COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Annunziata and Humphreys
Argued at Alexandria, Virginia
KEVIN EUGENE CARTER
MEMORANDUM OPINION * BY
v. Record No. 2635-00-4 CHIEF JUDGE JOHANNA L. FITZPATRICK
DECEMBER 27, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAUQUIER COUNTY
Thomas D. Horne, Judge
Cindy Leigh Decker, Assistant Public
Defender, for appellant.
Steven A. Witmer, Assistant Attorney General
(Mark L. Earley, Attorney General, on
brief), for appellee.
Kevin Eugene Carter (appellant) was convicted in a jury
trial of unlawfully driving a motor vehicle on a highway while
under the influence of alcohol (DUI) in violation of Code
§ 18.2-266. The sole issue on appeal is whether the evidence
was sufficient to support the jury's guilty verdict of driving
under the influence. 1 For the following reasons, we affirm the
judgment of the trial court.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
1
Appellant was also convicted of operating a motor vehicle
after having been declared an habitual offender, 2nd offense;
however, that conviction is not the subject of this appeal.
I. BACKGROUND
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).
So viewed, the evidence established that on November 5,
1999, at approximately 8:40 p.m., Charles Robert Rogers (Rogers)
was driving south on Meetze Road in the direction of Route 28 in
Fauquier County. When Rogers approached Beach Street, a dark
blue sedan drove through a stop sign and made a wide right-hand
turn onto Meetze Road. The car veered into the wrong travel
lane before the driver corrected his course and traveled south
in the appropriate lane. Approximately twenty seconds later,
the sedan turned onto Casanova Road. Rogers also turned onto
Casanova Road and was travelling at fifty miles per hour. The
blue car's speed kept increasing until Rogers lost sight of it.
Shortly thereafter, Rogers reached a turn in the road and saw
the blue sedan on the side of the road where it had struck a
detached garage. Rogers stopped at the scene of the accident
and remained there for about twenty or twenty-five minutes. At
trial, Rogers saw pictures of the crash site which he said were
a fair and accurate depiction of the scene. Two of these
pictures show appellant to be trapped behind the wheel and the
sole occupant of the car.
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Trooper Bradley Morris (Trooper Morris) of the Virginia
State Police was dispatched to the accident at approximately
9:06 p.m. and arrived at the scene at 9:16 p.m. to find
appellant trapped in the car on the driver's side. The Catlett
Fire Department and Rescue Squad arrived and had to cut off the
top of the vehicle to free appellant. When appellant was placed
in the ambulance Trooper Morris observed his eyes to be
bloodshot and watery and he smelled of alcohol. There were no
other occupants in or near the crash scene.
The Commonwealth rested, and appellant made a motion to
strike contending that (1) no proof established that appellant
was operating the vehicle and (2) no evidence proved that
appellant was under the influence of drugs or alcohol at the
time he was operating the vehicle. The trial court denied
appellant's motion and found sufficient circumstantial evidence
to support his being the operator of the vehicle. It noted the
erratic driving and said that from appellant's position in the
car, "the Jury might fairly conclude [it] would have been
impossible for him to get into that position but for the fact
that he was operating this motor vehicle at the time of the
collision." It denied the second ground and found that:
[T]he Jury could conclude in this case that
the Defendant, given his condition as
evident from this photograph, had not had
anything to drink after the accident. He
smelled of alcohol, had red eyes; and then
as the Commonwealth Attorney has said,
operated –- they could infer that he
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operated the vehicle in the fashion which he
did, that they could find him guilty under
the circumstances.
Appellant then testified that there were several people in
the car and that "William Brown" was the driver and he was a
passenger. He acknowledged that the car belonged to his wife.
Appellant claimed that as a result of the accident he was
unconscious and as he was regaining his senses, Brown and the
other two passengers were trying to help him get out of the car.
However, while he was trying to get out, the roof of the garage
collapsed and the other three people left. Neither Brown nor
the other two passengers appellant described testified at trial.
The jury found appellant guilty of DUI and imposed a sentence of
twelve months incarceration. Appellant timely noted his appeal.
II. STANDARD OF REVIEW
"On review, this Court does not substitute its judgment for
that of the trier of fact. Instead, the jury's verdict will not
be set aside unless it appears that it is plainly wrong or
without supporting evidence." Canipe v. Commonwealth, 25 Va.
App. 629, 644, 491 S.E.2d 747, 754 (1997) (internal citations
omitted).
III. OPERATION OF THE CAR
Appellant first argues that the evidence was insufficient
to prove that he was the driver of the car because no one at
trial testified that he was the driver and he denied operating
the vehicle. Although Trooper Morris found appellant behind the
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wheel of the vehicle, he did not observe appellant manipulating
any of the mechanical or electrical equipment of the car.
Appellant thus contends that the evidence is insufficient to
support a conclusion that he drove the car. This argument is
without merit.
"'[C]ircumstantial evidence is as competent and is entitled
to as much weight as direct evidence, provided it is
sufficiently convincing to exclude every reasonable hypothesis
except that of guilt.'" Williams v. Commonwealth, 33 Va. App.
796, 807, 537 S.E.2d 21, 26 (2000) (quoting Coleman v.
Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983)).
"However, 'the Commonwealth need only exclude reasonable
hypotheses of innocence that flow from the evidence, not those
that spring from the imagination of the defendant.'" Wilson v.
Commonwealth, 31 Va. App. 495, 509, 525 S.E.2d 1, 8 (2000)
(quoting Hamilton v. Commonwealth, 16 Va. App. 751, 755, 433
S.E.2d 27, 29 (1993)).
The credibility of a witness and the
inferences to be drawn from proven facts are
matters solely for the fact finder's
determination. See Long v. Commonwealth, 8
Va. App. 194, 199, 379 S.E.2d 473, 476
(1989). In its role of judging witness
credibility, the fact finder is entitled to
disbelieve the self-serving testimony of the
accused and to conclude that the accused is
lying to conceal his guilt. See Speight v.
Commonwealth, 4 Va. App. 83, 88, 354 S.E.2d
95, 98 (1987) (en banc).
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Marable v. Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d
233, 235 (1998).
Code § 46.2-100 defines an operator as one who "either (i)
drives or is in actual physical control of a motor vehicle on a
highway or (ii) is exercising control over or steering a vehicle
being towed by a motor vehicle."
In Keesee v. Commonwealth, 32 Va. App. 263, 527 S.E.2d 473
(2000), we found the evidence sufficient to prove the appellant
was "operating" a motor vehicle on very similar facts. In that
case, the police officer who arrived at the scene of an accident
found the appellant to be the only person in the car. He was
trapped in the car with his legs pinned under the steering wheel
and dashboard, and he was unable to move.
In the instant case, viewed in the light most favorable to
the Commonwealth, appellant was the sole occupant of the car at
the scene of the accident. No one else was present at or near
the crash site, and the car belonged to his wife. The jury was
not required to believe appellant, a convicted felon, but rather
could determine that he was being untruthful in his testimony
that other people were in the car. Additionally, appellant was
immobilized behind the wheel and had to be cut out of the car.
The fact that he was trapped behind the wheel is evidence
tending to negate his explanation that he was sliding over to
get out of the car. The jury was entitled to disbelieve
appellant's self-serving statements and conclude that he was the
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operator of the vehicle. Accordingly, we cannot say that the
judgment is plainly wrong or without evidence to support it.
IV. INTOXICATION AT THE TIME OF THE ACCIDENT
Appellant next contends that, assuming he was the driver,
the Commonwealth failed to prove that he was intoxicated at the
time of the accident because no field sobriety tests, blood
tests, or breath tests were admitted into evidence to show his
level of intoxication. He argues that the driving behavior
testified to by Rogers and the description by Trooper Morris of
appellant's eyes being bloodshot and his having the odor of
alcohol were insufficient to show intoxication. Additionally,
appellant argues that no evidence established whether or not he
had consumed alcohol after the accident or whether there had
been alcohol in the car that had just spilled onto him.
Code § 18.2-266, the statute under which appellant was
convicted, makes it unlawful for anyone "to drive or operate any
motor vehicle . . . while under the influence of alcohol." 2
Further, "[t]he court or jury trying the case involving a
violation of clause (ii), (iii) or (iv) of § 18.2-266 or
§ 18.2-266.1 shall determine the innocence or guilt of the
defendant from all the evidence concerning his condition at the
2
Code § 4.1-100 defines "intoxicated" as "a condition in
which a person has drunk enough alcoholic beverages to
observably affect his manner, disposition, speech, muscular
movement, general appearance or behavior."
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time of the alleged offense." Code § 18.2-268.10 (emphasis
added).
We also find no merit to appellant's argument that the
Commonwealth failed to meet its burden because they presented no
alcohol tests. Code § 18.2-268.10 allows the trier of fact to
look at all the evidence regarding the condition of the
defendant at the time of the alleged offense.
[T]he admission of the blood or breath test
results shall not limit the introduction of
any other relevant evidence bearing upon any
question at issue before the court, and the
court shall, regardless of the result of any
blood or breath tests, consider other
relevant admissible evidence on the
condition of the accused.
Id. (emphasis added).
In the instant case, properly viewed, the Commonwealth's
evidence proved that appellant drove his car erratically,
swerved across the center line and exceeded the speed limit. A
short time later his car crashed with great force into a garage,
trapping appellant behind the wheel. Further, when Trooper
Morris saw appellant, his eyes were bloodshot and watery and he
smelled of alcohol. See Overbee v. Commonwealth, 227 Va. 238,
245, 315 S.E.2d 242, 245 (1984) ("The jury could conclude that
if Overbee smelled [of] alcohol and had red eyes, yet did not
drink after he stopped his truck, then he must have consumed
alcoholic beverages before or during his operation of the
vehicle."). The fact finder could reasonably find that this
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evidence established that appellant was intoxicated and the
alcohol had affected his "manner, disposition, speech, muscular
movement, general appearance or behavior." Code § 4.1-100.
Next, appellant contends that pursuant to Bland v. City of
Richmond, 190 Va. 42, 55 S.E.2d 289 (1949), and Coffey v.
Commonwealth, 202 Va. 185, 116 S.E.2d 257 (1960), this case must
be reversed because the Commonwealth failed to exclude the
hypothesis that appellant became intoxicated after the car
wreck. This case is distinguishable from Bland and Coffey.
In Bland, the Court held that the officer's testimony that
Bland was intoxicated and talked with a "thick tongue" supported
a reasonable inference of intoxication. However, the Court held
that the vagueness in time between when the accident occurred
and when Bland returned to the scene did not exclude the
reasonable hypothesis that he drank alcohol between the time he
left his car and the time he was picked up.
In Coffey, the defendant's conviction for drunk driving was
reversed because there was conflicting evidence regarding
whether or not Coffey had consumed alcohol following the
accident. While there was sufficient evidence of intoxication,
Coffey's son testified that he had given his father a drink of
whiskey after the accident. In the instant case, there is no
evidence of either opportunity or ability to consume alcohol
after the accident. Rogers found appellant trapped in the car
immediately after the crash and unable to move. Appellant did
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not leave the scene of the accident, and there was no evidence
of alcohol at or near the car. Additionally, appellant
testified that he was unconscious and unable to move. This
evidence negates any "reasonable hypothesis of innocence" that
appellant drank alcohol after the accident.
The circumstantial evidence was sufficient to prove that
appellant was intoxicated when he drove his wife's car, and no
evidence shows that he became intoxicated after the wreck.
Accordingly, we cannot say that the judgment is plainly wrong or
without evidence to support it.
Affirmed.
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