COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Annunziata and Senior Judge Cole
Argued at Richmond, Virginia
HOANG HUY NGUYEN
MEMORANDUM OPINION * BY
v. Record No. 0211-95-2 JUDGE MARVIN F. COLE
APRIL 2, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CAROLINE COUNTY
J. Peyton Farmer, Judge
Michael HuYoung for appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
In a bench trial, the appellant, Hoang Huy Nguyen, was
convicted on three counts of vehicular involuntary manslaughter
in violation of Code § 18.2-36. On appeal, Nguyen contends that
the evidence was insufficient to support the convictions. We
disagree and affirm.
[W]e 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.
Josephs v. Commonwealth, 10 Va. App. 87, 99, 390 S.E.2d 491, 497
(1990) (en banc) (citation omitted).
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
I.
On July 3, 1993, at about 3:30 p.m., a collision occurred on
Interstate 95 in Caroline County involving a 1992 white Plymouth
Laser driven by appellant and a 1993 Ford van operated by Steven
Rivers. Three children, who were passengers in the van, died as
a result of the crash. The accident occurred in the southbound
lanes of I-95 which contain three traffic lanes divided by broken
white lines. The maximum speed limit on I-95 at the time of the
accident was sixty-five miles per hour. The evidence did not
disclose any defects in the roadway or in either vehicle involved
in the accident.
At trial, the first witness called by the Commonwealth was
Khan Ho, who was a passenger in appellant's vehicle. After the
accident, Ho advised the investigating state trooper that he was
the driver of the 1992 white Laser. He gave the officer a
statement that the accident was his fault. He testified that he
initially told the officer he was the driver and took
responsibility for the accident because he did not appreciate the
seriousness of the accident and wanted to help appellant, who did
not have a good driving record. Several days later, Nguyen
admitted that he was the driver. All charges against Ho were
dismissed and instituted against Nguyen.
When questioned about Nguyen's driving, Ho testified that
his speed was "about seventy -- seventy something." When asked
"Who was drinking?" he responded, "[a]t that time, I drank two
2
beers and Hoang [Nguyen] was drinking one." There were twelve
beers in the car, and Ho testified that after the collision, he
threw them out of the car window.
The 1993 Ford van, containing nine people, was driven by
Steven Rivers. He testified on behalf of the Commonwealth and
stated that he was proceeding southward on I-95 in the middle
lane. He did not recall his speed. He stated that it was July 3
and "[t]raffic was very heavy." In describing his recollection
of the accident, he said:
There was another vehicle in the right lane
that was ahead of me. We had been in that
position for, I think, quite a while. I
heard a loud noise. I thought that the axle
or something had snapped on the vehicle and I
couldn't control it anymore. And I lost
control of the car.
Liza Olavarria, a witness for the Commonwealth, testified
that at the same time and place, she was driving her car
southward on I-95 in the left lane. Her speed was sixty-five to
seventy miles per hour. She described her first observation of
appellant's Laser as follows: "Well, he was traveling very fast.
He 'whizzed' by me on my right." She testified that the
appellant was in the middle lane and "going right by me" and was
"changing lanes."
Ms. Olavarria testified that when appellant passed her in
the middle lane, the 1993 Ford van was in front of her and also
in the middle lane. She placed another car in the right lane
behind the van. I-95 was, therefore, obstructed by a van in the
3
middle lane followed by the appellant, Ms. Olavarria in the left
lane and another vehicle in the right lane.
Ms. Olavarria saw the Laser cut in front of the car in the
right lane. She testified that after getting into the right
lane, "he" made a movement to the left and struck the van. She
described what she observed as follows: "He made it into the
right lane and then, turned into the van and made the van go into
other lanes and then, the van went like this [witness indicating]
and then, toppled over the side."
Ms. Olavarria's sister, Amy, was sleeping in the Olavarria
car. She heard the brake noise and awoke in time to see
appellant's vehicle hit the van. She testified that she saw the
van "flipping over" and glass and debris coming toward her.
Trooper C. L. Richardson of the Virginia State Police
investigated the accident. He testified concerning the physical
evidence found at the scene and took photographs. Appellant's
vehicle left skidmarks measuring 184 feet beginning in the right
lane and continuing into the middle lane, where it collided with
the Ford van. Trooper Richardson testified that he could
determine the point of impact from the physical evidence on the
roadway. He placed the point of impact in the middle lane, close
to the right travel lane.
Photographs introduced into evidence show appellant's
skidmarks commencing in the right lane and continuing almost out
of the lane to the right. They then swing gradually back into
4
the right lane. They then proceed in the right lane to the point
of impact in the middle lane. Trooper Richardson testified that
the point of impact on appellant's car was at the left rear tire.
After impact at the right rear of the van, the van rotated
in the middle lane, crossed into the right lane onto the shoulder
of the road, and down a fifty foot embankment. This, the officer
stated, was consistent with being struck on the right side.
According to the officer's measurements, the van traveled 255
feet from the point of impact prior to going over the road
guardrail. After crossing the guardrail, the van went another
ninety-two feet before coming to rest at the bottom of the
embankment. The van was damaged to such an extent the officer
could not determine from it the point of impact.
II.
The position of appellant is that the evidence may prove him
guilty of negligence, but it is insufficient to establish that he
is guilty of negligence so gross, wanton, and culpable as to show
a reckless disregard of human life.
The Supreme Court has declared that involuntary manslaughter
in the operation of a motor vehicle in the Commonwealth "should
be predicated solely upon criminal negligence proximately causing
death." King v. Commonwealth, 217 Va. 601, 607, 231 S.E.2d 312,
316 (1977). It has defined involuntary manslaughter in the
operation of a motor vehicle as "the accidental killing which,
although unintended, is the proximate result of negligence so
5
gross, wanton, and culpable as to show a reckless disregard of
human life." Id. See also Tubman v. Commonwealth, 3 Va. App.
267, 348 S.E.2d 871 (1986) (referencing most, if not all,
Virginia cases on vehicular involuntary manslaughter).
In Keech v. Commonwealth, 9 Va. App. 272, 386 S.E.2d 813
(1989), this Court stated:
In determining the degree of negligence
sufficient to support a conviction of
vehicular involuntary manslaughter, the
accused's conscious awareness of the risk of
injury created by his conduct is necessarily
a significant factor. Obviously, when the
driver proceeds in the face of a known risk,
the degree of the negligence is increased,
and may turn that which would have been
ordinary negligence into gross, willful or
wanton negligence.
Id. at 278, 386 S.E.2d at 816.
In Keech, the Court further addressed the question whether
to apply an objective or subjective standard when determining
what is a "known risk." This Court held that an objective
standard would apply and the degree of negligence would be
"determined by the great risk of injury together with the
knowledge [appellant] had or should have had of that risk." Id.
at 282, 386 S.E.2d at 818.
When appellant undertook to pass the Rivers' van, the law
imposed upon him certain duties. He had the common law duties to
keep a proper lookout to see what could reasonably be seen, and
to keep his vehicle under proper control. He had several
statutory obligations. Whenever any roadway has been divided
6
into clearly marked lanes for traffic, drivers shall drive their
vehicles as nearly as is practical entirely within a single lane
and shall not be moved from that lane until the driver has
ascertained that such movement can be made safely. Code
§ 46.2-804(2). "Irrespective of the maximum speeds permitted by
law, any person who drives a vehicle on any highway recklessly or
at a speed or in a manner so as to endanger the life, limb, or
property of any person shall be guilty of reckless driving."
Code § 46.2-852. "A person shall be guilty of reckless driving
who drives a vehicle which is not under proper control . . . ."
Code § 46.2-853. "A driver shall be guilty of reckless driving
who exceeds a reasonable speed under the circumstances and
traffic conditions existing at the time, regardless of any posted
speed limit." Code § 46.2-861.
When we consider the evidence in the most favorable light to
the Commonwealth, as we must, we have no doubt that the appellant
violated all of these duties. The issue, however, is whether the
cumulative effect of his conduct constitutes "negligence so
gross, wanton, and culpable as to show a reckless disregard of
human life."
In Keech, we said that one significant factor to be
considered was appellant's conscious awareness of the risk of
injury created by his conduct, using an objective standard. In
this case, appellant knew, or should have known, that his conduct
created a great risk reasonably calculated to produce injury. It
7
was daylight and all the other vehicles were directly in front of
him. Olavarria was in the left lane, Rivers was in the center
lane and another vehicle, whose identification is unknown, was in
the right lane. Despite this situation, appellant chose to pass
all of them at an illegal rate of speed in excess of the maximum
allowed by law. He chose a time to pass when his movement could
not be made in safety. He "whizzed" past Olavarria and then cut
in front of the car in the right lane. The skidmarks and the
testimony of the state trooper establish that when appellant
reached the right lane, his speed prevented him from entering
that lane in a normal manner, but he continued to the far side of
the right lane. He did not run off onto the shoulder because he
cut back toward the center of the roadway and continued unabated
southward in the center lane until he entered the middle lane and
struck the Rivers' van, causing it to rotate in the roadway and
run down the embankment, causing the death of three children in
the van. Appellant's car during this period obviously was out of
control. All of this occurred at a time when traffic on the
highway was heavy.
One witness, an occupant of appellant's vehicle, testified
that appellant, at the time of the accident, was drinking a beer.
The fact finder could conclude that appellant possessed the beer
while driving and that this would divert his attention from the
business of driving and lessen his ability to control the
vehicle. An obvious risk is incurred by this conduct while
8
driving under the circumstances that existed here.
III.
We conclude from the undisputed evidence that appellant knew
all of the traffic conditions that existed at the time. All of
the traffic involved in the accident was in clear view and
directly in front of the appellant in broad daylight. He was
driving in excess of seventy miles per hour on a roadway with
heavy traffic. He had a drink in his possession. The vehicles
ahead of him were driving sixty-five to seventy miles per hour.
Under these circumstances, appellant willfully chose to pass
all of the traffic ahead of him. To do this he had to change
lanes, itself a dangerous maneuver, one in which the law places
upon him the duty to make such movement only when it can be made
in reasonable safety. Appellant was driving in excess of seventy
miles per hour, violating the maximum speed limit on the roadway,
again a willful and deliberate act on his part. The trial court
found that appellant's conduct constituted negligence "so gross,
wanton, and culpable as to show a reckless disregard of human
life" and convicted him on three counts of involuntary
manslaughter.
We cannot say that its judgment was plainly wrong or without
credible evidence to support it. The degree of appellant's
negligence, as determined by the great risk of injury together
with the knowledge he had or should have had of that risk, was
sufficient to support the convictions beyond a reasonable doubt.
9
For the reasons stated, we affirm the convictions.
Affirmed.
10