COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Clements and Senior Judge Hodges
Argued at Richmond, Virginia
HERBERT H. COUSINS
MEMORANDUM OPINION * BY
v. Record No. 2140-02-2 JUDGE WILLIAM H. HODGES
JUNE 24, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRICO COUNTY
George F. Tidey, Judge
H. Pratt Cook, III (Robert Cabell &
Associates, on brief), for appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
Herbert H. Cousins, appellant, appeals his conviction for
driving or operating a motor vehicle while under the influence of
alcohol, in violation of Code § 18.2-266. On appeal, he contends
the evidence was insufficient to prove he committed the offense,
based on the reasonable hypothesis that his erratic driving was
caused by an anxiety attack. We affirm the trial court's
decision.
BACKGROUND
At 8:15 p.m. on December 15, 2001, Officer Johnakin observed
appellant driving a motor vehicle. Johnakin saw the vehicle
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
make a wide right turn. The vehicle traveled across the double
yellow divider lines in the center of a two-lane road and into
the oncoming travel lane. Johnakin followed appellant's vehicle
for about one mile, and he saw it weave several times, crossing
the solid line on the right of its travel lane and crossing the
double yellow lines on the left of its travel lane. Johnakin
stopped appellant and smelled an odor of alcohol about
appellant's person. Appellant's eyes were red and glassy, and
his speech was slightly slurred.
Appellant told Johnakin that he was diabetic, but he had
not taken any insulin. Appellant also told Johnakin that he had
consumed three beers and he was taking the medication Diazapam.
Johnakin asked appellant if he had any physical handicaps that
would prevent him from performing field sobriety tests.
Appellant replied, "No." Appellant then passed the alphabet
test. However, appellant missed several steps on the heel to
toe test, stepped off the line several times, and raised his
arms during the test. Johnakin testified that the lighting
conditions were good where the tests were conducted.
Appellant told Johnakin he was "too nervous" to perform the
one legged stand test, and he claimed he was having an anxiety
attack. Appellant said he was "fine to drive," and he told
Johnakin, "You have what you need." Appellant then said he
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needed an ambulance, and a rescue squad transported appellant to
a hospital.
Johnakin arrested appellant at 8:36 p.m. At 9:03 p.m.,
Johnakin read appellant the implied consent law. Appellant said
he was not going to take any test. A nurse read the implied
consent to appellant again, and appellant refused to sign the
declaration of refusal. Appellant also refused to take a blood
test. Another officer again read the implied consent to
appellant in the presence of Officer Carle, who signed as a
witness on the refusal form.
Dr. Arthur Ernst saw appellant in the emergency room on the
night of the incident. Dr. Ernst testified that a person
driving a motor vehicle while having an anxiety attack could
drive erratically as if he was intoxicated. Dr. Ernst had not
made a note in his record that appellant smelled of alcohol when
he saw him. Dr. Ernst stated that, as a matter of course, he
notes whether a patient smells of alcohol, and that, therefore,
he had not smelled alcohol on appellant. On cross-examination,
Dr. Ernst stated that alcohol diminishes from the body over
time.
Appellant testified that he felt ill on the night of
December 15 and that, when he saw the officer following him, he
began to feel anxious. He also stated that he told Johnakin he
was having a panic attack and he wanted to get medication from
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his glove compartment. Appellant testified that no one
explained anything to him about signing a form and no one read
the refusal form to him. He stated that he had consumed "about
two beers" prior to the stop and was taking Lorazepam for
anxiety attacks, which he had experienced in the past.
Appellant also testified that he asked Johnakin to call a rescue
squad, but Johnakin refused.
On rebuttal, Officer Carle testified that she witnessed the
refusal form being read to appellant at the hospital.
Appellant moved to strike the evidence on the ground that
the Commonwealth failed to exclude the reasonable hypothesis
that his erratic driving was caused by an anxiety attack. The
trial court denied the motion and found appellant guilty of
driving under the influence of alcohol.
ANALYSIS
"On appeal, 'we review the evidence 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).
[W]e review the jury's decision to see if
reasonable jurors could have made the
choices that the jury did make. We let the
decision stand unless we conclude no
rational juror could have reached that
decision. "[I]f there is evidence to
sustain the verdict, this Court should not
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overrule it and substitute its own judgment,
even if its opinion might differ from that
of the jury."
Pease v. Commonwealth, 39 Va. App. 342, 355, 573 S.E.2d 272, 278
(2002) (en banc) (citation omitted). The same standard applies
when a trial judge sits as the fact finder because "the court's
judgment is accorded the same weight as a jury verdict."
Shackleford v. Commonwealth, 262 Va. 196, 209, 547 S.E.2d 899,
907 (2001).
Although appellant testified that he began to have an
anxiety attack when he saw the police car behind him, the trial
court was not required to accept appellant's explanation for his
erratic driving. "[T]he [fact finder] was not required to
believe the defendant's explanation, and if that explanation is
not believed, the [fact finder] may infer that the accused is
lying to conceal his guilt." Black v. Commonwealth, 222 Va.
838, 842, 284 S.E.2d 608, 610 (1981).
Furthermore, appellant testified that he had consumed
"about two beers" prior to driving, whereas he told Johnakin at
the scene that he drank three beers before driving. Appellant
also testified that he requested an ambulance at the scene, but
Johnakin refused to call one. However, the evidence showed that
a rescue squad transported appellant to the hospital. In
addition, appellant testified that no one read the refusal form
to him. However, several officers testified to the contrary.
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Although the doctor testified that a person driving a motor
vehicle while having an anxiety attack could drive erratically,
he did not testify that appellant had experienced an anxiety
attack on the night of the incident. Moreover, Johnakin
testified that, at the scene of the stop, he smelled alcohol
about appellant's person, appellant's eyes were red and glassy,
and appellant's speech was slurred. In addition, as discussed
above, appellant admitted that he had consumed alcohol prior to
driving. Furthermore, although the doctor did not indicate in
his notes that he detected an odor of alcohol about appellant's
person, the doctor also stated that alcohol diminishes from the
body over time.
"After determining credibility and assessing the weight of
the testimony, the [fact finder] must ascertain what reasonable
inferences arise from the facts [he] found proven by that
testimony." Pease, 39 Va. App. at 354, 573 S.E.2d at 278.
[T]he [fact finder] decides if the proven
facts, and the reasonable inferences drawn
from them, establish guilt beyond a
reasonable doubt. If so, the [fact finder]
. . . convicts. If the [fact finder]
decides that a theory of innocence remains
and the theory is reasonable, [the fact
finder] . . . acquits. "Whether an
alternative hypothesis of innocence is
reasonable is a question of fact . . . ."
Id. at 355, 573 S.E.2d at 278 (citations omitted).
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The trial court "was entitled to evaluate [appellant's]
theory of innocence upon consideration of all the evidence and
the reasonable inferences that flow from that evidence. It is
clear that the [trial court] rejected [appellant's] theory as
unreasonable." Commonwealth v. Hudson, 265 Va. 505, 517, 578
S.E.2d 781, 787 (2003). There is credible evidence to support
the Commonwealth's theory that appellant was intoxicated when he
operated the motor vehicle on the night of December 15, 2001.
Because we cannot say the trial court's decision was plainly
wrong, we affirm its finding.
Affirmed.
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