COURT OF APPEALS OF VIRGINIA
Present: Judges Haley, Alst on and Senior Judge Clements Argued at Alexandria, Virginia

JOSHUA KENN ETH SHORTT MEMORANDUM OPINION * BY v. Record No. 2435-09-4 JUDGE ROSSIE D. ALSTON, JR. NOVEMBER 9, 2010 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF LOUDOUN COUNTY Burke F. McCahill, Judge Joe S. Ritenour (Ritenour Pai ce & Mougin-Boal, on brief), for appellant. Joshua M. Didlake, Assistant Attorney General (Kenneth T. Cuccinelli II, Attorney General, on brief), for appellee.
Joshua Kenneth Shortt (appellant) appeals fr om his conviction for dr iving while under the influence of drugs in violation of Code § 18.2-266. On appeal, he argues th at the trial court erred when it held: 1) the Commonwealth proved beyond a reasonable doubt that he had the requisite

mens rea to justify conviction under C ode § 18.2-266; 2) the Commonw ealth’s evidence failed to exclude every reasonable hypothesis of appellant’s innocence; and 3) appellant failed to establish the affirmative defense of involuntary intoxication. The primary issue in this appeal is whether appellant met his burden to present evidence suffi cient to establish the affirmative defense of “unconsciousness” predicated upon a claim of “sl eep-driving.” Because we find appellant failed to meet his burden to establish this defense, and because the evidence established only voluntary intoxication, we find the evidence was otherw ise sufficient to sust ain his conviction. Accordingly, we affirm appellant’s conviction.

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - I. BACKGROUND 1 On appeal, we review the evidence in the “light most favorable” to the Commonwealth. Commonwealth v. Hudson , 265 Va. 505, 514, 578 S. E.2d 781, 786 (2003). Therefore, we must “‘discard the evidence of the accus ed in conflict with that of the Co mmonwealth, and re gard as true all the credible evidence favorab le to the Commonwealth and all fair inferences to be drawn therefrom.’” Parks v. Commonwealth , 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980) (quoting Wright v. Commonwealth , 196 Va. 132, 137, 82 S.E.2d 603, 606 (1954)) (emphasis omitted). So viewed, the evidence was as follows. On October 7, 2008, at 12:30 p.m., appellant wa s involved in an automobile accident in Loudoun County. Appellant was driving east on a f our-lane divided highway when his vehicle collided with another vehicle also moving eastb ound. The other driver, George Ryan, pulled his vehicle over to the “breakdown lane” and came to a stop. After Ryan pulled over, appellant’s vehicle again collided with Ryan’s vehicle. Jenny Young, who was a passenger in a car driv ing on the same highway at the time, witnessed appellant’s driving immediately before the accident with Ryan. Prior to appellant’s vehicle’s collision with Ryan’s ve hicle, appellant’s vehicle nearly collided with the vehicle in which Young was a passenger. Appellant’s ve hicle had accelerated quickly behind Young’s vehicle, which was in the right lane, and the driver of Young’s vehicl e avoided a collision by accelerating in an evasive maneuver. Appellant then pulled into the left hand lane to pass Young’s vehicle. Young observed that appellant was driving erratically by repeatedly speeding up and slowing down, switching lanes, and brakin g hard. She also saw that appellant’s

1 As the parties are fully conversant with the record in this ca se and because this memorandum opinion carries no precedential value, th is opinion recites only those facts and incidents of the proceedings as ar e necessary to the parties’ unders tanding of the disposition of this appeal.- 3 - passenger side mirror was broken off and hangi ng down as he drove. Finally, Young noticed that appellant seemed to be talking on his cell ph one as he drove, and when he got out of his car after hitting Ryan’s vehicle, appella nt put on a pair of sunglasses. Bryan Graham, another driver on the highway around the time of a ppellant’s collision with Ryan, testified at appellant’s trial that a ppellant got extremely clos e to his vehicle before going around his car. He characterized appellant as a “crazy driver” who repeatedly ran off the road for four to five seconds before coming back on. After appellant collided with Ryan’s car, both vehicles stopped in the “breakdown lane.” Young observed appellant get out of his car and described him as unsteady and wobbly. Ryan attempted to communicate with appellant, but could not fully understand what appellant was saying. Ryan also asked appellant a question and received no response. Officer Susan Patterson of the Purcellville Po lice Department arrived on the scene shortly after the accident and testified at trial regarding appellant’s demeanor. She indicated that appellant was acting strangely, hi s pupils were dilated, and he was unsteady on his feet and confused. She also testified that the accident was only “a couple miles” from where appellant lived. Deputy James Kenna of the Loudoun County Sheriff’s Office also responded to the scene of the accident and testified at a ppellant’s trial. He indicated that appellant was unsteady on his feet and obviously swaying. In addition, appe llant’s motions and responses were slow and sluggish. When Deputy Kenna spoke to appellant, he noticed that appellant had slurred speech and bloodshot eyes. Appellant was unable to pass or even complete some of the field sobriety tests that Deputy Kenna directed him to perform. During Deputy Kenna’s investigation of the inci dent, appellant told Deputy Kenna he had gotten off work that morning and taken some me dication before going to bed. Appellant told- 4 - Deputy Kenna he had “just gotten up at 1745 ho urs,” was coming from home and going to work, and he thought it was between 7:00 p.m. and 7: 30 p.m. At the time of the accident, it was actually approximately 1:00 p.m. Appellant was not wearing a work uniform; he wore sweat pants and slipper-type shoes. Deputy Kenna indicated that appe llant, when asked why he was dressed that way, acted confused and was unable to explain his clothes. Deputy Kenna located the sleep aid Ambien in appellant’ s vehicle. He testified that the medication was prescribed to appellant and that the Ambien p ills were 10 milligrams each. He did not indicate whether there were any warnings on the Ambien me dication container or label. A few hours after the collision, appellant’s blood was drawn for analysis. Tests found concentrations of 0.14 per lite r of blood of Zolpidem (Ambie n) and 0.14 per liter of blood Diphenhydramine (Benadryl). There was no presen ce of alcohol or any drugs other than the Zolpidem and Diphenhydramine in appellant’s blood test. Dr. Carol O’Neal, an employee of the Virginia Division of Forensic Science, testified at appellant’s trial as an expert witness in forensic toxicology a nd pharmacology. She stated that a reading of 0.14 is within the normal range for a therapeutic dose of a 10-milligram Ambien tablet. According to Dr. O’Neal, Ambien’s main use is for the treatment of insomnia, and it causes sedation and drowsiness a nd induces sleep. According to Dr. O’Neal, the drug also causes a loss of balance and c oordination, increased reaction time, confusion, disorientation, loss of short-term memory, and slurre d speech. Dr. O’Neal also testif ied that Benadryl has the side effects of sedation, drowsiness, loss of balance, and loss of c oordination, which could exacerbate the effects of Ambien. Furthermore, Dr. O’Neal testified that pha rmaceutical medication literature included warnings against “bizarre behavi or or sleep-related behavior that may occur” while a person takes Ambien, including sleep-walking and “sle ep-driving.” She referenced the American- 5 - Journal of Medicine’s recognition of an inability to perform DUI field sobriety tests as another side-effect of Ambien. Further referencing cl inical studies of appr oximately 3,600 subjects, Dr. O’Neal testified that sleep-walking was liste d as a rare occurrence, which was observed in less than one out of a thousand subjects. Finally, she stated that sleep-driving has been recognized as a very rare but actual side effect of the use of Ambien. Appellant’s mother, Leyla Dingess , also testified at the tria l. She said she spoke to appellant by telephone on the morning of October 7, 2008, and “everything was fine.” However, she stated that when she spoke with her son at approximately 12:15 p.m. that day, he told her he was getting ready to go to work and “there were Mexicans in his house.” Dingess became concerned by appellant’s strange behavior. When she told appellant that it was not yet time for him to go to work, he acted as if she had not s poken. Dingess testified that appellant was taking Ambien, which had been prescribed to him, and th at he had not had any prior incidents such as occurred that day. In consideration of the evidence presented, th e trial court acting as fact-finder rejected appellant’s hypothesis of innocence – that he was sleep-driving – and found him guilty of the offense of driving under the influence of drugs in violation of Code § 18.2-266. The trial court held that appellant was not slee p-driving and thus was not uncons cious. Furthermore, the trial court held that voluntary intoxi cation was not a valid defense and the facts were insufficient to show involuntary intoxicati on. This appeal followed.- 6 - I. ANALYSIS Appellant presents three issues on appeal. 2 Because appellant’s assignments of error are interrelated and predicated on a claim that he was involuntarily intoxicated, we will consider them under the same analysis. 3 Appellant argues that the Commonw ealth failed to satisfy the mens rea requirement of Code § 18.2-266. Appellant acknowledges that he voluntarily ingested Ambien; however, he argues that he was involuntarily intoxicated. His argument emphasizes that appellant did not foresee that taking the prescribed dosage of Ambien would render him unconscious and cause him to be so intoxicated that he would “sleep-drive.” Appell ant argues that the Commonwealth failed to prove that appellant intended to pr oduce the level of intoxi cation that resulted, i.e. , sleep-driving, at the time he took the Ambien, and thus failed to prove that he had sufficient

mens rea to sustain a conviction und er Code § 18.2-266. Furthermore, appellant argues that

2 As of July 1, 2010, Rule 5A:12(c)(1) was revise d to require a petition for appeal to list “Assignments of Error” instead of “Questions Presented.” Although appellant’s petition for appeal was filed before July 1, 2010, appellant stat ed both “assignments of error” and “questions presented.” Thus, we will refer to the issues ra ised by appellant as “assignments of error.” The three assignments of error by appellant are: I. The Court erred in ruling that the Commonwealth proved the guilt of the Defendant beyond a reasonable doubt, and specifically that the Commonwealth proved that the Defendant possessed the requisite mens rea to justify a conviction of the offense of Driving Under the Influence of Drugs. II. The Court erred in ruling th at the Commonwealth’s evidence excluded each and every reasonable hypothesis consistent with the innocence of the Defendant and was consistent only with his guilt. III. The Court erred in ruling that the Defendant failed to establish the affirmative defense of i nvoluntary unconsciousness to the offense charged.

3 Although appellant’s first assignment of error is phrased as a question of the sufficiency of the evidence in support of his conviction, hi s argument on brief focuses on the trial court’s rejection of his affirmative de fense of involuntary intoxication. As such, we approach this assignment of error from this perspective.- 7 - because he was unaware of the side-effect of sleep-driving and this side-effect was not foreseeable, he was involuntarily in toxicated and lacked sufficient mens rea under the statute. Involuntary intoxication is an affirmative defense. See Riley v. Commonwealth , 277 Va. 467, 479, 675 S.E.2d 168, 175 (2009). When asserting an affirmative defense, “the burden is on the defendant to present evidence establishing such defense to the satisfaction of the fact finder,” id. (citing Shifflett v. Commonwealth , 221 Va. 760, 769, 274 S.E.2d 305, 310 (1981)), or by “a preponderance of evidence,” White v. Commonwealth , 46 Va. App. 123, 129, 616 S.E.2d 49, 52 (2005). Because appellant’s invo luntary intoxication defense wa s predicated on his assertion that he was sleep-driving, the bur den was on appellant in this case to present evidence sufficient to establish sleep-driving to th e satisfaction of the trial court or by a preponderance of evidence. 4 The analysis in Riley is instructive in the instant case. In Riley , the defendant ingested, before driving, three or four Am bien pills (for which he did not have a prescription), Benadryl, and a pain reliever. 277 Va. at 474, 675 S.E.2d at 172. Thereafter he struck the victim and hit two other vehicles. Id. at 474, 675 S.E.2d at 171-72. The defendant relied on an affirmative defense of unconsciousness, predicated on sleep -driving or sleep-walking. The trial court rejected this theory of defense. Id. at 477-78, 675 S.E.2d at 174. On appeal, the Supreme Court of Virginia found that the tria l court did not make a factual finding that the defendant was sleep-walking at the time of the offense. Id. at 481, 675 S.E.2d at 176. Because the defendant’s unconsciousness defense was entirely predicated upon the claim he was sleep-walking, the

4 The Supreme Court in Riley did not definitively hold that unconsciousness as a result of sleep-walking is a viable affirma tive defense under Virginia law. Riley , 277 Va. at 479-80, 675 S.E.2d at 175 (stating that “uncons ciousness” is an affirmative de fense, and thus the defendant “had the burden to present evidence, to the sati sfaction of the circuit court sitting as the fact finder, that he was sleepwalking at the time he committed the charged offenses”). For the purposes of this opinion, we assume without deci ding that sleep-driving is a viable affirmative defense.- 8 - Supreme Court held that defendant did not meet his burden of pr esenting sufficient evidence in support of this defense. Id. at 481, 675 S.E.2d at 176. Similarly to Riley , the issues raised on appeal by appe llant in this case are predicated on the affirmative defense of involuntary int oxication predicated upon sleep-driving. Thus, appellant bore the burden of provi ng at trial that he was, in fact , sleep-driving. Th e trial court in this case rejected appellant’s theory of defense, finding as a matter of fact that appellant was not unconscious or sleep-driving. It stated, “I find insufficient facts to prove involuntary intoxication, to prove unconsci ousness, sleep-walking or sleep-driving.” A ppellant argues that the evidence presented by the Commonwealth was in sufficient for the trial court to conclude that he was not sleep-driving or unconscious. Accord ingly, appellant suggests that he was involuntarily intoxicated or lacked sufficient mens rea . However, this argument inverts the applicable analysis and mischaracterizes the bur den of proof on this issue. Because involuntary intoxication is an affirmative defense, it was a ppellant’s burden to prove by a preponderance of the evidence to the satisfaction of the fact-finder that he was sleep-driving. It was not the Commonwealth’s burden to pr ove that appellant was not sleep-driving. See Riley , 277 Va. at 479, 675 S.E.2d at 175; Shifflett , 221 Va. at 769, 274 S.E.2d at 310; White , 46 Va. App. at 129, 616 S.E.2d at 52. Whether or not an affirmative defense has been established is “usually a question for the trier-of-fact.” Reed v. Commonwealth , 6 Va. App. 65, 70, 366 S.E.2d 274, 277 (1988) (holding that “claim of right is an affi rmative defense and thus usually a question for the trier-of-fact”). “The trier of fact determines the weight of ev idence” in support of a claim of an affirmative defense. Gardner v. Commonwealth , 3 Va. App. 418, 426, 350 S.E.2d 229, 233 (1986) (holding that the trier of fact “determine s the weight of evidence in support of a claim of self-defense”). Furthermore, on appeal, findings of fact made by the trial judge are presumed to be correct and- 9 - are “given the same effect as a ju ry verdict, settling all conflicts in the evidence in favor of the prevailing party.” Richmond v. Beltway Properties , 217 Va. 376, 379, 228 S.E.2d 569, 572 (1976) (citing Reiber v. Duncan , 206 Va. 657, 660, 145 S.E.2d 157, 160 (1965)). The trial court’s findings of fact are give n deference, “unless the findings are ‘plainly wrong or without evidence to support them.’” Carter v. Commonwealth , 42 Va. App. 681, 686, 594 S.E.2d 284, 287 (2004) (citing Timbers v. Commonwealth , 28 Va. App. 187, 193, 503 S.E.2d 233, 235-36 (1998)). In this case, the trial court reviewed both the Commonwealth’s and appellant’s evidence and concluded that as a matter of fact appellan t was not sleep-driving. Thus, the trial court concluded that appellant failed to establish the affirmative defense of involuntary intoxication. Based on the evidence adduced at trial, we cannot say that the trial court’s finding that appellant was not sleep-driving was plainly wrong or without evidence to support it. Appellant drove around two vehicles, those in which Young and Gr aham were riding, prior to hitting Ryan’s vehicle. He also successfully pulled over and st opped his car after striki ng Ryan’s vehicle. Appellant put sunglasses on when he was outsi de his vehicle on a sunny day and used a cell phone while in his car roadside. Finally, a ppellant was able to communicate with the investigating officer and, albeit unsuccessfully, atte mpted to perform field sobriety tests. These facts support the trial court’s fact ual finding that appellant was in fact conscious as he drove. Because appellant’s involuntary intoxication argu ment is predicated on a finding that appellant was sleep-driving, in light of this evidence, appellant failed to carry his burden to establish involuntary intoxication. As a corollary to his arguments regarding mens rea and involuntary intoxication, appellant argues that the evidence did not ex clude the reasonable hypothesis that he was unconscious and sleep-driving at the time of the accident.- 10 - “‘Whether an alternative hypothesis of innocence is reasonable is a question of fact and, therefore, is binding on app eal unless plainly wrong.’” Emerson v. Commonwealth , 43 Va. App. 263, 277, 597 S.E.2d 242, 249 (2004) (quoting Archer v. Commonwealth , 26 Va. App. 1, 12-13, 492 S.E.2d 826, 832 (1997)). Where the fact-finder has rejected the hypothesis of innocence, “the trial court’s judgment must be affirmed unless it is plainly wrong or without evidence to support it.” Sheppard v. Commonwealth , 250 Va. 379, 387, 464 S.E.2d 131, 136 (1995). In this case, the trial cour t rejected appellant’s altern ative hypothesis of innocence, finding as a matter of fact that appellant was not sleep-d riving. For the reasons stated above, we cannot conclude that this findi ng was plainly wrong or without evidence to support it. Thus, appellant’s argument fails.
III. CONCLUSION Appellant’s mens rea argument, involuntary intoxicat ion defense, and hypothesis of innocence argument are all predic ated on his claim that appellant was unconscious. Because the trial court’s finding that appellan t was not in fact sleep-driving was not plainly wrong or without evidence to support it, the trial co urt did not err in rejecting a ppellant’s arguments. For the foregoing reasons, we affirm appellant’s conviction. Affirmed.