COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Annunziata and Senior Judge Cole 

Argued at Richmond, Virginia 

HOANG HUY NGUYEN 

 MEMORANDUM OPINION* BY 

v. Record No. 0211-95-2 JUDGE MARVIN F. COLE 

 APRIL 2, 1996 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF CAROLINE COUNTY 

J. Peyton Farmer, Judge 

 Michael HuYoung for appellant. 

 H. Elizabeth Shaffer, Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 In a bench trial, the appellant, Hoang Huy Nguyen, was 

convicted on three counts of vehicular involuntary manslaughter 

in violation of Code § 18.2-36. On appeal, Nguyen contends that 

the evidence was insufficient to support the convictions. We 

disagree and affirm. 

 [W]e review the evidence in the light 

most favorable to the Commonwealth, granting 

to it all reasonable inferences fairly 

deducible therefrom. The judgment of a trial 

court sitting without a jury is entitled to 

the same weight as a jury verdict and will 

not be set aside unless it appears from the 

evidence that the judgment is plainly wrong 

or without evidence to support it. 

Josephs v. Commonwealth, 10 Va. App. 87, 99, 390 S.E.2d 491, 497 

(1990) (en banc) (citation omitted). 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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 I.

 On July 3, 1993, at about 3:30 p.m., a collision occurred on 

Interstate 95 in Caroline County involving a 1992 white Plymouth 

Laser driven by appellant and a 1993 Ford van operated by Steven 

Rivers. Three children, who were passengers in the van, died as 

a result of the crash. The accident occurred in the southbound 

lanes of I-95 which contain three traffic lanes divided by broken 

white lines. The maximum speed limit on I-95 at the time of the 

accident was sixty-five miles per hour. The evidence did not 

disclose any defects in the roadway or in either vehicle involved 

in the accident. 

 At trial, the first witness called by the Commonwealth was 

Khan Ho, who was a passenger in appellant's vehicle. After the 

accident, Ho advised the investigating state trooper that he was 

the driver of the 1992 white Laser. He gave the officer a 

statement that the accident was his fault. He testified that he 

initially told the officer he was the driver and took 

responsibility for the accident because he did not appreciate the 

seriousness of the accident and wanted to help appellant, who did 

not have a good driving record. Several days later, Nguyen 

admitted that he was the driver. All charges against Ho were 

dismissed and instituted against Nguyen. 

 When questioned about Nguyen's driving, Ho testified that 

his speed was "about seventy -- seventy something." When asked 

"Who was drinking?" he responded, "[a]t that time, I drank two 
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beers and Hoang [Nguyen] was drinking one." There were twelve 

beers in the car, and Ho testified that after the collision, he 

threw them out of the car window. 

 The 1993 Ford van, containing nine people, was driven by 

Steven Rivers. He testified on behalf of the Commonwealth and 

stated that he was proceeding southward on I-95 in the middle 

lane. He did not recall his speed. He stated that it was July 3 

and "[t]raffic was very heavy." In describing his recollection 

of the accident, he said: 

 There was another vehicle in the right lane 

that was ahead of me. We had been in that 

position for, I think, quite a while. I 

heard a loud noise. I thought that the axle 

or something had snapped on the vehicle and I 

couldn't control it anymore. And I lost 

control of the car. 

 Liza Olavarria, a witness for the Commonwealth, testified 

that at the same time and place, she was driving her car 

southward on I-95 in the left lane. Her speed was sixty-five to 

seventy miles per hour. She described her first observation of 

appellant's Laser as follows: "Well, he was traveling very fast. 

 He 'whizzed' by me on my right." She testified that the 

appellant was in the middle lane and "going right by me" and was 

"changing lanes." 

 Ms. Olavarria testified that when appellant passed her in 

the middle lane, the 1993 Ford van was in front of her and also 

in the middle lane. She placed another car in the right lane 

behind the van. I-95 was, therefore, obstructed by a van in the 
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middle lane followed by the appellant, Ms. Olavarria in the left 

lane and another vehicle in the right lane. 

 Ms. Olavarria saw the Laser cut in front of the car in the 

right lane. She testified that after getting into the right 

lane, "he" made a movement to the left and struck the van. She 

described what she observed as follows: "He made it into the 

right lane and then, turned into the van and made the van go into 

other lanes and then, the van went like this [witness indicating] 

and then, toppled over the side." 

 Ms. Olavarria's sister, Amy, was sleeping in the Olavarria 

car. She heard the brake noise and awoke in time to see 

appellant's vehicle hit the van. She testified that she saw the 

van "flipping over" and glass and debris coming toward her. 

 Trooper C. L. Richardson of the Virginia State Police 

investigated the accident. He testified concerning the physical 

evidence found at the scene and took photographs. Appellant's 

vehicle left skidmarks measuring 184 feet beginning in the right 

lane and continuing into the middle lane, where it collided with 

the Ford van. Trooper Richardson testified that he could 

determine the point of impact from the physical evidence on the 

roadway. He placed the point of impact in the middle lane, close 

to the right travel lane. 

 Photographs introduced into evidence show appellant's 

skidmarks commencing in the right lane and continuing almost out 

of the lane to the right. They then swing gradually back into 
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the right lane. They then proceed in the right lane to the point 

of impact in the middle lane. Trooper Richardson testified that 

the point of impact on appellant's car was at the left rear tire. 

 After impact at the right rear of the van, the van rotated 

in the middle lane, crossed into the right lane onto the shoulder 

of the road, and down a fifty foot embankment. This, the officer 

stated, was consistent with being struck on the right side. 

According to the officer's measurements, the van traveled 255 

feet from the point of impact prior to going over the road 

guardrail. After crossing the guardrail, the van went another 

ninety-two feet before coming to rest at the bottom of the 

embankment. The van was damaged to such an extent the officer 

could not determine from it the point of impact. 

 II.

 The position of appellant is that the evidence may prove him 

guilty of negligence, but it is insufficient to establish that he 

is guilty of negligence so gross, wanton, and culpable as to show 

a reckless disregard of human life. 

 The Supreme Court has declared that involuntary manslaughter 

in the operation of a motor vehicle in the Commonwealth "should 

be predicated solely upon criminal negligence proximately causing 

death." King v. Commonwealth, 217 Va. 601, 607, 231 S.E.2d 312, 

316 (1977). It has defined involuntary manslaughter in the 

operation of a motor vehicle as "the accidental killing which, 

although unintended, is the proximate result of negligence so 
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gross, wanton, and culpable as to show a reckless disregard of 

human life." Id. See also Tubman v. Commonwealth, 3 Va. App. 

267, 348 S.E.2d 871 (1986) (referencing most, if not all, 

Virginia cases on vehicular involuntary manslaughter). 

 In Keech v. Commonwealth, 9 Va. App. 272, 386 S.E.2d 813 

(1989), this Court stated: 

 In determining the degree of negligence 

sufficient to support a conviction of 

vehicular involuntary manslaughter, the 

accused's conscious awareness of the risk of 

injury created by his conduct is necessarily 

a significant factor. Obviously, when the 

driver proceeds in the face of a known risk, 

the degree of the negligence is increased, 

and may turn that which would have been 

ordinary negligence into gross, willful or 

wanton negligence. 

Id. at 278, 386 S.E.2d at 816. 

 In Keech, the Court further addressed the question whether 

to apply an objective or subjective standard when determining 

what is a "known risk." This Court held that an objective 

standard would apply and the degree of negligence would be 

"determined by the great risk of injury together with the 

knowledge [appellant] had or should have had of that risk." Id.

at 282, 386 S.E.2d at 818. 

 When appellant undertook to pass the Rivers' van, the law 

imposed upon him certain duties. He had the common law duties to 

keep a proper lookout to see what could reasonably be seen, and 

to keep his vehicle under proper control. He had several 

statutory obligations. Whenever any roadway has been divided 
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into clearly marked lanes for traffic, drivers shall drive their 

vehicles as nearly as is practical entirely within a single lane 

and shall not be moved from that lane until the driver has 

ascertained that such movement can be made safely. Code 

§ 46.2-804(2). "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." 

Code § 46.2-852. "A person shall be guilty of reckless driving 

who drives a vehicle which is not under proper control . . . ." 

Code § 46.2-853. "A driver shall be guilty of reckless driving 

who exceeds a reasonable speed under the circumstances and 

traffic conditions existing at the time, regardless of any posted 

speed limit." Code § 46.2-861. 

 When we consider the evidence in the most favorable light to 

the Commonwealth, as we must, we have no doubt that the appellant 

violated all of these duties. The issue, however, is whether the 

cumulative effect of his conduct constitutes "negligence so 

gross, wanton, and culpable as to show a reckless disregard of 

human life." 

 In Keech, we said that one significant factor to be 

considered was appellant's conscious awareness of the risk of 

injury created by his conduct, using an objective standard. In 

this case, appellant knew, or should have known, that his conduct 

created a great risk reasonably calculated to produce injury. It 
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was daylight and all the other vehicles were directly in front of 

him. Olavarria was in the left lane, Rivers was in the center 

lane and another vehicle, whose identification is unknown, was in 

the right lane. Despite this situation, appellant chose to pass 

all of them at an illegal rate of speed in excess of the maximum 

allowed by law. He chose a time to pass when his movement could 

not be made in safety. He "whizzed" past Olavarria and then cut 

in front of the car in the right lane. The skidmarks and the 

testimony of the state trooper establish that when appellant 

reached the right lane, his speed prevented him from entering 

that lane in a normal manner, but he continued to the far side of 

the right lane. He did not run off onto the shoulder because he 

cut back toward the center of the roadway and continued unabated 

southward in the center lane until he entered the middle lane and 

struck the Rivers' van, causing it to rotate in the roadway and 

run down the embankment, causing the death of three children in 

the van. Appellant's car during this period obviously was out of 

control. All of this occurred at a time when traffic on the 

highway was heavy. 

 One witness, an occupant of appellant's vehicle, testified 

that appellant, at the time of the accident, was drinking a beer. 

 The fact finder could conclude that appellant possessed the beer 

while driving and that this would divert his attention from the 

business of driving and lessen his ability to control the 

vehicle. An obvious risk is incurred by this conduct while 
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driving under the circumstances that existed here. 

 III.

 We conclude from the undisputed evidence that appellant knew 

all of the traffic conditions that existed at the time. All of 

the traffic involved in the accident was in clear view and 

directly in front of the appellant in broad daylight. He was 

driving in excess of seventy miles per hour on a roadway with 

heavy traffic. He had a drink in his possession. The vehicles 

ahead of him were driving sixty-five to seventy miles per hour. 

 Under these circumstances, appellant willfully chose to pass 

all of the traffic ahead of him. To do this he had to change 

lanes, itself a dangerous maneuver, one in which the law places 

upon him the duty to make such movement only when it can be made 

in reasonable safety. Appellant was driving in excess of seventy 

miles per hour, violating the maximum speed limit on the roadway, 

again a willful and deliberate act on his part. The trial court 

found that appellant's conduct constituted negligence "so gross, 

wanton, and culpable as to show a reckless disregard of human 

life" and convicted him on three counts of involuntary 

manslaughter. 

 We cannot say that its judgment was plainly wrong or without 

credible evidence to support it. The degree of appellant's 

negligence, as determined by the great risk of injury together 

with the knowledge he had or should have had of that risk, was 

sufficient to support the convictions beyond a reasonable doubt. 
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 For the reasons stated, we affirm the convictions. 

 Affirmed.