COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Coleman and Elder
Argued at Richmond, Virginia
JOHN D. HURLEY
v. Record No. 0527-95-2 MEMORANDUM OPINION * BY
JUDGE SAM W. COLEMAN III
COMMONWEALTH OF VIRGINIA MARCH 5, 1996
FROM THE CIRCUIT COURT OF MIDDLESEX COUNTY
John M. Folkes, Judge
James C. Breeden (Barbara H. Breeden;
Hubbard, Breeden & Terry, on brief), for
appellant.
Margaret Ann B. Walker, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
John D. Hurley was convicted in a bench trial of driving
under the influence of alcohol, second offense. Hurley contends
that the evidence is insufficient to prove that he operated an
automobile while intoxicated and that the trial court erred by
considering his prior conviction for driving while under the
influence of alcohol as affirmative evidence of guilt. We find
no error and affirm the defendant's conviction.
On appeal, the evidence is viewed in the light most
favorable to the Commonwealth and accorded all reasonable
inferences fairly deducible therefrom. Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).
The trial court's verdict will not be disturbed unless "plainly
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
wrong or without evidence to support it." Id.
In Coffey v. Commonwealth, 202 Va. 185, 116 S.E.2d 257
(1960), the Supreme Court reversed the accused's conviction for
driving under the influence because although the evidence showed
that he was intoxicated approximately one hour after the
accident, "[n]o evidence was produced to establish [his]
condition at the time he was actually operating the vehicle."
Id. at 187, 116 S.E.2d at 258; see also Fowlkes v. Commonwealth,
194 Va. 676, 678, 74 S.E.2d 683, 684 (1953).
The facts in the present case are distinguishable from those
in Coffey. Here, only a short time after the defendant wrecked
his car in a single car accident, Donna Sears testified that she
smelled a "strong" odor of alcohol on the defendant's person when
she attempted to help him out of his car. Cindy Foor testified
that she noticed an odor "that seemed to be alcohol" at the scene
of the accident. Both Sears and Foor claimed that the defendant
was "combative" and wanted to be left alone. Foor testified that
he "staggered," and that his walk was "very unstable" when he
left the scene of the accident. In addition, Trooper E. W.
Chaney testified that he still smelled a "very strong odor of
alcohol" about the defendant approximately two hours after the
accident. This testimony is probative of the defendant's
condition at the time of the accident because Trooper Chaney
asked the defendant whether he had drunk anything since the
accident and the defendant responded, "[h]ell no." Although the
- 2 -
defendant's wife testified that she fixed him a drink when he
came home, the trial court was entitled to rely on the
defendant's statement to Trooper Chaney that he had not consumed
any alcohol after the accident. See Overbee v. Commonwealth, 227
Va. 238, 244, 315 S.E.2d 242, 245 (1984); Wheeling v. City of
Roanoke, 2 Va. App. 42, 44, 341 S.E.2d 389, 390 (1986). The
evidence is sufficient, viewed in the light most favorable to the
Commonwealth, to prove that the defendant was intoxicated at the
time he was driving and had the accident.
The defendant is barred from contending on appeal that the
trial court erred by considering his prior conviction as
affirmative evidence of guilt. The defendant did not object to
the trial court considering the evidence or in any manner raise
the issue at trial. Rule 5A:18. In rendering the verdict, the
trial judge stated:
[T]here is just so much circumstantial
evidence here that I can't close my eyes to.
[The defendant] told the police officer that
he had had nothing to drink since the
accident and his wife said she gave him a
drink, the excessive speed the first witness
talked about, the odor of alcohol upon his
breath when he stopped or when they came out
to see to him, the fact that he has had a
previous conviction.
Because the defendant was charged with driving under the
influence, second offense, the trial judge may have referred to
the previous conviction solely to indicate that each element of
the charge had been proved. However, the defendant's failure to
make a specific objection denied the trial judge the opportunity
- 3 -
to explain or reconsider his ruling. See Martin v. Commonwealth,
13 Va. App. 524, 530, 414 S.E.2d 401, 404 (1992) (en banc)
("primary function of Rule 5A:18 is to alert the trial judge to
possible error so that the judge may consider the issue
intelligently and take any corrective actions necessary to avoid
unnecessary appeals, reversals and mistrials").
Because the evidence was sufficient to prove beyond a
reasonable doubt that the defendant was intoxicated while
operating an automobile, we affirm the conviction.
Affirmed.
- 4 -