COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Elder and Humphreys
Argued at Alexandria, Virginia
IVELIS LILY CREST
OPINION BY
v. Record No. 2681-01-4 CHIEF JUDGE JOHANNA L. FITZPATRICK
MARCH 25, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Leslie M. Alden, Judge
Jerry M. Phillips (Phillips, Beckwith, Hall &
Chase, on brief), for appellant.
Amy Hay Schwab, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
Ivelis Lily Crest (appellant) appeals her bench trial
conviction for reckless driving in violation of Code § 46.2-852.
On appeal, appellant contends that the trial court abused its
discretion (1) in admitting evidence of driving behavior remote in
time and location; (2) in admitting testimony regarding another
offense for which appellant was not on trial; and (3) erred in
finding the evidence sufficient to support the conviction. For
the reasons that follow, we affirm the trial court.
I. Factual Background
Under familiar principles of appellate review, we examine
the evidence in the light most favorable to the Commonwealth,
granting to it all reasonable inferences fairly deducible
therefrom. See Juares v. Commonwealth, 26 Va. App. 154, 156,
493 S.E.2d 677, 678 (1997). "In so doing, we must discard the
evidence of the accused in conflict with that of the
Commonwealth, and regard as true all the credible evidence
favorable to the Commonwealth and all fair inferences that may
be drawn therefrom." Watkins v. Commonwealth, 26 Va. App. 335,
348, 494 S.E.2d 859, 866 (1998). So viewed, the evidence proved
that on the morning of January 10, 2001 appellant was the
operator of a black truck that caused a four-vehicle accident in
the High Occupancy Vehicle (HOV) lanes of Interstate 95 (I-95)
in Fairfax County. Traffic was congested, and other drivers were
moving under the speed limit at approximately forty-five miles
an hour. The road was dry, and the visibility was good "for
miles." Given these conditions, other drivers saw that traffic
was heavy and "some [cars were] stopping." As the drivers of
the first three vehicles involved in the accident approached the
Lorton exit in Fairfax County, traffic came to a complete stop
and they stopped their cars.
Magdolna Smith, the driver of the first car involved in the
accident, a Ford Taurus, stated the volume of traffic that
morning was "very heavy," "bumper to bumper" and that for her
entire twenty-mile drive on I-95 she was "not able to go faster
than forty-five miles an hour." She stated she had a clear view
of the traffic pattern "for miles" immediately prior to the
accident. Smith noticed the traffic ahead of her stopping, so
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she applied her brakes and stopped her car. She had been
stopped for approximately one minute before the accident
occurred. The impact of the collision pushed her car out of the
left lane, across the right lane of traffic and into the Jersey
wall on the far right side of the HOV lanes. Smith estimated
the distance at more than ten feet.
David Parry, the driver of the third car, a Toyota Camry, 1
described the traffic on the morning of the accident as "worse
than normal." Parry stated he had a clear view for "a couple of
miles" making it possible to see the traffic pattern. He saw "a
line of cars, redlights, some stopping . . . . So it was pretty
backed up." Parry explained the accident as follows
I slowed to a stop, and I braked for the
traffic in front of me going north. I
applied the brakes. There was a red Mazda
Miata convertible in front of me. I stopped
3 to 5 feet before that automobile.
At that time, I noticed a flash of light in
my rear-view mirror. I looked up.
Following that there was an impact into my
vehicle from the rear. It threw me into the
steering wheel and forced me back into my
seat.
The impact of the crash caused Parry's vehicle to leave its lane
of travel, cross the right lane of traffic and stop on the far
right side of the HOV lanes. Parry's vehicle was "a total
loss."
1
The driver of the second car in the line, a Mazda Miata,
was killed at the scene.
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Trooper John F. Murphy of the Virginia State Police was
also traveling in the HOV lanes on the morning of the accident.
When traffic in the HOV lanes came to an abrupt stop, Murphy
drove on the shoulder to investigate. He arrived at the
accident scene approximately one minute after it occurred.
Murphy saw a black truck in the left lane, a Mazda Miata
overturned and facing the opposite direction of traffic, and a
Toyota Camry and Ford Taurus blocking the right lane and
shoulder. After securing the accident scene and tending to the
victims, Murphy spoke with appellant about the accident in order
to complete a Department of Motor Vehicles accident report.
Appellant admitted she was the driver of the black truck. After
waiving her Miranda rights, appellant gave Murphy a written
statement of her account of the accident. She stated that she
was traveling fifty miles per hour prior to the accident and hit
the Toyota when it slammed on its brakes.
At trial, over appellant's objection, the Commonwealth
elicited testimony from Raymond Smith, 2 who saw appellant driving
in the HOV lanes in Stafford County, Virginia, approximately 15
miles before the accident scene. Raymond Smith stated that
appellant was driving at "a very excessive speed," faster than
the approximately 70 miles per hour he was traveling. He also
reported that appellant rapidly approached his car, drove to
2
Raymond Smith is not related to Magdolna Smith and was
driving a different vehicle.
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within approximately three feet of his rear bumper and then
passed him "erratically" when he moved to the right lane. Smith
stated appellant continued to drive dangerously close to the
rear of other cars and then pass them at the same distance she
had passed him. He indicated he could see appellant continue
passing other cars for "a long distance" ahead of him and that
she was tailgating and weaving in and out of traffic in an
effort to pass other drivers. Approximately twenty minutes
later Smith saw appellant's truck at the accident scene.
II. Evidence of Driving Behavior Before the Accident
Appellant first contends that King v. Commonwealth, 217 Va.
601, 231 S.E.2d 312 (1977), compels the exclusion of Smith's
testimony describing her earlier driving behavior as being too
remote. We disagree.
"The admissibility of evidence is within the broad
discretion of the trial court, and a ruling will not be
disturbed on appeal in the absence of an abuse of discretion."
Jones v. Commonwealth, 38 Va. App. 231, 236, 563 S.E.2d 364, 366
(2002).
[W]e have held that evidence of excessive
speed at one place on a highway is not
sufficient, standing alone, to justify an
inference of excessive speed at another
place. But we have never held that this
rule is absolute or that proof of speed at
the moment of impact must be conclusive.
Hogan v. Carter & Grinstead, 226 Va. 361, 367, 310 S.E.2d 666,
669 (1983).
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[E]xcessive speed [remote] from the place of
accident [is] not, of itself, sufficient
. . . to warrant an inference of excessive
speed at the time of the accident. But
whether such evidence has probative value is
usually within the sound discretion of the
trial court, depending on distance from the
scene of accident and possibly other
factors.
Interstate Veneer Co. v. Edwards, 191 Va. 107, 111, 60 S.E.2d 4,
6 (1950) (emphasis added) (cited with approval in King, 217 Va.
at 605, 231 S.E.2d at 315); see also Slate v. Saul, 185 Va. 700,
708, 40 S.E.2d 171, 175 (1946) ("Generally the admissibility of
evidence of this kind is a matter of discretion with the trial
court, and unless it exercises an arbitrary discretion this
court will not interfere."). "We have been reluctant to permit
an inference of excessive speed at one place on a highway from
evidence of such speed at another place. . . . [H]owever, we
have left the admissibility of such evidence to the discretion
of the trial court." King, 217 Va. at 604-05, 231 S.E.2d at
315.
Appellant's reliance on King is misplaced. In King, the
Supreme Court determined whether the evidence presented at trial
was sufficient to sustain a conviction for involuntary
manslaughter. The Commonwealth had the burden of proving that
King killed the victims accidentally "in the prosecution of some
unlawful, but not felonious, act; or in the improper performance
of a lawful act." Id. at 604, 231 S.E.2d at 315. The
determinative issue was whether King was traveling at an
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"excessive speed" at the time of the accident. That evidence
consisted of one witness who had seen King approximately two
miles before the accident and one witness who did not see the
accident, but gave an estimate of King's speed based upon the
sound of the car. After finding that the second witness was
incompetent to testify "from the sound alone as to speed," id.
at 605, 231 S.E.2d at 315, the Court held,
the trial court's finding of excessive speed
at the time of collision is without evidence
to support it. The only evidence that King
was driving in excess of the speed limit
came from a witness who last saw her vehicle
before the accident more than two miles from
the scene of the collision.
Id. (emphasis added). Significantly, the King Court did not
hold that "the only evidence" of speed was inadmissible; rather,
it held that the evidence, without more, was not sufficient to
support a conviction for involuntary manslaughter. See id.
In the instant case, the Commonwealth had to prove that
appellant drove her vehicle "recklessly or at a speed or in a
manner so as to endanger the life, limb or property" of another.
Code § 46.2-852 (emphasis added). Although speed is a factor
that can be considered, appellant need not have been speeding to
be guilty of reckless driving. Appellant moved to exclude
Raymond Smith's description of her aggressive driving and
speeding on the basis of remoteness in time and distance. The
trial court found "that [the testimony] is admissible for
whatever weight the fact-finder gives it" and that appellant's
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"argument goes to its weight and its sufficiency" rather than
its admissibility. 3 While the driving behavior at issue here was
undeniably more "remote" in time and distance than that in King,
it was probative of more than speed alone. Smith also testified
as to dangerous driving behavior, specifically tailgating and
weaving in and out of traffic. Additionally, Smith saw
appellant repeat this driving behavior "for a long distance."
Thus, unlike the witness in King, Smith had the opportunity to
see sustained, unchanged driving behavior for a significant
period of time and over a "long distance."
Furthermore, Smith's testimony was not the only evidence of
speed or reckless driving behavior. The other drivers stated
that they could see the traffic conditions "for miles." They
saw that traffic was slowing and stopping. Magdolna Smith,
Parry and the deceased driver of the Mazda Miata were each able
to come to a complete, controlled stop. Magdolna Smith was
stopped for a minute prior to the impact. Similarly, Parry
stated he stopped his car 3 to 5 feet from the Madza Miata. In
addition, the "mute evidence" of the force of the crash showed
that the first and third cars in the line were forced out of
their lanes of travel and into the shoulder and right travel
lane, respectively. The second car was flipped over and faced
3
We note that the trial court was sitting without a jury.
The judge is presumed to know the law and to apply it correctly
in each case. Starks v. Commonwealth, 225 Va. 48, 54, 301
S.E.2d 152, 156 (1983).
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the opposite direction of travel. The trial court correctly
noted, the issue of remoteness went to the weight of the
evidence rather than its admissibility. We cannot say, on the
basis of the record before us, that allowing Raymond Smith's
testimony into evidence "for whatever weight" it might be
entitled to was an abuse of the trial court's discretion.
III. Evidence of a Charge not before the Court
Appellant next contends the trial court erred in admitting
evidence that she was charged with driving on a suspended license.
Because appellant opened the door to this evidence, we affirm.
Appellant's counsel questioned Trooper Murphy as follows:
Q. You charged Ms. Crest with reckless
driving at the scene, correct?
A. Yes.
Q. And you arrested her?
A. Not due to the reckless driving, she was
arrested.
Q. But you charged her with reckless as a
result of the accident?
A. Yes.
* * * * * * *
Q. Okay. You told her she was being
charged with reckless driving, didn't you?
A. Yes. But that's not why she was placed
under arrest.
On redirect, the Commonwealth's attorney asked Murphy why he
arrested appellant and he replied, "For driving under a suspended
license." This testimony came after appellant raised the issue of
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her arrest at the scene of the accident. "[A]ny error regarding
this testimony was invited" by appellant during her
cross-examination of Murphy. Lane v. Commonwealth, 223 Va. 713,
719, 292 S.E.2d 358, 361 (1982).
IV. Sufficiency of the Evidence
Finally, appellant contends the evidence was insufficient
to support a conviction for reckless driving. "When the
sufficiency of the evidence is challenged on appeal, we
determine whether the evidence, viewed in the light most
favorable to the prevailing party, the Commonwealth, and the
reasonable inferences fairly deducible from that evidence
support each and every element of the charged offense." Haskins
v. Commonwealth, 31 Va. App. 145, 149-50, 521 S.E.2d 777, 779
(1999). "In so doing, we must discard the evidence of the
accused in conflict with that of the Commonwealth, and regard as
true all the credible evidence favorable to the Commonwealth and
all fair inferences that may be drawn therefrom." Watkins, 26
Va. App. at 348, 494 S.E.2d at 866. "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." Reynolds v. Commonwealth, 30 Va. App.
153, 163, 515 S.E.2d 808, 813 (1999).
"Irrespective of the maximum speeds permitted by law, any
person who drives a vehicle on any highway recklessly or at a
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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. "The essence of the offense of reckless
driving lies not in the act of operating a vehicle, but in the
manner and circumstances of its operation. The mere happening
of an accident does not give rise to an inference of reckless
driving." Powers v. Commonwealth, 211 Va. 386, 388, 177 S.E.2d
628, 630 (1970) (internal citations omitted). However,
"physical factors associated with impact, including extent of
damage to vehicles and property, may be considered as 'mute
evidence of high speed.'" Shrader v. Commonwealth, 2 Va. App.
287, 290, 343 S.E.2d 375, 377 (1986) (quoting Hogan, 226 Va. at
368, 310 S.E.2d at 670; Interstate Veneer, 191 Va. at 112, 60
S.E.2d at 6).
The drivers who survived the accident both stated that the
weather was clear and they could see the traffic was very heavy
ahead of them. When the traffic stopped, they, along with the
deceased driver in the Mazda Miata, were able to bring their
vehicles to a controlled stop without incident. Appellant
crashed into the stopped vehicles and failed to control her
truck. This factor, combined with the evidence of appellant's
earlier aggressive driving behavior allowed the fact finder to
infer that appellant was not operating her vehicle in a safe
manner immediately prior to the accident.
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Additionally, there was the "mute evidence" of the force of
the impact. Appellant hit Parry's car with sufficient force to
set off a chain reaction. Parry's car was forced into the
adjacent lane of traffic and was "a total loss." The Mazda
Miata was flipped over and faced the opposite direction of
traffic. Smith's car traveled across the right lane and crashed
into the Jersey wall on the far right side of the right
shoulder. The trial court found:
the evidence in this case clearly shows that
the traffic was stopped and/or bumper to
bumper for a couple of miles, and certainly
at least as far as the eye could see. Other
drivers were able to stop in time to avoid
hitting the cars in front of them, and
[appellant] clearly was not.
I conclude that under those
circumstances that she was driving her car
in a manner or at a speed that was reckless
and inconsistent with the conditions of the
highway and the roadway at the time, and I
am convinced that beyond a reasonable doubt
by the evidence that she is guilty of the
charge.
Credible evidence supports the trial court's finding.
Accordingly, the judgment of the trial court is affirmed.
Affirmed.
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