COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Lemons and Frank
Argued at Chesapeake, Virginia
ZACHARIAH L. HANCOCK
MEMORANDUM OPINION * BY
v. Record No. 0182-99-1 JUDGE JERE M. H. WILLIS, JR.
JANUARY 27, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Wilford Taylor, Jr., Judge
W. Alan Maust for appellant.
Leah A. Darron, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
On appeal from his conviction of involuntary manslaughter,
in violation of Code § 18.2-36, Zachariah L. Hancock contends
(1) that the trial court erred in refusing to admit testimony
regarding the victim's character and (2) that the evidence was
insufficient to support his conviction. Finding no error, we
affirm.
"The judgment of a trial court sitting without a jury is
entitled to the same weight as a jury verdict and will not be
set aside unless it appears from the evidence that the judgment
is plainly wrong or without evidence to support it." Martin v.
Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
On the evening of September 1, 1997, Hancock delivered a
pizza to the residence of James W. Parker, Emerson Orton's
neighbor. Hancock parked his vehicle in front of Parker's
house, which was located on a dead end street. After delivering
the pizza, Hancock was returning to his vehicle when he was
confronted by Orton, who complained about the loudness of
Hancock's car stereo system. The two men argued. Hancock
testified that Orton physically assaulted him through the open
car window.
Hancock began to drive away toward the dead end. However,
after driving forward about forty-five feet, he shifted into
reverse, "floored it," and accelerated rapidly backward. Orton,
who was then returning to his house, was struck by the vehicle
and fell backward, suffering a fatal skull fracture. Hancock
then shifted into forward, turned around, and drove to a local
fire station, where he reported the incident.
The trial court found Hancock guilty of involuntary
manslaughter, in violation of Code § 18.2-36, sentenced him to
six years imprisonment, with four years suspended, and ordered
him to pay restitution.
Hancock first contends that the trial court erred in
rejecting testimony of the victim's character or reputation for
violence, turbulence, or aggression. He sought at trial to
present evidence that Orton had a reputation for arguing with
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motorists about their car stereo system volume. The trial court
rejected this testimony.
A criminal defendant may offer evidence
regarding the victim's character for
violence, turbulence, or aggression for two
purposes: (1) to show "who was the
aggressor" or (2) to show "the reasonable
apprehensions of the defendant for his life
and safety." However, it is well
established that such evidence of the
victim's character is admissible only when
the defendant "adduces evidence that he
acted in self-defense."
Canipe v. Commonwealth, 25 Va. App. 629, 640, 491 S.E.2d 747,
752 (1997) (citations omitted). Hancock's counsel conceded at
trial that self-defense was not an issue. Therefore, the trial
court properly rejected evidence of Orton's character.
Hancock also sought to introduce evidence that Orton had
previously jumped onto a motorist's car during an argument over
the loudness of the other motorist's stereo system. This
evidence, however, was not proffered until after Hancock had
been convicted. Thus, its tender was not timely, and its
rejection was not preserved for appeal. See Rule 5A:18;
Marshall v. Commonwealth, 26 Va. App. 627, 636, 496 S.E.2d 120,
125 (1998).
Hancock next contends that the evidence was insufficient to
prove that his conduct rose to the level of negligence required
for involuntary manslaughter. "When considering the sufficiency
of the evidence on appeal of a criminal conviction, we must view
all the evidence in the light most favorable to the Commonwealth
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and accord to the evidence all reasonable inferences fairly
deducible therefrom." Traverso v. Commonwealth, 6 Va. App. 172,
176, 366 S.E.2d 718, 721 (1988).
Involuntary manslaughter is "the accidental killing which,
though unintended, is the proximate result of negligence so
gross, wanton, and culpable as to show a reckless disregard of
human life." King v. Commonwealth, 217 Va. 601, 607, 231 S.E.2d
312, 316 (1977).
Hancock argues that the testimony of Orton's wife, Paula
Herring, was incredible as a matter of law and should have been
disregarded. Ms. Herring initially told investigators that
Hancock drove over Orton after striking him. Confronted with
medical testimony that contradicted this, she testified that
Hancock did not drive over Orton. When asked to explain this
change, Ms. Herring stated that from her viewpoint, it had
appeared that Hancock drove over Orton's body. The trial court
believed her explanation. "The credibility of the witnesses and
the weight accorded the evidence are matters solely for the fact
finder who has the opportunity to see and hear that evidence as
it is presented." Sandoval v. Commonwealth, 20 Va. App. 133,
138, 455 S.E.2d 730, 732 (1995). We cannot say on appeal that
Ms. Herring's testimony was incredible as a matter of law.
Ms. Herring testified that Hancock "floored" his car in
reverse and, after hitting Orton, continued out of control and
skidded backwards. She testified that Hancock then shifted the
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vehicle into forward, drove up the street, turned around, and
passed Orton's body. Hancock admitted that as he accelerated
backwards, even though he knew Orton was behind him, he "did not
turn around and look backwards as a normal reverse would."
Evidence of such reckless and violent driving, directed toward
the known location of a pedestrian, supports the trial court's
finding that Hancock's conduct constituted negligence so gross,
wanton, and culpable as to show a reckless disregard of human
life.
Accordingly, we find the evidence sufficient to support the
conviction and affirm the judgment of the trial court.
Affirmed.
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