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BANKS v. COMMONWEALTH




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BANKS

v.

COMMONWEALTH


COURT OF APPEALS OF VIRGINIA

Present: Judges Clements, Agee[1]
and Felton

Argued at Richmond, Virginia

Record No. 1883-01-2

DAMON LYNN BANKS

v.

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
evidence

sufficient to sustain his conviction. We disagree and affirm the

conviction.

I. BACKGROUND

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
up" on

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
started going

back up the ramp and then heard a "boom, boom."
Turning around,

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

ambulance.

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
in front

of her. There were no streetlights illuminating the roadway.

Observing "it was pitch black" at the time and that
she "didn’t

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
burn."

Dr. Gormley concluded that the cause of death was "multiple

blunt-force injuries to the chest" consistent with being
run

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
[on

his] judgment."

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
him

and he fell" in the roadway. Banks then hit Aldrich in the

face. Leaving Aldrich lying "in the middle of the
road," Banks

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.

II. ANALYSIS

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
to

the Commonwealth, granting to it all reasonable inferences

fairly deducible therefrom." Bright v. Commonwealth, 4 Va.
App.

248, 250, 356 S.E.2d 443, 444, (1987). "In doing so, 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,

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."
Crawley v.

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

disagree.

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."
Gooden

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
mere

inadvertence or misadventure. It is a recklessness or

indifference incompatible with a proper regard for human
life."

Id. at 611, 195 S.E. at 681. We judge criminal negligence by an

objective standard. It occurs when "the offender either
knew or

should have known the probable results of his acts." Conrad
v.

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
up" in

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
of the

victim’s death." Gallimore v. Commonwealth, 246 Va. 441,
446,

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
the

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

injury."

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

(1973)).

It is clear from the evidence in this case that Banks’s

"negligent acts and omissions exposed [Aldrich] to the
subsequent

. . . act that ultimately resulted in his death." Id.
Indeed,

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
[Banks's]

original act[s] of negligence and [Aldrich's] subsequent

[death].’" Id. (emphasis added) (quoting Delawder, 214 Va.
at

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
"balled

up" body in the roadway because it was dark and the road
was not

lit.

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
to

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"
cause of

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

car.

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

manslaughter.

Affirmed.

 

FOOTNOTES:

[1]Justice Agee
participated in the hearing and decision of

this case prior to his investiture as a Justice of the Supreme

Court of Virginia.


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