COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Overton and Bumgardner
Argued at Salem, Virginia
HENRY ADOLPHUS THOMPSON
OPINION BY
v. Record No. 1498-97-3 JUDGE RICHARD S. BRAY
JULY 7, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
Mosby G. Perrow, III, Judge
Margaret A. Nelson, Assistant Public
Defender, for appellant.
Donald E. Jeffrey, III, Assistant Attorney
General (Mark L. Earley, Attorney General;
Leah A. Darron, Assistant Attorney General,
on brief), for appellee.
Henry Adolphus Thompson (defendant) was convicted in a bench
trial for reckless driving and feloniously driving after having
been adjudicated an habitual offender, violations of Code
§§ 46.2-852 and 46.2-357(B)(2), respectively. On appeal,
defendant complains that the evidence was insufficient to support
the convictions. We agree and reverse and remand for further
proceedings consistent with this opinion.
Under familiar principles, we view the evidence in the light
most favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom. Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).
On January 1, 1997, Lynchburg Police Officer M.R. Gillispie
was dispatched to a single car accident at 12th and Federal
Streets. Upon arrival, Gillispie found an automobile crashed
into a utility pole and medical personnel treating a passenger
for "severe head injuries." Neither the driver nor other
occupants of the vehicle were at the scene, but Gillispie soon
learned that another officer had detained a suspect a "couple
blocks from the accident." Gillispie proceeded immediately to
that location and encountered defendant, bleeding from a "visible
cut to his face and nose and . . . complaining of chest pain,"
injuries "consistent with the crushed steering wheel and the face
print on the driver's side windshield." Gillispie also observed
that defendant's eyes were "glassy," he was "unsteady on his
feet," and emitted "a strong odor of alcohol." When defendant
was unable to successfully perform a series of field sobriety
tests, Gillispie arrested him for driving under the influence of
alcohol. 1
Subsequent to arrest, defendant stated he drove the vehicle
at the time of the accident, "because the others were too drunk,"
and "had been an habitual offender for about ten years."
Although he denied drinking alcohol after the accident, defendant
admitted consuming "about four beers and two shots of liquor"
sometime previously, at an unnamed location on Federal Street.
At trial, the court, after accepting defendant's guilty plea
1
Defendant was found not guilty of driving under the
influence by the general district court. Although evidence of
intoxication was presented during the instant trial for reckless
driving, the record does not disclose defendant's blood alcohol
content, and the trial court did not find that he was intoxicated
either at the time of the accident or arrest.
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to leaving the scene of the accident in violation of Code
§ 46.2-894, convicted him upon pleas of not guilty to reckless
driving and felonious endangerment by an habitual offender, the
instant offenses. On appeal, defendant challenges the
sufficiency of the evidence to support the latter convictions.
I. Reckless Driving
Code § 46.2-852 provides, in pertinent part, that "any
person who drives a vehicle on any highway recklessly or at a
speed in a manner so as to endanger the life, limb, or property
of any person shall be guilty of reckless driving." Code
§ 46.2-852. "The word 'recklessly' as used in the statute
imparts a disregard by the driver of a motor vehicle for the
consequences of his act and an indifference to the safety of
life, limb or property." Powers v. Commonwealth, 211 Va. 386,
388, 177 S.E.2d 628, 630 (1970). "The essence of the offense
. . . lies not in the act of operating a vehicle, but in the
manner and circumstances of its operation." Id.; Hall v.
Commonwealth, 25 Va. App. 352, 355, 488 S.E.2d 651, 653 (1997).
Thus, "[t]he mere happening of an accident does not give rise to
an inference of reckless driving." Powers, 211 Va. at 388, 177
S.E.2d at 630. To convict, the Commonwealth must "prove every
essential element of the offense beyond a reasonable doubt," with
evidence which excludes "every reasonable hypothesis of innocence
and . . . consistent only with . . . guilt . . . ." Id. at 388,
177 S.E.2d at 629.
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In Hall, we considered the import of intoxication evidence
in a prosecution for reckless driving. Hall was discovered by
police "'passed out' behind the wheel" of an automobile stopped
in a heavily traveled roadway, with "ignition switch and
headlights . . . on and . . . indicator lights . . .
illuminated." Hall smelled of alcohol, was confused, unsteady,
slurred in speech and admitted "driving" the vehicle. However,
the record was silent with respect to the "manner and
circumstances" of Hall's driving. Hall, 25 Va. App. at 355, 488
S.E.2d at 653. Guided by Powers, we concluded that such
"circumstances . . . do not give rise to an inference that
[defendant] drove . . . in a reckless manner." Id. In reversing
the conviction, the panel noted that "'evidence of intoxication
is a factor that might bear upon proof of dangerousness or
reckless driving in a given case,'" but "'does not, of itself,
prove reckless driving.' '"One may be both drunk and reckless
. . . [or] reckless though not drunk . . .[, or] under the
influence of intoxicants and yet drive carefully."'" Id. at 355
n.3, 488 S.E.2d at 653 n.3 (quoting Bishop v. Commonwealth, 20
Va. App. 206, 210, 455 S.E.2d 765, 767 (1995)).
Here, assuming, without deciding, that the evidence proved
defendant had been driving the car while intoxicated at the time
of the collision, it establishes little else. The record does
not disclose the time of the accident, the manner in which
defendant drove the car, his blood alcohol level, the road
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conditions, weather, traffic controls, or other circumstances
probative of a Code § 46.2-852 violation. Reckless driving is
not a status offense, and defendant cannot be convicted upon
"speculation and conjecture as to what caused [him] to lose
control of the car." Powers, 211 Va. at 389, 177 S.E.2d at 630.
Thus, under the instant facts, we find the evidence insufficient
to support a conviction for reckless driving. 2
II. Habitual Offender Endangerment
Code § 46.2-357(B)(2) elevates driving by an habitual
offender from a misdemeanor to a felony when "such driving . . .
of itself endangers the life, limb, or property of another," Code
§ 46.2-357 (emphasis added), "language virtually identical to
that found in the statute defining reckless driving." Bishop, 20
Va. App. at 211, 455 S.E.2d at 767; Code § 46.2-852. Hence, we
also find the evidence insufficient to support a finding of
felonious habitual offender endangerment and reverse the
conviction. However, because the record clearly establishes that
defendant violated Code § 46.2-357(B)(1), the misdemeanor
offense, we remand for further proceedings, if the Commonwealth
be so advised. See Gorham v. Commonwealth, 15 Va. App. 673,
2
The Commonwealth mistakenly relies upon Kennedy v.
Commonwealth, 1 Va. App. 469, 339 S.E.2d 905 (1986), as support
for the inference that proof of defendant's intoxication
sufficiently explained the accident. In Kennedy, the evidence
clearly supported the inference that the accused "fell asleep at
the wheel," resulting in a collision. Id. at 472, 339 S.E.2d at
907. Manifestly, driving a vehicle while sleeping evinces the
disregard for the life, limb and property contemplated by Code
§ 46.2-852.
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678-79, 426 S.E.2d 493, 497 (1993).
Reversed and remanded.
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