COURT OF APPEALS OF VIRGINIA 

Present: Judges Humphreys, Beales and Huff 

Argued at Salem, Virginia 

TRACI LYNN GUNNELL 

 MEMORANDUM OPINION*

 BY 

v. Record No. 0475-13-3 JUDGE RANDOLPH A. BEALES 

 MARCH 18, 2014 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE 

Joseph W. Milam, Jr., Judge 

 Heath L. Sabin, Assistant Public Defender (Office of the Public 

Defender, on brief), for appellant. 

 Victoria Johnson, Assistant Attorney General (Kenneth T. 

Cuccinelli, II, Attorney General, on brief), for appellee. 

 After the trial court denied Traci Lynn Gunnell’s (appellant) motion to suppress evidence 

found during a search incident to arrest, appellant’s trial counsel informed the trial court that 

appellant wished to enter a conditional guilty plea. This conditional guilty plea encompassed two 

felony charges (for possession of cocaine and possession of methadone) and two misdemeanor 

charges (for possession of a Schedule IV controlled substance and driving under the influence, first 

offense). On appeal, appellant argues that the trial court erred in denying her motion to suppress the 

evidence on the ground that the police officer lacked probable cause to arrest her for driving under 

the influence. Appellant also contends for the first time on appeal that the trial court erred when it 

accepted her conditional guilty pleas to the two misdemeanor charges. Appellant contends that the 

guilty pleas for the misdemeanor charges were not entered knowingly, voluntarily, or intelligently 

since appellant “entered the conditional [pleas] expressly to preserve issues raised in the motion to 

 *

 Pursuant to Code § 17.1-413, this opinion is not designated for publication. 

UNPUBLISHED 
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suppress.” For the following reasons, we affirm both of appellant’s felony convictions and dismiss 

with prejudice appellant’s appeal of both of her misdemeanor convictions. 

I. BACKGROUND

 Applying the established standard of review on appeal, we consider the evidence at trial “‘in 

the light most favorable to the Commonwealth, as we must since it was the prevailing party’” in the 

trial court. Beasley v. Commonwealth, 60 Va. App. 381, 391, 728 S.E.2d 499, 504 (2012) (quoting 

Riner v. Commonwealth, 268 Va. 296, 330, 601 S.E.2d 555, 574 (2004)). On August 24, 2012, just 

before midnight, Officer Lancaster of the Danville Police Department, observed a vehicle with 

non-illuminated taillights. After initiating and effecting a stop of the vehicle – which appellant was 

driving – Officer Lancaster approached appellant and, after noticing that the headlights were also 

not illuminated, told her that he had stopped her because her headlights were not illuminated. A 

video that was admitted at the suppression hearing shows appellant attempting to make a phone call 

on her cell phone as Officer Lancaster approached her vehicle and attempted to initiate a 

conversation with her. 

 After detecting an odor of alcohol coming from the vehicle, Officer Lancaster asked 

appellant if she had been drinking alcohol. Appellant admitted to drinking some alcohol – 

specifically, a mixed drink with dinner around 7:30 or 8:30 p.m. – at which point Officer Lancaster 

asked her to step out of the vehicle. Officer Lancaster testified that during the encounter, appellant 

was “very talkative . . . also she had a strong odor of alcohol coming from her person as well as 

watery and glassy eyes, she was very talkative, she was very upset . . . speech was slurred.” 

 Officer Lancaster proceeded to ask appellant to perform three field sobriety tests: (1) the 

alphabet test (a recitation of the alphabet without singing it), (2) the index finger to nose test, and 

(3) the nine-step heel-to-toe walk. Appellant performed the alphabet test correctly. Appellant failed 

to perform the index finger to nose test correctly, however, as she used her middle finger instead of 
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her index finger and did not close her eyes as Officer Lancaster had instructed her to do. On the 

nine-step heel-to-toe walk, appellant walked nine steps out, without stumbling, but did not walk 

nine steps back as instructed. Appellant blew (or claimed to blow) three times into a device 

designed to detect a person’s blood alcohol content, but the device was unable to register a reading 

of any kind. After appellant’s repeated attempts to blow into the device, Officer Lancaster arrested 

her. 

 During the search incident to arrest, Officer Lancaster found a pink straw in appellant’s 

shorts pocket. It was later determined that the straw contained cocaine residue. In the same pocket, 

Officer Lancaster found four yellow pills in a clear bag. It was later determined that those pills were 

diazepam, which is a Schedule IV controlled substance. After conducting an inventory search of 

appellant’s car, Officer Lancaster found a brown pocketbook on the right front floor of the car. At 

the jail, appellant claimed the pocketbook as her own. The pocketbook contained a white pill that 

turned out to be methadone, a Schedule II controlled substance. Finally, the breath analysis 

performed at the police station revealed that appellant had a blood alcohol content of 0.15. 

 In denying appellant’s motion to suppress the evidence, the trial court noted that appellant’s 

speech seemed slurred in the beginning of the encounter, that she failed to follow the officer’s 

instructions on the finger-to-nose test and on the heel-to-toe test, that she fumbled with her phone, 

and that Officer Lancaster discerned an odor of alcohol. After the trial court’s ruling on the motion 

to suppress, appellant’s counsel informed the trial court that appellant wished to enter a conditional 

guilty plea to the possession of cocaine charge, the possession of methadone charge, the possession 

of a Schedule IV controlled substance charge, and the DWI (first offense) charge. Appellant 

entered conditional guilty pleas to those charges, and the trial court accepted them as knowing and 

voluntary. 
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II. ANALYSIS

A. Motion to Suppress the Evidence 

 Appellant’s first assignment of error challenges the trial court’s decision to deny her motion 

to suppress the evidence recovered after her arrest. “When reviewing a denial of a motion to 

suppress evidence, an appellate court considers the evidence in the light most favorable to the 

Commonwealth and will accord the Commonwealth the benefit of all reasonable inferences fairly 

deducible from that evidence.” Branham v. Commonwealth, 283 Va. 273, 279, 720 S.E.2d 74, 77 

(2012) (citing Sidney v. Commonwealth, 280 Va. 517, 520, 702 S.E.2d 124, 126 (2010)). In 

addition, “The defendant has the burden of showing that even when the evidence is reviewed in that 

light, denying the motion to suppress was reversible error.” Id. (citing Sidney, 280 Va. at 522, 702 

S.E.2d at 127). “We review de novo the trial court’s application of the law to the particular facts of 

the case.” Id. (citing Glenn v. Commonwealth, 275 Va. 123, 130, 654 S.E.2d 910, 913 (2008)). 

The trial court’s findings of fact are not disturbed unless plainly wrong. See Code § 8.01-680. 

 Code § 18.2-266 provides, in relevant part, “It shall be unlawful for any person to drive or 

operate any motor vehicle . . . while such person is under the influence of alcohol.” Viewing the 

evidence in the light most favorable to the Commonwealth (as we must since it was the prevailing 

party at the suppression hearing), the evidence shows that the trial court did not err when it denied 

appellant’s motion to suppress the evidence on the ground that Officer Lancaster had probable cause 

to arrest appellant for driving under the influence in violation of Code § 18.2-266. “‘[P]robable 

cause exists when the facts and circumstances within the officer’s knowledge, and of which he has 

reasonably trustworthy information, alone are sufficient to warrant a person of reasonable caution to 

believe that an offense has been or is being committed.’” McGhee v. Commonwealth, 280 Va. 620, 

624, 701 S.E.2d 58, 60 (2010) (quoting Jones v. Commonwealth, 279 Va. 52, 59, 688 S.E.2d 269, 

273 (2010)). Here, the facts and circumstances in the record suggest that a finder of fact reasonably 
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could have found that Officer Lancaster had probable cause to arrest appellant for driving under the 

influence. 

 First, appellant’s speech was slurred in the beginning of the encounter with Officer 

Lancaster. In addition, appellant fumbled with her phone – and attempted to use her phone – as 

Officer Lancaster was attempting to initiate a conversation with her. Third, appellant was unable to 

successfully follow directions during two of the three field sobriety tests. Fourth, Officer Lancaster 

testified that he discerned an odor of alcohol coming from appellant’s person. Fifth, appellant did 

admit to Officer Lancaster that she had consumed some alcohol. Finally, as the trial court pointed 

out, appellant was operating a vehicle at night with non-illuminated taillights and non-illuminated 

headlights. Thus, all of these circumstances, taken together, were “‘sufficient to warrant a person of 

reasonable caution to believe that an offense . . . [was] being committed.’” Id. As Officer Lancaster 

had probable cause that appellant had been driving under the influence, he was justified in arresting 

her for that offense. He was therefore justified in conducting a search incident to arrest, which 

yielded, among other things, cocaine and methadone. For these reasons, we affirm appellant’s two 

felony convictions for possession of cocaine and for possession of methadone – both in violation of 

Code § 18.2-250. 

B. Conditional Guilty Pleas 

 In her second assignment of error, appellant argues that the trial court erred in permitting her 

to enter conditional guilty pleas to her possession of a Schedule IV controlled substance charge and 

to her driving under the influence (first offense) charge. Specifically, appellant contends that her 

conditional guilty pleas to those two misdemeanor offenses were not entered knowingly, 

intelligently, or voluntarily since Code § 19.2-254 does not permit a defendant to enter a conditional 

guilty plea to a misdemeanor charge. 
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 Article I, Section 8 of the Virginia Constitution states, “in criminal cases, the accused may 

plead guilty.” This Court has “interpreted this constitutional provision to mean that the 

Commonwealth must accept any guilty plea tendered before a jury has rendered its verdict, so long 

as the plea is entered ‘knowingly, voluntarily, and intelligently.’” Hill v. Commonwealth, 47 

Va. App. 667, 671, 626 S.E.2d 459, 461 (2006) (citing Graham v. Commonwealth, 11 Va. App. 

133, 139, 397 S.E.2d 270, 273 (1990)). An accused does have the constitutional right to enter a 

guilty plea, but “an accused does not have a constitutional right to enter a conditional guilty plea. 

Rather, this right – established by Code § 19.2-254 – is a statutory one.” Id. Code § 19.2-254 

provides, in relevant part, as follows: 

With the approval of the court and the consent of the Commonwealth, a 

defendant may enter a conditional plea of guilty in a felony case, reserving 

the right, on appeal from the judgment, to a review of the adverse 

determination of any specified pretrial motions. If the defendant prevails 

on appeal, he shall be allowed to withdraw his plea. 

(Emphasis added). 

 Interpreting the plain language of Code § 19.2-254, this Court has held that it is error to 

permit a defendant to enter a conditional guilty plea to a misdemeanor charge since no such right 

exists by statute. Cross v. Commonwealth, 49 Va. App. 484, 487, 642 S.E.2d 763, 766 (2007), 

vacated on other grounds, 665 S.E.2d 861 (2008).1 However, this principle of law does not end our 

analysis here. 

 1

 This case is distinguishable from Cross. First, this Court’s opinion in Cross did not 

address whether Cross invited the error. Here, however, appellant invited the error when 

appellant’s counsel told the trial court, “[I]t will be a conditional guilty plea on the DUI and the 

three drug possessions” charged against appellant. “‘A party may not approbate and reprobate 

by taking successive positions in the course of litigation that are either inconsistent with each 

other or mutually contradictory. Nor may a party invite error and then attempt to take advantage 

of the situation created by his own wrong.’” Rowe v. Commonwealth, 277 Va. 495, 502, 675 

S.E.2d 161, 164 (2009) (quoting Cangiano v. LSH Bldg. Co., 271 Va. 171, 181, 623 S.E.2d 889, 

895 (2006)). Second, this Court in Cross reversed the trial court’s denial of Cross’s motion to 

suppress the evidence. Cross, 49 Va. App. at 487, 642 S.E.2d at 763. Thus, in Cross the 

defendant’s conditional guilty plea was supported by facts that ought to have been suppressed 
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 In this case, unlike in Cross, it is clear that appellant’s trial counsel invited the error by 

expressly informing the trial court that appellant wished to enter a conditional guilty plea to the two 

felony charges and two misdemeanor charges that were pending against appellant.2 Thus, appellant 

through counsel asserted a right to enter a conditional guilty plea to misdemeanor charges – but 

now, on appeal, seeks a reversal of the trial court’s judgment on the basis that such a right does not 

exist by statute. As the Supreme Court has held, “We will not ‘notice error which has been invited 

by the party seeking to take advantage thereof on appeal.’” Muhammad v. Commonwealth, 269 

Va. 451, 525, 619 S.E.2d 16, 58 (2005) (quoting Saunders v. Commonwealth, 211 Va. 399, 400, 

177 S.E.2d 637, 638 (1970)); see also Rowe v. Commonwealth, 277 Va. 495, 501-03, 675 S.E.2d 

161, 164-65 (2009) (holding that the defendant’s counsel invited error when counsel argued at trial 

that assault and battery of a law enforcement officer, for which the defendant was never indicted, 

was a lesser-included offense of attempted capital murder of a law enforcement officer – but then 

argued on appeal that the defendant’s conviction for assault and battery of a law enforcement officer 

was improper because it was not a lesser-included offense). 

 Because appellant’s trial counsel invited the same error in the trial court that is now the basis 

of this assignment of error to this Court, we will not notice that error on appeal. See Muhammad, 

269 Va. at 525, 619 S.E.2d at 58. Therefore, appellant’s challenge based on the conditional nature 

of her guilty pleas to the two misdemeanor charges is not properly before this Court. Accordingly, 

we dismiss appellant’s appeal as it pertains to her two misdemeanor convictions. See Hill, 47 

Va. App. at 675-76, 626 S.E.2d at 463-64. 

 

under the existing caselaw at that time. Here, however, in addressing appellant’s first 

assignment of error, we have concluded that the trial court correctly denied appellant’s motion to 

suppress evidence that supported appellant’s felony and misdemeanor convictions. 

 

2

 We note also that appellant never made a motion to withdraw her conditional guilty plea 

to either the misdemeanor or felony charges. 
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III. CONCLUSION

 The record establishes that appellant had slurred speech, was driving at night without the 

benefit of either her headlights or her taillights, failed to follow Officer Lancaster’s instructions, 

failed to perform satisfactorily two field sobriety tests, had watery eyes, fumbled with her phone, 

smelled of alcohol, and admitted to consuming some alcohol. Viewing the evidence in the light 

most favorable to the Commonwealth, as we must since it was the prevailing party below, a rational 

trier of fact could find that Officer Lancaster had probable cause to arrest appellant for driving under 

the influence. Thus, the trial court did not err when it denied appellant’s motion to suppress the 

evidence on the ground that Officer Lancaster lacked probable cause to arrest appellant for driving 

under the influence. Accordingly, we affirm both of appellant’s felony convictions. Because appeal 

of her two misdemeanor convictions is not properly before us, however, we dismiss appellant’s 

appeal of the two misdemeanor convictions. 

Affirmed in part and 

dismissed in part.