COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, McClanahan and Senior Judge Coleman
Argued at Richmond, Virginia
BO JASON TOOKE
OPINION BY
v. Record No. 2335-04-2 JUDGE SAM W. COLEMAN III
MARCH 28, 2006
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CAROLINE COUNTY
Horace A. Revercomb, III, Judge
Gregory R. Sheldon (Goodwin, Sutton & DuVal, P.L.C., on brief),
for appellant.
Kathleen B. Martin, Assistant Attorney General (Judith Williams
Jagdmann, Attorney General, on brief), for appellee.
Bo Jason Tooke was convicted in a bench trial of two counts of failure to stop at the
scene of an accident in violation of Code § 46.2-894. The convictions arose from a motor
vehicle accident in which Tooke forced an oncoming vehicle to go off the road and crash without
any collision or impact between the two vehicles.
On appeal, Tooke contends the evidence was (1) insufficient to support two separate
counts of failing to stop at an accident scene when there had been a single accident but two
people injured and (2) insufficient to prove he knew an accident had occurred. Because the
accident was a single incident, the evidence was insufficient to prove two separate offenses; thus,
we reverse and vacate one conviction and affirm the other.
I.
BACKGROUND
On appeal, we view the evidence in the light most favorable to the prevailing party,
granting to it all reasonable inferences fairly deducible therefrom. Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).
On the afternoon of December 24, 2003, Tooke was driving north on Route 301, a
two-lane highway, in Caroline County. He was on his way home in Bowling Green from work
at a construction site in Mechanicsville. It was early in the afternoon, and Tooke had worked
only a half-day because it was Christmas Eve. Dennis Buchanan, an insurance investigator and
retired police officer, was driving behind Tooke before and at the time of the accident.
Buchanan testified that he first observed Tooke when they stopped at the traffic light at the
intersection of Route 301 with Route 30, at which time all four wheels of Tooke’s vehicle
extended past the stop line and into the intersection. As Buchanan drove northward behind
Tooke for the next five or six miles, he observed Tooke driving erratically, with the driver’s side
tires twice completely crossing the center line into the southbound lane and twice the right side
tires went onto the shoulder. According to Buchanan, they were both driving within the posted
speed limit at fifty to fifty-five miles per hour. At some point before the accident, Tooke began
following a slower moving older pickup truck. According to Buchanan, after following the truck
for some distance Tooke drove his vehicle entirely into the left southbound lane as if to pass the
truck.
As Tooke moved into the left lane, a van was approaching, traveling southbound. The
van was only about fifty to seventy-five yards away. To avoid the collision Tooke immediately
veered back into the northbound lane behind the pickup. Although the vehicles did not collide,
they passed within a couple of feet of each other. According to Buchanan, he observed the
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driver of the van, Leslie Purdem, veer to the right to avoid a collision and onto the shoulder of
the road, then back onto the road and into the northbound lane, and then back onto the
southbound shoulder and into the woods.1 Purdem and her passenger husband were severely
injured in the accident. Buchanan saw the Purdem van crash into the woods, as did the driver
behind Buchanan who stopped to render aid to the crash victims. Buchanan continued to follow
Tooke in order to get his license number and report the accident. Buchanan testified that as he
followed Tooke after the accident Tooke no longer drove erratically, did not attempt to pass the
pickup truck, and did not weave or drift into the other lane or off the shoulder.
Tooke denied that he was attempting to pass; he said instead that he fell asleep and his
vehicle drifted entirely into the southbound lane and oncoming traffic. Tooke testified that he
awoke to find himself in the path of oncoming traffic, and immediately swerved back into the
correct lane when he realized what was happening. He testified that he did not see the van go off
of the road or crash into the woods and was unaware an accident had occurred.
1
Buchanan testified as follows:
Well, when the van went behind me, it was still on the
shoulder. I looked in my rearview mirror, like Mr. Tooke said he
did, and I saw the van come back, and I said, good, the van made
it. Then, it went back into the woods. So, I could see in my
rearview mirror thirty yards maybe.
* * * * * * *
The van came into the northbound lane, came across the
southbound to the northbound and then into the trees.
* * * * * * *
They came over and went back to the right side.
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II.
ANALYSIS
Sufficiency of the Evidence to Support Two Separate Charges
On appeal, Tooke contends the trial court erred in finding the evidence sufficient to
support two separate charges of failure to stop at the scene of an accident. He failed, however, to
raise this issue at trial. Rule 5A:18 precludes this Court from considering an issue on appeal
unless the appellant objected at trial in order to provide the trial judge an opportunity to consider
and rule upon the issue unless “good cause [is] shown [for failing to object] or [unless it is
necessary for us to address the issue] to enable [this Court] to attain the ends of justice” and
prevent a miscarriage of justice.
“The ends of justice exception is narrow and is to be used sparingly,” and only when a
trial court error is “clear, substantial and material.” Brown v. Commonwealth, 8 Va. App. 126,
132, 380 S.E.2d 8, 11 (1989). “In order to avail oneself of the exception, a defendant must
affirmatively show that a miscarriage of justice has occurred, not that a miscarriage might have
occurred.” Id. (citing Mounce v. Commonwealth, 4 Va. App. 433, 436, 357 S.E.2d 742, 744
(1987)). “In examining a case for miscarriage of justice, we do not simply review the sufficiency
of the evidence under the usual standard, but instead determine whether the record contains
affirmative evidence of innocence or lack of a criminal offense.” Lewis v. Commonwealth, 43
Va. App. 126, 134, 596 S.E.2d 542, 546 (2004), rev’d on other grounds, 269 Va. 209, 608 S.E.2d
907 (2005). See also Michaels v. Commonwealth, 32 Va. App. 601, 529 S.E.2d 822 (2000);
Redman v. Commonwealth, 25 Va. App. 215, 221, 487 S.E.2d 269, 272 (1997).
Code § 46.2-894 states:
The driver of any vehicle involved in an accident in which a
person is killed or injured or in which an attended vehicle or other
attended property is damaged shall immediately stop as close to the
scene of the accident as possible without obstructing traffic . . . and
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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
driver shall also render reasonable assistance to any person injured
in such accident, including taking such injured person to a
physician, surgeon, or hospital if it is apparent that medical
treatment is necessary or is requested by the injured person.
(Emphasis added.)
The gravamen of the offense under the statute is a single accident, regardless of the
number of persons injured or the extent of the damage. Nowhere does the statute mention that
failure to stop and assist each person involved in a single accident is a separate crime. Thus, in
construing Code § 46.2-894, the Supreme Court has held:
The extent of the property damaged or the number of people
injured or killed does not constitute an element of the offense. It is
the flight from the scene, and the failure to give the information
required to the person in charge of the property damaged or succor
to the injured which constitute the completed offense.
James v. Commonwealth, 178 Va. 28, 37, 16 S.E.2d 296, 300 (1941).
The Attorney General acknowledges that the holding in James is controlling and that
Tooke should not have been convicted of two violations of Code § 46.2-894. In view of James
and the concession, we hold that appellant was convicted of two counts of failure to stop at the
scene of an accident when, as a matter of law, the evidence proved a single offense. Because
appellant was convicted twice for conduct that was but one criminal offense, a miscarriage of
justice occurred. We therefore reverse and vacate the criminal conviction as to one of the two
convictions. We remand for the dismissal of that indictment.
Sufficiency of the Evidence to Support that Appellant Knew an Accident Occurred
An element of the charged crime, commonly referred to as “hit and run,” is actual
knowledge that an accident occurred.
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Actual knowledge is a fact that may be proved by direct or circumstantial evidence.
“Circumstantial evidence is as competent and is entitled to as much weight as direct evidence,
provided it is sufficiently convincing to exclude every reasonable hypothesis except that of
guilt.” Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983). A fact finder
may rely upon a combination of circumstances to support a conviction, even though each
circumstance in isolation would be insufficient. Stamper v Commonwealth, 220 Va. 260, 273,
257 S.E.2d 808, 818 (1979). Moreover,
“[i]f the proof relied upon by the Commonwealth is wholly
circumstantial . . . then to establish guilt beyond a reasonable doubt
all necessary circumstances proved must be consistent with guilt
and inconsistent with innocence. They must overcome the
presumption of innocence and exclude all reasonable conclusions
inconsistent with that of guilt.”
Higginbotham, 216 Va. at 352-53, 218 S.E.2d at 537 (quoting LaPrade v. Commonwealth, 191
Va. 410, 418, 61 S.E.2d 313, 316 (1950)). The trial judge, in his role as fact finder, found that
Tooke had actual knowledge of the accident and that an injury would have occurred, and his
judgment cannot be set aside unless it is “plainly wrong.” Naulty v. Commonwealth, 2 Va. App.
523, 527, 346 S.E.2d 540, 542 (1986).
Here, “the relevant question is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential element[ ] of
[actual knowledge] beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979)
(emphasis in original). “This familiar standard gives full play to the responsibility of the trier of
fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts.” Id. The circumstantial evidence and reasonable
inferences which the trial judge, as fact finder, may have drawn therefrom support the factual
finding that Tooke had actual knowledge of the accident.
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The evidence shows that Tooke drove his vehicle into the opposite travel lane in the face
of oncoming traffic. Whether he did so in a conscious effort to pass a slower-moving pickup
truck or because he “nodded off” and drifted into the wrong lane of travel, as he stated, is of no
consequence. The dispositive question before the trial court and before us is whether Tooke
knew that his action of driving into the wrong lane had caused an accident in which the
occupants would have sustained personal injury. Here, according to Tooke’s own testimony and
that of Buchanan, Tooke’s vehicle was entirely in the southbound lane; his vehicle and the
Purdem van were within fifty to seventy-five yards on a collision course; at the last moment
Tooke pulled back into his northbound lane, passing within a few feet of the Purdem van and
narrowly avoiding a collision. Both Buchanan and the driver of the vehicle behind him observed
the Purdem vehicle veer off the shoulder of the road to avoid a collision and then proceed into
the woods. Buchanan’s observations that an accident had occurred with the crash of the van into
the woods were sufficient to cause him to follow Tooke to obtain his license number and to
report the accident. The other driver’s observations that the van had been forced off the road and
crashed into the woods were sufficient to cause him to stop and render assistance to the seriously
injured passengers.
Tooke, who pulled back into his travel lane behind the pickup truck, had an equal or
better opportunity than Buchanan or the following driver to have observed that he had forced the
van to veer onto the shoulder of the road, lose control and come back across the road, and then
go off the traveled portion of the road, crashing into the woods. Although Tooke testified that he
was too intent on getting back into his lane of travel to have observed what happened with the
Purdem van, on these facts, the trial judge found that the circumstances proved beyond a
reasonable doubt that Tooke knew that he had caused an accident in which the occupants of the
vehicle would have sustained personal injury. The fact finder has the right to reject parts of the
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evidence as untrue and accept other parts. Belton v. Commonwealth, 200 Va. 5, 9, 104 S.E.2d 1,
4 (1958). Here, the trial judge, acting within his capacity as the fact finder, rejected much of
Tooke’s testimony, stating it “defie[d] logic” to think he did not know an accident had occurred.
Because the evidence, and reasonable inferences to be drawn therefrom, when viewed in
the light most favorable to the Commonwealth, are sufficient to prove appellant had actual
knowledge of the accident, we affirm Tooke’s conviction.
We therefore reverse and vacate one conviction and affirm the other and remand the case
to the circuit court with directions to vacate one of Tooke’s convictions and to dismiss that
indictment.
Affirmed in part,
reversed and vacated in part,
and remanded.
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Benton, J., concurring, in part, and dissenting, in part.
For the reasons given in the majority opinion, I concur in the holding that the evidence
was not sufficient to support two separate violations of Code § 46.2-894. I would also hold,
however, that the evidence was insufficient to prove Bo Jason Tooke was aware that any
accident occurred involving an injury or damaged property.
The sole issue is whether the evidence proved Tooke knew the van had crashed. The
testimony and evidence about the events are reasonably consistent. Dennis Buchanan testified he
drove northbound behind Tooke for about six miles before the incident. In that distance, he saw
Tooke’s car stray out of the travel lane to the left twice and to the right twice. As Buchanan
watched Tooke’s car, he concluded that Tooke was having some difficulty because Buchanan
said to himself “this guy is going to go off the road and hit a tree and kill himself.”
When Tooke and Buchanan approached a northbound truck ahead of Tooke, Tooke’s car
moved “all of a sudden . . . out in the fast lane.” Buchanan saw a van approaching in the
southbound direction “fifty to seventy-five yards away.” Tooke’s car immediately came back
into the northbound travel lane behind the truck. No evidence proved Tooke’s car accelerated
when it moved into the opposite travel lane. Although Buchanan surmised that Tooke suddenly
moved “to pass this truck,” he testified that Tooke only “stayed in the lane for five to ten
seconds” before moving back to avoid the oncoming van. He also testified that Tooke’s car
“never did pass the truck” and that they “weren’t speeding.”
As Tooke’s car came back into the northbound lane, the van that was traveling
southbound moved onto the shoulder of the highway and passed Tooke’s car. No collision or
contact occurred between the two vehicles. Buchanan testified that the van and Tooke’s car
passed “within a couple of feet” and that Tooke continued northbound on the highway.
Buchanan followed Tooke and observed that Tooke drove “perfect[ly]” from that point.
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This evidence failed to prove Tooke knew that the driver lost control of the van and
crashed after returning to the southbound lane. “Knowledge necessarily is an essential element
of the crime. . . . ‘[I]t must be present in [the driver’s] mind that there has been an injury; and
then, with that in mind, he must deliberately go away.’” Herchenbach v. Commonwealth, 185
Va. 217, 220, 38 S.E.2d 328, 329 (1946) (citation omitted)). Thus, to prove the driver “guilty of
violating the statute,” the evidence must prove beyond a reasonable doubt that “‘the driver [was]
aware that harm has been done.’” Id. (citation omitted).
I believe the majority incorrectly concludes that the circumstantial evidence in this case
excludes every reasonable hypothesis of Tooke’s innocence. It is not sufficient that two drivers
who were behind Tooke, and thus closer to the van when it crashed, knew that an accident
occurred. To convict Tooke based on circumstantial evidence, the Commonwealth must
“exclude all reasonable conclusions inconsistent with that of guilt.” LaParade v.
Commonwealth, 191 Va. 410, 418, 61 S.E.2d 313, 316 (1950); see also Commonwealth v.
Smith, 259 Va. 780, 783, 529 S.E.2d 78, 79 (2000).
The trial judge found that “the accident had already begun before [Tooke] knew his
vehicle was in the wrong southbound lane and headed back into the northbound lane.” From that
premise, the judge concluded the evidence proved Tooke knew of the ensuing events because
“he knew of this close encounter.” This conclusion is not supported by the evidence.
Buchanan’s testimony suggests that Tooke likely did not see the events that occurred
after the near collision. Buchanan testified that he watched the van in his rearview mirror after
the near collision. As Buchanan continued northward, he “saw the van come back [onto the
road] and . . . said, good, the van made it.” Thus, Buchanan, who was fully alert, initially
believed the near collision had no consequential effect. Only as Tooke and Buchanan continued
northbound on the highway did Buchanan notice that the van continued to move across the
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highway. Buchanan testified that after he saw the van return to the highway in its proper lane of
travel, the southbound lane, he then saw it move “into the northbound lane” and then return to
the southbound lane before leaving the highway and hitting trees.
No evidence proved that Tooke saw the van cross from the southbound lane into the
northbound lane, return to the southbound lane, and then leave the highway before crashing into
the trees. As these events were occurring, at least one other vehicle was behind Buchanan’s
vehicle. The presence of Buchanan’s vehicle behind Tooke and another vehicle behind
Buchanan’s vehicle, all moving at fifty-five miles per hour, suggests Tooke may not have been
in a position to see the van after it returned to its travel lane. Certainly, Buchanan’s expression
of relief that the van was not in difficulty when it came back onto the roadway, provides a
reasonable hypothesis that Tooke had reason to believe the incident had not caused injury or
damage to the van.
Additionally, no objective facts indicate Tooke was aware the van crashed. Buchanan
did not testify that Tooke’s brake lights illuminated. Buchanan also did not testify that Tooke’s
speed momentarily dropped below the speed limit. Thus, the evidence does not show Tooke had
even a momentary hesitation or awareness that something untoward later happened.
Furthermore, the evidence did not establish the contour of the highway beyond “the close
encounter” or the type of vehicles behind Tooke. In other words, the evidence failed to prove the
highway was straight, giving a clear line of sight as Tooke and Buchanan continued northward,
or to prove Tooke could have had an unobstructed view to his rear.
Based on Buchanan’s telephone call as he followed Tooke, a deputy sheriff arrested
Tooke and took him back to the scene of the incident. The deputy sheriff testified that Tooke
“said . . . the only thing [he remembered was] being tired and swerving.” The deputy sheriff also
testified Tooke said he saw no accident. The deputy sheriff did not testify he detected any traces
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of alcohol as he questioned Tooke. Consistent with the Commonwealth’s evidence, Tooke
testified at trial that he was going home from work, became tired, and began to “nod off.” He
explained that he “nodded off to sleep” and then “came to [his] senses, [seeing] traffic coming
[toward him] because [he] was in the wrong lane.” He corrected his swerve and continued
driving, now alert after the near collision.
“It is, of course, a truism of the criminal law that evidence is not sufficient to support a
conviction if it engenders only a suspicion or even a probability of guilt. Conviction cannot rest
upon conjecture.” Smith v. Commonwealth, 192 Va. 453, 461, 65 S.E.2d 528, 533 (1951). “The
guilt of a party is not to be inferred because the facts are consistent with his guilt, but they must
be inconsistent with his innocence.” Cameron v. Commonwealth, 211 Va. 108, 110-11, 175
S.E.2d 275, 276 (1970). The evidence merely created a suspicion that Tooke had knowledge the
van later collided with a tree; however, “it is not sufficient to create a suspicion or probability of
guilt, [because] the evidence must establish the guilt of an accused beyond a reasonable doubt.”
Id. at 110, 175 S.E.2d at 276.
While Tooke may have committed a driving offense, the Commonwealth’s evidence
failed to prove he violated Code § 46.2-894 (duty to report information and render assistance
when a driver is involved in an accident in which injury or damage occurs). Simply put, the
evidence failed to prove Tooke knew the near collision resulted in harm, a necessary element of
the crime. Herchenbach, 185 Va. at 220, 38 S.E.2d at 329. For these reasons, I would reverse
both convictions and dismiss the indictments.
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Tooke v. Commonwealth
Court: Court of Appeals of Virginia
Date filed: 2006-03-28
Citations: 627 S.E.2d 533, 47 Va. App. 759
Copy CitationsCombined Opinion