COURT OF APPEALS OF VIRGINIA

Present: Judges Humphreys, AtLee and Raphael Argued at Lexington , Virginia

ADRIAN EDGAR IBANEZ MEMORANDUM OPINION * BY v. Record No. 0135

- 21

- 3 JUDGE STUART A. RAPHAEL JANUARY 11, 2022 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF CAMPBELL COUNTY

John T. Cook , Judge Joseph A

. Sanzone (Sanzone & Baker, L.L.P., on brief), for appellant. Matthew J

. Beyrau , Assistant Attorney General ( Mark R. Herring , Attorney General, on brief ) , for appellee.
Adrian Edgar Ibanez appeals his driving

- while

- intoxicated conviction, arguing that the Commonwealth failed to prove that he was operating the motor vehicle in question when it rolled

over . Ibanez claims that, without such proof , the trial court erred both in admitting the certificate of analysis showing his excessive blood

- alcohol level and in convicting him of driving while intoxicated

. B ecause the Commonwealth presented sufficient evidence that Ibanez operated the vehicle, we reject both challenges and affirm the conviction.
I. BACKGROUND

“ When presented with a sufficiency challenge in criminal cases, we review the evidence in the ‘ light most favorable ’ to the Commonwealth, the prevailing party in the trial court. ” Commonwealth v. Cady , ___ Va. ___, ___ ( Oct. 28, 2021) (citation omitted).

* Pursuant to Code § 17.1

- 413, this opinion is not designated for publication. UNPUBLISHED- 2

-

After midnight on March 6, 2019, Virginia State Police Trooper Mark Dalton was dispatch ed to respond to an accident that had “just happened” on Sunburst Road in Campbell County. Trooper Dalton arrived at the scene about nine minutes later . He saw a Chevrolet pickup truck with damage on all sides and the roof, leading him to conclude that the truck had left the road

a nd “rolled.” The only people at the scene were Ibanez, who was in the back of an ambulance ; fire department and emergency personnel ; and one other witness (whose name and sex is not disclosed in the record) . The witness was in a separate car. Ibanez w as the only one present who was injured. He had blood on his face, bloodshot eyes, and slurred speech. H e smelled strongly of alcohol. When Trooper Dalton asked what happened , Ibanez said he did n’t remember. Ibanez at first s aid that “he was on his way home from a friend’s
house , ” but then said that “he had jus t left Buffalo Wild Wings.” A sked if he had been drinking , Ibanez replied that he had consumed “two or three beers.” Trooper Dalton discovered that the truck was registered to a female who m h e believed shared the same address as Ibanez. She was not at the

scene , however, and there was no sign that she had been there. Ibanez voluntarily submit ted to a preliminary breath test. Based on the results, Trooper Dalton arrested Ibanez for driving under the influence. The arrest occurred at 2:00 a.m., roughly an hour and a half after the crash. After being arrested , Ibanez consented to give a blood sample. A nurse drew his blood using a kit approved by the Department of Forensic Science, and Troo per Dalton properly maintained custody of the sample and submitted it for lab analysis . The resulting certificate of analysis showed that Ibanez’s blood

- alcohol level w as 0.214 % by weight by volume. Ibanez was charged with driving while intoxicated in violation of Code § 18.2

- 266. At his bench trial, Ibanez argued that the certificate of analysis should be excluded for lack of proof that he operated the truck . The judge overruled the objection and admitted the certificate into evidence. At the close of the Commonwealth’s case , the defense moved to strike the Commonwealth’s evidence- 3

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on the same ground . The trial court found the evidence sufficient to prove that Ibanez drove the truck

. He reasoned that the accident occurre d after midnight in rural Campbell County, Ibanez would have had to take public highways to get to that location from Buffalo Wild Wings, and Ibanez was the only one on the scene who could have been driving the truck. Accordingly, the
court denied the mot

ion to strike and found Ibanez guilty of driving while intoxicated. The court sentenced Ibanez to sixty days in jail with fifty days suspended , imposed a $500 fine with $250 suspended, and suspended his license for twelve months

. II. ANALYSIS Ibanez presents two assignment s of error . First, he argues that the trial court erred by admitting the certificate of analysis into evidence under Code § 18.2

- 268.2

. 1 Second, he says that the evidence failed to show that he drove while intoxicated

. Bot h claims depend on whether the evidence sufficed to prove that Ibanez was operating the truck on a public highway when it rolled

over. Because the Commonwealth’s evidence supported that finding, we reject both assignments of error and affirm the convictio n .

A. The certificate of analysis was properly admi tted under Virginia’s implied

- consent law

. The trial court’s evidentiary ruling is reviewed for an abuse of discretion

. Hicks v. Commonwealth , 71 Va. App. 255, 275 (2019). Under that deferential standard, an appellate court will not reverse the trial court’s ruling simply because it disagrees. Id

. An abuse of discretion has occurred only if “ reasonable jurists could not differ ” in that conclusion. Id

. ( citation omitted)

. The

“ burden of proof with respect to factual questions underlying the admissibility of evidence is proof by a preponderance ” of evidence. Id. (quoting Bloom v. Commonwealth , 262 Va. 814, 821 (2001)).

1 Ibanez refers to the “blood sample” in his assignment of error, but he means the certificate of analysis. The Commonwealth does not quibble with the wording, and the imprecise language poses no obstacle to our deciding this case “on the merits.” Moore v. Common wealth , 276 Va. 747, 753 (2008).- 4

-

The trial judge ’s factual findings when determining admissibility become “binding on appeal ‘unless “plainly wrong” or without evidence to support them.’” Id. (quoting Campos v. Commonwealth , 67 Va. App. 690, 702 (2017 ) )

. “[T]o the extent that the a dmissibility determi nation involve s a question of law ,” we review the issue of law “ de novo

. ” Id. at 276. Under Virginia’s im plied

- c onsent l aw, a person who “operates a motor vehicle upon a highway” of the Commonwealth impliedly consent s to give breath and blood samples for testing if arrested for driving while intoxicated within three hours of the alleged offense

. Code § 18.2

- 268.2 (A). “‘ Operator ’ or ‘ driver ’ means every person who either (i) drives or is in actual physical control of a motor vehicle on a highway or (ii) is exercising control over or steering a vehicle being towed by a motor vehicle. ” Code § 46.2

- 100. A certificate of analysis is not admissi ble , regardless of the defendant’s actual consent, unless the Commonwealth has complied with the requirements of the implied

- consent law. Roseborough v. Commonwealth , 281 Va. 233,
238

- 39 (2011). To be admissible, the Commonwealth had to present evidence that Ibanez was (1) operating a motor vehicle, (2) on a public highway and (3) validly arrested for an offense under Code § 18.2

- 266, (4) within three hours of the alleged offense. Id

. The trial court did not err in finding t he Commonwealth ’s evidence suf ficient to prove that Ibanez was operating a vehicle on a public highway. 2 Trooper Dalton received the dispatch after the accident “had just happened,” arriving at the scene on Sunburst Road nine mi n utes later. He testified that Sunburst Road is “a public highway . . . in Campbell County.” The pickup truck suffered damage to all sides and the roof, evidencing its involvement in a serious roll

- over accident

. O ther than the emergency responders , only two other people were present at the scene : a witness in a separate vehicle , and Ibanez

— his face covered in “a lot of blood,” smelling strongly o f alcohol,

2 Ibanez does not dispute that Sunburst Road is a public highway or that he was arrested within the three

- hour window.- 5

-

eyes bloodshot, and speech slurred. Whe n questioned, Ibanez first said that “ he was on his way home from a friend’s house , ” but then said that “ he had just left Buffalo Wild Wings

. ” (Emphasis added

. ) T he truck was registered to a female who lived at the same address as Ibanez, further connecting Ibanez to the vehicle. T here was no evidence that she was driving the truck when it rolled over

. The trial court reasonably concluded that Ibanez was driving the truck

. Ibanez was the only

one injured and the only one present who could have been driving it . And Ibanez said that he was on his way home and that he had just left Buffalo Wild Wings

— not “ we ” were on our way home or

“ we ” had just left

— reasonably corroborat

ing that he was the driver

. Accordingly, the trial court did not abuse its discretion by admitting the certificate of analysis into evidence . The court was not plainly wrong to find the Commonwealth proved by a preponderance of evidence that Ibanez was operating the truck when it rolled over.
B. The evidence also sufficed to convict Ibanez of operating a motor vehicle under the influence of alcohol. Ibanez’s second assignment error claims that the evidence failed to support his driving

- while

- intoxicated conviction. This assignment of error involves the same facts as the first, but the Commonwealth’s burden is proof beyond a reasonable doubt. Still, t he trial court’s judgment is “ presumed correct and will not be disturbed unless it is ‘ plainl y wrong or without evidence to support it. ’ ” Pijor v. Commonwealth , 294 Va. 502, 512 (2017) (quoting Code § 8.01

- 680 )

. Viewed from this “ vantage point ,” the question is not whether this Court “ believes that the evidence at the trial established guilt bey ond a reasonable doubt .” Cady ,
___ Va. at

___ (quoting Williams v. Commonwealth , 278 Va. 190, 193 (2009) ). “ Instead, the only ‘ relevant question is, after reviewing the evidence in the light most favorable to the prosecution, whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. ’ ” Id. at

___ (quoting Sullivan v. Commonwealth , 280 Va. 672, 676 (2010) ). T hese- 6

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principle s apply “to bench trials no differently than to jury trials.” Pijor , 2 94 Va. at 512 (quoting Vasquez v. Commonwealth , 291 Va. 232, 249 (2016) ). There was enough evidence here to enable a rational factfinder to conclude beyond a reasonable doubt that Ibanez was driving the truck on a public highway when it rolled over. To be sure, the Commonwealth presented no witness who saw Ibanez driving the truck on Sunburst Road ; the prosecution’s case was based on circumstantial evidence. But “[t]here is no distinction in the law between the weight or value t o be given to

. . . direct or circumstantial evidence.” Muhammad v. Commonwealth , 269 Va. 451, 479 (2005)

. “ [C]ircumstantial evidence is

. . . entitled to as much weight as direct evidence provided that the circumstantial evidence is sufficiently convinc ing to exclude every reasonable hypothesis except that of guilt.” Pijor , 294 Va. at 512 . The “ hypotheses [that] must be reasonably excluded are those [that] flow from the evidence itself, and not from the imagination of defendant’s counsel.” Id. (quotin g Turner v. Commonwealth , 218 Va. 141, 148 (1977) ). “ The reasonable

- hypothesis principle

. . . is ‘simply another way of stating that the Commonwealth has the burden of proof beyond a reasonable doubt.’ ” Commonwealth v. Moseley , 293 Va. 455, 464 (2017) (quoting Commonwealth v. Hudson , 265 Va. 505, 513 (2003) ).
T he trial court reasonably rejected Ibanez’s hypothesis that someone else was driving who fled the scene when the truck rolled over

. Ibanez’s counsel suggested at oral argument that the “wi tness” might have been driving the truck. But Trooper Dalton testified that the witness was in a separate vehicle. That the accident occurred after midnight in a rural area reinforced the trial court’s
inference that no one else was around who could have been driving. The court also reasonably relied on Ibanez’s admission that “ he ” was on his way home from a friend’s house and that “he” had just left Buffalo Wild Wings. Combined with Ibanez’s admission that he drank two or three beers , the blood on his fac e shortly after the accident occurred, and the certificate of analysis showing a- 7

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blood

- alcohol level of 0.214 % , the trial court could reasonably conclude that Ibanez drove the truck while intoxicated

. 3
Ibanez mistakenly insists that this case is distinguishable from Ramos v. Commonwealth , No. 1774

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- 4 (Va. Ct. App. Sept. 22, 2015). See Ibanez Br. 6

. 4 Ramos, like Ibanez, was convicted of driving while intoxicated even though no witness saw him driving the vehicle. We upheld the

co nviction because the circumstantial evidence sufficed to prove that he was the driver

. Like Ibanez, Ramos said that “ he ‘ had hit something, ’ ” later changing his statement to “ he ‘did not hit anything

. ’” S lip op. at 6 (emphasis added). We observed that “it would be odd for a passenger in a car or a pedestrian to state that he ‘had hit something’ that had caused damage to a car.” Id.

3 The Commonwealth argues that what Ibanez failed to tell Trooper Dalton should be used against him

— th at Ibanez “did not assert that someone else was driving, he did not assert that anyone else was with him in the vehicle, and he did not ask Trooper Dalton if anyone else was injured or okay following the accident.” Commonwealth Br. 7

- 8. The parties, howe ver, did not brief whether using the accused’s silence in response to pre

- custodial questioning by police would violate the privilege against self

- incrimination after Salinas v. Texas , 570 U.S. 178 (2013)

. See id. at 181 (plurality opinion) (concluding th at the prosecution did not violate the privilege against self

- incrimination by relying on the defendant’s pre

- custodial silence in response to police questioning because the defendant “ did not expressly invoke the privilege against s elf

- incrimination in response to the officer’s question ”); id. at 192 (Thomas, J., concurring in the judgment) (concluding that the “ prosecutor’s comments regarding [the defendant’s] pre - custodial silence did not compel [the defendant] to give self

- incriminating testimony ”)

. Neither our C ourt nor our Supreme Court has addressed this constitutional question since Salinas

. See , e.g. , Taylor v. Commonwealth , 26 Va. App. 485, 499 (1998) ( holding that “ the government ’ s interest in using the appellant ’ s pre - arrest silence in respo nse to a police officer ’ s question as substantive evidence of guilt is substantially outweighed by the burden which such practice imposes on the privilege against self

- incrimination ”)

. C ompare Virginia Crim inal Benchbook for Judges & Lawyers § 7.02 [1][e][ iii] , at 7

- 6 (2021) (“The commonwealth attorney’s use of the defendant’s noncustodial silence as evidence of guilt does not violate the Fifth Amendment.” (citing Salinas ) ) , with Ronald J. Bacigal & Corinna Barrett Lain, Virginia Practice Series: Criminal Procedure § 7:1 & n.18 (2021

- 2022 ed.) ( quoting Taylor ), and Craig D. Johnston, Virginia Practice Series: Trial Handbook for Virginia Lawyers §§ 13:14, 28:14 (2021) (citing Taylor ). Because this question was not briefed and other evidence suffices to prove that Ibanez operated the truck, we do not rely on his silence in response to pre

- custodial police questioning to support the conviction.

4 “ Although not binding precedent, unpublished opinions can be cited and considered for their persuasive value. Rule 5A:1(f) .” Otey v. Commonwealth , 61 Va. App. 346, 350 n.3 (2012).- 8

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(emphasis added). It would be just as unusual here for a passenger or pedestrian

— rath er than the driver

— to say that he was on his way home and he had just left Buffalo Wild Wings. As in Ramos , Ibanez’s admission, combined with the other circumstantial evidence, supports the trial court’s finding that Ibanez was the driver. Ibanez mispla ces his reliance on Powers v. Commonwealth , 211 Va. 386 (1970) , arguing that the Commonwealth must provide “some evidence explaining the accident .” Ibanez Br. 6. In
Powers , the Commonwealth tried to prove the charge of reckless driving by the fact of the accident itself. Rejecting that as insufficient, the Court said that 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 , 211 Va. at 388 (emphasis added). By contrast, the only question here is whether Ibanez was driving t he truck when it rolled over , not why the accident occurred n or whether Ibanez’s conduct was reckless

. So Powers is inapposite

. The trier of fact is entitled to “ draw reasonable inferences from basic facts to ultimate facts ,” and “ those inferences cannot be upended on appeal unless we deem them so attenuated that they push into the realm of non sequitur

. ” Commonwealth v. Perkins , 295 Va. 323 , 332 (2018) ( citation and quotation marks omitted). The trial court’s inference here that Ibanez was driving the truck when it rolled over “falls securely within the ‘ bell

- shaped curve of reasonability. ’ ” Id

. (quoting Du v. Commonwealth , 292 Va. 555, 564 (2016) ).
III. CONCLUSION
W e affirm Ibanez’s conviction. Affirmed

.