COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Humphreys and Retired Judge Olitsky*
Argued at Richmond, Virginia
ODEH BENJAMIN
MEMORANDUM OPINION ** BY
v. Record No. 2254-98-2 JUDGE NORMAN OLITSKY
JULY 18, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
Oliver A. Pollard, Jr., Judge
Mary Katherine Martin, Senior Assistant
Public Defender, for appellant.
Linwood T. Wells, Jr., Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Odeh Benjamin, appellant, was convicted of felony failure to
stop at the scene of an accident involving physical injury in
violation of Code § 46.2-894. He argues the evidence was
insufficient to convict him of this offense. We affirm his
conviction.
FACTS
Reginald Morris testified that on November 28, 1996 at about
11:00 p.m., he was in his car, stopped at an intersection, waiting
*
Retired Judge Norman Olitsky took part in the
consideration of this case by designation pursuant to Code
§ 17.1-400, recodifying Code § 17-116.01.
**
Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
to make a left turn. A car driven by appellant struck Morris' car
on the rear passenger side. Morris testified the impact "knocked
[his car] up maybe two or three feet." Appellant's car drove onto
the sidewalk and stopped about forty or fifty feet away from
Morris' car. Morris estimated "[a]bout two-thirds" of appellant's
car was on the sidewalk.
Morris saw appellant "look back" at Morris' car, then
appellant made a right turn and drove away. Morris obtained
appellant's license plate number and gave the police a description
of appellant's car.
Morris testified the impact "took out like a good portion of
the trunk," pushing the trunk up. It also damaged chrome fender
trim on the side of the car and damaged rear lights. Morris saw
headlight damage on appellant's car. Officer Kevin Johnson
reported to the accident scene and described Morris' vehicle as
"pretty severely damaged."
Morris suffered back and neck pain from the incident and had
to be assisted into an ambulance. He testified he felt "tense as
if [he]'d fallen or something." Hospital staff administered
x-rays and gave Morris "some shots." Morris later obtained
prescription pills for the pain, which lasted for several months
after the accident. Morris also received "heat and traction"
treatments after the incident.
Officer Mark Stefaniak looked for the car after the accident.
He saw appellant's vehicle, which had a damaged driver's side
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headlight and matched the description Morris gave the police.
Stefaniak stopped the car at 11:53 p.m. about three or four miles
from the scene of the accident. Stefaniak stated the driver's
side door was "difficult to open," and there was "pretty extensive
damage" to appellant's car. Stefaniak had to wrench open the
door. Stefaniak arrested appellant for driving under the
influence of alcohol.
Appellant testified Morris' car suddenly stopped in front of
appellant's car without using a turn signal. Appellant stated he
tried to avoid striking Morris' car, and he turned his car to the
right. However, the left side of appellant's car struck Morris'
car. Appellant said he stopped "briefly," but because his
driver's license was suspended at the time, he drove toward his
home. Appellant also testified he did not believe the accident
damaged Morris' vehicle.
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).
Appellant was convicted of violating Code § 46.2-894, which
provides in pertinent part:
The driver of any vehicle involved in an
accident in which a person is killed or
injured or in which an attended vehicle or
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other attended property is damaged shall
immediately stop as close to the scene of
the accident as possible without obstructing
traffic, as provided in § 46.2-888, and
report his name, address, driver's license
number, and vehicle registration number
forthwith to the State Police or local
law-enforcement agency, to the person struck
and injured if such person appears to be
capable of understanding and retaining the
information, or to the driver or some other
occupant of the vehicle collided with or to
the custodian of other damaged property.
"The duty imposed upon the driver of a vehicle involved in an
accident is not passive. It requires positive, affirmative
action; -- that is, to stop and give the aid and information
specified." Herchenbach v. Commonwealth, 185 Va. 217, 220, 38
S.E.2d 328, 329 (1946).
Knowledge necessarily is an essential
element of the crime. This does not mean
that the person should have positive
knowledge of the extent of the damage or
injuries inflicted. It does mean that, in
order to be guilty of violating the statute,
"the driver must be aware that harm has been
done; it must be present in his mind that
there has been an injury; and then, with
that in his mind, he must deliberately go
away without making himself known. If an
injury is inflicted under such circumstances
as would ordinarily superinduce the belief
in a reasonable person that injury would
flow, or had flowed, from the accident or
collision, then it is the duty of the
operator to stop his vehicle."
Id. (citation omitted).
In Kil v. Commonwealth, 12 Va. App. 802, 811, 407 S.E.2d
674, 679 (1991), we held, "the Commonwealth must prove that the
defendant possessed actual knowledge of the occurrence of the
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accident, and such knowledge of injury which would be attributed
to a reasonable person under the circumstances of the case."
Appellant admits he had actual knowledge of the occurrence of
the accident. However, he argues he did not have knowledge of any
injury to Morris.
The evidence proved appellant's car struck Morris' car with
such force that it caused Morris' car to move forward two to
three feet from a stationary position, and it caused appellant's
vehicle to veer out of control, stopping on the sidewalk forty
or fifty feet from the point of collision. The impact pushed up
the trunk on Morris' car and damaged the side chrome fender trim
on the side of the car. An officer at the scene described
Morris' car as "pretty severely damaged." Appellant looked
toward Morris' car before leaving the scene, but he testified at
the trial that he did not believe the accident caused any damage
to Morris' car. The trial judge was not required to accept
appellant's testimony. "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." Marable v.
Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d 233, 235
(1998).
In addition, after the impact, appellant's car was damaged
to the point where the officer had difficulty opening the
driver's side door. Under the circumstances of this accident, a
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reasonable person would have known that Morris was injured by
the force of the collision. Furthermore, the evidence proved
Morris complained of back and neck pain at the scene of the
accident and received treatment at the hospital immediately
after the accident. Therefore, from the evidence of the
circumstances of the accident, the damage caused to both
vehicles, and the nature of Morris' injuries, the trial judge
could conclude beyond a reasonable doubt that appellant
feloniously violated Code § 46.2-894.
Accordingly, we affirm appellant's conviction.
Affirmed.
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