COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Coleman and Bray
Argued at Richmond, Virginia
DON MEREDITH COTTEE
OPINION BY
v. Record No. 2242-98-2 JUDGE RICHARD S. BRAY
FEBRUARY 1, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF GLOUCESTER COUNTY
William H. Shaw, III, Judge
John C. Jones, Jr., for appellant.
Richard B. Smith, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Don Meredith Cottee (defendant) was convicted, in a bench
trial, on indictments charging two counts of aggravated
involuntary manslaughter in violation of Code § 18.2-36.1(B).
On appeal, defendant contends that the trial court erroneously
"determined that [his] degree of intoxication by blood alcohol
demonstrate[d] . . . additional conduct so gross, wanton, and
culpable as to show a reckless disregard for human life" within
the intendment of Code § 18.2-36.1(B). Finding no error, we
affirm the trial court.
To convict for a violation of Code § 18.2-36.1(B), the
Commonwealth must prove, inter alia, conduct by an accused "so
gross, wanton and culpable as to show a reckless disregard for
human life[.]" Code § 18.2-36.1(B). 1 Such conduct "has come to
be known as 'criminal negligence'" in the context of common law
vehicular involuntary manslaughter and requires "'acts of
commission or omission of a wanton or willful nature, showing a
reckless or indifferent disregard of the rights of others, under
circumstances reasonably calculated to produce injury . . . and
the offender knows or is charged with the knowledge of, the
probable results of his acts.'" Keech v. Commonwealth, 9 Va. App.
272, 277, 279, 386 S.E.2d 813, 816, 817 (1989) (emphasis omitted)
(citations omitted).
Defendant argued before the trial court that intoxication
alone was insufficient to evince the "gross, wanton and culpable"
conduct necessary to establish aggravated involuntary manslaughter
in violation of Code § 18.2-36.1(B). While acknowledging that
evidence of an "alcohol level such that . . . impair[ment] . . .
was just so gross and had affected motor skills in such a way that
[an accused] was driving nearly comatose . . . might have some
1
Code § 18.2-36.1 provides, in pertinent part:
A. 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.
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 . . . .
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bearing" on aggravation, defendant maintained that, before
"intoxication can go to the issue of wantonness and recklessness,"
"the Commonwealth would . . . have to show the particular effect
on a particular individual," proof which he found wanting on the
instant record. Thus, defendant's argument, both at trial and on
appeal, presumes that the level of intoxication was the only
aggravating circumstance in evidence to support the convictions,
an assertion belied by the record.
In considering the sufficiency of the evidence on appeal,
"'we review the [record] 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) (citation omitted). "[T]he decision of
a trial court sitting without a jury is afforded the same weight
as a jury's verdict and will not be disturbed unless plainly wrong
or without evidence to support it." Armstrong v. Commonwealth, 29
Va. App. 102, 113, 510 S.E.2d 247, 252 (1999).
Here, the testimony of Michael and Jacqueline Dupuis
established that the fatal accident occurred on a "dark," "wide,"
"two lane" rural road at "approximately 8:00 [p.m.]" on a winter
evening. Mr. Dupuis was driving the couple home when "all of a
sudden" the headlights of a vehicle operated by defendant "turned
on instantly," just ahead and "[a]ll the way" in the Dupuis
traffic lane. Within "a split second," the vehicles collided,
resulting in the death of two passengers traveling with defendant.
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Physical evidence at the accident scene confirmed that the
"impact" had occurred in the Dupuis lane.
In a post-arrest interview with Trooper J.E. Ganghorn,
defendant admitted "driving around drinking beer mostly," "just
riding around racing," "all over the place," for several hours
prior to the accident. Defendant recalled, with laughter,
consuming "right much" beer, "lost count" of the quantity, and was
unsure "if [he] was on [Dupuis'] side of the road" at the time of
the collision. Incidental to his investigation of the offenses,
the trooper counted "[a]t least 30 beer bottles and cans" in
defendant's vehicle, "most of them . . . empty." Hospital tests
conducted immediately following the accident fixed defendant's
blood alcohol concentration at .23%, a level which a physician
witness opined "would impair a lot of motor activities or
capabilities of reflex actions, visual identification and other
. . . of our activities."
In convicting defendant, the trial judge commented:
I find the evidence sufficient in each of
these cases to find him guilty of aggravated
involuntary manslaughter.
We have a man that's clearly, clearly
intoxicated, heavily intoxicated. He's on
the wrong side of the road. I mean, it's
simple. He's driving down the road and he's
-- the road curves and he didn't. And that's
really what this is about.
And I heard the testimony of Mr. Dupuis. He
said this is an open area and the pictures
indicate that. And it was dark, there were
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no lights, and all of a sudden there are
lights right in front of him.
Both operating a vehicle on the wrong side of the roadway,
see Zirkle v. Commonwealth, 189 Va. 862, 55 S.E.2d 24 (1949), and
without headlights after dark, see Bell v. Commonwealth, 170 Va.
597, 195 S.E. 675 (1938), are acts sufficient to support a
conviction for common law vehicular involuntary manslaughter.
Manifestly, willfully engaging simultaneously in such gross,
wanton and culpable conduct, after prolonged and excessive
consumption of alcohol had substantially impaired both motor and
intellectual functions, would evince a mindset indifferent to the
safety of others.
Thus, the several acts of egregious misconduct established by
the instant record combined to clearly aggregate the requisite
gross, wanton and culpable behavior reflective of that reckless
disregard for human life contemplated by Code § 18.2-36.1(B).
Accordingly, we affirm the convictions.
Affirmed.
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