COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Senior Judge Cole
Argued at Richmond, Virginia
JAMES LEROY FORBES
OPINION BY
v. Record No. 0113-97-2 JUDGE MARVIN F. COLE
MAY 5, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HANOVER COUNTY
Richard H. C. Taylor, Judge
Brenda L. Page (Tracey Randall Dunlap; Page &
Associates, on brief), for appellant.
Michael T. Judge, Assistant Attorney General
(Richard Cullen, Attorney General, on brief),
for appellee.
James Leroy Forbes was convicted in a bench trial of
involuntary manslaughter arising out of a traffic accident. On
appeal, he contends the evidence was insufficient to support the
conviction and that his sentence was excessive and improper
because it was based on stale and unsubstantiated prior
convictions. We agree that the evidence was insufficient to
support the conviction and reverse. Because we reverse the
conviction on the sufficiency issue, we need not decide the other
issue.
FACTS
The evidence is essentially undisputed. On March 24, 1996,
at about 4:00 a.m., the victim's car was stopped at a stop sign
located at the end of an exit ramp off Interstate 95 near
Ashland, Virginia. Forbes drove his car into the rear of the
victim's car, killing the victim. At the scene of the accident,
and shortly after the accident occurred, Forbes asked Deputy
Wickham "where he was, what had happened and why he was there."
On the way to the hospital, Forbes told Wickham that he was
diabetic and that he possibly could have "blacked out." Forbes
also said he had experienced black-outs before. A blood alcohol
test performed at the hospital after the accident showed no
alcohol in Forbes' blood. No evidence was presented to prove
Forbes' blood sugar level after the accident.
While in the hospital, Forbes told Deputy Smith that he had
experienced diabetic black-outs on two or three other
occasions--one in 1995 and one or two in 1994. Forbes said he
had experienced no black-outs in 1996 until the accident on March
24, 1996. Forbes also told Smith that he had never experienced a
black-out while driving.
Forbes has been a diabetic for "thirty-some" years. At
trial, Forbes testified that, on the morning of March 23, 1996,
he awoke, took his insulin, and ate breakfast. He checked his
blood sugar level at about 5:00 p.m. and found that it was
"okay." He then took his insulin, ate supper, and drove from his
residence in eastern Richmond to a friend's house on the south
side of Richmond.
Forbes testified that, at about 11:00 or 11:30 p.m., he ate
several chicken wings and drank a seven-ounce beer. He fell
asleep until about 2:30 a.m., and, when he awoke, he felt "a
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little woozy." Forbes testified that he ate "a couple of mints,"
drank a glass of orange juice, and sat down for about fifteen
minutes. Forbes stated that he then felt "fine" and entered his
car to drive home. As he warmed up his car, his friend, Mozelle
Carter, brought him two more mints, which he ate. Forbes again
told Carter that he felt "fine," and he started driving toward
his home.
Forbes recalled driving on Jefferson Davis Highway, crossing
the James River on the Lee Bridge, and seeing the Second Street
exit. He did not recall anything else until after the accident.
Carter testified that she awoke Forbes at about 1:45 a.m. on
March 24, 1996 and that Forbes said he felt "a little woozy" when
he awoke. She gave Forbes two mints, and he walked to his car.
Carter asked Forbes how he was feeling, and he said, "I'm fine,
I'm fine." He then requested several more mints. Carter
testified that Forbes ate the mints, and she gave him two more
mints. Forbes again told Carter he felt fine, and he drove away.
Carter stated that Forbes "was driving fine" as he drove away
from her house.
Dr. Randolph Palmore, Forbes' physician since January 1994,
testified that he never instructed Forbes not to drive or advised
Forbes that it would be hazardous to drive. Dr. Palmore also
stated that he had no record that Forbes told him he had suffered
black-outs. He did not know whether Forbes had "any diabetic
reactions."
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Forbes' last visit with Dr. Palmore prior to the accident
was on February 21, 1996. At that visit, Dr. Palmore said
Forbes' "sugar was stable, and there were no changes made in his
insulin." Dr. Palmore saw Forbes again on March 29, 1996, five
days after the accident, and adjusted his insulin at that visit.
Dr. John Nestler treated Forbes on March 25, 1996, when
Forbes was in the hospital after the accident. Dr. Nestler said
Forbes told him he knew he was having a low blood sugar reaction
on March 24, 1996 because he felt "confused" and woozy prior to
driving his car. However, Forbes said he felt better after
resting and eating mints. Dr. Nestler also testified that most
diabetics go through two "stages" when they develop a low blood
sugar attack. In the first stage, they release adrenalin, get
nervous, have heart palpitations, shakiness and headaches. In
the second stage, the patient experiences confusion. Dr. Nestler
said that, based on his interview with Forbes concerning his low
blood sugar attacks, he "clearly doesn't have that first phase.
So he doesn't have those warning signs that most diabetic
patients have. He goes straight into confusion, and that's
something that's termed hypoglycemia unawareness."
Dr. Nestler also testified that he usually advises his
patients to consume mints or drink one-half of a glass of orange
juice, wait one-half hour, and check their blood sugar when they
experience a low blood sugar episode.
ANALYSIS
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"To constitute involuntary manslaughter, the negligence
[involved] must be criminal and not ordinary civil negligence.
'Inadvertent acts of negligence without recklessness, while
giving rise to civil liability, will not suffice to impose
criminal responsibility.'" Tubman v. Commonwealth, 3 Va. App.
267, 274, 348 S.E.2d 871, 875 (1986) (quoting King v.
Commonwealth, 217 Va. 601, 606, 231 S.E.2d 312, 316 (1977)). In
King, the Supreme Court defined involuntary manslaughter in the
operation of a motor vehicle as "the accidental killing which,
although unintended, is the proximate result of negligence so
gross, wanton, and culpable as to show a reckless disregard of
human life." King, 217 Va. at 607, 231 S.E.2d at 316.
"'Generally, negligence (whether ordinary, gross, or willful
and wanton), contributory negligence, and proximate cause are
issues for a jury's resolution. They only become questions of
law to be determined by a court, when reasonable minds could not
differ.'" Tubman, 3 Va. App. at 273-74, 348 S.E.2d at 875
(citation omitted).
[T]he application of the distinctions between
these degrees of negligence is frequently
difficult to apply and we have not hesitated
to set aside verdicts predicated upon a
finding of the higher degree of negligence
where a review of the evidence convinced us
that the minds of reasonable men could not
differ as to the conclusion that such higher
degree had not been shown.
Town of Big Stone Gap v. Johnson, 184 Va. 375, 379, 35 S.E.2d 71,
73 (1945).
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The terms "gross negligence" and "wanton negligence" have
been defined by the Supreme Court.
"Gross negligence is substantially and
appreciably higher in magnitude than ordinary
negligence. . . . It is very great
negligence, or the absence of slight
diligence, or the want of even scant
care. . . . It is a heedless and palpable
violation of legal duty respecting the rights
of others. The element of culpability which
characterizes all negligence is, in gross
negligence, magnified to a high degree as
compared with that present in ordinary
negligence."
Id. at 378-79, 35 S.E.2d at 73 (citation omitted). "'[G]ross
negligence is that degree of negligence which shows an utter
disregard of prudence amounting to complete neglect of the safety
of another.'" Id. at 379, 35 S.E.2d at 73 (citation omitted).
"'Wanton negligence' is of even a higher degree than 'gross
negligence.' Webster's New International Dictionary, 2d Ed.,
defines 'wanton' as '[m]arked by or manifesting arrogant
recklessness of justice, of the rights or feelings of
others, . . . merciless; inhumane.'" Id. (citation omitted).
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.
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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 [a defendant] had or should have had of that risk."
Id. at 282, 386 S.E.2d at 818.
The Commonwealth asserts that the record establishes that
Forbes had a history of diabetic attacks, resulting in
black-outs. The Commonwealth contends that Forbes continued to
drive, knowing that he was susceptible to black-outs and that he
drove on March 24, 1996, knowing his blood sugar was low and
disregarding the known risk that he posed to other motorists.
Thus, the Commonwealth contends Forbes' conduct was criminally
negligent.
Forbes argues that, because he took precautionary measures
and felt "fine" before he drove on March 24, 1996, the evidence
did not prove he acted in a criminally negligent manner. We
agree.
Hypoglycemia, or low blood sugar, is seen in the diabetic
"who takes too much insulin, too little food, or both or
over-exercises." 4B Lawyers' Medical Cyclopedia of Personal
Injuries and Allied Specialties 27 (James G. Zimmerly, M.D.,
J.D., M.P.H. ed. 1984). Corrective measures for the condition
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include "giving the sufferer generous amounts of glucose by mouth
in the form of sugar, honey, candy, or a sweetened beverage."
Id. Dr. Nestler testified that he advises his patients to eat
mints or drink one-half of a glass of orange juice, wait one-half
hour, and check their blood sugar level when they experience low
blood sugar. Further, Dr. Nestler testified that Forbes
"clearly" did not have the warning signals that most diabetic
patients experience when having a low blood sugar attack. Forbes
testified that on one prior occasion he had experienced no
warning signs prior to his black-out. On another occasion, he
blacked-out before he could "treat [him]self."
On these facts, we find that Forbes' conduct did not
constitute negligence so gross, wanton, and culpable as to show a
reckless disregard of human life. For a diabetic to operate a
motor vehicle is not negligence per se. Forbes followed the
medical directions he had been given to correct an insulin
imbalance.
"The [factual findings] of the court sitting
without a jury will not be set aside unless
it is plainly wrong or without evidence to
support it. However, a trial court's
conclusion based on evidence that is 'not in
material conflict' does not have this binding
effect on appeal. The trier of fact must
determine the weight of the testimony and the
credibility of the witnesses, but it 'may not
arbitrarily disregard uncontradicted evidence
of unimpeached witnesses which is not
inherently incredible and not inconsistent
with facts in the record.' A court may not
base its findings on a suspicion which is
contrary to the undisputed positive
testimony."
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Williams v. Commonwealth, 14 Va. App. 666, 669-70, 418 S.E.2d
346, 348 (1992) (quoting Hankerson v. Moody, 229 Va. 270, 274-75,
329 S.E.2d 791, 794 (1985)).
Forbes checked his sugar level at about 5:00 p.m. on March
23, 1996. He ate breakfast and dinner that day. He took insulin
at 5:00 p.m. Forbes also ate a small meal at about 11:30 p.m. on
March 23, 1996 before he fell asleep. When he awoke and felt
"woozy," Forbes ate "a couple of mints," drank a glass of orange
1
juice, and rested for about fifteen minutes. Forbes stated that
he felt "fine" before he drove his car. As he sat in his car,
his friend brought him two more mints, which he ate. Carter also
testified that Forbes "was driving fine" as she watched him drive
away from her house. He had not been advised by his physician to
stop operating a motor vehicle.
Therefore, the evidence proved, without contradiction, that
Forbes took precautionary measures when he felt "woozy" and
suspected he was experiencing a low blood sugar episode.
Although Forbes did not check his blood sugar level before he
drove, he performed several other acts that are recommended to
restore blood sugar level. Further, Forbes testified that he
1
The Commonwealth contends we cannot consider Forbes'
testimony that he drank a glass of orange juice because, in his
statement to the police given after the accident, he did not say
he drank orange juice and because Carter did not testify that
Forbes drank orange juice prior to driving his car. However, the
Commonwealth presented no evidence to contradict Forbes' positive
statement that he drank a glass of orange juice. Therefore, his
testimony may be considered by this Court.
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felt "fine" before he drove his car. 2 Moreover, he had
experienced black-outs on only two or three occasions in his
thirty years as a diabetic, with the last black-out occurring in
December 1995. Under these facts, we cannot say Forbes knew or
should have known that his conduct created a great risk
reasonably calculated to produce injury. Although Forbes'
conduct may have been negligent under these circumstances, his
negligence did not amount to wanton negligence so culpable as to
show a "reckless disregard of human life." See Tubman, 3 Va.
App. at 275, 348 S.E.2d at 875.
For these reasons, we reverse the involuntary manslaughter
conviction.
Reversed and dismissed.
2
The record is completely devoid of any medical evidence
concerning Forbes' blood sugar level after the accident.
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