verdict would have been the same." Id. at 1005, 407 S.E.2d at

911. We have further said:

"Whether such an error is harmless in a
particular case depends upon a host of
factors, all readily accessible to reviewing
courts. These factors include the
importance of the witness' testimony in the
prosecution's case, whether the testimony
was cumulative, the presence or absence of
evidence corroborating or contradicting the
testimony of the witness on material points,
the extent of cross-examination otherwise
permitted, and, of course, the overall
strength of the prosecution's case."

Sargent v. Commonwealth, 5 Va. App. 143, 154, 360 S.E.2d 895,

901 (1987) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 674

(1986)).

Applying the standard articulated in Lavinder, we conclude

that the error was harmless because appellant suffered no

prejudice and had the error not occurred, the verdict would have

been the same. See Lavinder, 12 Va. App. at 1005, 407 S.E.2d at

911. During the Commonwealth's case-in-chief, the actual breath

test result taken pursuant to the Virginia Implied Consent Law

was introduced into evidence without objection. The test result

indicated a blood alcohol content of .22, reflecting a higher

concentration of alcohol than that obtained from the preliminary

alco-sensor test. Accordingly, the error in admitting the

results from the preliminary alco-sensor test was harmless.

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 III. EVIDENCE OF UNRELATED DUI CONVICTIONS

Next, appellant contends the trial court erred in allowing

testimony of his other unrelated convictions for driving under

the influence of alcohol. The Commonwealth argues that this

evidence, although proving a prior criminal act, was admissible

because appellant's lie about the status of his license was

proof of consciousness of guilt. We disagree that the evidence

was admissible for that purpose.

As a general rule, evidence that an
accused has committed a criminal offense
other than that charged in the indictment is
inadmissible. That is because such evidence
confuses one offense with the other,
unfairly surprises the defendant with a
charge he is unprepared to meet, and, by
showing that the accused has a criminal
propensity, tends to reverse his presumption
of innocence of the crime on trial.

Lewis v. Commonwealth, 225 Va. 497, 502, 303 S.E.2d 890, 892-93

(1983).

The evidence concerning the prior convictions was not

offered to prove an element of the offense. "[I]t is improper

to use evidence that a defendant has committed another crime

when it has 'no connection with the one under investigation

. . . [because those] other acts of criminality . . . are not

legally relevant and should not be [used] to prejudice the

defendant or to create a probability of guilt.'" Guill v.

Commonwealth, 255 Va. 134, 140, 495 S.E.2d 489, 492 (1998)

(citation omitted).

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 Although we find that the trial court erred in admitting

evidence of the unrelated convictions for driving under the

influence of alcohol, "this does not automatically

entitle . . . [the defendant] to a reversal of his conviction.

'A conviction should not be reversed unless the introduction of

improper evidence suggests a manifest probability that it was

prejudicial to the defendant.'" Rider v. Commonwealth, 8 Va.

App. 595, 600, 383 S.E.2d 25, 27 (1989) (citations omitted).

We, therefore, look to the evidence to see if the

improperly admitted evidence of appellant's prior convictions

had any effect upon the guilty verdict of the jury. We

acknowledge the prejudicial tendency of introducing evidence in

this aggravated involuntary manslaughter prosecution that

appellant had two prior DUI convictions and that his license to

operate a motor vehicle was suspended, particularly where, as

here, that appellant's driving intoxicated caused the homicide.

However, even though prejudicial, on this record we find the

evidence of appellant's guilt to have been so overwhelming that

the jury could not have reached any other verdict. Thus,

because the inadmissible evidence did not affect the verdict, we

find the error harmless. See Lavinder, 12 Va. App. at 1005, 407

S.E.2d at 911. On this record, had the error not occurred, we

conclude that the verdict would have been the same.

The effect the evidence of the two DUI convictions had upon

the jury was completely overshadowed by other evidence in the

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record that appellant's intoxication caused the accident and

homicide. Officer Lando smelled "a very strong odor of

alcoholic beverage" upon appellant's breath at the accident

scene. Appellant failed the field sobriety tests administered

by the officer. His blood alcohol level was .22 on the

breathalyzer test administered under the Virginia Implied

Consent Law. Dr. Huynh, an expert in forensic toxicology

employed by the Department of Criminal Justice for the

Commonwealth of Virginia, compared the breath results of

appellant and Holmes and explained that the difference between

the two was "enormous." Dr. Huynh further testified that

appellant would have had to drink at least ten beers to reach

.22, whereas appellant told the police officer that he had

consumed only three glasses of beer.

The testimonies of several eyewitnesses and of the VDOT

traffic supervisor prove that appellant turned, in violation of

the traffic control signal, into the path of the victim's

motorcycle. The blood alcohol test proved that, at the time,

appellant was highly intoxicated, and the forensic toxicologist

testified that a person with a .22 blood alcohol level, as

appellant had, will be disoriented, confused, and have muscle

incoordination. Defense counsel conceded in summation that the

evidence proved appellant was intoxicated at the time of the

accident. Because the evidence was overwhelming to establish

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aggravated involuntary manslaughter, evidence of the two DUI

convictions could not have had any effect upon the guilt phase.

Admittedly, the two convictions would have affected the

punishment stage; however, the Commonwealth was entitled to

present evidence of appellant's prior convictions during the

punishment stage. The Commonwealth introduced certified copies

of appellant's convictions, including a 1986 felony conviction

in Virginia for shooting or throwing a missile at an occupied

dwelling; a 1993 driving under the influence conviction from

Fairfax County; a 1994 driving under the influence conviction

from Calvin County, Alabama, that included a conviction for

possessing marijuana for personal use; a 1996 disorderly conduct

conviction; a 1997 criminal mischief conviction involving

property valued at less that $250; and a January 7, 1997 driving

under the influence conviction. In addition, appellant's

driving records from Alabama and Virginia were introduced.

Because abundant evidence was introduced to prove that appellant

was intoxicated and because appellant's entire criminal record

was admissible in the punishment phase for consideration by the

jury, the introduction of the prior DUI convictions at an

earlier stage was not prejudicial. Therefore, the admission of

evidence of the Alabama and Virginia convictions of driving

while intoxicated, under the circumstances of this case, was

harmless error.

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 IV. MOTION TO STRIKE THE EVIDENCE

Appellant made a motion to strike the evidence, alleging

that the evidence was: (A) insufficient to prove "gross, wanton

and culpable" driving behavior; and (B) insufficient to prove a

causal relationship between his driving and the death of Holmes.

"On appeal, we view the evidence in the light most

favorable to the Commonwealth and grant to it all reasonable

inferences therefrom." Barlow v. Commonwealth, 26 Va. App. 421,

428-29, 494 S.E.2d 901, 904 (1998). So viewed, the record

discloses the following: (1) at the scene of the accident,

Officer Lando detected a very strong odor of alcohol about

appellant's person; (2) appellant did not perform field

dexterity tests to the satisfaction of the police officer; (3)

appellant took a breathalyzer test pursuant to the Virginia

Implied Consent Law, and his test result showed a blood alcohol

concentration of .22 grams per 210 liters of breath, almost

three times the legal limit of .08; (4) Holmes' blood alcohol

content was .13; (5) Dr. Anh Huynh, an expert in forensic

toxicology, testified that .13% volume of alcohol means that in

the three areas of vision, judgment, and ability to execute, the

person would be a "little impaired"; however, Dr. Huynh further

opined that the difference between .13 and .22 is "enormous" and

that the "effects at .22 alcohol in the blood would be even more

impairment in terms of execution because of the incoordinations

of the muscle" and would produce "disorientation." According to

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Huynh, "when you get more than .2," it is difficult to execute

basic driving maneuvers. Dr. Huynh testified that appellant

would have had to have consumed at least ten beers to reach a

blood alcohol level of .22. Appellant originally informed the

officer that he had consumed only three beers; (6) Officer J.S.

Scalici testified that if appellant's truck had not hit the

motorcycle at the point of impact, the truck would have traveled

into oncoming traffic on Horner Road, indicating that he was

"cutting the corner" in making the left turn; such a maneuver

violates Code § 46.2-846, which requires left turns to be "made

from the right half of the roadway and as close as possible to

the roadway's center line where it enters an intersection."

Commonwealth witnesses testified that Holmes had the green

light. The evidence was sufficient for the jury to infer that

appellant made the left turn on a red light or at least not on

the green arrow. In fact, appellant admitted at trial that if

westbound traffic on Occoquan Road had a green signal, there

could have been no advance green arrow signaling eastbound

traffic to turn left. The Commonwealth's evidence was

competent, was not inherently incredible and was sufficient to

prove appellant drove his vehicle in a "gross, wanton and

culpable" manner.

Additionally, appellant contends that Holmes' conduct was

the cause of the accident. The jury rejected this view of the

evidence. In a prosecution brought under Code § 18.2-36.1, the

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Commonwealth is required to prove "a causal connection between

the driver's intoxication and the death of another person."

Pollard v. Commonwealth, 20 Va. App. 94, 99, 455 S.E.2d 283, 286

(1995). Generally, causation is an issue for the jury to

decide. See Forbes v. Commonwealth, 27 Va. App. 304, 309, 498

S.E.2d 457, 459 (1998). The jury was instructed that the

Commonwealth was required to prove "[t]hat as a result of

driving under the influence the defendant unintentionally caused

the death of Wayne Holmes."

The fact that Holmes had a blood alcohol concentration of

.13 does not exonerate appellant. "[C]ontributory negligence

has no place in a case of involuntary manslaughter." Bell v.

Commonwealth, 170 Va. 597, 616, 195 S.E. 675, 683 (1938). "Only

if the conduct of the decedent amounts to an independent,

intervening act alone causing the fatal injury can the accused

be exonerated from liability for his or her criminal

negligence." Hubbard v. Commonwealth, 243 Va. 1, 14, 413 S.E.2d

875, 882 (1992). The evidence does not support such a

conclusion. Only if Holmes' conduct constituted the sole cause

of the accident as a matter of law could the trial court strike

the evidence. We hold that the trial court did not err in

refusing to strike the evidence on this ground.

V. JURY INSTRUCTION H

Finally, appellant contends the trial court erred in

rejecting his proffered Instruction H concerning the causal

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connection required to be shown between his intoxication and

Holmes' death.

Without objection, the trial judge gave the following

instruction:

Instruction No. 3

The defendant is charged with the crime
of aggravated involuntary manslaughter. The
Commonwealth must prove beyond a reasonable
doubt each of the following elements of that
crime:

1. That the defendant was driving a
motor vehicle; and

2. That at the time he was under the
influence of alcohol; and

3. That as a result of driving under
the influence the defendant unintentionally
caused the death of Wayne Holmes; and

4. That the defendant's conduct was so
gross, wanton and culpable as to show a
reckless disregard for human life.

If you find from the evidence that the
Commonwealth has proved beyond a reasonable
doubt each of the first three elements of
the offense charged but you do not find
beyond a reasonable doubt that the
defendant's conduct was so gross, wanton and
culpable as to show a reckless disregard for
human life then you shall find the defendant
guilty of involuntary manslaughter, but you
shall not fix the punishment until your
verdict has been returned and further
evidence is heard by you.

If you find that the Commonwealth has
failed to prove beyond a reasonable doubt
any of the above offenses, then you shall
find the defendant not guilty.

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 Appellant's tendered Instruction H only addressed element

three, included in Instruction No. 3, above. The proffered

instruction provided:

Instruction No. H

The phrase "as a result of driving
under the influence . . . causes the death,"
requires proof of causal connection between
the driver's intoxication and the death of
another person. Therefore, even if you find
beyond a reasonable doubt that the defendant
was driving while intoxicated, he cannot be
found guilty of either grade of involuntary
manslaughter unless you also find, beyond a
reasonable doubt a causal connection between
the defendant's intoxication and the death
of Wayne A. Holmes.

The causal connection required is a
cause "which in the natural and continuous
sequence, unbroken by any efficient
intervening cause, produces the injury
without which the result would not have
occurred."

When defense counsel tendered Instruction "H," he stated

that it explained what needed to be shown "for that one

element--as a result of driving under the influence causing a

death."

The Commonwealth's attorney objected to the instruction.

He stated that "the only reason that the defense wants this

element emphasized is because that underscores the theory of

their case." He further stated that the phrase "as a result of"

did not need any further explanation.

The trial judge commented that it was a question of

"whether you are emphasizing it or you are defining or

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clarifying it." Holding that Instruction H said the same thing

that Instruction No. 3 had already said, the trial judge found

it redundant, and he refused the proffered instruction.

"[W]hen granted instructions fully and fairly cover a

principle of law, the trial court does not abuse its discretion

in refusing another instruction relating to the same legal

principle." Stockton v. Commonwealth, 227 Va. 124, 145, 314

S.E.2d 371, 384, cert. denied, 469 U.S. 873 (1984). See also

Cirios v. Commonwealth, 7 Va. App. 292, 303-04, 373 S.E.2d 164,

170 (1988) (holding the same). "[I]t is not desirable to

multiply instructions. Moreover, any instruction that is given

should relate to the specific evidence in the case, and should

not incorrectly state the law or mislead the jury. . . . [T]he

trial judge may properly refuse any instructions that are

misleading or redundant." Diffendal v. Commonwealth, 8 Va. App.

417, 423, 382 S.E.2d 24, 26-27 (1989) (internal quotations and

citations omitted). In the instant case, the trial court

refused appellant's Instruction H. Significantly, appellant

made no objection to Instruction No. 3 granted by the trial

court.

In comparing the causation element, Code § 18.2-36.1 uses

the phrase: "As a result of driving under the influence in

violation of subdivision (ii), (iii), or (iv) of § 18.2-266,

unintentionally causes the death of another person."

Instruction No. 3 used the phrase "that as a result of driving

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under the influence defendant unintentionally caused the death

of Wayne A. Holmes." The model jury instruction relating to the

charge uses the phrase "that as a result of driving under the

influence the defendant unintentionally caused the death of

(name of person)." II Virginia Model Jury Instructions,

Criminal 33.660 (1998 repl. ed.). Thus, the language used by

the trial court substantially tracked the language of Code

§ 18.2-36.1 and the Virginia Model Jury Instructions.

Instruction No. 3 adequately stated the elements of the offense.

The elements of conduct punishable as involuntary manslaughter

are precisely set forth by the General Assembly in Code

§ 18.2-36.1.

To the contrary, Instruction H did not provide the jury

with the proper legal standard by which to determine causal

connection. The proper legal standard for conduct punishable

under Code § 18.2-36.1 was established by the legislature in

1989, when they passed the statute. The standard was: any

person who, as a result of driving under the influence in

violation of subdivision (ii), (iii), or (iv) of § 18.2-266

unintentionally, causes the death of another person, shall be

guilty of involuntary manslaughter. The statute in clear and

unmistakable terms requires proof of causation, nothing more,

nothing less. In Pollard, 20 Va. App. at 99, 455 S.E.2d at 286,

we explained that Code § 18.2-36.1's "very language . . .

requires proof of causation," and "[t]he phrase, 'as a result of

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driving under the influence . . . causes the death,' requires

proof of a causal connection between the driver's intoxication

and the death of another person." Pollard correctly ruled that

the language of the statute requires proof of causation. An

instruction tracking the language in the statute is sufficient

to require proof of causation. Thus, Instruction H was

repetitious.

Instruction No. 3 given by the trial court, without

objection from appellant, stated the correct elements of the

offense charged and was a correct finding instruction setting

forth all the issues fully and fairly.

Moreover, the last paragraph of Instruction H was improper.

It is applicable to civil cases and was taken from I Virginia

Model Jury Instructions, Civil 5.000 (1998 repl. ed.). The

actual model instruction begins with the words: "A proximate

cause of an accident, injury, or damage." Id. In place of that

phrase, appellant substituted in Instruction H the phrase "the

causal connection."

In Hubbard, the Supreme Court stated, "[w]e think that by

attempting to inject inapplicable principles of civil negligence

into a criminal trial, Instructions B and C would have created

confusion and would have been misleading. Furthermore, they

would have been duplicative." 243 Va. at 15, 413 S.E.2d at

882-83. The same is true of Instruction H. Accordingly, the

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trial judge acted within his discretion when he rejected

Instruction H.

For the foregoing reasons, we affirm appellant's conviction

for aggravated involuntary manslaughter, in violation of Code

§ 18.2-36.1(B).

Affirmed.

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Benton, J., dissenting.

I.

Franklin Eugene Hall was indicted for aggravated

involuntary manslaughter and tried by a jury. In pertinent

part, Code § 18.2-36.1 provides as follows:

A. Any person who, as a result of driving
under the influence in violation of
subdivision (ii), (iii), or (iv) of [Code]
§ 18.2-266, unintentionally causes the death
of another person, shall be guilty of
involuntary manslaughter.

B. If, in addition, the conduct of the
defendant was so gross, wanton and culpable
as to show a reckless disregard for human
life, he shall be guilty of aggravated
involuntary manslaughter, a felony
punishable by a term of imprisonment of not
less than one nor more than twenty years,
one year of which shall be a mandatory,
minimum term of imprisonment.

"The statute's very language . . . requires . . . proof of a

causal connection between the driver's intoxication and the

death of another person." Pollard v. Commonwealth, 20 Va. App.

94, 99, 455 S.E.2d 283, 286 (1995); see also Castillo v.

Commonwealth, 21 Va. App. 482, 494-95, 465 S.E.2d 146, 152

(1995).

Hall proposed the following jury instruction, which the

trial judge refused:

The phrase "as a result of driving under
the influence . . . causes the death"
requires proof of a causal connection
between the driver's intoxication and the
death of another person. Therefore, even if
you find beyond a reasonable doubt that the

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 defendant was driving while intoxicated, he
cannot be found guilty of either grade of
involuntary manslaughter unless you also
find, beyond a reasonable doubt a causal
connection between the defendant's
intoxication and the death of Wayne A.
Holmes.

The causal connection required is a cause
"which in the natural and continuous
sequence, unbroken by any efficient
intervening cause, produces the injury
without which the result would not have
occurred."

"A reviewing court's responsibility in reviewing jury

instructions is 'to see that the law has been clearly stated and

that the instructions cover all issues which the evidence fairly

raises.'" Darnell v. Commonwealth, 6 Va. App. 485, 488, 370

S.E.2d 717, 719 (1988) (quoting Swisher v. Swisher, 223 Va. 499,

503, 290 S.E.2d 856, 858 (1982)).

"The purpose of an instruction is to furnish
guidance to the jury in their deliberations,
and to aid them in arriving at a proper
verdict, so far as it is competent for the
court to assist them. The chief object
contemplated in the charge of the judge is
to explain the law of the case, to point out
the essentials to be proved on the one side
or the other, and to bring into view the
relation of the particular evidence adduced
to the particular issues involved. In his
instructions the trial judge should inform
the jury as to the law of the case
applicable to the facts in such a manner
that they may not be misled."

Cooper v. Commonwealth, 2 Va. App. 497, 500, 345 S.E.2d 775, 777

(1986) (citation omitted).

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 I would hold that the trial judge erred in refusing to give

Hall's proposed instruction. The trial judge did "not [say

Hall's] statement of the law is wrong." Instead, the trial

judge ruled that Hall's instruction was redundant of the

following instruction, offered by the Commonwealth:

The defendant is charged with the crime
of aggravated involuntary manslaughter. The
Commonwealth must prove beyond a reasonable
doubt each of the following elements of that
crime:

1. That the defendant was driving a
motor vehicle; and

2. That at the time he was under the
influence of alcohol; and

3. That as a result of driving under the
influence the defendant unintentionally
caused the death of Wayne Holmes; and

4. That the defendant's conduct was so
gross, wanton and culpable as to show a
reckless disregard for human life.

If you find from the evidence that the
Commonwealth has proved beyond a reasonable
doubt each of the above elements of the
offense as charged, then you shall find the
defendant guilty, but you shall not fix the
punishment until your verdict has been
returned and further evidence is heard by
you.

If you find from the evidence that the
Commonwealth has proved beyond a reasonable
doubt each of the first three elements of
the offense as charged but you do not find
beyond a reasonable doubt that the
defendant's conduct was so gross, wanton and
culpable as to show a reckless disregard for
human life then you shall find the defendant
guilty of involuntary manslaughter, but you
shall not fix the punishment until your

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 verdict has been returned and further
evidence is heard by you.

If you find that the Commonwealth has
failed to prove beyond a reasonable doubt
any of the above offenses, then you shall
find the defendant not guilty.

The principle is well established that "[e]ach party is

entitled to have jury instructions upon vital points in language

chosen by it, if the instruction is a correct statement of the

law." Broady v. Commonwealth, 16 Va. App. 281, 291, 429 S.E.2d

468, 474 (1993); see also Jeffress v. Virginia Ry. & Power Co.,

127 Va. 694, 714, 104 S.E. 393, 399 (1920). Thus, "when a

principle of law is vital to a defendant in a criminal case, a

trial court has an affirmative duty properly to instruct a jury

about the matter." Jimenez v. Commonwealth, 241 Va. 244, 250,

402 S.E.2d 678, 681 (1991). The principle is equally well

established that it is error not to instruct the jury on a point

at issue when the jury may make findings based upon a mistaken

belief of the law. See Martin v. Commonwealth, 218 Va. 4, 7,

235 S.E.2d 304, 305 (1977) (per curiam).

Hall's defense was that the motorcyclist's own actions were

the proximate cause of his death. Because there was evidence

from which the jury could have found that Hall turned when he

had a green arrow, the issue of causal connection between Hall's

intoxication and the accident was a significant issue for the

jury to resolve. Yet, the finding instruction the Commonwealth

offered and the trial judge gave the jury sparingly stated that

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an element of the offense is "[t]hat as a result of driving

under the influence [Hall] unintentionally caused the death."

The instruction tendered by Hall was explanatory of this

instruction and would have provided the jury the proper legal

standard by which to determine the required causal connection.

It was a more complete statement of the phrase, "as a result of

driving," and was intended to inform the jury that the law

requires more than mere proof that Hall was driving while

intoxicated to establish a causal connection to the death.

Thus, Hall's instruction was appropriate and warranted.

Indeed, the trial judge clearly recognized that other

portions of the finding instruction were inadequate and gave

instructions explaining to the jury two of the finding

instruction's concepts. The jury was instructed concerning the

phrase, "under the influence of alcohol," which is referenced in

the second paragraph of the finding instruction. The trial

judge told the jury that "[a] person is under the influence of

alcohol if he has drunk enough alcoholic beverages to so affect

his manner, disposition, speech, muscular movement, general

appearance or behavior as to be apparent to observation." In

addition, the judge elaborated on the fourth paragraph of the

finding instruction by informing the jury that "[g]ross or

culpable and wanton conduct is that which indicates a callous

disregard of human life and of the probable consequences of that

conduct."

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 Hall was no less entitled to have the jury fully instructed

as to the requirements of a causal connection. The third

paragraph of the finding instruction clearly did not adequately

convey the requirement of causal connection. The refused

instruction, as were these other clarifying instructions, was

more explanatory and a fuller explication of the finding

instruction. Indeed, the refused instruction was essential to

properly inform the jury concerning the applicable law.

Furthermore, the Commonwealth's attorney rendered Hall's

proposed instruction even more important when he told the jury

the following in his closing argument:

[A]s a result of being under the influence,
[Hall] unintentionally caused the death of
Mr. Holmes. Is there any doubt about that?
He didn't set out that day to kill Mr.
Holmes, but it was the instrumentality that
he was operating while he was drunk that
killed Mr. Holmes and there isn't any
question about that.

Without Hall's proposed instruction, the jury could easily have

failed to understand that to find Hall guilty of involuntary

manslaughter, they had to find that his inebriation caused the

accident, not just that he happened to be "drunk" when the

accident occurred. For these reasons, I disagree with the

majority's holding that the finding instruction adequately

stated the elements of the offense. Accordingly, I would

reverse the conviction and remand for a new trial.

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 The majority opinion also holds that the last paragraph of

Hall's proposed instruction was improper because it was derived

from civil model jury instructions. In so finding, the majority

relies on Hubbard v. Commonwealth, 243 Va. 1, 413 S.E.2d 875

(1992). Hubbard, however, does not stand for the principle that

language which properly defines a criminal law concept is

improper simply because it is drawn from a civil jury

instruction. The Supreme Court rejected Hubbard's proposed jury

instructions because they inappropriately injected definitions

of civil negligence in a case concerning criminal negligence.

See id. at 15, 413 S.E.2d at 882-83 (holding "that by attempting

to inject inapplicable principles of civil negligence into a

criminal trial, Instructions B and C would have created

confusion and would have been misleading").

Hall merely relied on the applicable language from a civil

instruction for definitional support of a concept that is

pertinent in both criminal and civil cases. Significantly, the

trial judge did not rule that Hall's proposed instruction

misstated the law. Likewise, the Commonwealth does not suggest

that the instruction is an incorrect statement of the required

causal relationship or that it would mislead the jury. Instead,

the trial judge ruled, and the Commonwealth argues, that the

instruction is improper because it is redundant and that Hall

offered the instruction to "underscore[] the theory of [his]

case."

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 Hall's theory of the case, however, was that the jury

should be instructed upon "such language . . . [as was] in

keeping with the law." Jeffress, 127 Va. at 714, 104 S.E. at

399. None of the instructions told the jury the Commonwealth

had to prove a causal connection between Hall's inebriation and

the death of Holmes. As the majority opinion notes, Pollard

"correctly" held that Code § 18.2-36.1 requires proof of

causation. See 20 Va. App. at 99, 455 S.E.2d at 286 (holding

that the language of the statute clearly "requires . . . proof

of a causal connection between the driver's intoxication and the

death of another person"). "It is elementary that a jury must

be informed as to the essential elements of the offense; a

correct statement of the law is one of the essentials of a fair

trial." Darnell, 6 Va. App. at 488, 370 S.E.2d at 719 (internal

quotations and citations omitted).

II.

I agree with the majority opinion that the trial judge

erred in allowing the introduction in the Commonwealth's

case-in-chief of testimony regarding Hall's prior convictions

for driving under the influence of alcohol. I disagree,

however, that other admissible evidence, proving Hall had been

drinking, overshadowed the effect of the improperly admitted

evidence. The uncontested evidence in the record proved that

Hall's blood alcohol content measured .22 when tested at the

police station. Although the evidence clearly proved that Hall

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had been drinking, it did not clearly prove that Hall's drinking

caused the accident.

The evidence in the record concerning the cause of the

accident was disputed. The testimony of several witnesses who

had no connection to either Hall or the motorcyclist provided a

basis upon which the jury could have determined that Hall turned

at a time when he was privileged to do so. No evidence proved

that Hall was speeding or driving recklessly prior to the

accident. Indeed, the evidence indicated Hall was stopped at

the intersection ready to turn, seconds before the accident.

The evidence also proved that the motorcyclist that collided

with Hall in the intersection had a blood alcohol concentration

of .13, a violation of Code § 18.2-266.

Proof that Hall had prior suspensions and convictions for

driving under the influence could have led the jury to conclude

that Hall was driving with a reckless disregard for human life

in this instance. This inadmissible evidence was unduly

prejudicial because it had the tendency to affect the manner in

which the jury viewed the credibility of Hall and the witnesses

who testified that the accident had another cause. It was not

harmless because we "can[not] conclude, without usurping the

jury's fact finding function, that, had the error not occurred,

the verdict would have been the same." Lavinder v.

Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d 910, 911 (1991)

(en banc). "While the other evidence amply supports the jury's

- 33 -
verdicts, the disputed testimony may well have affected the

jury's decision." Cartera v. Commonwealth, 219 Va. 516, 519,

248 S.E.2d 784, 786 (1978). Thus, the probative value of the

improper evidence clearly did not outweigh its incidental

prejudice. See Guill v. Commonwealth, 255 Va. 134, 141-42, 495

S.E.2d 489, 492-93 (1998).

III.

Finally, I agree with the majority that the trial judge

erred in admitting the results of the "alco-sensor" breath

alcohol test. For all these reasons, I would reverse the

conviction and remand for a new trial.

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