Leake v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Coleman and Senior Judge Cole
Argued at Richmond, Virginia

ALTON CALVIN LEAKE, JR.
OPINION BY
v. Record No. 2609-96-2 JUDGE JAMES W. BENTON, JR.
APRIL 7, 1998
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
Paul M. Peatross, Jr., Judge
Francis McQ. Lawrence (Charles Y. Sipe;
St. John, Bowling & Lawrence, on brief), for
appellant.

H. Elizabeth Shaffer, Assistant Attorney
General (Richard Cullen, Attorney General, on
brief), for appellee.

Alton Calvin Leake, Jr. was convicted of a second offense of

driving a motor vehicle while under the influence of alcohol.

See Code §§ 18.2-266 and 18.2-270. On appeal, he contends (1) he

was not "operating" his vehicle when the police officer

approached it, (2) the evidence failed to prove he was under the

influence of alcohol when the officer approached his vehicle, and

(3) the evidence failed to prove his condition when he earlier

operated the vehicle. For the reasons that follow, we affirm

Leake's conviction.

I.

Officer Scott Byram of the Albemarle County Police

Department was the only witness at trial. Byram testified that

he was on patrol at 2:42 a.m., when he saw a pickup truck stopped

in the travel lane of a ramp that exits from Route 250. Both
doors of the truck were open, the engine was running, and the

headlights and taillights were illuminated.

Byram exited his police vehicle and approached the driver's

side of the truck. Looking through the truck's open driver-side

door, Byram saw Leake standing on the road beside the truck's

passenger door. Leake was bending over into the interior

compartment of the truck and placing a long knife underneath the

floorboard mat. When Byram asked Leake if everything was all

right, Leake jumped as if startled and said he was cleaning his

truck. As Leake spoke to Byram, Byram detected an odor of

alcohol coming through the truck and noticed that Leake's speech

was slurred. Byram testified that he saw no evidence of

cleaning.
Byram asked Leake to step to the rear of the truck and to

perform sobriety tests. Leake was unsteady on his feet and

staggered as he walked to the rear of the truck. At one point,

when Leake lost his balance, Byram grabbed Leake's arm to ensure

he would not fall. Byram asked if Leake had any physical or

mental handicaps. Leake said he had a depth perception problem

in one eye. Leake also said he had consumed two beers between

2:00 p.m., when he left work, and 45 minutes prior to Byram's

arrival. In response to Byram's inquiry "why he was out at this

time of the night," Leake said he had "just left his house to

ride around the block and was going straight back home." Leake

said he was alone at the truck.

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 At Byram's request, Leake began to recite the alphabet.

When Leake uttered the letters L and M, he slurred them together.

Leake stopped at the letter R and said he was dyslexic and was

having trouble completing the alphabet. Byram then asked Leake

to count backwards from 37 to 19. Leake refused. Leake also

refused to perform the "one-leg stand" test and the "heel-to-toe"

test. Byram arrested Leake.

The trial judge convicted Leake of operating a motor vehicle

in violation of Code § 18.2-266 as a second offense within five

years. See Code § 18.2-270.

II.

Code § 18.2-266 prohibits "any person to drive or operate

any motor vehicle . . . while such person is under the influence

of alcohol." Code § 46.2-100 defines "operator" as "[e]very

person who drives or is in actual physical control of a motor

vehicle upon a highway." Reading those statutes together, the

Supreme Court of Virginia has ruled that the General Assembly

intended that the word "'operate' . . . should cover an activity

in addition to driving." Gallagher v. Commonwealth, 205 Va. 666,

668-69, 139 S.E.2d 37, 39 (1964). Thus, the Court held that an

accused accelerating the motor of a vehicle, which could not move

because of a lack of traction, was operating the vehicle. See

id. In determining conduct that might be encompassed within the

term "operate any motor vehicle," the Court relied upon the

definition of "operator" and focused upon the words "actual

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physical control" of the motor vehicle. Id. See also Nicolls v.

Commonwealth, 212 Va. 257, 258-59, 184 S.E.2d 9, 11 (1971).

In Williams v. City of Petersburg, 216 Va. 297, 217 S.E.2d

893 (1975), the Court elaborated upon the term and ruled as

follows:
"Operating" not only includes the process of
moving the vehicle from one place to another,
but also includes starting the engine, or
manipulating the mechanical or electrical
equipment of the vehicle without actually
putting the car in motion. It means engaging
the machinery of the vehicle which alone, or
in sequence, will activate the motive power
of the vehicle.

216 Va. at 300, 217 S.E.2d at 896.

The evidence in Williams proved that a police officer

approached a vehicle which was stopped in a parking lot with the

motor running, its windows closed, and its doors locked. The

accused was slumped over the steering wheel. Holding that the

accused was "operating" the vehicle, the Court noted that "[f]rom

a mechanical standpoint, [the vehicle] was capable of being

immediately placed in motion . . ., that [the accused] was in

actual physical control of the vehicle and that he had engaged

the machinery of the vehicle which alone, or in sequence, would

have activated its motive power." Id.

In two more recent cases, the Court ruled that the evidence

failed to prove the accused was operating a motor vehicle. In

Overbee v. Commonwealth, 227 Va. 238, 315 S.E.2d 242 (1984), the

accused was arrested while standing in front of his vehicle with

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the hood up. The engine was not running and the key was in the

accused's pocket. Id. at 243, 315 S.E.2d at 244. Distinguishing

Gallagher, Nicolls, and Williams, the Court stated that in those

cases, the accused "was in the driver's seat and in control of

the vehicle when the police found him." Overbee, 227 Va. at 243,

315 S.E.2d at 244. The Court held that even if "Overbee's

possession of the keys may have given him the means of effecting

control of the truck, . . . [Overbee] cannot be said to have been

in actual physical control of the vehicle when he was standing in

front of it on the highway." Id.

The Supreme Court also ruled in Stevenson v. City of Falls

Church, 243 Va. 434, 438, 416 S.E.2d 435, 438 (1992), that the

accused, who was asleep behind the steering wheel of a parked

vehicle, was not operating the vehicle. Although the key was in

the ignition, "[t]he engine of the motor vehicle, and all of its

other mechanical and electrical parts were off." Id. at 435, 416

S.E.2d at 436. Discussing "the extent of the accused's activity

necessary to constitute 'actual physical control' of a vehicle,"
id. at 437-38 n.2, 416 S.E.2d at 437-38 n.2, the Court noted the

following:
In three cases, we have held that a vehicle
occupant was in "actual physical control" of
the vehicle within the meaning of Code
§ 46.1-1(17) when he was seated behind the
steering wheel and performed certain acts.
Williams v. City of Petersburg, 216 Va. 297,
301, 217 S.E.2d 893, 896 (1975) (ran engine
and made "motion" to gearshift); Nicolls v.
Commonwealth, 212 Va. 257, 258, 184 S.E.2d 9,
10 (1971) (activated headlights and heater
and ran engine with car in high gear but lack

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 of fluid in transmission made car
inoperable); Gallagher v. Commonwealth, 205
Va. 666, 670, 139 S.E.2d 37, 38 (1964)
(accelerated engine with car in gear although
car immobile because stuck in ditch).

Id. at 437, 416 S.E.2d at 437 (footnote omitted). Although

Stevenson was behind the wheel of the vehicle, the Court held

that "[b]ecause the presence of the key in the ignition switch in

the off position did not engage the mechanical or electrical

equipment of Stevenson's car, Stevenson did not 'drive or

operate' the car within the meaning of the statutes." Id. at

438, 416 S.E.2d at 438. See also Potts v. Commonwealth, 12 Va.

App. 1093, 408 S.E.2d 256 (1991).

We discern from these decisions that an accused's presence

in or about a motor vehicle when arrested is insufficient,

standing alone, to prove that the accused had "actual physical

control" of the motor vehicle. See Stevenson, 243 Va. at 438,

416 S.E.2d at 438; Overbee, 227 Va. at 243, 315 S.E.2d at 244.

This principle applies even when the evidence proved that the

accused drove the vehicle to that location at an earlier time.
See Overbee, 227 Va. at 241, 315 S.E.2d at 243. The Court's

decisions imply that presence must be coupled with some other

contemporaneous circumstance, such as the following:
moving the vehicle from one place to another,
. . . [or] starting the engine, or
manipulating the mechanical or electrical
equipment of the vehicle without actually
putting the car in motion . . . [or] engaging
the machinery of the vehicle which alone, or
in sequence, will activate the motive power
of the vehicle.

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Williams, 216 Va. at 300, 217 S.E.2d at 896. See also Propst v.

Commonwealth, 24 Va. App. 791, 794, 485 S.E.2d 657, 659 (1997).

III.

Leake argues that he was not behind the wheel of the truck

as were the accuseds in Gallagher, Nicolls, and Williams.

Relying upon Overbee, Leake further argues that he could not be

said to have been in actual physical control of the vehicle when

he was standing outside the vehicle on the passenger side. We

conclude that other circumstances exist to prove that he was

operating the truck.
The evidence proved that Leake earlier had driven the truck

to its location. Although Leake was not driving the truck when

the officer saw him, Leake told the officer he had "just left his

house to ride around the block and was going straight back home."

The truck's engine was still running, and the truck's headlights

and taillights were illuminated. The evidence also proved that

Leake was leaning into the interior compartment of the truck.

Leake told the officer he was cleaning the truck and was alone.

Although Leake was standing on the road, he was bending his

body into the interior space of his truck when the officer saw

him. That circumstance is significant because the truck's keys

were in the ignition and the motor was running. We conclude from

Stevenson and Overbee that the location of the vehicle's key in

the ignition is a relevant but not dispositive factor. The Court

ruled in Stevenson that "[b]ecause the presence of the key in the

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ignition switch in the off position did not engage the mechanical

or electrical equipment of [the accused's] car, [the accused] did

not 'drive or operate' the car within the meaning of the

statute." 243 Va. at 438, 416 S.E.2d at 438. The Court also

noted in Overbee that "[t]he engine was not running; the ignition

key had been removed." 227 Va. at 243, 315 S.E.2d at 244.

Unlike the accused in Stevenson and Overbee, Leake was

present at his truck while the truck's engine continued to run.

The mechanical and electrical equipment of the truck that Leake

had earlier engaged continued to function. Consequently, the

truck was "capable of being immediately placed in motion."
Williams, 216 Va. at 300, 217 S.E.2d at 896. Leake remained with

the truck after he had "start[ed] the engine . . . [and]

manipulat[ed] the mechanical or electrical equipment of the

vehicle . . . [and] engag[ed] the machinery of the vehicle." Id.

Significantly, no other person was present.

Leake argues he was outside the truck, as was the accused in
Overbee. The evidence proved, however, that some part of Leake's

body was in fact inside the interior of the truck. He was "bent

over doing something in the floorboard" and had been "putting a

long knife underneath the passenger floorboard mat." Under these

circumstances, Leake's continued presence in and around the truck

in the absence of any other person proved beyond a reasonable

doubt that Leake was in actual physical control of the truck.

"[T]he meaning of the word 'operate' as used in . . . [Code

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§ 18.2-266 is] not limited to the movement of the vehicle."

Nicolls, 212 Va. at 259, 184 S.E.2d at 11. Accordingly, we hold

that the evidence was sufficient to prove beyond a reasonable

doubt that Leake was operating his truck when the officer

approached him.

IV.

Leake argues that even if he was "operating" the truck at

the time the officer saw him, we must reverse the conviction.

Admitting that the "Commonwealth's evidence does show odor of

alcohol, slurred speech, unsteadiness of foot or lack of

balance," Leake argues that the evidence fails to prove either

that his behavior was caused by alcoholic beverages or that he

was intoxicated. See Miller v. Commonwealth, 214 Va. 689, 690,

204 S.E.2d 268, 269 (1974) (holding that "evidence [must tend] to

establish the agency responsible for the erratic behavior of the

accused"). Rather, Leake argues his behavior was caused by a

combination of his consuming two beers earlier in the evening,

his dyslexia and depth perception problems, and his lack of

coordination and intelligence.

Because the Commonwealth offered no chemical test of Leake's

blood or breath, the issue of Leake's intoxication had "to be

determined from all of the evidence of his condition at the time

of the alleged offense." Brooks v. City of Newport News, 224 Va.

311, 315, 295 S.E.2d 801, 804 (1982). In considering the

totality of the circumstances surrounding his condition, the

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Court may be guided by the statutory definition of intoxication.

See id. at 316, 295 S.E.2d at 804. "'Intoxicated' means a

condition in which a person has drunk enough alcoholic beverages

to observably affect his manner, disposition, speech, muscular

movement, general appearance or behavior." Code § 4.1-100.

Viewed in the light most favorable to the Commonwealth, see

Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534,

537 (1975), the evidence proved beyond a reasonable doubt that

Leake was under the influence of alcohol at the time the officer

arrived. Leake stopped his truck at 2:42 a.m. in the travel

portion of a ramp that exits the highway. The truck was not "in

the emergency lane, [the] little pull off area" adjacent to the

travel lane. Leake smelled of alcohol. Apart from intoxication,

the evidence contains no reasonable hypothesis to explain why

Leake, who was just "around the block" from his home, would stop

his truck in the travel lane of a public road in the middle of

the night, open both doors, and get out to clean the truck.

These circumstances give rise to an inference that Leake was

intoxicated when he was moving about his stopped truck in the

travel portion of the highway exit ramp. Cf. Lyons v. City of

Petersburg, 221 Va. 10, 12-13, 266 S.E.2d 880, 881 (1980)

(inferring that defendant's car was where it was at the time

because he drove it there and that he was under the influence of

alcohol at that time); Hall v. Commonwealth, 25 Va. App. 352,

355, 488 S.E.2d 651, 653 (1997) (noting that court could infer

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defendant drove her car to the area while under the influence of

alcohol); Propst, 24 Va. App. at 795, 485 S.E.2d at 659 (noting

that circumstances proved accused was under the influence of

alcohol when he stopped his truck so as to protrude into the

intersection).

In addition, the evidence proved Leake staggered as he

walked and was unsteady on his feet. At one point, Byram had to

grab Leake's arm to ensure he would not fall. Leake had an odor

of alcohol about him, his speech was slurred, and he failed to

accomplish a test given to indicate sobriety. With Leake's

admission of earlier alcohol consumption and the other signs of

intoxication (odor of alcohol, slurred speech, unsteadiness in

walking, poor balance, inability to correctly recite the

alphabet), the trial judge was not required to believe that Leake

had consumed only two beers in the twelve hours before his arrest

or that dyslexia or a depth perception problem was the cause of

Leake's unsteadiness and difficulty in reciting the alphabet.
See Williams, 216 Va. at 301, 217 S.E.2d at 896.

The evidence was sufficient to prove beyond a reasonable

doubt that Leake had "drunk enough alcoholic beverages to

observably affect his manner, disposition, speech, muscular

movement, general appearance or behavior." Code § 4.1-100.

"Accordingly, the requirements for proving [beyond a reasonable

doubt] that [Leake] was under the influence of alcohol were met

because his intoxicated condition was established and there was

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evidence which indicated the agency responsible for the

intoxication." Williams, 216 Va. at 300, 217 S.E.2d at 896.

Because the evidence was sufficient to prove beyond a

reasonable doubt that Leake was operating his vehicle while he

was intoxicated, we affirm his conviction.

Affirmed.

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