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COURT OF APPEALS OF VIRGINIA
Present: Judges Clements, Agee
Argued at Richmond, Virginia
Record No. 1883-01-2
DAMON LYNN BANKS
COMMONWEALTH OF VIRGINIA
OPINION BY JUDGE JEAN HARRISON CLEMENTS
SEPTEMBER 30, 2003
FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
James F. D’Alton, Jr., Judge
Joseph A. Sadighian, Senior Assistant Public
Defender (Office of the Public Defender, on
brief), for appellant.
Amy L. Marshall, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
Damon Lynn Banks was convicted in a jury trial of
involuntary manslaughter, in violation of Code ? 18.2-36. On
appeal, he contends the trial court erred in finding the
sufficient to sustain his conviction. We disagree and affirm the
Under familiar principles of appellate review, we view the
evidence and all reasonable inferences fairly deducible from
that evidence in the light most favorable to the Commonwealth,
the party that prevailed below. See Dowden v. Commonwealth, 260
Va. 459, 461, 536 S.E.2d 437, 438 (2000).
So viewed, the evidence established that, in the early
morning hours of September 10, 2000, Banks and four other
Marines, Terrance Jenkins, Francisco Ortez, Khaliah Freeman, and
Tory Benjamin, left the Coppermine Club in Petersburg, Virginia.
At they walked down Washington Street in the direction of the
Howard Johnson Hotel, the victim, Keith Aldrich, came up behind
them. The Marines stopped so that some of them could urinate,
and Aldrich walked past them. The Marines began to talk and
joke with Aldrich. Aldrich joked back. Benjamin threw a
twenty-ounce plastic coke bottle at Aldrich, who thereafter
began walking in the middle of the street. Cars coming down the
street honked and flashed their lights at him.
As the Marines approached the intersection with Interstate
95 (I-95), Aldrich asked them if they were in the Army. They
told Aldrich they were in the Marines, and Aldrich responded
that he too was in the Marines. Believing Aldrich was lying,
Banks stood in front of Aldrich and began to question him about
Marine Corps values and the chain of command. Aldrich tried to
get around Banks, but Banks got in front of him again. When
Aldrich put his hands up, Ortez tackled him and hit him in the
face. Aldrich then stumbled and started running down the I-95
off-ramp towards the interstate. Banks ran after Aldrich.
Benjamin and Freeman followed Banks, and Ortez and Jenkins
remained at the top of the ramp.
Benjamin ran part way down the ramp after Banks. There, he
observed Banks standing over Aldrich, who was "all balled
the ground in the middle of the road in a fetal position.
Benjamin then saw Banks hit Aldrich in the face. At that point,
Benjamin saw headlights approaching up the ramp and observed
Banks "running to the side of the road." Benjamin
back up the ramp and then heard a "boom, boom."
he saw Aldrich had been hit by a car. Benjamin returned to the
other Marines and told them that Aldrich had been hit by a car.
Rejoined by Banks, the group then ran to the Howard Johnson
Hotel. None of them contacted the police or called for an
At the hotel, Banks admitted to Ortez that he had knocked
Aldrich down after chasing him. He also admitted to Benjamin
that he had hit Aldrich, saying Aldrich deserved it for lying
about being in the Marines.
The car that struck Aldrich was driven by Nina Ann
Campbell. Campbell testified she was exiting off I-95, going
thirty miles an hour, when all of a sudden she saw something
"all balled up" in the middle of the off-ramp two feet
of her. There were no streetlights illuminating the roadway.
Observing "it was pitch black" at the time and that
expect to see anything in the middle of the road," Campbell
stated it was too late for her to stop by the time she saw the
object in the road, despite her last-second efforts to avoid it.
Immediately after hitting Aldrich, Campbell stopped her car,
determined that she had run over a body lying on the ramp, and
found a nearby policeman.
Dr. William G. Gormley, the medical examiner who performed
Aldrich’s autopsy, testified that Aldrich, who was found dead at
the scene of the accident, sustained severe crushing injuries to
his chest and thoracic area and had several abrasions on the
side of his body, which Dr. Gormley described as "road
Dr. Gormley concluded that the cause of death was "multiple
blunt-force injuries to the chest" consistent with being
over by a car. Dr. Gormley could not give an opinion, based on
the autopsy, to confirm whether Aldrich had been assaulted prior
to being run over. He did opine, however, that the injuries
were consistent with Aldrich being struck by the car while in a
reclining position, rather than standing up. On
cross-examination, Dr. Gormley testified Aldrich had a blood
alcohol content of .12%. The legal limit for lawfully driving a
motor vehicle was .08%. Based on this legal limit for
intoxication, a general average indicator to correlate the
effect of alcohol on judgment, Dr. Gormley said Aldrich’s
consumption of alcohol was "likely to have had an effect
Testifying in his own defense, Banks admitted he got
"upset" and "angry" when Aldrich stated he
was in the Marines.
He further admitted that, when chasing Aldrich, he tried to trip
him but missed and fell himself. He got up and continued the
chase down the ramp. Catching up to Aldrich, Banks "grabbed
and he fell" in the roadway. Banks then hit Aldrich in the
face. Leaving Aldrich lying "in the middle of the
started back up the ramp. He then heard the car strike Aldrich,
but did nothing to help the victim and did not call the police.
Banks contends the evidence was insufficient, as a matter
of law, to convict him of involuntary manslaughter. The
Commonwealth, he argues, failed to prove beyond a reasonable
doubt that his conduct amounted to criminal negligence or that
it was the proximate cause of Aldrich’s death.
When the sufficiency of the evidence is challenged on
appeal, we review the evidence "in the light most favorable
the Commonwealth, granting to it all reasonable inferences
fairly deducible therefrom." Bright v. Commonwealth, 4 Va.
248, 250, 356 S.E.2d 443, 444, (1987). "In doing so, we
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.
349, 494 S.E.2d 859, 866 (1998). We are further mindful that
the "credibility of a witness, the weight accorded the
testimony, and the inferences to be drawn from proven facts are
matters solely for the fact finder’s determination."
Commonwealth, 29 Va. App. 372, 375, 512 S.E.2d 169, 170 (1999).
We will not disturb the conviction unless it is plainly wrong or
unsupported by the evidence. Sutphin v. Commonwealth, 1
Va. App. 241, 243, 337 S.E.2d 897, 898 (1985).
A. Criminal Negligence
Banks argues that his conduct only rises to the level of
gross negligence and, thus, even in the light most favorable to
the Commonwealth, fails to demonstrate negligence so wanton and
culpable as to show a callous disregard for human life. We
Involuntary manslaughter is defined "as the accidental
killing of a person, contrary to the intention of the parties,
during the prosecution of an unlawful, but not felonious, act,
or during the improper performance of some lawful act."
v. Commonwealth, 226 Va. 565, 571, 311 S.E.2d 780, 784 (1984).
To convict Banks of involuntary manslaughter, the Commonwealth
had to prove beyond a reasonable doubt that Banks committed
acts of commission or omission of a wanton
or willful nature, showing a reckless or
indifferent disregard of the rights of
others, under circumstances reasonably
calculated to produce injury, or which make
it not improbable that injury will be
occasioned, and the offender knows, or is
charged with the knowledge of, the probable
results of his acts.
Bell v. Commonwealth, 170 Va. 597, 611-12, 195 S.E. 675, 681
(1938). Criminal negligence "must be something more than
inadvertence or misadventure. It is a recklessness or
indifference incompatible with a proper regard for human
Id. at 611, 195 S.E. at 681. We judge criminal negligence by an
objective standard. It occurs when "the offender either
should have known the probable results of his acts." Conrad
Commonwealth, 31 Va. App. 113, 121-22, 521 S.E.2d 321, 325-26
(1999) (en banc).
Here, it is undisputed that, upset and angry at Aldrich for
claiming to be a Marine, Banks chased Aldrich down an off-ramp
of I-95 and, after catching him and knocking him to the ground,
hit Aldrich in the face while he was lying in the road. Banks
then ran from the scene leaving Aldrich lying "all balled
a fetal position in the middle of the unlit exit ramp in the
dark. Moreover, Benjamin testified that he saw headlights
approaching up the ramp as Banks stood over Aldrich and then
observed Banks "running to the side of the road."
We conclude that assaulting Aldrich and leaving him lying
apparently injured on the unlit exit ramp in the dark, with a
vehicle approaching, was conduct so wanton and willful that it
showed utter disregard for the safety of human life.
Furthermore, a reasonable person would have known that these
circumstances would likely lead to Aldrich’s injury or death.
Accordingly, the evidence proved that Banks’s acts of commission
and omission rose to the level of criminal negligence.
B. Proximate Cause
To convict Banks of involuntary manslaughter, the
Commonwealth also had to prove beyond a reasonable doubt that
Banks’s "criminally negligent acts were a proximate cause
victim’s death." Gallimore v. Commonwealth, 246 Va. 441,
436 S.E.2d 421, 424 (1993).
Banks asserts that, notwithstanding his role in the
confrontation with Aldrich, the actual causes of Aldrich’s death
were Ortez’s hitting Aldrich, which "sent him running down
expressway ramp," the negligent driving of Campbell, and
Aldrich’s own voluntary intoxication. Each of those acts, he
maintains, was an independent, intervening cause of the victim’s
death. Accordingly, he concludes, the Commonwealth failed to
prove that his conduct was the proximate cause of Aldrich’s
death. Again, we disagree.
Banks’s argument disregards the applicable principles of
proximate cause. As the Supreme Court stated in Gallimore,
[t]here can be more than one proximate cause
and liability attaches to each person whose
negligent act results in the victim’s injury
or death. To be an intervening cause . . .,
the [act in question] must have been an event
which [the accused] could not have foreseen.
"An intervening act which is reasonably
foreseeable cannot be relied upon as breaking
the chain of causal connection between an
original act of negligence and subsequent
Id. at 447, 436 S.E.2d at 425 (citation omitted) (quoting
Delawder v. Commonwealth, 214 Va. 55, 58, 196 S.E.2d 913, 915
It is clear from the evidence in this case that Banks’s
"negligent acts and omissions exposed [Aldrich] to the
. . . act that ultimately resulted in his death." Id.
but for Banks’s assault on Aldrich, the decedent would not have
been lying helpless in the middle of the exit ramp of I-95 at
night. Banks himself admitted that, after catching Aldrich,
knocking him down, and hitting him in the face while he was on
the ground, he left him lying in the middle of the exit ramp.
It is also clear that Ortez hit Aldrich before Banks chased
Aldrich down the ramp, assaulted him, and left him lying in the
middle of the exit ramp. Thus, Ortez’s hitting Aldrich had no
bearing on the "’chain of causal connection between
original act[s] of negligence and [Aldrich's] subsequent
[death].’" Id. (emphasis added) (quoting Delawder, 214 Va.
58, 196 S.E.2d at 915). Hence, Ortez’s hitting Aldrich does not
constitute an independent, intervening cause.
For Campbell’s conduct to constitute an independent,
intervening cause, as Banks suggests, Campbell’s driving on the
exit ramp must have been an event that Banks could not have
foreseen. It was readily foreseeable, however, that vehicles
travelling on I-95 would use the off-ramp to exit the interstate
and that a driver so exiting may not be able to see a
up" body in the roadway because it was dark and the road
Therefore, irrespective of whether Ortez’s hitting Aldrich
or Campbell’s driving was criminally negligent or not, the
evidence proved that Banks’s conduct was a proximate cause of
Aldrich’s death. He is, thus, criminally liable.
Finally, we find no merit in Banks’s argument that Aldrich
was to blame for his own death because he ran down a highway
exit ramp in an intoxicated condition. The evidence did
indicate that Aldrich had a blood alcohol level of .12.
However, "contributory negligence has no place in a case of
involuntary manslaughter, [and] if the criminal negligence of
the [accused] is found to be the cause of death, [he] is
criminally responsible, whether the decedent’s failure to use
due care contributed to the injury or not." Hubbard v.
Commonwealth, 243 Va. 1, 14, 413 S.E.2d 875, 882 (1992)
(alterations in original) (quoting Bell, 170 Va. at 616, 195
S.E. at 683). "Only if the conduct of the deceased amounts
an independent, intervening act alone causing the fatal injury
can the accused be exonerated from liability for his or her
criminal negligence. In such case, the conduct of the accused
becomes a remote cause." Id. (citation omitted).
Here, as discussed above, the evidence makes clear that
Banks’s negligent acts were not merely a "remote"
Aldrich’s death. While Aldrich’s level of intoxication may have
affected his judgment in fleeing down the interstate exit ramp,
the record plainly shows that it was Banks’s assault that left
Aldrich lying in the road to be subsequently hit by an oncoming
For these reasons, we hold the trial court did not err in
finding the evidence sufficient, as a matter of law, to prove
beyond a reasonable doubt that Banks’s conduct amounted to
criminal negligence and was a proximate cause of Aldrich’s
death. Accordingly, we affirm Banks’s conviction of involuntary
participated in the hearing and decision of
this case prior to his investiture as a Justice of the Supreme
Court of Virginia.