DRIVER AND PASSENGER RESPONSIBILITY AFTER AN ACCIDENT
Virginia law imposes an affirmative duty on all drivers and passengers to report accidents. Failure to do so can lead to a criminal conviction.
The following is a list of drivers’ obligations under VA law:
1. Stop your vehicle as close to the scene as possible (without obstructing traffic) as soon as reasonably possible after the accident
2. Report any injuries, your name, address, driver’s license number, and vehicle registration number to the State Police or local law enforcement agency, and the names of the individuals in the other vehicle as soon as reasonably possible
3. Provide reasonable assistance to any person injured in the accident, including taking the injured person to physician, doctor or hospital, if it appears medically necessary or is requested by the injured person. While this sounds like a “Good Samaritan Law” in Virginia, this law in fact imposes responsibility on you solely due to the fact that you were involved in this person obtaining those injuries and owe them a reasonable duty of care under the circumstances.
4. If your injuries prevent compliance with the any of the above requirements, as soon as is reasonably possible, you make the required report to police and locate the driver, some other occupant or the custodian of such damaged vehicle, and report your name, address, driver’s license number, and vehicle registration number. Thus, waiting a week after you got home from the hospital to report an accident would be unreasonable under this law.
5. If a vehicle was unattended at the time of the accident, you must use reasonable effort to find the owner of the vehicle and if you cannot, then you much leave a note with your contact information and report the accident to the police within 24 hours of it taking place.
HIT AND RUN PENALTIES
There are various types of hit and run charges that people can face for a driver or a passenger leaving the scene of an accident. The following is a list organized in order of most serious penalty:
- Class 5 Felony – the driver is punishable by up to 10 years in prison IF the vehicle or property was attended, and there was an injury, death, or more than $1,000 in property damage. A passenger who did not report the accident in this instance is punishable by up to 5 years in prison with a class 6 felony.
- Class 1 Misdemeanor – the driver is punishable by up to 1 year in jail IF a) the vehicle or property was attended, and there was an less than $1,000 in property damage, or b) the vehicle or property was unattended, and there was property damage valued between $250 and $1,000. A passenger who did not report the accident in this instance is punishable by up to 5 years in prison. A passenger who did not report the accident in one of these instances is punished equally to the driver.
- Class 4 Misdemeanor – the driver is punishable by only a fine (but will imprint a criminal conviction on your record) IF the vehicle or property was unattended, and there was property damage valued less than $250. A passenger who did not report the accident in this instance is punished the same as the driver.
CODE OF VIRGINIA RELATED TO HIT AND RUN CHARGES
§ 46.2-894. Duty of driver to stop, etc., in event of accident involving injury or death or damage to attended property; penalty.
The driver of any vehicle involved in an accident in which a person is killed or injured or in which an attended vehicle or other attended property is damaged shall immediately stop as close to the scene of the accident as possible without obstructing traffic, as provided in § 46.2-888, and report his name, address, driver’s license number, and vehicle registration number forthwith to the State Police or local law-enforcement agency, to the person struck and injured if such person appears to be capable of understanding and retaining the information, or to the driver or some other occupant of the vehicle collided with or to the custodian of other damaged property. The driver shall also render reasonable assistance to any person injured in such accident, including taking such injured person to a physician, surgeon, or hospital if it is apparent that medical treatment is necessary or is requested by the injured person.
Where, because of injuries sustained in the accident, the driver is prevented from complying with the foregoing provisions of this section, the driver shall, as soon as reasonably possible, make the required report to the State Police or local law-enforcement agency and make a reasonable effort to locate the person struck, or the driver or some other occupant of the vehicle collided with, or the custodian of the damaged property, and report to such person or persons his name, address, driver’s license number, and vehicle registration number.
Any person convicted of a violation of this section is guilty of (i) a Class 5 felony if the accident results in injury to or the death of any person, or if the accident results in more than $1000 of damage to property or (ii) a Class 1 misdemeanor if the accident results in damage of $1000 or less to property.
§ 46.2-895. Duty of certain persons accompanying driver to report accidents involving injury, death, or damage to attended property.
If the driver fails to stop and make the report required by § 46.2-894, every person sixteen years of age or older in the vehicle with the driver at the time of the accident, who has knowledge of the accident, shall have a duty to ensure that a report is made within twenty-four hours from the time of the accident to the State Police or, if the accident occurs in a city or town, to the local law-enforcement agency. The report shall include his name, address, and such other information within his knowledge as the driver is required to report pursuant to § 46.2-894.
§ 46.2-896. Duties of driver in event of accident involving damage only to unattended property.
The driver of any vehicle involved in an accident in which no person is killed or injured, but in which an unattended vehicle or other unattended property is damaged, shall make a reasonable effort to find the owner or custodian of such property and shall report to the owner or custodian the information which the driver is required to report pursuant to § 46.2-894 if such owner or custodian is found. If the owner or custodian of such damaged vehicle or property cannot be found, the driver shall leave a note or other sufficient information including driver identification and contact information in a conspicuous place at the scene of the accident and shall report the accident in writing within 24 hours to the State Police or the local law-enforcement agency. Such note or other information and written report shall contain the information that the driver is required to report pursuant to § 46.2-894. The written report shall, in addition, state the date, time, and place of the accident and the driver’s description of the property damage.
Where, because of injuries sustained in the accident, the driver is prevented from complying with the foregoing provisions of this section, the driver shall, as soon as reasonably possible, make the required report to the State Police or local law-enforcement agency and make a reasonable effort to locate the owner or custodian of the unattended vehicle or property and report to him the information required by § 46.2-894.
§ 46.2-897. Duty of certain persons accompanying driver to report accidents involving damage only to unattended property.
If the driver fails to stop and make a reasonable search for the owner or custodian of an unattended vehicle or property or to leave a note for such owner or custodian as required by § 46.2-896, every person sixteen years of age or older in the vehicle with the driver at the time of the accident who has knowledge of the accident shall have a duty to ensure that a report is made within twenty-four hours from the time of the accident to the State Police or, if the accident occurs in a city or town, to the local law-enforcement agency. The report shall include his name, address, and such other facts within his knowledge as are required by § 46.2-896 to be reported by the driver.
§ 46.2-899. Article applies to accidents on private or public property.
The provisions of this article shall apply irrespective of whether such accident occurs on the public streets or highways or on private property.
§ 46.2-901. Suspension of driver’s license for failure to report certain accidents.
Any person convicted of violating the provisions of §§ 46.2-894 through 46.2-897 may be punished, in addition to the penalties provided in §§ 46.2-894 and 46.2-900, if such accident resulted only in damage to property and such damage exceeded $500, by suspension of his license or privilege to operate a motor vehicle on the highways of the Commonwealth for a period not to exceed six months by the court. This section shall in no case be construed to limit the authority or duty of the Commissioner with respect to revocation of licenses for violation of §§ 46.2-894 through 46.2-897 as provided in Article 10 (§ 46.2-364 et seq.) of Chapter 3 of this title. Any license revoked under the provisions of this section shall be surrendered to the court to be disposed of in accordance with the provisions of § 46.2-398.
§ 46.2-900. Penalty for violation of §§ 46.2-895 through 46.2-897.
Any person convicted of violating the provisions of §§ 46.2-895 through 46.2-897 shall, if such accident results in injury to or the death of any person, be guilty of a Class 6 felony. If such accident results only in damage to property, the person so convicted shall be guilty of a Class 1 misdemeanor; however, if the vehicle or other property struck is unattended and such damage is less than $250, such person shall be guilty of a Class 4 misdemeanor. A motor vehicle operator convicted of a Class 4 misdemeanor under this section shall be assigned three demerit points by the Commissioner of the Department of Motor Vehicles.
§ 18.2-137. Injuring, etc., any property, monument, etc.
A. If any person unlawfully destroys, defaces, damages or removes without the intent to steal any property, real or personal, not his own, or breaks down, destroys, defaces, damages or removes without the intent to steal, any monument or memorial for war veterans described in § 15.2-1812, any monument erected for the purpose of marking the site of any engagement fought during the War between the States, or for the purpose of designating the boundaries of any city, town, tract of land, or any tree marked for that purpose, he shall be guilty of a Class 3 misdemeanor; provided that the court may, in its discretion, dismiss the charge if the locality or organization responsible for maintaining the injured property, monument, or memorial files a written affidavit with the court stating it has received full payment for the injury.
B. If any person intentionally causes such injury, he shall be guilty of (i) a Class 1 misdemeanor if the value of or damage to the property, memorial or monument is less than $1,000 or (ii) a Class 6 felony if the value of or damage to the property, memorial or monument is $1,000 or more. The amount of loss caused by the destruction, defacing, damage or removal of such property, memorial or monument may be established by proof of the fair market cost of repair or fair market replacement value. Upon conviction, the court may order that the defendant pay restitution.
§ 46.2-852. Reckless driving; general rule.
Irrespective of the maximum speeds permitted by law, any person who drives a vehicle on any highway recklessly or at a speed or in a manner so as to endanger the life, limb, or property of any person shall be guilty of reckless driving.
RECENT VIRGINIA CASE DECISIONS RELATED TO HIT AND RUN ACCIDENTS
Tooke v. Com., 627 SE 2d 533 – Va: Court of Appeals 2006
Bo Jason Tooke was convicted in a bench trial of two counts of failure to stop at the scene of an accident in violation of Code § 46.2-894. The convictions arose from a motor vehicle accident in which Tooke forced an oncoming vehicle to go off the road and crash without any collision or impact between the two vehicles.
On appeal, Tooke contends the evidence was (1) insufficient to support two separate counts of failing to stop at an accident scene when there had been a single accident but two people injured and (2) insufficient to prove he knew an accident had occurred. Because the accident was a single incident, the evidence was insufficient to prove two separate offenses; thus, we reverse and vacate one conviction and affirm the other.
On appeal, we view the evidence in the light most favorable to the prevailing party, granting to it all reasonable inferences 535*535 fairly deducible therefrom. Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).
On the afternoon of December 24, 2003, Tooke was driving north on Route 301, a two-lane highway, in Caroline County. He was on his way home in Bowling Green from work at a construction site in Mechanicsville. It was early in the afternoon, and Tooke had worked only a half-day because it was Christmas Eve. Dennis Buchanan, an insurance investigator and retired police officer, was driving behind Tooke before and at the time of the accident. Buchanan testified that he first observed Tooke when they stopped at the traffic light at the intersection of Route 301 with Route 30, at which time all four wheels of Tooke’s vehicle extended past the stop line and into the intersection. As Buchanan drove northward behind Tooke for the next five or six miles, he observed Tooke driving erratically, with the driver’s side tires twice completely crossing the center line into the southbound lane and twice the right side tires went onto the shoulder. According to Buchanan, they were both driving within the posted speed limit at fifty to fifty-five miles per hour. At some point before the accident, Tooke began following a slower moving older pickup truck. According to Buchanan, after following the truck for some distance Tooke drove his vehicle entirely into the left southbound lane as if to pass the truck.
As Tooke moved into the left lane, a van was approaching, traveling southbound. The van was only about fifty to seventy-five yards away. To avoid the collision Tooke immediately veered back into the northbound lane behind the pickup. Although the vehicles did not collide, they passed within a couple of feet of each other. According to Buchanan, he observed the driver of the van, Leslie Purdem, veer to the right to avoid a collision and onto the shoulder of the road, then back onto the road and into the northbound lane, and then back onto the southbound shoulder and into the woods. Purdem and her passenger husband were severely injured in the accident. Buchanan saw the Purdem van crash into the woods, as did the driver behind Buchanan who stopped to render aid to the crash victims. Buchanan continued to follow Tooke in order to get his license number and report the accident. Buchanan testified that as he followed Tooke after the accident Tooke no longer drove erratically, did not attempt to pass the pickup truck, and did not weave or drift into the other lane or off the shoulder.
Tooke denied that he was attempting to pass; he said instead that he fell asleep and his vehicle drifted entirely into the southbound lane and oncoming traffic. Tooke testified that he awoke to find himself in the path of oncoming traffic, and immediately swerved back into the correct lane when he realized what was happening. He testified that he did not see the van go off of the road or crash into the woods and was unaware an accident had occurred.
Sufficiency of the Evidence to Support Two Separate Charges
On appeal, Tooke contends the trial court erred in finding the evidence sufficient to support two separate charges of failure to stop at the scene of an accident. He failed, however, to raise this issue at trial. Rule 5A:18 precludes this Court from considering an issue on appeal unless the appellant objected at trial in order to provide the trial judge an opportunity to consider and rule upon the issue unless “good cause [is] shown [for failing to object] or [unless it is necessary for us to address the issue] to enable [this Court] to attain the ends of justice” and prevent a miscarriage of justice.
536*536 “The ends of justice exception is narrow and is to be used sparingly,” and only when a trial court error is “clear, substantial and material.” Brown v. Commonwealth, 8 Va.App. 126, 132, 380 S.E.2d 8, 11 (1989). “In order to avail oneself of the exception, a defendant must affirmatively show that a miscarriage of justice has occurred, not that a miscarriage might have occurred.” Id. (citing Mounce v. Commonwealth, 4 Va.App. 433, 436, 357 S.E.2d 742, 744 (1987)). “In examining a case for miscarriage of justice, we do not simply review the sufficiency of the evidence under the usual standard, but instead determine whether the record contains affirmative evidence of innocence or lack of a criminal offense.” Lewis v. Commonwealth, 43 Va.App. 126, 134, 596 S.E.2d 542, 546 (2004), rev’d on other grounds, 269 Va. 209, 608 S.E.2d 907 (2005). See also Michaels v. Commonwealth, 32 Va.App. 601, 529 S.E.2d 822 (2000); Redman v. Commonwealth, 25 Va.App. 215, 221, 487 S.E.2d 269, 272 (1997).
Code § 46.2-894 states:
The driver of any vehicle involved in an accident in which a person is killed or injured or in which an attended vehicle or other attended property is damaged shall immediately stop as close to the scene of the accident as possible without obstructing traffic … and report his name, address, driver’s license number, and vehicle registration number forthwith to the State Police or local law-enforcement agency, to the person struck and injured if such person appears to be capable of understanding and retaining the information, or to the driver or some other occupant of the vehicle collided with or to the custodian of other damaged property. The driver shall also render reasonable assistance to any person injured in such accident, including taking such injured person to a physician, surgeon, or hospital if it is apparent that medical treatment is necessary or is requested by the injured person.
The gravamen of the offense under the statute is a single accident, regardless of the number of persons injured or the extent of the damage. Nowhere does the statute mention that failure to stop and assist each person involved in a single accident is a separate crime. Thus, in construing Code § 46.2-894, the Supreme Court has held:
The extent of the property damaged or the number of people injured or killed does not constitute an element of the offense. It is the flight from the scene, and the failure to give the information required to the person in charge of the property damaged or succor to the injured which constitute the completed offense.
James v. Commonwealth, 178 Va. 28, 37, 16 S.E.2d 296, 300 (1941).
The Attorney General acknowledges that the holding in James is controlling and that Tooke should not have been convicted of two violations of Code § 46.2-894. In view of James and the concession, we hold that appellant was convicted of two counts of failure to stop at the scene of an accident when, as a matter of law, the evidence proved a single offense. Because appellant was convicted twice for conduct that was but one criminal offense, a miscarriage of justice occurred. We therefore reverse and vacate the criminal conviction as to one of the two convictions. We remand for the dismissal of that indictment.
Sufficiency of the Evidence to Support that Appellant Knew an Accident Occurred
An element of the charged crime, commonly referred to as “hit and run,” is actual knowledge that an accident occurred.
Actual knowledge is a fact that may be proved by direct or circumstantial evidence. “Circumstantial evidence is as competent and is entitled to as much weight as direct evidence, provided it is sufficiently convincing to exclude every reasonable hypothesis except that of guilt.” Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983). A fact finder may rely upon a combination of circumstances to support a conviction, even though each circumstance in isolation would be insufficient. Stamper v. Commonwealth, 220 Va. 260, 273, 257 S.E.2d 808, 818 (1979). Moreover,
“[i]f the proof relied upon by the Commonwealth is wholly circumstantial . . . then to establish guilt beyond a reasonable doubt 537*537 all necessary circumstances proved must be consistent with guilt and inconsistent with innocence. They must overcome the presumption of innocence and exclude all reasonable conclusions inconsistent with that of guilt.”
Higginbotham, 216 Va. at 352-53, 218 S.E.2d at 537 (quoting LaPrade v. Commonwealth, 191 Va. 410, 418, 61 S.E.2d 313, 316 (1950)). The trial judge, in his role as fact finder, found that Tooke had actual knowledge of the accident and that an injury would have occurred, and his judgment cannot be set aside unless it is “plainly wrong.” Naulty v. Commonwealth, 2 Va.App. 523, 527, 346 S.E.2d 540, 542 (1986).
Here, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential element of [actual knowledge] beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original). “This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Id. The circumstantial evidence and reasonable inferences which the trial judge, as fact finder, may have drawn therefrom support the factual finding that Tooke had actual knowledge of the accident.
The evidence shows that Tooke drove his vehicle into the opposite travel lane in the face of oncoming traffic. Whether he did so in a conscious effort to pass a slower-moving pickup truck or because he “nodded off” and drifted into the wrong lane of travel, as he stated, is of no consequence. The dispositive question before the trial court and before us is whether Tooke knew that his action of driving into the wrong lane had caused an accident in which the occupants would have sustained personal injury. Here, according to Tooke’s own testimony and that of Buchanan, Tooke’s vehicle was entirely in the southbound lane; his vehicle and the Purdem van were within fifty to seventy-five yards on a collision course; at the last moment Tooke pulled back into his northbound lane, passing within a few feet of the Purdem van and narrowly avoiding a collision. Both Buchanan and the driver of the vehicle behind him observed the Purdem vehicle veer off the shoulder of the road to avoid a collision and then proceed into the woods. Buchanan’s observations that an accident had occurred with the crash of the van into the woods were sufficient to cause him to follow Tooke to obtain his license number and to report the accident. The other driver’s observations that the van had been forced off the road and crashed into the woods were sufficient to cause him to stop and render assistance to the seriously injured passengers.
Tooke, who pulled back into his travel lane behind the pickup truck, had an equal or better opportunity than Buchanan or the following driver to have observed that he had forced the van to veer onto the shoulder of the road, lose control and come back across the road, and then go off the traveled portion of the road, crashing into the woods. Although Tooke testified that he was too intent on getting back into his lane of travel to have observed what happened with the Purdem van, on these facts, the trial judge found that the circumstances proved beyond a reasonable doubt that Tooke knew that he had caused an accident in which the occupants of the vehicle would have sustained personal injury. The fact finder has the right to reject parts of the evidence as untrue and accept other parts. Belton v. Commonwealth, 200 Va. 5, 9, 104 S.E.2d 1, 4 (1958). Here, the trial judge, acting within his capacity as the fact finder, rejected much of Tooke’s testimony, stating it “defie[d] logic” to think he did not know an accident had occurred.
Because the evidence, and reasonable inferences to be drawn therefrom, when viewed in the light most favorable to the Commonwealth, are sufficient to prove appellant had actual knowledge of the accident, we affirm Tooke’s conviction.
We therefore reverse and vacate one conviction and affirm the other and remand the case to the circuit court with directions to vacate one of Tooke’s convictions and to dismiss that indictment.
538*538 Affirmed in part, reversed and vacated in part, and remanded.
BENTON, J., concurring, in part, and dissenting, in part.
For the reasons given in the majority opinion, I concur in the holding that the evidence was not sufficient to support two separate violations of Code § 46.2-894. I would also hold, however, that the evidence was insufficient to prove Bo Jason Tooke was aware that any accident occurred involving an injury or damaged property.
The sole issue is whether the evidence proved Tooke knew the van had crashed. The testimony and evidence about the events are reasonably consistent. Dennis Buchanan testified he drove northbound behind Tooke for about six miles before the incident. In that distance, he saw Tooke’s car stray out of the travel lane to the left twice and to the right twice. As Buchanan watched Tooke’s car, he concluded that Tooke was having some difficulty because Buchanan said to himself “this guy is going to go off the road and hit a tree and kill himself.”
When Tooke and Buchanan approached a northbound truck ahead of Tooke, Tooke’s car moved “all of a sudden … out in the fast lane.” Buchanan saw a van approaching in the southbound direction “fifty to seventy-five yards away.” Tooke’s car immediately came back into the northbound travel lane behind the truck. No evidence proved Tooke’s car accelerated when it moved into the opposite travel lane. Although Buchanan surmised that Tooke suddenly moved “to pass this truck,” he testified that Tooke only “stayed in the lane for five to ten seconds” before moving back to avoid the oncoming van. He also testified that Tooke’s car “never did pass the truck” and that they “weren’t speeding.”
As Tooke’s car came back into the northbound lane, the van that was traveling southbound moved onto the shoulder of the highway and passed Tooke’s car. No collision or contact occurred between the two vehicles. Buchanan testified that the van and Tooke’s car passed “within a couple of feet” and that Tooke continued northbound on the highway. Buchanan followed Tooke and observed that Tooke drove “perfect[ly]” from that point.
This evidence failed to prove Tooke knew that the driver lost control of the van and crashed after returning to the southbound lane. “Knowledge necessarily is an essential element of the crime. . . . `[I]t must be present in [the driver's] mind that there has been an injury; and then, with that in mind, he must deliberately go away.'” Herchenbach v. Commonwealth, 185 Va. 217, 220, 38 S.E.2d 328, 329 (1946) (citation omitted). Thus, to prove the driver “guilty of violating the statute,” the evidence must prove beyond a reasonable doubt that “`the driver [was] aware that harm has been done.'” Id. (citation omitted).
I believe the majority incorrectly concludes that the circumstantial evidence in this case excludes every reasonable hypothesis of Tooke’s innocence. It is not sufficient that two drivers who were behind Tooke, and thus closer to the van when it crashed, knew that an accident occurred. To convict Tooke based on circumstantial evidence, the Commonwealth must “exclude all reasonable conclusions inconsistent with that of guilt.” LaPrade v. Commonwealth, 191 Va. 410, 418, 61 S.E.2d 313, 316 (1950); see also Commonwealth v. Smith, 259 Va. 780, 783, 529 S.E.2d 78, 79 (2000).
The trial judge found that “the accident had already begun before [Tooke] knew his vehicle was in the wrong southbound lane and headed back into the northbound lane.” From that premise, the judge concluded the evidence proved Tooke knew of the ensuing events because “he knew of this close encounter.” This conclusion is not supported by the evidence.
Buchanan’s testimony suggests that Tooke likely did not see the events that occurred after the near collision. Buchanan testified that he watched the van in his rearview mirror after the near collision. As Buchanan continued northward, he “saw the van come back [onto the road] and … said, good, the van made it.” Thus, Buchanan, who was fully alert, initially believed the near collision had no consequential effect. Only as Tooke and Buchanan continued northbound on the highway did Buchanan notice that the van continued to move across the highway. Buchanan testified that after he saw the van return to the highway in its proper lane of 539*539 travel, the southbound lane, he then saw it move “into the northbound lane” and then return to the southbound lane before leaving the highway and hitting trees.
No evidence proved that Tooke saw the van cross from the southbound lane into the northbound lane, return to the southbound lane, and then leave the highway before crashing into the trees. As these events were occurring, at least one other vehicle was behind Buchanan’s vehicle. The presence of Buchanan’s vehicle behind Tooke and another vehicle behind Buchanan’s vehicle, all moving at fifty-five miles per hour, suggests Tooke may not have been in a position to see the van after it returned to its travel lane. Certainly, Buchanan’s expression of relief that the van was not in difficulty when it came back onto the roadway, provides a reasonable hypothesis that Tooke had reason to believe the incident had not caused injury or damage to the van.
Additionally, no objective facts indicate Tooke was aware the van crashed. Buchanan did not testify that Tooke’s brake lights illuminated. Buchanan also did not testify that Tooke’s speed momentarily dropped below the speed limit. Thus, the evidence does not show Tooke had even a momentary hesitation or awareness that something untoward later happened. Furthermore, the evidence did not establish the contour of the highway beyond “the close encounter” or the type of vehicles behind Tooke. In other words, the evidence failed to prove the highway was straight, giving a clear line of sight as Tooke and Buchanan continued northward, or to prove Tooke could have had an unobstructed view to his rear.
Based on Buchanan’s telephone call as he followed Tooke, a deputy sheriff arrested Tooke and took him back to the scene of the incident. The deputy sheriff testified that Tooke “said … the only thing [he remembered was] being tired and swerving.” The deputy sheriff also testified Tooke said he saw no accident. The deputy sheriff did not testify he detected any traces of alcohol as he questioned Tooke. Consistent with the Commonwealth’s evidence, Tooke testified at trial that he was going home from work, became tired, and began to “nod off.” He explained that he “nodded off to sleep” and then “came to [his] senses, [seeing] traffic coming [toward him] because [he] was in the wrong lane.” He corrected his swerve and continued driving, now alert after the near collision.
“It is, of course, a truism of the criminal law that evidence is not sufficient to support a conviction if it engenders only a suspicion or even a probability of guilt. Conviction cannot rest upon conjecture.” Smith v. Commonwealth, 192 Va. 453, 461, 65 S.E.2d 528, 533 (1951). “The guilt of a party is not to be inferred because the facts are consistent with his guilt, but they must be inconsistent with his innocence.” Cameron v. Commonwealth, 211 Va. 108, 110-11, 175 S.E.2d 275, 276 (1970). The evidence merely created a suspicion that Tooke had knowledge the van later collided with a tree; however, “it is not sufficient to create a suspicion or probability of guilt, [because] the evidence must establish the guilt of an accused beyond a reasonable doubt.” Id. at 110, 175 S.E.2d at 276.
While Tooke may have committed a driving offense, the Commonwealth’s evidence failed to prove he violated Code § 46.2-894 (duty to report information and render assistance when a driver is involved in an accident in which injury or damage occurs). Simply put, the evidence failed to prove Tooke knew the near collision resulted in harm, a necessary element of the crime. Herchenbach, 185 Va. at 220, 38 S.E.2d at 329. For these reasons, I would reverse both convictions and dismiss the indictments.
Robinson v. Com., 633 SE 2d 737 – Va: Court of Appeals 2006
Clifford Robinson (appellant) was convicted in a bench trial of misdemeanor reckless driving, in violation of Code § 46.2-852, and felony leaving the scene of an accident, in violation of Code § 46.2-894. On appeal, he contends the trial court erred in finding the evidence sufficient, as a matter of law, to support his convictions. For the reasons that follow, we affirm appellant’s convictions and remand solely for the purpose of correcting a clerical error in the sentencing order.
“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.” Banks v. Commonwealth, 41 Va.App. 539, 543, 586 S.E.2d 876, 877 (2003). So viewed, the evidence established that, around noon on June 2, 2004, appellant stopped his Mercedes SUV at a stoplight in the right southbound lane of Gordon Road in Spotsylvania County. While appellant waited for the light to turn green, Christie Antonuccio stopped her red Mustang in the left southbound lane beside appellant’s SUV. Antonuccio’s four-year-old son was in the backseat of her car in a child safety seat. Appellant’s SUV and Antonuccio’s car were the first vehicles in their respective southbound lanes. Signs at the intersection indicated that the left southbound lane ended ahead and that the traffic in that lane was to merge into the right southbound lane. The two lanes began to gradually merge into a single lane approximately one tenth of a mile south of the stoplight. The posted legal speed limit for that portion of the southbound roadway, which had a four percent downhill grade, was forty miles per hour. The roadway was dry and free of imperfections in the road surface, and the weather was clear.
When the light turned green, both vehicles quickly accelerated side-by-side toward the merge area. For some time, neither vehicle slowed to allow for the merge. After reaching a speed of approximately 50 miles per hour, appellant eventually slowed down “[a]s they approached the spot where the two lanes merge[d]” into one and allowed Antonuccio to go in front of him. Moments after merging into the lane ahead of appellant, Antonuccio lost control of her car and went off the roadway. Gravel thrown up by Antonuccio’s car as it slid across the shoulder of 739*739 the road pitted the front of appellant’s SUV and cracked his windshield. Antonuccio’s car then slammed broadside into a tree on the right side of the road. The police determined the car was traveling approximately seventy-six miles per hour at the time of the impact. The distance from the end of the merge to the impact was one tenth of a mile.
After finding a safe place to stop, appellant proceeded to the accident scene and helped Kenneth Phillips, a local resident who had heard the crash, clear tree limbs from Antonuccio’s car in an attempt to extricate its two occupants. A short time later, emergency personnel arrived. Antonuccio’s son was pronounced dead at the scene.
Soon thereafter, police officers arrived on the scene. After observing a police officer give another person who had stopped near the accident scene permission to leave the area, appellant left without speaking to any of the law enforcement officers present.
Ninety minutes after the accident, emergency personnel were successfully able to extricate Antonuccio from her car. However, she was pronounced dead on arrival at an area hospital emergency room.
Acting on an anonymous tip received by the police, Deputy Franklin McNeal Fleming contacted appellant the next day, and appellant agreed to speak with him. Upon arriving at appellant’s home, Deputy Fleming explained why he was there and notified appellant that there had been two fatalities in the accident. Appellant became “very upset and emotional” and stated that he had not been aware anyone had died. Appellant then told Deputy Fleming about the events surrounding the accident.
Appellant admitted that, even though he knew Antonuccio was accelerating in order to merge into the right lane ahead of him, he continued to accelerate in an attempt to reach the merge area first. Appellant explained that “[h]e was in the proper lane. The red car had to merge” into his lane. Appellant further explained that, “having lived in the area for 17 years, he had seen other cars in the left lane cut off drivers in that right lane” and that, “after 30 years in the Marine Corps, [he] wasn’t backing down.” Asked specifically why he did not simply slow down earlier and allow Antonuccio to go ahead of him, rather than try to prevent her from merging in front of him, appellant stated that “he was frustrated about people cutting others off all the time when they tried to merge at that location.” Appellant also told Deputy Fleming that he ultimately “back[ed] down,” diminishing his rate of acceleration to allow Antonuccio’s car to merge into his lane just before the southbound lanes finally merged, because “the red car had too much horsepower for his vehicle, and if he hadn’t slowed down he would have crashed.” “[H]e knew,” appellant explained, that “he couldn’t beat the red car.” Appellant also stated that he left the scene when he heard an officer gave another driver permission to leave the area because “he did not want any part of what had happened.”
Appellant was subsequently charged with reckless driving and felony leaving the scene of an accident. A bench trial commenced on April 13, 2005.
At trial, appellant testified that, when the light turned green, he “inten[ded] to lead in such a way that she could come in behind [him].” “When [he] saw that wasn’t happening,” he further testified, he “backed down because both lives were endangered . . . the cars would have collided.” Appellant also stated that, after doing all he could to assist after the accident, he “backed out of the way” of the emergency personnel and left the scene “the first chance [he] got to leave.” On cross-examination, appellant admitted that he accelerated “more briskly” than he would have ordinarily, had there been no car in the left lane, in order to prevent Antonuccio from merging in front of him. Appellant further admitted that, despite knowing Antonuccio “wanted to go in front of [him],” he did not “immediately just slow down and let her by” but continued to “accelerate briskly. . . [w]ithin [the] distance of the merge.” By the time he backed down, appellant acknowledged, Antonuccio “was going pretty fast.” Appellant also acknowledged that his vehicle was “close behind” Antonuccio’s vehicle “when she lost control.” He further explained that he left the scene after the accident without speaking to a law enforcement 740*740 officer not because he felt guilty for what he had done but because he “wasn’t involved in the accident” and “chose not to get [him]self involved.” Questioned by the court, appellant explained that he was in tears when informed that both occupants of Antonuccio’s car had died “because there [were] deaths” and because he had “tried to assist” after the accident.
In denying appellant’s motion to strike and finding appellant guilty of leaving the scene of an accident, the trial court determined that, although appellant was not the cause of Antonuccio’s accident, he was “involved” in the accident, as that term is used in Code § 46.2-894. In reaching that decision, the trial court reasoned that “the incident was a continuum from the time the cars left the intersection” until Antonuccio’s car “ended up against that tree.” The court further reasoned that appellant’s “emotional response” to the news that the occupants of the red car had died indicated that appellant knew he was “involved in something that he should be talking to law enforcement about.” The court found that, although appellant satisfied the statute’s requirement that a driver of a “vehicle involved in an accident” stop and render assistance, he failed to comply with the statute’s requirement that the same driver also report his name and information to a law enforcement officer.
The trial court also found appellant guilty of reckless driving, specifically basing the conviction on the uncontested fact that, when appellant saw Antonuccio’s car beside him accelerating toward the merge area “at a high rate of speed,” his “reaction [was] to accelerate.” The court further noted that, although appellant eventually “backed down,” by the time he did so “he had already accelerated and engaged in some very foolish conduct,” which constituted reckless driving.
The trial court sentenced appellant to two years in prison, all suspended, for the leaving the scene of an accident conviction and six months in jail for the reckless driving conviction. This appeal followed.
On appeal, appellant challenges the sufficiency of the evidence to support his convictions. “`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.'” Crest v. Commonwealth, 40 Va.App. 165, 174, 578 S.E.2d 88, 92 (2003) (quoting 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.'” Id. (quoting Watkins v. Commonwealth, 26 Va.App. 335, 348, 494 S.E.2d 859, 866 (1998)). “`[I]t is our duty to look to that evidence which tends to support the [conviction] and to permit the [conviction] to stand unless plainly wrong.'” Edwards v. Commonwealth, 41 Va.App. 752, 767, 589 S.E.2d 444, 451 (2003) (en banc) (quoting Snyder v. Commonwealth, 202 Va. 1009, 1016, 121 S.E.2d 452, 457 (1961)), aff’d, No. 040019 (Va. Sup. Ct. Order of 10/15/04). Indeed, “`[t]he 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.'” Id. (quoting Reynolds v. Commonwealth, 30 Va.App. 153, 163, 515 S.E.2d 808, 813 (1999)).
A. Reckless Driving
In challenging the sufficiency of the evidence to support his conviction for reckless driving, appellant contends the Commonwealth failed to prove beyond a reasonable doubt that he had a disregard for the consequences of his acts and an indifference to the safety of life, limb or property. To the contrary, he argues, the evidence showed that, unlike Antonuccio, he “was conscious of and attempted to protect their safety.” He asserts he merely attempted to exercise his right of way and, when he “recognized that Antonuccio would not follow proper traffic rules, he . . . `back[ed] down’ and slowed to allow Antonuccio to enter the right lane.” Thus, he concludes, the evidence failed to 741*741 show he drove recklessly and the trial court erred in finding the evidence sufficient to support a determination of guilt. We disagree.
Code § 46.2-852 states that, “[i]rrespective of the maximum speeds permitted by law, any person who drives a vehicle on any highway recklessly or at a speed or in a manner so as to endanger the life, limb, or property of any person shall be guilty of reckless driving.”
The word “recklessly” as used in the statute imparts a disregard by the driver of a motor vehicle for the consequences of his act and an indifference to the safety of life, limb or property. Speed alone is not a violation of this statute, but only becomes so when it endangers life, limb or property.
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.
Powers v. Commonwealth, 211 Va. 386, 388, 177 S.E.2d 628, 630 (1970) (citation omitted).
In this case, the trial court found that, although appellant did not directly cause Antonuccio’s accident, his accelerating to prevent Antonuccio from merging into the right lane ahead of him in the moments before her accident constituted reckless driving. Credible evidence in the record supports this finding, and the finding is not plainly wrong.
The evidence established that, when the traffic light turned green, appellant accelerated faster than he would have had Antonuccio’s car not been in the left lane beside him, for no other reason than to keep her from merging into the right lane ahead of him. Having lived in the area for many years and “frustrated about people cutting others off all the time when they tried to merge at that location,” appellant continued to “accelerate briskly” and drive alongside Antonuccio, despite knowing that Antonuccio wanted and intended to merge in front of him. Unwilling to fall behind Antonuccio, appellant continued to accelerate “[w]ithin [the] distance of the merge,” reaching speeds in excess of the speed limit. Only upon realizing as he approached the end of the merge that “he couldn’t beat the red car” did he “back down” and let Antonuccio go ahead of him. By then, Antonuccio’s car “was going pretty fast.”
From this evidence, the trial court could reasonably conclude that, in continuing to accelerate through the merge area at a high speed despite knowing Antonuccio intended to merge in front of him, appellant drove with disregard for the consequences of his actions and an indifference to the safety of life, limb, or property. Appellant’s familiarity with the road and his awareness that drivers in the left lane often cut off drivers in the right lane at the merge further support the finding that appellant was fully aware of the potential danger and, for the relevant period of time, disregarded it.
Appellant argues his conduct was not reckless because, “[al]though he initially set out to maintain his right of way, he [eventually] recognized the potential for a dangerous situation and he acted in a manner to prevent a collision.” In making such an argument, appellant seems to suggest that his conduct cannot constitute reckless driving because he avoided a collision. However, the reckless conduct for which appellant was convicted occurred not when he recognized and avoided the dangerous situation, but earlier when he helped create that situation. The fact that appellant ultimately considered the consequences of his actions and avoided a collision does not negate the fact that he was indifferent to the consequences of his actions moments before when he was accelerating to prevent Antonuccio from merging in front of him. The commission of the crime of reckless driving was complete at that point, and the cessation of the offending conduct did not purge appellant’s culpability.
Appellant also argues that, unlike Antonuccio’s driving, his driving was not reckless because he “had the right of way and had the right to expect that Antonuccio would merge into the right lane behind him.” In support of this argument, appellant cites the Supreme Court’s holding in Harris Motor Lines, Inc. v. Green, 184 Va. 984, 992, 37 S.E.2d 4, 6 (1946), that “[a] person has the right to assume that everyone else will obey the law and perform his duty and to act upon that belief until the contrary appears.” 742*742 Thus, he argues, he may not be held criminally liable under Harris Motor Lines for assuming, as he continued to accelerate toward the merge with Antonuccio by his side, that Antonuccio would yield the right of way to him and properly merge behind him.
This argument is without merit. Even were we to assume arguendo that appellant’s reliance on Harris Motor Lines, a case involving civil negligence rather than criminal recklessness, is not misplaced, see generally Morris v. Dame’s Ex’r, 161 Va. 545, 569, 171 S.E. 662, 671 (1933) (noting that the term “reckless driving” as it appears in the criminal statute “is not used with reference to the law of torts”), appellant’s own admissions belie his implicit claim that he expected Antonuccio to dutifully merge behind him. Indeed, appellant admitted the day after the accident and again at trial that he continued to accelerate in an attempt to reach the end of the merge first, even though he knew Antonuccio was accelerating in order to merge into the right lane ahead of him. Such knowledge renders appellant’s argument and his reliance on Harris Motor Lines irrelevant.
We hold, therefore, that the evidence presented at trial was sufficient, as a matter of law, to sustain appellant’s conviction for reckless driving.
B. Failure to Report to a Law Enforcement Officer
In challenging the sufficiency of the evidence to support his conviction for feloniously leaving the scene of an accident without reporting his identifying information to a law enforcement officer, in violation of Code § 46.2-894, appellant contends the Commonwealth failed to prove beyond a reasonable doubt that he was “involved” in Antonuccio’s accident and thus subject to the statute’s mandate. Thus, he concludes, the trial court erred in finding the evidence sufficient to support a determination of guilt. We disagree.
In pertinent part, Code § 46.2-894 provides as follows:
The driver of any vehicle involved in an accident in which a person is killed or injured or in which an attended vehicle . . . is damaged shall immediately stop as close to the scene of the accident as possible without obstructing traffic . . . and report his name, address, driver’s license number, and vehicle registration number forthwith to the State Police or local law-enforcement agency. . . .
* * * * * * *
Any person convicted of a violation of this section is guilty of . . . a Class 5 felony if the accident results in injury to or the death of any person, or if the accident results in more than $1000 of damage to property. . . .
(Emphasis added.) Thus, a conviction under Code § 46.2-894 requires proof beyond a reasonable doubt that the defendant was “involved” in the accident whose scene he is charged with leaving.
Appellant concedes, on appeal, that he left the scene of Antonuccio’s accident without reporting his identifying information to a law enforcement officer. He contends, however, that he was not legally required to so report because, as the trial court found, he did not cause the accident. Thus, appellant argues, he was not “involved” in the accident within the meaning of Code § 46.2-894. He was, he claims, nothing more than a witness who had no part in the accident. Accordingly, he concludes, he had no obligation to report to a law enforcement officer at the scene of the accident under Code § 46.2-894 and, thus, may not be held criminally liable for failing to do so.
The Commonwealth contends that, although appellant may not have legally caused the accident, the record makes it absolutely clear that he was “involved” in it, given the plain meaning of that term. Appellant’s actions, the Commonwealth asserts, had an effect on Antonuccio’s actions and their combined conduct led to the accident.
At issue, therefore, is whether appellant was “involved” in Antonuccio’s accident within 743*743 the contemplation of Code § 46.2-894. “Because this is a question of law involving statutory interpretation, we review the trial court’s judgment de novo.” Schwartz v. Commonwealth, 45 Va.App. 407, 424, 611 S.E.2d 631, 640 (2005) (citing Sink v. Commonwealth, 28 Va.App. 655, 658, 507 S.E.2d 670, 671 (1998) (“Although the trial court’s findings of historical fact are binding on appeal unless plainly wrong, we review the trial court’s statutory interpretations and legal conclusions de novo.”)).
“It is well established that, `when, as here, a statute contains no express definition of a term, [we] infer the legislature’s intent from the plain meaning of the language used,’ in light of the context in which the term at issue is used.” Id. at 425, 611 S.E.2d 631, 611 S.E.2d at 640 (quoting Hubbard v. Henrico Ltd. Partnership, 255 Va. 335, 340, 497 S.E.2d 335, 338 (1998)); see also Sansom v. Bd. of Supervisors, 257 Va. 589, 594-95, 514 S.E.2d 345, 349 (1999) (“An undefined term must be `given its ordinary meaning, given the context in which it is used.'” (quoting Dep’t of Taxation v. Orange-Madison Coop. Farm Serv., 220 Va. 655, 658, 261 S.E.2d 532, 533-34 (1980))). “Involve” is defined, in pertinent part, as “to draw in as a participant,” to “implicate,” “to relate closely,” to “connect,” “to have an effect on,” to “concern directly,” to “affect.” Webster’s Third New International Dictionary 1191 (1993). Nothing in these definitions suggests that, for purposes of determining criminal liability under Code § 46.2-894, a driver must have legally caused an accident in order to be considered “involved” in the accident. Indeed, the various definitions make it clear, given the breadth of their scope, that a driver need only be “implicated in or connected with the accident in a substantial or logical manner” to be “involved” in an accident under the statute. People v. Oliver, 242 Mich. App. 92, 617 N.W.2d 721, 724 (2000) (holding that the defendant was “involved” in an accident when he used his vehicle to push an inoperative car being steered by someone else that then swerved into the path of another car); see also People v. Sell, 96 Cal.App.2d 521, 215 P.2d 771, 772 (1950) (holding that a defendant is “involved” in an accident if his conduct was “connected with [the] accident in a natural or logical manner” and that the defendant was “involved” in an accident when she changed lanes and caused the car next to her to swerve into the path of another car); People v. Kerger, 191 Ill.App.3d 405, 138 Ill.Dec. 806, 548 N.E.2d 36, 39 (1989) (holding that “involved” means “implicated in an accident or connected with the accident in a substantial manner” and that the defendant was “involved” in an accident when she swerved to miss a pedestrian who was then struck by the vehicle behind the defendant).
We hold, therefore, that the application of the statute is not exclusively limited to those drivers who legally cause an accident. Accordingly, a conviction under Code § 46.2-894 does not require proof that the defendant legally caused the accident. See Sell, 215 P.2d at 772 (“The [failure to stop after an accident] statute . . . is in no way made dependent upon . . . who may ultimately be found to have been . . . at fault.”); Kerger, 138 Ill.Dec. 806, 548 N.E.2d at 39 (“[I]t is not necessary to determine, for purposes of deciding whether defendant was involved in a motor vehicle accident, whether defendant caused or was at fault for the accident. . . .”); Oliver, 617 N.W.2d at 724 (noting that the defendant’s “acquittal of [involuntary manslaughter and negligent operation of a vehicle causing homicide] charges is not inconsistent with a finding that he was involved in the accident for the purposes of [the failure to stop after an accident statute]“). Thus, we reject appellant’s claim that he was not “involved” in the subject accident because the trial court found he did not cause it.
The question remains, however, whether the evidence presented at trial was sufficient, as a matter of law, to prove beyond a reasonable doubt that appellant was “involved” in the subject accident. The evidence established that, when the traffic light turned green, appellant and Antonuccio both drove from the intersection determined to be first through the merge. Resolute in his desire to prevent Antonuccio from cutting him off, appellant continued to accelerate despite knowing that Antonuccio was trying to pass him. Reaching a speed of approximately 50 miles per hour, appellant kept pace with Antonuccio 744*744 as they neared the end of the merge. Moments before the merge ended, appellant “backed down” and let Antonuccio merge in front of him. By then, Antonuccio’s car “was going pretty fast” on the downhill road. Almost immediately after merging, Antonuccio lost control of her car, left the road, and crashed into a tree.
This evidence plainly shows that, regardless of whether he actually caused the accident, appellant had a substantial part in Antonuccio’s accident. It is clear from the evidence that Antonuccio’s high speed after completing the merge led to her losing control of her vehicle. It is also clear that appellant’s conduct in accelerating through the merge area, despite knowing that Antonuccio was trying to pass and merge into his lane in front of him, contributed in a substantial way to Antonuccio’s high speed. Plainly, had appellant stopped accelerating and allowed Antonuccio to pass him when he first became aware that she intended to merge in front of him, Antonuccio’s speed would not have been as high following the merge and the accident may have been avoided. We conclude, therefore, that, as a participant in the uninterrupted chain of events that logically culminated in Antonuccio’s accident, appellant was implicated in or connected with the accident in a substantial or logical manner and was thus “involved” in the accident within the contemplation of Code § 46.2-894. Accordingly, he was required to stop at the scene of the accident and report his identifying information to a law enforcement officer. Although he stopped and rendered aid at the scene of the accident, appellant failed to report to an officer.
We hold, therefore, that the evidence presented at trial was sufficient, as a matter of law, to sustain appellant’s conviction for feloniously leaving the scene of an accident without reporting his identifying information to a law enforcement officer.
For these reasons, we hold the trial court did not err in finding the evidence sufficient, as a matter of law, to support appellant’s convictions. We therefore affirm the trial court’s judgment and appellant’s convictions and remand to the trial court to correct the code reference in the sentencing order for the conviction of reckless driving.
Neel v. Com., 641 SE 2d 775 – Va: Court of Appeals 2007
Jeffrey E. Neel (appellant) appeals from his jury trial conviction for leaving the scene of an accident involving personal injury in violation of Code § 46.2-894. On appeal, he concedes the evidence was sufficient to prove he failed to stop at the scene of an accident involving property damage, and he does not challenge his conviction for that offense, but he contends the evidence was insufficient to prove he knew or should have known the accident involved personal injury. We hold the facts were insufficient to support his conviction. Thus, we reverse the conviction and dismiss the indictment.
At about 5:30 p.m. on August 9, 2004, employees of the Prince William and Fauquier County Sheriff’s Departments responded to a Fauquier County location where “a woman . . . had stopped in the middle of the road” and “was blocking traffic.” One deputy spoke with the woman while a second, Deputy Ron Christefano, directed traffic. Their sheriff’s department vehicles were parked at the scene with emergency lights flashing.
Deputy Christefano observed a car approach the scene and “slow down properly.” That car was driven by Deanna Swanson. Just as Swanson was coming to a stop about ten feet from Deputy Christefano, a car driven by appellant approached behind Swanson. Appellant’s car “slowed down some,” but while still traveling at “a good speed,” it “rear-end[ed]” Swanson’s car. Swanson described the impact as “rather hard” and said “[i]t pushed [her vehicle forward] some.” Deputy Christefano described the impact as a “bang.” He said it was “like a crash. A rear-end. That’s all it was. But I definitely heard it and saw it.”
The accident caused “[n]ot a great deal [of damage to Swanson's car], but some.” She described the damage as “a crack in the cover of the light on the back” and said, “I can’t hardly tell it’s there.” Her insurance company estimated the cost to repair the damage as “$600 and some.”
“[W]ithin seconds” after the impact, Deputy Christefano approached Swanson’s car and inquired whether “everybody” in Swanson’s vehicle was “okay” and whether anybody was “hurting.” Swanson looked at the other occupants of her vehicle, two of her grandchildren, and responded to Deputy Christefano that “she was fine,” they were “okay.” Deputy Christefano told Swanson to pull over to the side of the road, and she did so. Deputy Christefano did not know whether appellant was able to hear his conversation with Swanson. Deputy Christefano did not assess the damage to Swanson’s vehicle at the time, but he did not recall that “any pieces of [Swanson's] car” or any “broken glass that was attributable to this accident” were “in the roadway” at that time.
Deputy Christefano then went immediately to appellant’s window and asked appellant, “Is everything okay?” Appellant “really had no response.” Deputy Christefano then “told [appellant] to follow behind [Swanson] and pull over on the side of the road.” Deputy Christefano did not discuss with appellant anything concerning the condition of Swanson or her passengers.
When Deputy Christefano completed his brief initial conversations with Swanson and appellant, “an ambulance was on the scene for the original [incident]” that had caused the officers to stop, and Deputy Christefano “let them know about what happened there.” When Deputy Christefano turned his back to talk to the other deputy on the scene, appellant drove off.
Deputy Christefano gave chase and apprehended appellant at least a mile from the scene. When the officers apprehended appellant, they observed that his vehicle had a dent on the hood and bumper area that was “[n]ot very big,” “approximately twelve inches maybe at the most across.”
Unbeknownst to Deputy Christefano or appellant, Swanson had “deteriorating discs” and had undergone neck surgery about eight months prior to the collision at issue. Swanson testified that between her December 2003 neck surgery and the rear-end collision with appellant on August 9, 2004, she had experienced no pain in her neck and that 777*777 after the accident she felt pain in her neck and head. She testified that as of the date of trial, July 6, 2005, she was “still hav[ing] problems with [her] neck.” Swanson received medical attention at the scene of the August 9, 2004 accident, but no evidence indicated she received that attention while appellant was still present.
Appellant was indicted, inter alia, for violating Code § 46.2-894 by leaving the scene of an accident in which a person was injured without stopping to report his name, address, and other personal information or render reasonable assistance to the person injured.
Following the Commonwealth’s presentation of evidence in appellant’s jury trial, appellant moved to strike, contending, inter alia, that the evidence failed to prove he knew or should have known anyone had been injured as a result of the accident. The trial court denied the motion. At the conclusion of all the evidence, appellant renewed his motion to strike, which the court again denied. The jury convicted appellant of the charged offenses, and he noted this appeal.
Under familiar principles of appellate review, we examine the evidence in the light most favorable to the Commonwealth, granting to the evidence all reasonable inferences fairly deducible therefrom. See, e.g., Martin v. Commonwealth, 4 Va.App. 438, 443, 358 S.E.2d 415, 418 (1987). 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. Long v. Commonwealth, 8 Va.App. 194, 199, 379 S.E.2d 473, 476 (1989).
Code § 46.2-894 provides in relevant part as follows:
The driver of any vehicle involved in an accident in which a person is killed or injured or in which an attended vehicle or other attended property is damaged shall immediately stop as close to the scene of the accident as possible without obstructing traffic . . . and report his name, address, driver’s license number, and vehicle registration number forthwith to the State Police or local law-enforcement agency, to the person struck and injured if such person appears to be capable of understanding and retaining the information, or to the driver or some other occupant of the vehicle collided with or to the custodian of other damaged property.
If the accident resulted in injury or death, failure to comply with Code § 46.2-894 is a felony. Code § 46.2-894. “The identification requirement is intended to facilitate accident investigation and to preserve public order.” Johnson v. Commonwealth, 14 Va.App. 769, 771, 418 S.E.2d 729, 731 (1992).
In Herchenbach v. Commonwealth, 185 Va. 217, 38 S.E.2d 328 (1946), the Supreme Court interpreted a predecessor version of this statute as follows:
Knowledge necessarily is an essential element of the crime. This does not mean that the person should have positive knowledge of the extent of the damage or injuries inflicted. It does mean that, in order to be guilty of violating the statute, “the driver must be aware that harm has been done; it must be present in his mind that there has been an injury; and then, with that in his mind, he must deliberately go away without making himself known. If an injury is inflicted under such circumstances as would ordinarily superinduce the belief in a reasonable person that injury would flow, or had flowed, from the accident or collision, then it is the duty of the operator to stop his vehicle.”
Id. at 220, 38 S.E.2d at 329 (quoting 5 Am. Jur. 921). We subsequently interpreted this language as requiring the Commonwealth to prove “that the defendant possessed actual knowledge of the occurrence of the accident, and such knowledge of injury which would be attributed to a reasonable person under the circumstances of the case.” Kil v. Commonwealth, 12 Va.App. 802, 811, 407 S.E.2d 674, 679 (1991). “This approach . . . has been characterized as `requiring subjective knowledge of the collision while holding the driver to a stricter reasonable man standard as to the fact or extent of the injury’. . . .” Id. at 810, 407 S.E.2d at 679 (quoting Commonwealth 778*778 v. Kauffman, 323 Pa.Super. 363, 470 A.2d 634, 637 (1983)).
Knowledge of injury may be imputed to a driver “where the fact of personal injury is visible or where the seriousness of the collision would lead a reasonable person to assume there must have been resulting injuries.” People v. Carter, 243 Cal.App.2d 239, 52 Cal.Rptr. 207, 208 (1966) (citation omitted) (holding that where impact “slightly damaged” bumper or fender of both cars and bumper had to be pulled away from wheel of one so it could be moved, “collision was not of sufficient magnitude to compel the conclusion that injuries had probably occurred”); see also Marjorie A. Caner, Annotation, Necessity and Sufficiency of Showing, in Criminal Prosecution Under “Hit-and-Run” Statute, Accused’s Knowledge of Accident, Injury, or Damage, 26 A.L.R.5th 1, §§ 26, 29, 30 (1995 & Supp.2006) (finding relevant the force of impact and amount of damage sustained by vehicles). “[I]n some cases, such as [those involving] proof of intent or knowledge, [circumstantial evidence] is practically the only method of proof.” Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980). “Circumstantial evidence is as competent and is entitled to as much weight as direct evidence, provided [the evidence as a whole] is sufficiently convincing to exclude every reasonable hypothesis except that of guilt.” Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983).
Here, we conclude as a matter of law that the evidence, viewed in the light most favorable to the Commonwealth, was insufficient to support a finding that appellant knew or should have known anyone in Swanson’s car was injured. No evidence established that appellant or Swanson left their cars or that emergency personnel, other than Deputy Christefano, approached Swanson’s car while appellant was at the scene. Although an ambulance was present when Deputy Christefano finished his brief conversations with Swanson and appellant immediately following their rear-end collision, it was undisputed that the ambulance was present at the scene to respond to the original incident that had disrupted traffic. It was also undisputed that medical personnel made no effort to attend to Swanson while appellant was at the scene. Thus, the arrival of an ambulance at the scene of the pre-existing traffic incident almost immediately following the occurrence of appellant’s rear-end collision with Swanson, viewed in the light most favorable to the Commonwealth, was not evidence indicating a reasonable person in appellant’s position knew or should have known before he fled that someone in Swanson’s car had been injured.
Further, although the impact from the rear-end collision was audible, described by Deputy Christefano as a “bang,” and pushed Swanson’s car forward, appellant was present as Swanson, while remaining behind the wheel of her own car, spoke to Deputy Christefano and then pulled her car to the side of the road. Deputy Christefano then came immediately to appellant’s car rather than attempting to render any type of aid to Swanson or any other occupants of her car or to call any of the other people then on the scene to render aid to Swanson or her passengers. Deputy Christefano also called attention to the fact that Swanson moved the car under her own power, telling appellant to “follow behind her and pull over on the side of the road.”
Finally, Swanson described the damage to her car as “a crack in the cover of the light on the back” that was so minor “[she could] hardly tell [it was] there.” Deputy Christefano testified that he did not recall observing any debris in the roadway as a result of the impact between Swanson’s and appellant’s vehicles. Thus, the minimal nature of the damage to Swanson’s vehicle was insufficient to put appellant on notice that she had been 779*779 injured. Although the evidence would support a finding that appellant’s front bumper and hood may have sustained some damage in the collision, no evidence establishes that appellant would have known about this damage before he fled the scene. Compare Cottee v. Commonwealth, 31 Va.App. 546, 558, 525 S.E.2d 25, 31 (2000) (holding evidence sufficient to prove knowledge where defendant “revved” engine and drove into the two victims, after which “[s]everal bystanders were shouting that people were trapped under the car”); Kil, 12 Va.App. at 812-13, 407 S.E.2d at 680 (holding evidence sufficient to prove knowledge where impact caused extensive damage to right side of van, scattered numerous glass particles along front seat, threw bodies of three victims distances of 45 to 135 feet from point of impact, and residents inside nearby homes at time of accident described impact as “a loud noise”).
Viewing the facts in the light most favorable to the Commonwealth, we hold as a matter of law that the evidence failed to prove appellant knew or should have known personal injury, as opposed to property damage, had resulted from the collision at the time he fled the scene. To hold otherwise would be to permit a driver involved in any but the most minor of accidents to be convicted of felony hit-and-run for leaving the scene of the accident without personally investigating whether injury had occurred, regardless of how unforeseeable an injury was under the circumstances surrounding the accident. Whatever one’s moral duty may be upon the occurrence of an accident, the applicable law in the form of the text of the statute itself and Virginia’s appellate court decisions interpreting it does not permit conviction for felony hit-and-run based solely upon the happening of an accident and a failure to investigate. Rather, such a conviction must be based on evidence, viewed in the light most favorable to the Commonwealth, proving beyond a reasonable doubt the driver knew or should have known that personal injury, not just property damage, had resulted from the collision. E.g., Kil, 12 Va.App. at 810-11, 407 S.E.2d at 679.
For these reasons, we hold the evidence was insufficient to support appellant’s felony conviction for leaving the scene of an accident involving personal injury in violation of Code § 46.2-894. Thus, we reverse the challenged conviction and dismiss the indictment.
Reversed and dismissed.
Haley, J., dissenting.
I respectfully dissent.
Although admitting that a “jury’s verdict will not be disturbed unless it is plainly wrong or without evidence to support it,” Guda v. Commonwealth, 42 Va.App. 453, 457, 592 S.E.2d 748, 750 (2004), the majority nonetheless concludes “as a matter of law that the evidence, viewed in the light most favorable to the Commonwealth, was insufficient to support a finding that appellant knew or should have known anyone in [the victim's] car was injured.” Respecting the jury’s decision to the contrary, I dissent.
The following adds to and emphasizes the facts as set forth by the majority.
In December of the year preceding the August 9, 2004 accident, Ms. Swanson had had two surgeries in which rods were inserted “in [her] upper and lower back” because of “deteriorating discs.” As to the accident, she testified that there was a “rather hard impact. It pushed us some” and that she “was frightened. And I felt pain.” After she pulled to the shoulder, and the appellant had fled, “[t]he people from the emergency vehicles came over.” After taking her blood pressure, which was found elevated, and upon her telling them of her pain, medical personnel “took her to the hospital.” At the hospital a CT scan and X-rays were taken. Though Ms. Swanson was released from the hospital seven hours after arrival, as of the date of trial, approximately eleven months 780*780 after the incident, she “still [has] problems with [her] neck.” The damages to Ms. Swanson’s car totaled approximately $600.
Deputy Ron Christefano heard a “bang” when appellant’s vehicle collided with Ms. Swanson’s. He testified that Ms. Swanson
said she was okay. I told her to pull on the side of the road. I went over to the second vehicle and told [appellant] to . . . pull over on the side of the road. When I did that, at that time an ambulance was on the scene for the original reason why I went out there. . . . When I turned my back to talk to the other deputy, I looked over my shoulder and the [appellant] in the second vehicle shot off.
III. JURY INSTRUCTIONS
The trial court considered the primary issue, that is, whether knowledge of injury could be attributable to a reasonable person under the circumstances, as one for jury determination. Relevant portions of the instructions to the jury follow:
From Instruction 5 defining the elements of the offense: “(3) That the defendant knew, or should have known, that another person was injured by the accident.”
Instruction 7: “The word `injury’ as used in these instruction[s] means any physical damage to the body caused by violence or accident.”
From Instruction 8: “the Commonwealth must prove . . . knowledge of injury which would be attributed to a reasonable person under the circumstances of the case.”
From Instruction 9: “for an element may also be proved by circumstantial evidence. You may convict the defendant on circumstantial evidence alone. . . .”
The verdict of a jury “cannot be overturned on appeal unless no `rational trier of fact’ could have come to the conclusion it did.” Stevens v. Commonwealth, 46 Va.App. 234, 248, 616 S.E.2d 754, 761 (2005) (quoting Kelly v. Commonwealth, 41 Va.App. 250, 257, 584 S.E.2d 444, 447 (2003) (en banc)). See also Pease v. Commonwealth, 39 Va.App. 342, 355, 573 S.E.2d 272, 278 (2002) (en banc) (“We let the decision stand unless we conclude no rational juror could have reached that decision.”), aff’d, 266 Va. 397, 588 S.E.2d 149 (2003); O’Connell v. Commonwealth, 48 Va.App. 719, 726, 634 S.E.2d 379, 382 (2006). “This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis added).
That standard of review does not permit us to “substitute our judgment for that of” a properly instructed jury. See Wactor v. Commonwealth, 38 Va.App. 375, 380, 564 S.E.2d 160, 162 (2002). It is my view the majority does not honor that standard and engages in the substitution that standard prohibits. Accordingly, I dissent.
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