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CONRAD v. COMMONWEALTH (53218)



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CONRAD

v.

COMMONWEALTH


NOVEMBER 30, 1999

Record No. 0321-98-2

CHRISTOPHER SCOTT CONRAD

v.

COMMONWEALTH OF VIRGINIA

UPON A REHEARING EN BANC

FROM THE CIRCUIT COURT OF HENRICO COUNTY

L. A. Harris, Jr., Judge

Present: Chief Judge Fitzpatrick, Judges
Benton, Coleman, Willis, Elder, Bray, Annunziata, Bumgardner,
Lemons and Frank

Argued at Richmond, Virginia

OPINION BY CHIEF JUDGE JOHANNA L. FITZPATRICK

Lee W. Kilduff (Morchower, Luxton & Whaley,
on brief), for appellant.

Leah A. Darron, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief), for appellee.


Christopher Scott Conrad (appellant) appealed
the trial court’s conviction for involuntary manslaughter.
Appellant argued that the evidence was insufficient to prove he
acted in a criminally negligent manner. A panel of this Court
agreed and reversed his conviction. See Conrad v.
Commonwealth
, 29 Va. App. 661, 514 S.E.2d 364 (1999). We
granted the Commonwealth’s request for rehearing en banc, and
upon rehearing, we affirm appellant’s conviction.

I.

Under familiar principles of appellate review,
we examine the evidence in the light most favorable to the
Commonwealth, the prevailing party below, 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). 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 it is plainly
wrong or without evidence to support it. See Stevens v.
Commonwealth
, 14 Va. App. 238, 240, 415 S.E.2d 881, 882-83
(1992).

So viewed, the evidence established that on May
11, 1997, at about 9:00 a.m., on Gayton Road in Henrico County,
appellant fell asleep at the wheel of his automobile and drove
off the road, striking and killing Judy Dahlkemper, who was
jogging on the side of the road. Officer R.J. Smith (Smith)
responded to the scene. Shortly after 11:00 a.m., after examining
the physical evidence, Smith took appellant’s statement. Smith
described appellant as "extremely tired" with bloodshot
eyes and a faint odor of alcohol about his person.

Appellant told Smith that he had last slept on
May 10, the day before the accident, arising at 11:00 a.m. after
six hours of sleep. It was not unusual for appellant to stay up
for long periods of time because he had been working an irregular
schedule at a retail store and playing in a band. On May 10,
appellant worked a shift at the retail store, ran errands,
practiced with his band and went to the home of a friend in
Richmond. While at his friend’s home, between about 11:00 p.m.
and 1:30 a.m., appellant consumed about fifty ounces of beer.
[1] He remained at his friend’s home,
awake and watching television, until about 8:45 a.m. on May 11,
at which time he left to drive home. Appellant testified that he
was not sleepy before he left for home and that it had not
occurred to him that he might fall asleep on the drive home.

Appellant traveled about twenty minutes on
Interstate 64 to Gaskins Road. As appellant exited Interstate 64,
"he really got tired and felt himself going to
sleep." Because he was only about five minutes or
four-and-one-half miles from home, "he did not really want
to stop." He reported to Officer Smith that "he ran off
the road only after dozing off for a half second, caught himself
drifting four or five times, still nodding, but said he would
catch himself and said [he] would snap out of it." On Gayton
Road, a little over one-half mile from his home, he fell asleep
and heard a loud noise. He initially thought someone had hit his
car with a bottle, but then he saw the body and stopped his
vehicle.

Another driver on the road, Mary Elizabeth
Harris (Harris), testified that she had been driving behind
appellant, who was traveling at the forty-five mile-per-hour
speed limit. Appellant traveled approximately two-tenths of a
mile before Harris saw his car veer right into a turn lane and
strike the jogger, Ms. Dahlkemper, who had been running, facing
traffic, on the edge of the turn lane near the adjacent grass.
Appellant’s vehicle displayed no turn indicator and did not brake
prior to impact. Officer Smith determined that Ms. Dahlkemper had
been jogging eighteen inches from the edge of the pavement when
she was struck, and he confirmed that appellant had not applied
his brakes prior to impact.

At trial, appellant testified to substantially
the same version of events that he had given to Officer Smith at
the scene. Appellant stated that when he turned onto Gayton Road,
he began to yawn, was "incredibly close to dozing off,"
and "was starting to kind of drift . . . in the road."
However, he "[did not] recall" telling Officer Smith
that he had caught himself about to doze off on four to five
occasions prior to the accident and said he believed that he told
Officer Smith he had done so only one or two times. He also said
he had not gone off the road prior to the accident but had
"com[e] [within] about . . . an inch [of] the
line."

At the conclusion of the presentation of
evidence by both parties, the trial court found that appellant’s
actions constituted a gross, wanton disregard for human life,
stating the following:

What I feel I have to do is look at the
evidence under the law and see if . . . the conduct rises to
the level of reckless driving or involuntary manslaughter.
And I think the situation is this:

* * * * * * *

You’ve got the fact that Mr. Conrad had
been up for 22 hours. He chose to drive the car some
distance, . . . a fairly long distance, and did okay, under
the evidence, until he got off of [Interstate] 64. But I
think that’s where the problem comes. He got off of 64, and
at that point, as described both to Officer Smith, as well as
his own testimony today, . . . he felt himself just about
going to sleep. And to an extent, as he very well described,
his car just drifted over to the right, but he was able to
catch it on four or five different occasions, as he
told Officer Smith, and that he was, in fact, nodding in
and out
.

. . . And under those circumstances, he’s
driving after he’s been up for 22 hours, after he knows that
he is about to fall asleep to an extent that it’s affecting
his operation of the motor vehicle. He chose to continue to
drive for 45 miles an hour in the residential area, not that
that’s exceeding the speed limit, because it is not, but
driving at that speed to try to get home.

And I think from the evidence that, at that
time, that he was operating that motor vehicle in a state
that he knew very well or should have known very well that he
may, in fact, fall asleep. . . .

(Emphasis added). The trial court concluded
that appellant’s conduct was "gross, wanton, and
culpable, [and] showed a disregard for human life."
Accordingly, the trial court convicted appellant of
involuntary manslaughter, in violation of
CodeSect. 18.2-36.

II.

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 below, and
the reasonable inferences fairly deducible from that evidence
support each and every element of the charged offense. See
Moore v. Commonwealth, 254 Va. 184, 186, 491 S.E.2d 739,
740 (1997); Derr v. Commonwealth, 242 Va. 413, 424, 410
S.E.2d 662, 668 (1991). "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, 349, 494 S.E.2d 859, 866 (1998). We will not reverse
the judgment of the trial court, sitting as the finder of fact in
a bench trial, unless it is plainly wrong or without evidence to
support it. See Martin v. Commonwealth, 4 Va. App.
438, 443, 358 S.E.2d 415, 418 (1987).

"[I]nvoluntary manslaughter in the
operation of a motor vehicle [is defined] as an ‘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.’" Greenway v. Commonwealth,
254 Va. 147, 154, 487 S.E.2d 224, 228 (1997) (quoting King v.
Commonwealth
, 217 Va. 601, 607, 231 S.E.2d 312, 316 (1977)).
"[A] higher degree of negligence in the operation of a motor
vehicle is required to establish criminal liability for
involuntary manslaughter than to establish liability in a civil
action for ordinary or even gross negligence. This higher degree
of negligence has come to be known as ‘criminal
negligence.’" Keech v. Commonwealth, 9 Va. App. 272,
277, 386 S.E.2d 813, 816 (1989).

"[Criminal negligence] must be more than
mere inadvertence or misadventure. It is a recklessness or
indifference incompatible with a proper regard for human
life." Criminal negligence has also been defined as conduct
"so gross, wanton, and culpable as to show a reckless
disregard of human life," and conduct "so flagrant,
culpable, and wanton as to show utter disregard of the safety of
others under circumstances likely to cause injury," and
conduct "so gross and culpable as to indicate a callous
disregard of human life."

Id. at 278, 386 S.E.2d at 816 (citations
omitted). As we stated in Keech, "[t]hese various
definitions make clear that the distinction between the
negligence which will support a conviction of involuntary
manslaughter involving the operation of a motor vehicle and the
negligence that will merely support a civil action is one of
degree." Id.

"’The law recognizes three degrees of
negligence, (1) ordinary or simple, (2) gross, and (3) willful,
wanton and reckless.’" Tubman v. Commonwealth, 3 Va.
App. 267, 270, 348 S.E.2d 871, 873 (1986) (quoting Griffin v.
Shively
, 227 Va. 317, 321, 315 S.E.2d 210, 212 (1984)).
Ordinary negligence is "failure to use ‘that degree of care
which an ordinarily prudent person would exercise under the same
or similar circumstances to avoid injury to another.’" Id.
at 271, 348 S.E.2d at 873 (quoting Griffin, 227 Va. at
321, 315 S.E.2d at 212-13). Gross negligence "is a
manifestly smaller amount of watchfulness and circumspection than
the circumstances require of a person of ordinary prudence. . . .
It falls short of being such reckless disregard of probable
consequence as is equivalent to a willful and intentional
wrong." Newell v. Riggins, 197 Va. 490, 495, 90
S.E.2d 150, 153 (1955) (citation omitted). Finally, criminal or
willful and wanton negligence "’"involves a greater
degree of negligence than gross negligence, particularly in the
sense that in the former an actual or constructive consciousness
of the danger involved is an essential ingredient of the act or
omission."’" Tubman, 3 Va. App. at 271, 348
S.E.2d at 873 (quoting Griffin, 227 Va. at 321-22, 315
S.E.2d at 213 (quoting Boward v. Leftwich, 197 Va. 227,
231, 89 S.E.2d 32, 35 (1955))).

Criminal negligence as the basis for
involuntary manslaughter is judged under an objective standard
and, therefore, may be found to exist where the offender either
knew or should have known the probable results of his acts. See
Keech, 9 Va. App. at 279, 386 S.E.2d at 817 (citing Bell
v. Commonwealth
, 170 Va. 597, 611-12, 195 S.E. 675, 681
(1938)). Thus, criminal negligence "’is acting consciously
in disregard of another person’s rights or acting with reckless
indifference to the consequences, with the defendant aware, from
his knowledge of existing circumstances and conditions, that his
conduct probably would cause injury to another.’" Tubman,
3 Va. App. at 271, 348 S.E.2d at 873 (emphasis added) (quoting Griffin,
227 Va. at 321, 315 S.E.2d at 213; Friedman v. Jordan, 166
Va. 65, 68, 184 S.E. 186, 187 (1935)).

We have not addressed whether a driver who previously
has fallen asleep while driving and who subsequently,
during that same trip, again falls asleep causing an injury or
death is guilty of involuntary manslaughter. However, our
decision in Hargrove v. Commonwealth, 10 Va. App.
618, 394 S.E.2d 729 (1990), provides some guidance. In Hargrove,
the defendant fell asleep while driving home after working the
midnight-to-8:00-a.m. shift, striking and killing a pedestrian
who was walking across the highway. See id. at 620,
394 S.E.2d at 730-31. The defendant made a statement at the
accident scene that he was "extremely tired," he dozed
off "for one second" and the accident occurred. Id.
at 620, 394 S.E.2d at 731.

We noted in Hargrove that courts in
other states have found that "when a driver falls asleep and
causes death a jury issue is created on the issue of whether it
constituted involuntary manslaughter." Id. at 621,
394 S.E.2d at 731 (citations omitted). However, in reversing
Hargrove’s conviction for involuntary manslaughter, we concluded
that the evidence failed to show that he should have known that
his conduct constituted a reckless disregard for human life. We
wrote:

In this case, all the record shows about
Hargrove is that he had worked the previous night and was
"extremely tired" and in need of sleep. We do not
know . . . that Hargrove should have known that it was not
improbable that he would fall asleep during his travel from
the workplace to home. . . . In this case, the record is
devoid of evidence as to the distance or time it would have
required Hargrove to drive from work to home. . . . The
evidence does not exclude the reasonable hypothesis that,
although Hargrove had worked all night, he had not fallen
asleep, had not previously dozed during the trip before the
accident
, and, although tired and in need of sleep and
having only a short distance or a trip of a few minutes to
reach his home, he could reasonably have believed that he
could negotiate his vehicle a short distance without
endangering human life.

Id. at 621-22, 394 S.E.2d at 731-32
(emphasis added). Thus, we recognized in Hargrove that
if the defendant "had been operating his vehicle for a
number of hours in a tired and sleepy condition, or while in
such a state undertook a trip of such a substantial distance
or time that he should have known he might fall asleep, the
evidence might support a finding that he was acting in
reckless disregard for human life." Id. at
621-22, 394 S.E.2d at 731.

Our Supreme Court has recently enunciated the
following principles of appellate review in a voluntary
manslaughter case:

When a defendant challenges on appeal the
sufficiency of the evidence to sustain his conviction, it is
the duty of an appellate court to examine the evidence that
tends to support the conviction and to permit the conviction
to stand unless the conviction is plainly wrong or without
evidentiary support. If there is evidence to support the
conviction, an appellate court is not permitted to substitute
its own judgment for that of the finder of fact, even if the
appellate court might have reached a different conclusion.

Additionally, upon appellate review, the
evidence and all inferences reasonably deducible therefrom must
be examined in the light most favorable to the Commonwealth, the
prevailing party in the trial court. Any evidence properly
admitted at trial is subject to this review.

Presley v. Commonwealth, 256 Va. 465,
466-67, 507 S.E.2d 72, 72 (1998) (citations omitted).

Adhering to these well established principles,
we conclude the evidence was sufficient to prove criminal
negligence on appellant’s part. Indeed, the facts of the instant
case were almost presciently stated in Hargrove, where we
noted that had the evidence in that case shown a propensity to
fall asleep or nod off while driving, such evidence could support
a finding that the accused was "acting in reckless disregard
for human life." Hargrove, 10 Va. App. at 621-22, 394
S.E.2d at 731-32.

Here, appellant had been up for twenty-two
hours without sleep and chose to drive his vehicle "a fairly
long distance" to his home in the early morning. After he
exited the interstate onto Gaskins Road, he "really got
tired" and "felt himself going to sleep" but did
not want to stop because he was only five minutes from home.
Appellant told Officer Smith that "he nodded in and out, . .
. he ran off the road only after dozing off for a half second,
caught himself drifting four or five times, still nodding, but .
. . he would catch himself and . . . he would snap out of
it." The trier of fact accepted the Commonwealth’s evidence
that appellant had dozed off four or five times prior to the
impact with the victim. See Montgomery v. Commonwealth,
221 Va. 188, 190, 269 S.E.2d 352, 353 (1980) (per curiam)
("[E]ven if the defendant’s story was not inherently
incredible, the trier of fact need not have believed the
explanation.").

Under the circumstances of this case, we
conclude that sufficient evidence supports the trial court’s
finding that appellant should have known that his "dozing
off" four or five times affected his driving abilities and,
therefore, should have known of the risks that his driving
conduct created. See Keech, 9 Va. App. at 279, 386
S.E.2d at 817 (noting that criminal negligence is framed "in
terms of a great risk of injury coupled with an objective
awareness of that risk on the part of the offender"). We
also conclude that appellant’s decision to continue driving in
such an impaired state was a callous act of indifference to the
safety of others. Accordingly, appellant’s involuntary
manslaughter conviction is affirmed.

Affirmed.


Elder, J., with whom Benton, Coleman and
Annunziata, JJ., join, dissenting.

I disagree with the majority’s legal
conclusion. I would hold that the evidence is insufficient, as a
matter of law, to support an involuntary manslaughter conviction.
I believe the evidence fails to support a finding that appellant
knew or should have known that driving no more than five minutes
to his home once he became sleepy was "’likely to cause
injury’" and that his failure to stop under such
circumstances was "’so gross and culpable as to indicate a
callous disregard of human life.’" Keech v. Commonwealth,
9 Va. App. 272, 278, 386 S.E.2d 813, 816 (1989) (citations
omitted). Therefore, I respectfully dissent.

The Virginia Supreme Court has acknowledged
that "the application of distinctions between [the various] degrees of negligence [recognized by the law] is frequently
difficult to apply." Town of Big Stone Gap v. Johnson,
184 Va. 375, 379, 35 S.E.2d 71, 73 (1945). Although the majority
correctly sets forth the general principles of law governing the
crime of involuntary manslaughter, I consider it helpful to
further clarify the distinctions. Ordinary negligence is
"failure to use ‘that degree of care which an ordinarily
prudent person would exercise under the same or similar
circumstances to avoid injury to another.’" Tubman v.
Commonwealth
, 3 Va. App. 267, 271, 348 S.E.2d 871, 873 (1986)
(quoting Griffin v. Shively, 227 Va. 317, 321, 315 S.E.2d
210, 212-13 (1984)). Gross negligence "is a manifestly
smaller amount of watchfulness and circumspection than the
circumstances require of a person of ordinary prudence." Newell
v. Riggins
, 197 Va. 490, 495, 90 S.E.2d 150, 153 (1955). It
is "that degree of negligence which shows indifference to
others as constitutes an utter disregard of prudence
. . . . It must be such a degree of negligence as
would shock fair minded men although something less than
willful recklessness[, i.e., criminal negligence]." Ferguson
v. Ferguson
, 212 Va. 86, 92, 181 S.E.2d 648, 653 (1971)
(emphasis added). Finally, criminal or willful and wanton
negligence is "’[m]arked by or manifesting arrogant
recklessness of justice, of the rights or feelings of others, . .
. merciless; inhumane.’" Forbes v.
Commonwealth
, 27 Va. App. 304, 310, 498 S.E.2d 457, 459
(1998) (citation omitted) (emphasis added).

These distinctions establish that criminal
responsibility cannot be predicated upon every act carelessly
performed merely because the carelessness results in the death of
another. Rather, the negligence must be of such a high degree of
"carelessness or recklessness" that the act of
commission or "’omission must be one likely to cause
death.’" Goodman v. Commonwealth, 153 Va. 943, 948,
151 S.E. 168, 169 (1930) (citation omitted) (emphasis added). For
example, it is settled law in Virginia that "[a]nyone who
falls asleep while operating an automobile on a public road is
guilty of a degree of negligence exceeding lack of ordinary
care." Kennedy v. Commonwealth, 1 Va. App. 469, 473,
339 S.E.2d 905, 907-08 (1986); see Newell, 197 Va.
at 494, 90 S.E.2d at 152 (in civil context, observing "fact
that [a driver] who permits himself to go to sleep while driving
is sufficient to make out a prima facie case of
want of due and proper care"). Such behavior also may be
"sufficient to find the operator guilty of the offense of
reckless driving." Kennedy, 1 Va. App. at 473, 339
S.E.2d at 907-08 (upholding reckless driving conviction where
driver admitted he had been sleepy fifteen minutes before
unexplained accident and evidence established that family had
been on the road for eight hours and that vehicle left no skid
marks or other evidence of braking prior to running off the
road). However, such evidence, standing alone, proves no more
than ordinary negligence or reckless driving and will not support
a finding of criminal negligence required for an involuntary
manslaughter conviction. See King v. Commonwealth,
217 Va. 601, 605-06, 231 S.E.2d 312, 316 (1977) (citing Richardson
v. Commonwealth
, 192 Va. 55, 63 S.E.2d 731 (1951)).

A conviction for reckless driving requires
proof of driving "on a highway recklessly or at a speed or
in a manner so as to endanger the life, limb, or property of any
person." CodeSect. 46.2-852. Violation of this statute
"is insufficient to bring the negligent act within the
common law definition of manslaughter unless it is so flagrant,
culpable, and wanton as to show utter disregard of the safety of
others under circumstances likely to cause injury." King,
217 Va. at 605-06, 231 S.E.2d at 316; see also Darnell
v. Commonwealth
, 6 Va. App. 485, 489-92, 370 S.E.2d 717,
719-21 (1988) (applying King rationale to violation of
statute prohibiting reckless handling of firearm and rejecting
argument that such reckless handling equates to recklessness
required to prove criminal negligence element of involuntary
manslaughter). King clearly distinguishes between acts
which constitute reckless driving and acts of recklessness which
constitute involuntary manslaughter.

Some states provide by statute that certain
acts proximately causing death are crimes. See King,
217 Va. at 605-06, 231 S.E.2d at 316 (citing Annotation, 20
A.L.R.3d 473 (1968)). Virginia’s legislature has enacted such a
statute, providing that an unintentional death which results from
an act of driving under the influence in violation of specified
portions of CodeSect. 18.2-266 constitutes involuntary
manslaughter. See CodeSect. 18.2-36.1. Such a
conviction requires no proof that "the conduct of the
defendant was so gross, wanton and culpable as to show a reckless
disregard for human life," and if the Commonwealth makes
such a showing, the defendant is subject to greater punishment
for "aggravated involuntary manslaughter." Id.
The legislature, however, has not provided that death resulting
from falling asleep while driving constitutes involuntary
manslaughter as a matter of law.

To make such a finding, a court must conclude
that the act of negligence proximately causing the death would do
more than "shock fair minded men," the language
of the standard for gross negligence. See Ferguson,
212 Va. at 92, 181 S.E.2d at 653. Instead, it must be negligence
"so flagrant, culpable, and wanton as to show utter
disregard of the safety of others under circumstances likely
to cause injury." King, 217 Va. at 605-06, 231 S.E.2d
at 316 (emphasis added). As quoted above, we have previously
characterized criminal negligence as "’manifesting [an] arrogant recklessness of justice’" and rising to the level
of being "’merciless‘" or "’inhumane.’"
Forbes, 27 Va. App. at 310, 498 S.E.2d at 459 (citation
omitted) (emphasis added). In assessing the degree of negligence
involved, a court must consider all "existing circumstances
and conditions." Tubman, 3 Va. App. at 271, 348
S.E.2d at 873.

I do not believe the evidence supports a
finding that appellant acted mercilessly or inhumanely when he
concluded, albeit incorrectly, that he could safely complete his
trip to his home, which was only four-and-one-half miles away
when he first became sleepy. In affirming appellant’s conviction,
the majority relies in part on this Court’s decision in Hargrove
v. Commonwealth
, 10 Va. App. 618, 394 S.E.2d 729 (1990). It
observes that the facts of appellant’s case "were almost
presciently stated in Hargrove, where we noted that had
the evidence . . . shown a propensity to fall asleep or
nod off while driving, such evidence could support a finding that
the accused was ‘acting in reckless disregard for human
life.’" In reversing the involuntary manslaughter conviction
in Hargrove, we held:

[T]he evidence does not exclude the
reasonable hypothesis that, although Hargrove had worked all
night, he had not fallen asleep, had not previously dozed
during the trip before the accident, and, although tired and
in need of sleep and having only a short distance or a trip
of a few minutes to reach his home, he could reasonably have
believed that he could negotiate his vehicle a short distance
without endangering human life.

Id. at 622, 394 S.E.2d at 731-32. I
believe the majority erroneously utilizes Hargrove to
support its holding.

First, we did not hold in Hargrove that
a driver’s "[having] previously dozed during the trip before
the accident" mandated a finding, or even was sufficient to
support a finding, that the driver was on notice that he would
fall asleep again, causing injury to another, before reaching his
destination. See id. at 622, 394 S.E.2d at 732.
Even if we purported to make such a finding in Hargrove,
it would have been dicta, for no evidence indicated that
Hargrove, in fact, had previously fallen asleep during his travel
from work to home. The facts in Hargrove proved only that
Hargrove knew he was sleepy before leaving for home, which we
found insufficient to prove the criminal negligence necessary to
support an involuntary manslaughter conviction. See id.
at 621-22, 394 S.E.2d at 731-32.

Second, Hargrove erroneously attempted
to distinguish the events in Hargrove from those in Kennedy
v. Commonwealth
, 1 Va. App. 469, 339 S.E.2d 905 (1986). See
Hargrove, 10 Va. App. at 621-22, 394 S.E.2d at 731-32. In Kennedy,
we affirmed a conviction for reckless driving upon evidence
establishing that Kennedy knew he was tired and subsequently fell
asleep at the wheel, running off the road. See Kennedy,
1 Va. App. at 472-73, 339 S.E.2d at 907-08. However, no death
resulted from Kennedy’s reckless driving, and we had no occasion
to consider whether Kennedy’s acts amounted to criminal
negligence. See King, 217 Va. at 605-06, 231 S.E.2d
at 316 (holding that reckless driving conviction does not require
proof of criminal negligence). Therefore, Hargrove’s
attempt to distinguish Kennedy also is dicta and does not
control the outcome of this case.
[2]

Third, the language in Hargrove
necessary to the decision in that case does not support the
result the majority reaches. Had appellant fallen asleep and
struck the jogger immediately after exiting Interstate 64 onto
Gaskins Road before becoming tired, he would have been no more
culpable than Hargrove and perhaps even less so. Hargrove knew
he was tired before he dozed off and struck the pedestrian, and
the record did not establish how far he had to drive. See Hargrove,
10 Va. App. at 621, 394 S.E.2d at 731. Appellant, however, was
not tired until he reached a point only five minutes from home.
Therefore, when appellant exited Interstate 64, "he could
reasonably have believed that he could negotiate his vehicle a
short distance without endangering human life." See id.
at 622, 394 S.E.2d at 732. Of course, the evidence establishes
that, after appellant exited the interstate, he became sleepy and
felt himself "[run] off the road . . . after
dozing off for [only] a half second." However, to conclude
that appellant acted mercilessly or inhumanely in failing to pull
over the instant he felt himself doze would be to ignore other
"existing circumstances and conditions" in the case.
Those other circumstances indicate that appellant, who was less
than five minutes from home at that point, "caught himself
drifting four or five times" but was able to "catch
himself and . . . snap out of it" on each
occasion. Thereafter, for about two-tenths of a mile before
leaving the road and striking the jogger, appellant maintained
the speed limit and engaged in no weaving or other erratic
driving.

Although appellant testified he was not sleepy
before he left his friend’s home, the trial court was entitled to
disbelieve and reject appellant’s testimony. See Speight
v. Commonwealth
, 4 Va. App. 83, 88, 354 S.E.2d 95, 98 (1987)
(en banc). However, rejecting that explanation did
not provide affirmative evidence that appellant was, in fact,
sleepy before he left his friend’s home. Therefore, the evidence,
viewed in the light most favorable to the Commonwealth, did not
exclude the reasonable hypothesis that appellant became sleepy,
as he told Officer Smith, only after leaving Interstate 64, when
he was only five minutes from home. Under all these
circumstances, I cannot conclude that appellant knew or should
have known that his conduct in proceeding the short distance to
his home "likely would cause injury to another" or that
he acted mercilessly or inhumanely in failing to stop. That his
conduct did, in fact, result in death is tragic and may
constitute ordinary or even gross negligence, but it does not,
without more, support a finding of criminal negligence.

For these reasons, I would reverse appellant’s
conviction.

 

FOOTNOTES:

[1] When Officer Smith first asked
appellant whether he had consumed any alcohol, appellant said he
had not. However, when Smith asked appellant for consent to test
his blood for alcohol, appellant admitted his alcohol
consumption. A blood test performed "a little after
noon" on May 11 was negative for drugs or alcohol. During
argument, the trial court commented, "[T]here’s no evidence
that his drinking . . . was the cause of [the accident],"
and the court made no mention of appellant’s drinking in finding
him guilty.

[2] In Hargrove, in its
unnecessary effort to distinguish the facts in Kennedy,
the panel noted that Kennedy involved a driver who
"knew he was fatigued and sleepy and had been driving
several hours in that condition before the accident." Hargrove,
10 Va. App. at 621, 394 S.E.2d at 731. However, the opinion in Kennedy
does not support the assertion that Kennedy "had been
driving several hours in [a fatigued and sleepy] condition."
Although Kennedy had napped earlier and had been driving for
several hours, the only evidence described in the opinion
regarding fatigue in the period of time leading up to the
accident indicated that appellant "had pulled into a rest
stop fifteen minutes earlier to take a nap because he was
sleepy" but that he felt refreshed and capable of proceeding
after simply walking around. See Kennedy, 1 Va.
App. at 470-72, 339 S.E.2d at 906-07.

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