Conrad v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Benton, Coleman, Willis,
Elder, Bray, Annunziata, Bumgardner, Lemons and Frank
Argued at Richmond, Virginia

CHRISTOPHER SCOTT CONRAD
OPINION BY
v. Record No. 0321-98-2 CHIEF JUDGE JOHANNA L. FITZPATRICK
NOVEMBER 30, 1999
COMMONWEALTH OF VIRGINIA

UPON A REHEARING EN BANC

FROM THE CIRCUIT COURT OF HENRICO COUNTY
L. A. Harris, Jr., Judge

Lee W. Kilduff (Morchower, Luxton & Whaley,
on brief), for appellant.

Leah A. Darron, Assistant Attorney General
(Mark L. Earley, Attorney General, on
brief), for appellee.

Christopher Scott Conrad (appellant) appealed the trial

court's conviction for involuntary manslaughter. Appellant

argued that the evidence was insufficient to prove he acted in a

criminally negligent manner. A panel of this Court agreed and

reversed his conviction. See Conrad v. Commonwealth, 29 Va.

App. 661, 514 S.E.2d 364 (1999). We granted the Commonwealth's

request for rehearing en banc, and upon rehearing, we affirm

appellant's conviction.

I.

Under familiar principles of appellate review, we examine

the evidence in the light most favorable to the Commonwealth,
the prevailing party below, granting to it all reasonable

inferences fairly deducible therefrom. See Juares v.

Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997).

The judgment of a trial court, sitting without a jury, is

entitled to the same weight as a jury verdict and will not be

set aside unless it appears from the evidence that it is plainly

wrong or without evidence to support it. See Stevens v.

Commonwealth, 14 Va. App. 238, 240, 415 S.E.2d 881, 882-83

(1992).

So viewed, the evidence established that on May 11, 1997,

at about 9:00 a.m., on Gayton Road in Henrico County, appellant

fell asleep at the wheel of his automobile and drove off the

road, striking and killing Judy Dahlkemper, who was jogging on

the side of the road. Officer R.J. Smith (Smith) responded to

the scene. Shortly after 11:00 a.m., after examining the

physical evidence, Smith took appellant's statement. Smith

described appellant as "extremely tired" with bloodshot eyes and

a faint odor of alcohol about his person.

Appellant told Smith that he had last slept on May 10, the

day before the accident, arising at 11:00 a.m. after six hours

of sleep. It was not unusual for appellant to stay up for long

periods of time because he had been working an irregular

schedule at a retail store and playing in a band. On May 10,

appellant worked a shift at the retail store, ran errands,

practiced with his band and went to the home of a friend in

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Richmond. While at his friend's home, between about 11:00 p.m.

and 1:30 a.m., appellant consumed about fifty ounces of beer. 1

He remained at his friend's home, awake and watching television,

until about 8:45 a.m. on May 11, at which time he left to drive

home. Appellant testified that he was not sleepy before he left

for home and that it had not occurred to him that he might fall

asleep on the drive home.

Appellant traveled about twenty minutes on Interstate 64 to

Gaskins Road. As appellant exited Interstate 64, "he really got

tired and felt himself going to sleep." Because he was only

about five minutes or four-and-one-half miles from home, "he did

not really want to stop." He reported to Officer Smith that "he

ran off the road only after dozing off for a half second, caught

himself drifting four or five times, still nodding, but said he

would catch himself and said [he] would snap out of it." On

Gayton Road, a little over one-half mile from his home, he fell

asleep and heard a loud noise. He initially thought someone had

hit his car with a bottle, but then he saw the body and stopped

his vehicle.

1
When Officer Smith first asked appellant whether he had
consumed any alcohol, appellant said he had not. However, when
Smith asked appellant for consent to test his blood for alcohol,
appellant admitted his alcohol consumption. A blood test
performed "a little after noon" on May 11 was negative for drugs
or alcohol. During argument, the trial court commented,
"[T]here's no evidence that his drinking . . . was the cause of
[the accident]," and the court made no mention of appellant's
drinking in finding him guilty.

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 Another driver on the road, Mary Elizabeth Harris (Harris),

testified that she had been driving behind appellant, who was

traveling at the forty-five mile-per-hour speed limit.

Appellant traveled approximately two-tenths of a mile before

Harris saw his car veer right into a turn lane and strike the

jogger, Ms. Dahlkemper, who had been running, facing traffic, on

the edge of the turn lane near the adjacent grass. Appellant's

vehicle displayed no turn indicator and did not brake prior to

impact. Officer Smith determined that Ms. Dahlkemper had been

jogging eighteen inches from the edge of the pavement when she

was struck, and he confirmed that appellant had not applied his

brakes prior to impact.

At trial, appellant testified to substantially the same

version of events that he had given to Officer Smith at the

scene. Appellant stated that when he turned onto Gayton Road,

he began to yawn, was "incredibly close to dozing off," and "was

starting to kind of drift . . . in the road." However, he "[did

not] recall" telling Officer Smith that he had caught himself

about to doze off on four to five occasions prior to the

accident and said he believed that he told Officer Smith he had

done so only one or two times. He also said he had not gone off

the road prior to the accident but had "com[e] [within] about

. . . an inch [of] the line."

At the conclusion of the presentation of evidence by both

parties, the trial court found that appellant's actions

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constituted a gross, wanton disregard for human life, stating

the following:

What I feel I have to do is look at the
evidence under the law and see if . . . the
conduct rises to the level of reckless
driving or involuntary manslaughter. And I
think the situation is this:

* * * * * * *

You've got the fact that Mr. Conrad had
been up for 22 hours. He chose to drive the
car some distance, . . . a fairly long
distance, and did okay, under the evidence,
until he got off of [Interstate] 64. But I
think that's where the problem comes. He
got off of 64, and at that point, as
described both to Officer Smith, as well as
his own testimony today, . . . he felt
himself just about going to sleep. And to
an extent, as he very well described, his
car just drifted over to the right, but he
was able to catch it on four or five
different occasions, as he told Officer
Smith, and that he was, in fact, nodding in
and out.

. . . And under those circumstances,
he's driving after he's been up for 22
hours, after he knows that he is about to
fall asleep to an extent that it's affecting
his operation of the motor vehicle. He
chose to continue to drive for 45 miles an
hour in the residential area, not that
that's exceeding the speed limit, because it
is not, but driving at that speed to try to
get home.

And I think from the evidence that, at
that time, that he was operating that motor
vehicle in a state that he knew very well or
should have known very well that he may, in
fact, fall asleep. . . .

(Emphasis added). The trial court concluded that appellant's

conduct was "gross, wanton, and culpable, [and] showed a

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disregard for human life." Accordingly, the trial court

convicted appellant of involuntary manslaughter, in violation of

Code § 18.2-36.

II.

When the sufficiency of the evidence is challenged on

appeal, we determine whether the evidence, viewed in the light

most favorable to the prevailing party below, and the reasonable

inferences fairly deducible from that evidence support each and

every element of the charged offense. See Moore v.

Commonwealth, 254 Va. 184, 186, 491 S.E.2d 739, 740 (1997); Derr

v. Commonwealth, 242 Va. 413, 424, 410 S.E.2d 662, 668 (1991).

"In so doing, we must 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." Watkins v.

Commonwealth, 26 Va. App. 335, 349, 494 S.E.2d 859, 866 (1998).

We will not reverse the judgment of the trial court, sitting as

the finder of fact in a bench trial, unless it is plainly wrong

or without evidence to support it. See Martin v. Commonwealth,

4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).

"[I]nvoluntary manslaughter in the operation of a motor

vehicle [is defined] as an 'accidental killing which, although

unintended, is the proximate result of negligence so gross,

wanton, and culpable as to show a reckless disregard of human

life.'" Greenway v. Commonwealth, 254 Va. 147, 154, 487 S.E.2d

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224, 228 (1997) (quoting King v. Commonwealth, 217 Va. 601, 607,

231 S.E.2d 312, 316 (1977)). "[A] higher degree of negligence

in the operation of a motor vehicle is required to establish

criminal liability for involuntary manslaughter than to

establish liability in a civil action for ordinary or even gross

negligence. This higher degree of negligence has come to be

known as 'criminal negligence.'" Keech v. Commonwealth, 9 Va.

App. 272, 277, 386 S.E.2d 813, 816 (1989).

"[Criminal negligence] must be more than
mere inadvertence or misadventure. It is a
recklessness or indifference incompatible
with a proper regard for human life."
Criminal negligence has also been defined as
conduct "so gross, wanton, and culpable as
to show a reckless disregard of human life,"
and conduct "so flagrant, culpable, and
wanton as to show utter disregard of the
safety of others under circumstances likely
to cause injury," and conduct "so gross and
culpable as to indicate a callous disregard
of human life."

Id. at 278, 386 S.E.2d at 816 (citations omitted). As we stated

in Keech, "[t]hese various definitions make clear that the

distinction between the negligence which will support a

conviction of involuntary manslaughter involving the operation

of a motor vehicle and the negligence that will merely support a

civil action is one of degree." Id.

"'The law recognizes three degrees of negligence, (1)

ordinary or simple, (2) gross, and (3) willful, wanton and

reckless.'" Tubman v. Commonwealth, 3 Va. App. 267, 270, 348

S.E.2d 871, 873 (1986) (quoting Griffin v. Shively, 227 Va. 317,

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321, 315 S.E.2d 210, 212 (1984)). Ordinary negligence is

"failure to use 'that degree of care which an ordinarily prudent

person would exercise under the same or similar circumstances to

avoid injury to another.'" Id. at 271, 348 S.E.2d at 873

(quoting Griffin, 227 Va. at 321, 315 S.E.2d at 212-13). Gross

negligence "is a manifestly smaller amount of watchfulness and

circumspection than the circumstances require of a person of

ordinary prudence. . . . It falls short of being such reckless

disregard of probable consequence as is equivalent to a willful

and intentional wrong." Newell v. Riggins, 197 Va. 490, 495, 90

S.E.2d 150, 153 (1955) (citation omitted). Finally, criminal or

willful and wanton negligence "'"involves a greater degree of

negligence than gross negligence, particularly in the sense that

in the former an actual or constructive consciousness of the

danger involved is an essential ingredient of the act or

omission."'" Tubman, 3 Va. App. at 271, 348 S.E.2d at 873

(quoting Griffin, 227 Va. at 321-22, 315 S.E.2d at 213 (quoting

Boward v. Leftwich, 197 Va. 227, 231, 89 S.E.2d 32, 35 (1955))).

Criminal negligence as the basis for involuntary

manslaughter is judged under an objective standard and,

therefore, may be found to exist where the offender either knew

or should have known the probable results of his acts. See

Keech, 9 Va. App. at 279, 386 S.E.2d at 817 (citing Bell v.

Commonwealth, 170 Va. 597, 611-12, 195 S.E. 675, 681 (1938)).

Thus, criminal negligence "'is acting consciously in disregard

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of another person's rights or acting with reckless indifference

to the consequences, with the defendant aware, from his

knowledge of existing circumstances and conditions, that his

conduct probably would cause injury to another.'" Tubman, 3 Va.

App. at 271, 348 S.E.2d at 873 (emphasis added) (quoting

Griffin, 227 Va. at 321, 315 S.E.2d at 213; Friedman v. Jordan,

166 Va. 65, 68, 184 S.E. 186, 187 (1935)).

We have not addressed whether a driver who previously has

fallen asleep while driving and who subsequently, during that

same trip, again falls asleep causing an injury or death is

guilty of involuntary manslaughter. However, our decision in

Hargrove v. Commonwealth, 10 Va. App. 618, 394 S.E.2d 729

(1990), provides some guidance. In Hargrove, the defendant fell

asleep while driving home after working the

midnight-to-8:00-a.m. shift, striking and killing a pedestrian

who was walking across the highway. See id. at 620, 394 S.E.2d

at 730-31. The defendant made a statement at the accident scene

that he was "extremely tired," he dozed off "for one second" and

the accident occurred. Id. at 620, 394 S.E.2d at 731.

We noted in Hargrove that courts in other states have found

that "when a driver falls asleep and causes death a jury issue

is created on the issue of whether it constituted involuntary

manslaughter." Id. at 621, 394 S.E.2d at 731 (citations

omitted). However, in reversing Hargrove's conviction for

involuntary manslaughter, we concluded that the evidence failed

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to show that he should have known that his conduct constituted a

reckless disregard for human life. We wrote:

In this case, all the record shows about
Hargrove is that he had worked the previous
night and was "extremely tired" and in need
of sleep. We do not know . . . that
Hargrove should have known that it was not
improbable that he would fall asleep during
his travel from the workplace to home. . . .
In this case, the record is devoid of
evidence as to the distance or time it would
have required Hargrove to drive from work to
home. . . . The evidence does not exclude
the reasonable hypothesis that, although
Hargrove had worked all night, he had not
fallen asleep, had not previously dozed
during the trip before the accident, and,
although tired and in need of sleep and
having only a short distance or a trip of a
few minutes to reach his home, he could
reasonably have believed that he could
negotiate his vehicle a short distance
without endangering human life.

Id. at 621-22, 394 S.E.2d at 731-32 (emphasis added). Thus, we

recognized in Hargrove that if the defendant "had been operating

his vehicle for a number of hours in a tired and sleepy

condition, or while in such a state undertook a trip of such a

substantial distance or time that he should have known he might

fall asleep, the evidence might support a finding that he was

acting in reckless disregard for human life." Id. at 621-22,

394 S.E.2d at 731.

Our Supreme Court has recently enunciated the following

principles of appellate review in a voluntary manslaughter case:

When a defendant challenges on appeal the
sufficiency of the evidence to sustain his
conviction, it is the duty of an appellate

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 court to examine the evidence that tends to
support the conviction and to permit the
conviction to stand unless the conviction is
plainly wrong or without evidentiary
support. If there is evidence to support
the conviction, an appellate court is not
permitted to substitute its own judgment for
that of the finder of fact, even if the
appellate court might have reached a
different conclusion.

Additionally, upon appellate review,
the evidence and all inferences reasonably
deducible therefrom must be examined in the
light most favorable to the Commonwealth,
the prevailing party in the trial court.
Any evidence properly admitted at trial is
subject to this review.

Presley v. Commonwealth, 256 Va. 465, 466-67, 507 S.E.2d 72, 72

(1998) (citations omitted).

Adhering to these well established principles, we conclude

the evidence was sufficient to prove criminal negligence on

appellant's part. Indeed, the facts of the instant case were

almost presciently stated in Hargrove, where we noted that had

the evidence in that case shown a propensity to fall asleep or

nod off while driving, such evidence could support a finding

that the accused was "acting in reckless disregard for human

life." Hargrove, 10 Va. App. at 621-22, 394 S.E.2d at 731-32.

Here, appellant had been up for twenty-two hours without sleep

and chose to drive his vehicle "a fairly long distance" to his

home in the early morning. After he exited the interstate onto

Gaskins Road, he "really got tired" and "felt himself going to

sleep" but did not want to stop because he was only five minutes

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from home. Appellant told Officer Smith that "he nodded in and

out, . . . he ran off the road only after dozing off for a half

second, caught himself drifting four or five times, still

nodding, but . . . he would catch himself and . . . he would

snap out of it." The trier of fact accepted the Commonwealth's

evidence that appellant had dozed off four or five times prior

to the impact with the victim. See Montgomery v. Commonwealth,

221 Va. 188, 190, 269 S.E.2d 352, 353 (1980) (per curiam)

("[E]ven if the defendant's story was not inherently incredible,

the trier of fact need not have believed the explanation.").

Under the circumstances of this case, we conclude that

sufficient evidence supports the trial court's finding that

appellant should have known that his "dozing off" four or five

times affected his driving abilities and, therefore, should have

known of the risks that his driving conduct created. See Keech,

9 Va. App. at 279, 386 S.E.2d at 817 (noting that criminal

negligence is framed "in terms of a great risk of injury coupled

with an objective awareness of that risk on the part of the

offender"). We also conclude that appellant's decision to

continue driving in such an impaired state was a callous act of

indifference to the safety of others. Accordingly, appellant's

involuntary manslaughter conviction is affirmed.

Affirmed.

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Elder, J., with whom Benton, Coleman and Annunziata, JJ., join,
dissenting.

I disagree with the majority's legal conclusion. I would

hold that the evidence is insufficient, as a matter of law, to

support an involuntary manslaughter conviction. I believe the

evidence fails to support a finding that appellant knew or

should have known that driving no more than five minutes to his

home once he became sleepy was "'likely to cause injury'" and

that his failure to stop under such circumstances was "'so gross

and culpable as to indicate a callous disregard of human life.'"

Keech v. Commonwealth, 9 Va. App. 272, 278, 386 S.E.2d 813, 816

(1989) (citations omitted). Therefore, I respectfully dissent.

The Virginia Supreme Court has acknowledged that "the

application of distinctions between [the various] degrees of

negligence [recognized by the law] is frequently difficult to

apply." Town of Big Stone Gap v. Johnson, 184 Va. 375, 379, 35

S.E.2d 71, 73 (1945). Although the majority correctly sets

forth the general principles of law governing the crime of

involuntary manslaughter, I consider it helpful to further

clarify the distinctions. Ordinary negligence is "failure to

use 'that degree of care which an ordinarily prudent person

would exercise under the same or similar circumstances to avoid

injury to another.'" Tubman v. Commonwealth, 3 Va. App. 267,

271, 348 S.E.2d 871, 873 (1986) (quoting Griffin v. Shively, 227

Va. 317, 321, 315 S.E.2d 210, 212-13 (1984)). Gross negligence

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"is a manifestly smaller amount of watchfulness and

circumspection than the circumstances require of a person of

ordinary prudence." Newell v. Riggins, 197 Va. 490, 495, 90

S.E.2d 150, 153 (1955). It is "that degree of negligence which

shows indifference to others as constitutes an utter disregard

of prudence . . . . It must be such a degree of negligence as

would shock fair minded men although something less than willful

recklessness[, i.e., criminal negligence]." Ferguson v.

Ferguson, 212 Va. 86, 92, 181 S.E.2d 648, 653 (1971) (emphasis

added). Finally, criminal or willful and wanton negligence is

"'[m]arked by or manifesting arrogant recklessness of justice,

of the rights or feelings of others, . . . merciless;

inhumane.'" Forbes v. Commonwealth, 27 Va. App. 304, 310, 498

S.E.2d 457, 459 (1998) (citation omitted) (emphasis added).

These distinctions establish that criminal responsibility

cannot be predicated upon every act carelessly performed merely

because the carelessness results in the death of another.

Rather, the negligence must be of such a high degree of

"carelessness or recklessness" that the act of commission or

"'omission must be one likely to cause death.'" Goodman v.

Commonwealth, 153 Va. 943, 948, 151 S.E. 168, 169 (1930)

(citation omitted) (emphasis added). For example, it is settled

law in Virginia that "[a]nyone who falls asleep while operating

an automobile on a public road is guilty of a degree of

negligence exceeding lack of ordinary care." Kennedy v.

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Commonwealth, 1 Va. App. 469, 473, 339 S.E.2d 905, 907-08

(1986); see Newell, 197 Va. at 494, 90 S.E.2d at 152 (in civil

context, observing "fact that [a driver] who permits himself to

go to sleep while driving is sufficient to make out a prima

facie case of want of due and proper care"). Such behavior also

may be "sufficient to find the operator guilty of the offense of

reckless driving." Kennedy, 1 Va. App. at 473, 339 S.E.2d at

907-08 (upholding reckless driving conviction where driver

admitted he had been sleepy fifteen minutes before unexplained

accident and evidence established that family had been on the

road for eight hours and that vehicle left no skid marks or

other evidence of braking prior to running off the road).

However, such evidence, standing alone, proves no more than

ordinary negligence or reckless driving and will not support a

finding of criminal negligence required for an involuntary

manslaughter conviction. See King v. Commonwealth, 217 Va. 601,

605-06, 231 S.E.2d 312, 316 (1977) (citing Richardson v.

Commonwealth, 192 Va. 55, 63 S.E.2d 731 (1951)).

A conviction for reckless driving requires proof of driving

"on a highway recklessly or at a speed or in a manner so as to

endanger the life, limb, or property of any person." Code

§ 46.2-852. Violation of this statute "is insufficient to bring

the negligent act within the common law definition of

manslaughter unless it is so flagrant, culpable, and wanton as

to show utter disregard of the safety of others under

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circumstances likely to cause injury." King, 217 Va. at 605-06,

231 S.E.2d at 316; see also Darnell v. Commonwealth, 6 Va. App.

485, 489-92, 370 S.E.2d 717, 719-21 (1988) (applying King

rationale to violation of statute prohibiting reckless handling

of firearm and rejecting argument that such reckless handling

equates to recklessness required to prove criminal negligence

element of involuntary manslaughter). King clearly

distinguishes between acts which constitute reckless driving and

acts of recklessness which constitute involuntary manslaughter.

Some states provide by statute that certain acts

proximately causing death are crimes. See King, 217 Va. at

605-06, 231 S.E.2d at 316 (citing Annotation, 20 A.L.R.3d 473

(1968)). Virginia's legislature has enacted such a statute,

providing that an unintentional death which results from an act

of driving under the influence in violation of specified

portions of Code § 18.2-266 constitutes involuntary

manslaughter. See Code § 18.2-36.1. Such a conviction requires

no proof that "the conduct of the defendant was so gross, wanton

and culpable as to show a reckless disregard for human life,"

and if the Commonwealth makes such a showing, the defendant is

subject to greater punishment for "aggravated involuntary

manslaughter." Id. The legislature, however, has not provided

that death resulting from falling asleep while driving

constitutes involuntary manslaughter as a matter of law.

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 To make such a finding, a court must conclude that the act

of negligence proximately causing the death would do more than

"shock fair minded men," the language of the standard for gross

negligence. See Ferguson, 212 Va. at 92, 181 S.E.2d at 653.

Instead, it must be negligence "so flagrant, culpable, and

wanton as to show utter disregard of the safety of others under

circumstances likely to cause injury." King, 217 Va. at 605-06,

231 S.E.2d at 316 (emphasis added). As quoted above, we have

previously characterized criminal negligence as "'manifesting

[an] arrogant recklessness of justice'" and rising to the level

of being "'merciless'" or "'inhumane.'" Forbes, 27 Va. App. at

310, 498 S.E.2d at 459 (citation omitted) (emphasis added). In

assessing the degree of negligence involved, a court must

consider all "existing circumstances and conditions." Tubman, 3

Va. App. at 271, 348 S.E.2d at 873.

I do not believe the evidence supports a finding that

appellant acted mercilessly or inhumanely when he concluded,

albeit incorrectly, that he could safely complete his trip to

his home, which was only four-and-one-half miles away when he

first became sleepy. In affirming appellant's conviction, the

majority relies in part on this Court's decision in Hargrove v.

Commonwealth, 10 Va. App. 618, 394 S.E.2d 729 (1990). It

observes that the facts of appellant's case "were almost

presciently stated in Hargrove, where we noted that had the

evidence . . . shown a propensity to fall asleep or nod off

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while driving, such evidence could support a finding that the

accused was 'acting in reckless disregard for human life.'" In

reversing the involuntary manslaughter conviction in Hargrove,

we held:

[T]he evidence does not exclude the
reasonable hypothesis that, although
Hargrove had worked all night, he had not
fallen asleep, had not previously dozed
during the trip before the accident, and,
although tired and in need of sleep and
having only a short distance or a trip of a
few minutes to reach his home, he could
reasonably have believed that he could
negotiate his vehicle a short distance
without endangering human life.

Id. at 622, 394 S.E.2d at 731-32. I believe the majority

erroneously utilizes Hargrove to support its holding.

First, we did not hold in Hargrove that a driver's

"[having] previously dozed during the trip before the accident"

mandated a finding, or even was sufficient to support a finding,

that the driver was on notice that he would fall asleep again,

causing injury to another, before reaching his destination. See

id. at 622, 394 S.E.2d at 732. Even if we purported to make

such a finding in Hargrove, it would have been dicta, for no

evidence indicated that Hargrove, in fact, had previously fallen

asleep during his travel from work to home. The facts in

Hargrove proved only that Hargrove knew he was sleepy before

leaving for home, which we found insufficient to prove the

criminal negligence necessary to support an involuntary

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manslaughter conviction. See id. at 621-22, 394 S.E.2d at

731-32.

Second, Hargrove erroneously attempted to distinguish the

events in Hargrove from those in Kennedy v. Commonwealth, 1 Va.

App. 469, 339 S.E.2d 905 (1986). See Hargrove, 10 Va. App. at

621-22, 394 S.E.2d at 731-32. In Kennedy, we affirmed a

conviction for reckless driving upon evidence establishing that

Kennedy knew he was tired and subsequently fell asleep at the

wheel, running off the road. See Kennedy, 1 Va. App. at 472-73,

339 S.E.2d at 907-08. However, no death resulted from Kennedy's

reckless driving, and we had no occasion to consider whether

Kennedy's acts amounted to criminal negligence. See King, 217

Va. at 605-06, 231 S.E.2d at 316 (holding that reckless driving

conviction does not require proof of criminal negligence).

Therefore, Hargrove's attempt to distinguish Kennedy also is

dicta and does not control the outcome of this case. 2

2
In Hargrove, in its unnecessary effort to distinguish the
facts in Kennedy, the panel noted that Kennedy involved a driver
who "knew he was fatigued and sleepy and had been driving
several hours in that condition before the accident." Hargrove,
10 Va. App. at 621, 394 S.E.2d at 731. However, the opinion in
Kennedy does not support the assertion that Kennedy "had been
driving several hours in [a fatigued and sleepy] condition."
Although Kennedy had napped earlier and had been driving for
several hours, the only evidence described in the opinion
regarding fatigue in the period of time leading up to the
accident indicated that appellant "had pulled into a rest stop
fifteen minutes earlier to take a nap because he was sleepy" but
that he felt refreshed and capable of proceeding after simply
walking around. See Kennedy, 1 Va. App. at 470-72, 339 S.E.2d
at 906-07.

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 Third, the language in Hargrove necessary to the decision

in that case does not support the result the majority reaches.

Had appellant fallen asleep and struck the jogger immediately

after exiting Interstate 64 onto Gaskins Road before becoming

tired, he would have been no more culpable than Hargrove and

perhaps even less so. Hargrove knew he was tired before he

dozed off and struck the pedestrian, and the record did not

establish how far he had to drive. See Hargrove, 10 Va. App. at

621, 394 S.E.2d at 731. Appellant, however, was not tired until

he reached a point only five minutes from home. Therefore, when

appellant exited Interstate 64, "he could reasonably have

believed that he could negotiate his vehicle a short distance

without endangering human life." See id. at 622, 394 S.E.2d at

732. Of course, the evidence establishes that, after appellant

exited the interstate, he became sleepy and felt himself "[run]

off the road . . . after dozing off for [only] a half second."

However, to conclude that appellant acted mercilessly or

inhumanely in failing to pull over the instant he felt himself

doze would be to ignore other "existing circumstances and

conditions" in the case. Those other circumstances indicate

that appellant, who was less than five minutes from home at that

point, "caught himself drifting four or five times" but was able

to "catch himself and . . . snap out of it" on each occasion.

Thereafter, for about two-tenths of a mile before leaving the

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road and striking the jogger, appellant maintained the speed

limit and engaged in no weaving or other erratic driving.

Although appellant testified he was not sleepy before he

left his friend's home, the trial court was entitled to

disbelieve and reject appellant’s testimony. See Speight v.

Commonwealth, 4 Va. App. 83, 88, 354 S.E.2d 95, 98 (1987) (en

banc). However, rejecting that explanation did not provide

affirmative evidence that appellant was, in fact, sleepy before

he left his friend's home. Therefore, the evidence, viewed in

the light most favorable to the Commonwealth, did not exclude

the reasonable hypothesis that appellant became sleepy, as he

told Officer Smith, only after leaving Interstate 64, when he

was only five minutes from home. Under all these circumstances,

I cannot conclude that appellant knew or should have known that

his conduct in proceeding the short distance to his home "likely

would cause injury to another" or that he acted mercilessly or

inhumanely in failing to stop. That his conduct did, in fact,

result in death is tragic and may constitute ordinary or even

gross negligence, but it does not, without more, support a

finding of criminal negligence.

For these reasons, I would reverse appellant's conviction.

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