COURT OF APPEALS OF VIRGINIA 

Present: Judges Haley, Alston and Senior Judge Clements 

Argued at Alexandria, Virginia 

JOSHUA KENNETH SHORTT 

 MEMORANDUM OPINION*

 BY 

v. Record No. 2435-09-4 JUDGE ROSSIE D. ALSTON, JR. 

 NOVEMBER 9, 2010 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF LOUDOUN COUNTY 

Burke F. McCahill, Judge 

Joe S. Ritenour (Ritenour Paice & 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 from his conviction for driving while under the 

influence of drugs in violation of Code § 18.2-266. On appeal, he argues that 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 Code § 18.2-266; 2) the Commonwealth’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 sufficient to establish the affirmative defense of 

“unconsciousness” predicated upon a claim of “sleep-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 otherwise sufficient to sustain his conviction. 

Accordingly, we affirm appellant’s conviction. 

 *

 Pursuant to Code § 17.1-413, this opinion is not designated for publication. 
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I. BACKGROUND1

 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 accused in conflict with that of the Commonwealth, and regard as true 

all the credible evidence favorable 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 was involved in an automobile accident in 

Loudoun County. Appellant was driving east on a four-lane divided highway when his vehicle 

collided with another vehicle also moving eastbound. 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 driving 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 vehicle, appellant’s vehicle nearly collided with the vehicle in 

which Young was a passenger. Appellant’s vehicle had accelerated quickly behind Young’s 

vehicle, which was in the right lane, and the driver of Young’s vehicle 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 braking hard. She also saw that appellant’s 

 1

 As the parties are fully conversant with the record in this case and because this 

memorandum opinion carries no precedential value, this opinion recites only those facts and 

incidents of the proceedings as are necessary to the parties’ understanding of the disposition of this 

appeal. 
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passenger side mirror was broken off and hanging down as he drove. Finally, Young noticed 

that appellant seemed to be talking on his cell phone as he drove, and when he got out of his car 

after hitting Ryan’s vehicle, appellant put on a pair of sunglasses. 

Bryan Graham, another driver on the highway around the time of appellant’s collision 

with Ryan, testified at appellant’s trial that appellant got extremely close 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 Police Department arrived on the scene shortly 

after the accident and testified at trial regarding appellant’s demeanor. She indicated that 

appellant was acting strangely, his 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 appellant’s trial. He indicated that appellant was unsteady on his 

feet and obviously swaying. In addition, appellant’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 incident, appellant told Deputy Kenna he had 

gotten off work that morning and taken some medication before going to bed. Appellant told 
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Deputy Kenna he had “just gotten up at 1745 hours,” 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 appellant, 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 pills were 10 milligrams each. He did not indicate whether there 

were any warnings on the Ambien medication container or label. 

A few hours after the collision, appellant’s blood was drawn for analysis. Tests found 

concentrations of 0.14 per liter of blood of Zolpidem (Ambien) and 0.14 per liter of blood 

Diphenhydramine (Benadryl). There was no presence 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 and 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 and induces sleep. According to Dr. O’Neal, the drug also 

causes a loss of balance and coordination, increased reaction time, confusion, disorientation, loss 

of short-term memory, and slurred speech. Dr. O’Neal also testified that Benadryl has the side 

effects of sedation, drowsiness, loss of balance, and loss of coordination, which could exacerbate 

the effects of Ambien. 

Furthermore, Dr. O’Neal testified that pharmaceutical medication literature included 

warnings against “bizarre behavior or sleep-related behavior that may occur” while a person 

takes Ambien, including sleep-walking and “sleep-driving.” She referenced the American 
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Journal of Medicine’s recognition of an inability to perform DUI field sobriety tests as another 

side-effect of Ambien. Further referencing clinical studies of approximately 3,600 subjects, 

Dr. O’Neal testified that sleep-walking was listed 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 trial. 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 spoken. Dingess testified that appellant was taking 

Ambien, which had been prescribed to him, and that he had not had any prior incidents such as 

occurred that day. 

In consideration of the evidence presented, the 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 sleep-driving and thus was not unconscious. Furthermore, the trial 

court held that voluntary intoxication was not a valid defense and the facts were insufficient to 

show involuntary intoxication. This appeal followed. 
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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 Commonwealth 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.” Appellant argues that the Commonwealth 

failed to prove that appellant intended to produce the level of intoxication 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 under Code § 18.2-266. Furthermore, appellant argues that 

2

 As of July 1, 2010, Rule 5A:12(c)(1) was revised 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 stated both “assignments of error” and “questions 

presented.” Thus, we will refer to the issues raised 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 that 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 involuntary 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, his argument on brief focuses on the trial court’s 

rejection of his affirmative defense of involuntary intoxication. As such, we approach this 

assignment of error from this perspective. 
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because he was unaware of the side-effect of sleep-driving and this side-effect was not 

foreseeable, he was involuntarily intoxicated 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 involuntary intoxication defense was predicated on his assertion 

that he was sleep-driving, the burden was on appellant in this case to present evidence sufficient 

to establish sleep-driving to the 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 Ambien 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 trial 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 affirmative defense under Virginia law. Riley, 277 Va. at 479-80, 675 

S.E.2d at 175 (stating that “unconsciousness” is an affirmative defense, and thus the defendant 

“had the burden to present evidence, to the satisfaction 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 deciding that sleep-driving is a viable affirmative 

defense. 
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Supreme Court held that defendant did not meet his burden of presenting 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 appellant in this case are predicated on 

the affirmative defense of involuntary intoxication predicated upon sleep-driving. Thus, 

appellant bore the burden of proving at trial that he was, in fact, sleep-driving. The 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 unconsciousness, sleep-walking or sleep-driving.” Appellant argues that 

the evidence presented by the Commonwealth was insufficient for the trial court to conclude that 

he was not sleep-driving or unconscious. Accordingly, appellant suggests that he was 

involuntarily intoxicated or lacked sufficient mens rea. However, this argument inverts the 

applicable analysis and mischaracterizes the burden of proof on this issue. Because involuntary 

intoxication is an affirmative defense, it was appellant’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 prove 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 affirmative defense and thus usually a question for the trier-of-fact”). 

“The trier of fact determines the weight of evidence” 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 “determines 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 
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are “given the same effect as a jury 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 given 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 appellant 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 Graham were riding, prior to hitting Ryan’s 

vehicle. He also successfully pulled over and stopped his car after striking Ryan’s vehicle. 

Appellant put sunglasses on when he was outside his vehicle on a sunny day and used a cell 

phone while in his car roadside. Finally, appellant was able to communicate with the 

investigating officer and, albeit unsuccessfully, attempted to perform field sobriety tests. These 

facts support the trial court’s factual finding that appellant was in fact conscious as he drove. 

Because appellant’s involuntary intoxication argument 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 exclude the reasonable hypothesis that he was 

unconscious and sleep-driving at the time of the accident. 
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“‘Whether an alternative hypothesis of innocence is reasonable is a question of fact and, 

therefore, is binding on appeal 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 court rejected appellant’s alternative hypothesis of innocence, 

finding as a matter of fact that appellant was not sleep-driving. For the reasons stated above, we 

cannot conclude that this finding was plainly wrong or without evidence to support it. Thus, 

appellant’s argument fails. 

III. CONCLUSION 

 Appellant’s mens rea argument, involuntary intoxication defense, and hypothesis of 

innocence argument are all predicated on his claim that appellant was unconscious. Because the 

trial court’s finding that appellant was not in fact sleep-driving was not plainly wrong or without 

evidence to support it, the trial court did not err in rejecting appellant’s arguments. For the 

foregoing reasons, we affirm appellant’s conviction. 

Affirmed.