David Guy Jones v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA

Present: Judge Annunziata, Senior Judges Cole and Baker *
Argued in Richmond, Virginia

DAVID GUY JONES
MEMORANDUM OPINION** BY
v. Record No. 0863-97-2 JUDGE MARVIN F. COLE
DECEMBER 22, 1998
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF HENRICO COUNTY
James E. Kulp, Judge
William K. Grogan (William W. Roberts;
William K. Grogan & Associates, on briefs),
for appellant.

Richard B. Smith, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.

Appellant, David Guy Jones, was convicted in a bench trial

of failure to stop at the scene of an accident in which someone

was injured in violation of Code § 46.2-894. On appeal,

appellant contends the trial court: (1) erred in denying his

renewed motion to strike the Commonwealth's evidence on the

ground that the evidence was insufficient as a matter of law to

support the conviction; (2) erred in concluding he was not

telling the truth about a collateral issue causing the court to

speculate that he was not telling the truth when denying

*
Judge Baker participated in the hearing and decision of
this case prior to the effective date of his retirement on July
31, 1998 and thereafter by his designation as senior judge
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.
knowledge of the accident; (3) erred by disregarding testimony

offered by an expert witness which supported appellant's theory

of how the accident occurred and his lack of knowledge of the

accident; and (4) erred by disallowing evidence of his lack of

motive to knowingly fail to stop at the scene of the accident. 1

We affirm the conviction.

BACKGROUND

This case arises from an accident between a car and a

tractor pulling two separate trailers (referred to herein as a

tractor unit or truck) which occurred around noon on June 9,

1996. The evidence established that Whitney Rogers was driving a

black Hyundai Elantra in the center lane of three eastbound lanes

of Interstate 64 in Henrico County.
At trial, Rogers testified that he and his wife, Nancy, were

en route to their home in Reidsville, North Carolina. He was

forced to stop because of another accident in the center lane

about one hundred yards ahead of him. At that time, Rogers' car

was struck from behind, causing severe and extensive damage to

his vehicle. He provided the following description of the damage

to his vehicle from the accident: "the back trunk was pushed

almost all the way in. There was fairly extensive damage on the

back driver's side for the most part. And they couldn't . . .

get the doors open to get me out . . . ." Rogers explained that
1
By order, we denied that portion of appellant's petition
for appeal that claimed the trial court erred in admitting
photographs of the Rogers' car.

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"they [rescue workers] cut the roof off and took me out." His

injuries from the accident consisted of a cut on the head

requiring twelve stitches and a cervical strain. He was taken to

a hospital in an ambulance but was able to drive a rental vehicle

to North Carolina later in the day. His wife, Nancy, was also

injured. Rogers testified that the driver of the vehicle which

hit him did not stop and report his name and address to him.

At the same time and place, Adrian Cudmore was traveling

east on I-64 in the center lane. He testified at trial that "it

was raining very hard at the time and I was doing about 50, 55"

when a "big double truck" passed him on the outside or left hand

lane. The truck was "going markedly fast for the [road]

condition."
Cudmore testified that the tractor unit was between one and

two hundred feet ahead of him when he saw brake lights come on in

the lanes ahead of him. Cudmore slowed down. He then saw "the

truck completely lock up and then begin to slide sideways." As

the truck slid sideways it went into the center lane ahead of

him. "Then it straightened up, and as it straightened up, I saw

a car was damaged and obviously had been hit by the truck."

Cudmore further stated that the truck did not stop but continued

east on I-64. According to Cudmore, Rogers' car "slid . . . very

slowly . . . to the right hand lane and then onto the hard

shoulder." Cudmore parked behind Rogers' car to see if the

occupants were all right. Finding other people around and

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realizing he could do nothing more, Cudmore left his card and

continued his trip east on I-64. About one mile or one and

one-half miles up the road, Cudmore saw parked on the shoulder of

I-64 what appeared to him to be the same tractor unit that was

involved in the accident. He observed the driver come around the

front of the truck and get into the cab. It was still raining

hard, and Cudmore continued his trip.

Trooper A.J. Burton responded to the accident scene. He

found Rogers' black Hyundai on the right shoulder of the highway

with severe rear end damage. Rogers' wife, Nancy, was able to

exit from the vehicle; however, Rogers could not free himself and

was trapped behind the steering wheel. Rescue workers arrived

about the same time as the trooper and using their "Jaws of

Life," they cut the roof off the car and removed Rogers.
Burton photographed Rogers' damaged vehicle after Rogers was

removed by emergency personnel. Photographs were introduced into

evidence that showed extensive damage to the rear end and left

side of the vehicle. There is no dispute that the damage caused

by cutting off the car roof was not done in the accident.

Based upon information gained during his investigation,

Burton went to Consolidated Freightways, located about six miles

from the scene of the accident. He discovered that appellant had

been driving the tractor unit that day. He examined the double

trailers and noticed black paint scrub marks on the passenger

side of the rear trailer and a large amount of glass particles on

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the axle of the rear trailer. Burton opined that the black paint

marks appeared to be "fresh scrape marks" because the "metal was

still clean and wasn't dirty at all." Burton identified

photographs showing the paint marks on the side of the trailer

and the glass particles on the rear trailer and axle.

Appellant moved the court to strike the Commonwealth's

evidence on the ground it had not proved that he had any

knowledge he was involved in an accident or that any injury had

occurred. The court overruled the motion.
Appellant testified on his own behalf. He admitted that he

was driving the Consolidated Freightways tractor unit at the time

and place in question. He testified that he was proceeding east

on I-64 near the Staples Mill exit when he came upon the first

accident described by Rogers. He first observed the accident

when he was between three and four hundred yards away from it.

The accident had stopped traffic in the center lane. Appellant

"began to apply the brakes, knowing to slow down because of the

accident." He further testified that he did not stop but came

almost to a stop. He then proceeded with the traffic past the

accident. He denied any knowledge that he had struck Rogers'

vehicle.

Appellant testified that, after passing the accident, "he

had to go to the bathroom pretty bad." He came to the top of a

knoll about a mile from the accident and pulled onto the shoulder

of the road to "relieve himself." He was out of sight of the

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accident. He stepped out of the truck, went around the front of

the truck to the middle of the trailers and relieved himself. He

stated, "It was raining pretty hard." His ultimate destination

was the trucking company's Richmond terminal which was almost six

miles away.

On cross-examination, appellant stated his truck had

"mirrors on both sides of the cab" enabling the driver to see

"what's going on with the trailers that you're towing." He

stated that rain could have an effect on one's ability to see

through the mirrors. Appellant testified that to the best of his

knowledge, no part of his tractor unit went into the center lane.
Appellant called Steven Chewning, the president of an

accident reconstruction and highway safety consulting firm, to

corroborate his position that he had no knowledge of the accident

and resulting injuries.

At the conclusion of all the evidence, appellant renewed his

motion to strike the Commonwealth's evidence. The motion was

overruled.

I. SUFFICIENCY OF THE EVIDENCE

Appellant contends that in denying his renewed motion to

strike, the trial court erred as a matter of law because the

evidence was insufficient to support the conviction. He argues

that the Commonwealth presented no direct evidence that he had

knowledge of the accident, an essential element of the crime.

Appellant acknowledges that the Commonwealth proved an accident

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and an injury, but he insists it failed to prove beyond a

reasonable doubt that he was involved in the accident or had

knowledge that he had been involved in the accident or the

injuries. To support his contention, he points to the testimony

of his expert witness on accident reconstruction, Steve Chewning,

as well as the absence of evidence that he had knowledge that the

accident occurred.

The Commonwealth contends that knowledge may be inferred

from the circumstances of the collision. It contends that the

trial judge did not believe appellant when he testified that he

had no knowledge of the accident. To prove appellant's

knowledge, the Commonwealth points to the extensive damage done

to Rogers' vehicle and to appellant's actions and conduct after

the accident. The Commonwealth further argues that ample,

credible evidence in the record exists from which the trial judge

could infer that appellant had knowledge of both the accident and

the injuries.
When considering the sufficiency of the evidence on appeal,

our analysis is guided by well established principles.
On appeal, we review the evidence in the
light most favorable to the Commonwealth,
granting to it all reasonable inferences
fairly deducible therefrom. 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

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(1987).

This Court does not substitute its judgment for that of the

trier of fact. See Cable v. Commonwealth, 243 Va. 236, 239, 415

S.E.2d 218, 220 (1992). In a bench trial, it is within the trial

judge's province as the fact finder to assess the credibility of

witnesses and the weight to be given the testimony. See Servis

v. Commonwealth, 6 Va. App. 507, 525, 371 S.E.2d 156, 165 (1988).

As fact finder, the trial judge has a right to weigh the

testimony of all the witnesses, expert and otherwise. See Hill

v. Commonwealth, 8 Va. App. 60, 64, 379 S.E.2d 134, 137 (1989)

(en banc). "The credibility of [an] expert witness and the

weight to be accorded the evidence [a]re matters within the

province of the jury." Horsley v. Commonwealth, 2 Va. App. 335,

339, 343 S.E.2d 389, 391 (1986).

"Where the trier of fact believes a witness has knowingly

testified falsely in any material fact, he has a right to give

the testimony such weight and credit as in his opinion it was

entitled." Kennedy v. Commonwealth, 1 Va. App. 469, 472, 339

S.E.2d 905, 907 (1986). A trial court is able to observe the

witnesses' demeanor and evaluate their testimony. If the trial

court concludes that a defendant's testimony is not credible, it

is entitled to infer that the defendant lied to conceal his or

her guilt. See Speight v. Commonwealth, 4 Va. App. 83, 88, 354

S.E.2d 95, 98 (1987). See also Brown v. Commonwealth, 5 Va. App.

489, 493, 364 S.E.2d 773, 775 (1988).

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 "'Circumstantial evidence is as acceptable to prove guilt as

direct evidence, and in some cases, such as proof of intent or

knowledge, it is practically the only method of proof.'" Cirios

v. Commonwealth, 7 Va. App. 292, 295, 373 S.E.2d 164, 165 (1988)

(quoting Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755,

759 (1980), cert. denied, 450 U.S. 1029 (1981)).
"In all cases based on circumstantial
evidence of guilt the conduct of the accused
is an important factor in the estimate of the
weight of circumstances which point to his
guilt. . . . In such cases the Virginia
Supreme Court has said that relevant evidence
is any evidence 'which may throw light upon
the matter being investigated, and while a
single circumstance, standing alone, may
appear to be entirely immaterial or
irrelevant, it frequently happens that the
combined force of many concurrent and related
circumstances, each insufficient in itself,
may lead a reasonable mind irresistibly to a
conclusion.'"

Hope v. Commonwealth, 10 Va. App. 381, 385-86, 392 S.E.2d 830,

838 (1990) (en banc) (citations omitted).

"'"Where inferences are relied upon to establish guilt, they

must point to guilt so clearly that any other conclusion won't be

inconsistent therewith."' Inferences may be taken from proved

circumstances only to the extent those inferences are reasonable

and justified." Moran v. Commonwealth, 4 Va. App. 310, 314, 757

S.E.2d 551, 553 (1987) (citations omitted).

The version of Code § 46.2-894 in effect at the time of the

incident provided, in pertinent part, as follows:
The driver of any vehicle involved in an
accident in which a person is . . . injured
or in which an attended vehicle or other

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 attended property is damaged shall
immediately stop as close to the scene of the
accident as possible without obstructing
traffic 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.

Any person convicted of violating the provisions of Code
§ 46.2-894 "shall, if such accident results in injury to

. . . any person, be guilty of a Class 6 felony." Code

§ 46.2-900.

In Herchenbach v. Commonwealth, 185 Va. 217, 38 S.E.2d 328

(1946), the Supreme Court examined the substantially similar

predecessor to Code § 46.2-894. The Court discussed the "duty

imposed upon the driver" and held that "[i]t requires positive,

affirmative action, -- that is, to stop and give the aid and

information specified." Id. at 220, 38 S.E.2d at 329. In

interpreting the meaning of the statute, the Supreme Court

stated:

How can a person perform these affirmative

acts unless he knows that his vehicle has

struck a person or an object? Knowledge

necessarily is an essential element of the

crime. This does not mean that the person

should have positive knowledge of the extent

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 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. (citations omitted).

We discussed Herchenbach in Kil v. Commonwealth, 12 Va. App.

802, 407 S.E.2d 674 (1991). There, we said:
We are not persuaded by the Commonwealth's
argument that a reasonable person standard
with regard to the occurrence of the accident
is consistent with Herchenbach. Accordingly,
we hold that the Commonwealth must prove that
the defendant possessed actual knowledge of
the occurrence of the accident, and such
knowledge of injury which would be attributed
to a reasonable person under the
circumstances of the case.

Id. at 810-11, 407 S.E.2d at 679. See also Johnson v.

Commonwealth, 14 Va. App. 769, 772, 418 S.E.2d 729, 731 (1992).

Based upon these authorities, the Commonwealth was required

to prove beyond a reasonable doubt each of the following elements

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of the crime charged: (1) Appellant was the driver of a vehicle

which he knew was involved in an accident; (2) the accident

caused personal injury to another; (3) appellant knew, or should

have known, that another person was injured by the accident; and

(4) appellant failed to stop immediately as close to the scene as

possible and do all of the things specified in the statute.

In determining whether the Commonwealth proved the

above-listed elements, we consider Cudmore's testimony that the

"truck completely locked up." We also consider the fact that the

rear trailer slid from the far left lane into the center lane,

straightened up and continued on its way rather than rolling over

or jackknifing.
To determine what appellant knew and when he knew it, we

review the sequence of events that was before the fact finder.

Appellant testified that when he came upon the first accident in

the center lane, he slowed down but did not stop for traffic. He

testified the wheels did not lock up, and he described his

deceleration as normal. The trial judge was entitled to reject

all of this testimony or any part of it in view of the fact it

was contradicted by Cudmore. See Barrett v. Commonwealth, 231

Va. 102, 107, 341 S.E.2d 190, 193 (1986) (when weighing evidence,

the fact finder is not required to accept entirely either party's

account of the facts). Cudmore's eyewitness testimony, which was

accepted by the trial judge, contradicted appellant's version of

events. Cudmore stated that he noticed brake lights ahead,

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slowed down, and "saw the truck completely lock up and then begin

to slide sideways." The truck then "straightened up." Thus, the

sequence of events, according to Cudmore, was: (1) The truck

locked up; (2) then the rear trailer slid sideways across the

middle lane; (3) the rear trailer struck Rogers' car; (4) the

rear trailer straightened up; and (5) the tractor unit continued

on its way.

Based on the evidence, the trial judge was entitled to infer

that appellant applied his brakes to the extent that the truck

"completely locked up" because of the accident ahead. The

collision with and damage to Rogers' car was substantial. The

trunk and body of the car were smashed. Glass was broken, and

particles were left on the axle of the rear trailer. The
trial judge noted that considering the evidence concerning the

movement of appellant's truck and the extent of the damage, it is

inconceivable that appellant did not have knowledge of the

accident.

Other evidence supports the finding that appellant knew he

had been involved in the accident. From the testimony of Cudmore

and appellant, we know that about one mile to one and one-half

miles down I-64 in a heavy rain, within six miles of his

terminal, appellant pulled his tractor unit onto the shoulder of

the road out of sight of the accident scene and parked. He

claimed he did this to "relieve himself." He admitted that he

inspected the rear trailer, according to his usual custom, but

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did not see any damage. He then continued to the truck terminal,

parked the tractor unit, and did not report any accident. The

trial judge was entitled to infer from this evidence that

appellant stopped to inspect the unit to see if the trailer

incurred any observably significant damage before he reported to

the terminal. Appellant claimed he saw no damage, but the police

officer found fresh black scrub marks and glass particles.

Appellant had just passed the Laburnum and the Staples Mill exits

where he could have left I-64 safely if he desired to "relieve

himself." Instead, he pulled off of I-64 as soon as he was out

of sight of the accident scene and inspected the trailer. The

trial judge was entitled to infer that appellant knew he had been

involved in the accident, stopped his tractor unit to determine

the extent of the damage, and, finding only minimal evidence of a

collision, he decided not to report the accident to his employer.
The Commonwealth's evidence was competent, was not

inherently incredible, and was sufficient to prove beyond a

reasonable doubt that appellant was the driver of a vehicle

involved in an accident and that this fact was known to the

driver. From the facts as described herein, including the damage

shown in the photographs of Rogers' vehicle and the fact that the

rear trailer was loaded with 14,000 pounds of cargo, the evidence

was also sufficient to prove that the defendant knew, or should

have known, that a person was injured by the accident.

It is undisputed that the accident caused injury to Whitney

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and Nancy Rogers and that appellant failed to stop and report the

information required by the statute. Therefore, all of the

essential elements of the crime have been proven beyond a

reasonable doubt. We find no error in the refusal of the trial

court to grant the renewed motion to strike the Commonwealth's

evidence.
II. TRIAL COURT ERRED IN CONCLUDING THAT
APPELLANT WAS NOT TRUTHFUL ABOUT A COLLATERAL
ISSUE SO AS TO SPECULATE THAT APPELLANT WAS
NOT TRUTHFUL IN DENYING KNOWLEDGE OF THE
ACCIDENT
III. TRIAL COURT ERRED BY DISREGARDING PERTINENT
FACTS OFFERED BY THE EXPERT WITNESS

We will consider questions II. and III. together. Appellant

presented these arguments in a post-judgment motion for

reconsideration. As explained in Part I., above, the trier of

fact ascertains witness credibility, determines the weight to be

given to a witness' testimony, and has the discretion to accept

or reject any of the witness' testimony. See Servis, 6 Va. App.

at 525, 371 S.E.2d at 165. Further, the fact finder is not

required to accept the testimony of an expert witness merely

because he or she has qualified as an expert. See McLane v.

Commonwealth, 202 Va. 197, 205-06, 116 S.E.2d 274, 281 (1960);

see also Horsley, 2 Va. App. at 339, 343 S.E.2d at 391.

At sentencing, the trial judge explained why and how he made

his credibility determinations. Our review of the record fails

to show that the trial judge improperly rejected appellant's

testimony or improperly rejected the expert's testimony.

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Instead, the trial judge considered all of the evidence, and his

rulings are supported by credible evidence in the record.
IV. WHETHER THE TRIAL JUDGE ERRED BY DISALLOWING
EVIDENCE OF APPELLANT'S LACK OF MOTIVE TO
FAIL TO STOP AT THE SCENE OF THE ACCIDENT

Appellant attempted to admit evidence of lack of motive on

his part to leave the scene of the accident had he been aware of

its occurrence. He identifies four instances where such evidence

was refused.
(A) Appellant asked Louis Veasey, his
supervisor at Consolidated Freightways,
whether the company had any procedure
for a driver to follow when he had been
involved in an accident.

Veasey responded that the driver had certain paperwork which

he had to take care of when this occurred. At this point, the

Commonwealth's attorney objected on the grounds that such

evidence was irrelevant and that the procedure after the accident

had nothing to do with it because appellant testified that he was

unaware that an accident had occurred. Therefore, the procedure

could have had no effect on appellant's actions.

The following colloquy took place between defense counsel

and the trial judge:
THE COURT: Well what's the relevance, Mr.
Grogan?

[DEFENSE COUNSEL]: Well, your Honor, if
there is an accusation of an accident and if
they have procedures for you to go through,
obviously they want to check to see if the
driver is okay and everything like that. I
just wanted to get that in, but I'll let it
go.

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 This response constituted a waiver of the objection, and we

find no error when the trial judge sustained the objection.
(B) Appellant attempted to admit evidence of
his training as a driver to show his
company had taught him what action to
take in case of an accident, so if he
had knowledge of the accident, his
normal reaction would have been to stop
rather than leave the scene of the
accident.

At trial, appellant explained the company's policy with

regard to accidents as follows: "Well you have to fill out an

accident report and submit a drug screen." When asked "was that

procedure followed in your case?," appellant replied, "it was."
Because appellant denied any knowledge that he was involved

in an accident, the trial judge found such evidence irrelevant.

We agree with this ruling because appellant's normal reaction was

not a relevant issue; the appropriate inquiry would have explored

what he did on this occasion. Moreover, because appellant denied

knowledge of the accident, he could not have followed the

procedures for reporting an accident. In fact, by failing to

report the accident when he arrived at the terminal, he did not

take the actions for which he was allegedly trained, thereby

avoiding the responsibility of filing a report and submitting to

a drug screen. It was not until the police investigated the

accident, contacted the company and asked to speak with appellant

that authorities were able to confront appellant. Moreover,

appellant failed to proffer for the record the specific

procedures to follow when reporting an accident. See Smith v.

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Hylton, 14 Va. App. 354, 357-58, 416 S.E.2d 712, 715 (1992) (if a

party's evidence is ruled inadmissible, the party must proffer

the evidence for the record, "otherwise the appellate court has

no basis to decide whether the evidence was admissible") (citing

Whittaker v. Commonwealth, 217 Va. 966, 968, 234 S.E.2d 79, 81

(1977)).

Absent a proffer and based on the evidence presented at

trial, we cannot say the trial judge erred. Accordingly, we find

no merit to this objection.
(C) Appellant contended that he should have
been permitted to solicit evidence from
Veasey about company procedure to be
taken after the accident.

Appellant claimed that such evidence would have shown he was

not in violation of any company policy or regulatory agency

policy, facts which would tend to support his lack of knowledge

of the accident. Appellant asked Veasey the following question:
Besides a suspension for suspicion of an
accident, is there any other action the
company takes or that they expect their
employees to take?

Upon objection of the Commonwealth's attorney on the ground

of relevance, the trial judge sustained the objection. Appellant

did not proffer for the record what the policies would have

required appellant to do, if anything. Without such a proffer,

this issue is not cognizable on appeal. See id. Moreover, we

fail to see how such testimony would be relevant in light of

appellant's failure to follow procedure and his denial of

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knowledge.
(D) Appellant contends that the trial court
erred when it refused to permit expert
Steven Chewning to testify about
customs, standards, and completion and
training requirements adopted and
enforced by the Department of
Transportation.

At trial, the following exchange took place:
[DEFENSE COUNSEL]: Are you familiar with the
customs and standards that have been adopted
and enforced by the Department of
Transportation with respect to tractor
trailer drivers?
[CHEWNING]: I do. That's quite a bit of
what we do, yes, DOT compliance and training.

[DEFENSE COUNSEL]: Okay. Have you had an
occasion to examine the records in this
particular case, that you could comment on
whether procedures were followed or
Department of Transportation guidelines were
followed?

[CHEWNING]: The law -

[COMMONWEALTH'S ATTORNEY]: That's
irrelevant, Your Honor. We're not suggesting
that there was anything improper about the
structure of the truck or the way that it was
being operated.

THE COURT: Well why is that relevant? He's
not contesting that.

[DEFENSE COUNSEL]: Your Honor, I would just
go - our position has been if there was an
accident in which Mr. Jones was involved, he
didn't know about it. Now to decide whether
somebody has knowledge, you need to know a
lot about the person. You need to ask other
things. I mean we don't have to ask this.
We can leave it for the speculation on the
part of the Commonwealth. We were just
trying to go a little bit further and say
there were no conditions that would have made
this person - any condition so that he

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 wouldn't have known that, other than the mere
fact of the action upon the trailer.

THE COURT: Well they're not saying that
there was anything about the hookups or
anything else that was not consistent with
motor vehicle provisions.

[DEFENSE COUNSEL]: Your Honor, then I have
no further questions.

The effect of this discussion was to stipulate the evidence

sought to be admitted by appellant. Therefore, appellant cannot

complain about the refusal to admit the evidence when he agreed

to the stipulation and did not proceed further with the matter.

Moreover, appellant failed to proffer what Department of

Transportation guidelines were followed and how such evidence was

relevant. Accordingly, we find no error.
For the foregoing reasons, we affirm the conviction.

Affirmed.

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