COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Bumgardner and Kelsey 

Argued at Alexandria, Virginia 

JAMES J. RORECH 

 MEMORANDUM OPINION* BY 

v. Record No. 1085-02-4 JUDGE D. ARTHUR KELSEY 

 JULY 8, 2003 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Barnard F. Jennings, Judge Designate 

 Corinne J. Magee (Michael Rieger; The Magee 

Law Firm, on brief), for appellant. 

 H. Elizabeth Shaffer, Assistant Attorney 

General (Jerry W. Kilgore, Attorney General, 

on brief), for appellee. 

James J. Rorech challenges the sufficiency of the evidence 

supporting his conviction for driving under the influence in 

violation of Code § 18.2-266(ii). We find the evidence 

sufficient and affirm Rorech's conviction. 

I. 

On appeal, we review the evidence "in the light most 

favorable to the Commonwealth." Kingsbur v. Commonwealth, 40 

Va. App. 307, 308, 579 S.E.2d 357, 358 (2003). That principle 

requires us to "discard the evidence of the accused in conflict 

 

 * Pursuant to Code § 17.1-413, this opinion is not 

designated for publication. 
with that of the Commonwealth, and regard as true all the 

credible evidence favorable to the Commonwealth and all fair 

inferences that may be drawn therefrom." Dugger v. 

Commonwealth, 40 Va. App. 586, 589, 580 S.E.2d 477, 479 (2003) 

(quoting Holsapple v. Commonwealth, 39 Va. App. 522, 528, 574 

S.E.2d 756, 758-59 (2003) (en banc) (citation omitted)). 

While driving in Fairfax in the early evening of June 30, 

2001, Matthew Nichols "had to swerve to avoid" a collision with 

a car driven by Rorech. Nichols observed Rorech driving 

erratically, continually "swerving" and "stopping." Nichols 

"called 911" to report that the car was "driving erratically." 

When Nichols stopped at a traffic light, he noted the license 

plate number on Rorech's vehicle and phoned it into the police. 

When the light at the intersection turned green, Nichols 

turned left. Rorech, however, waited "at least ten seconds to 

make that left . . . even though he did have a green light." 

Nichols pulled over to the side of the road, and Rorech drove 

past him at a high rate of speed. About 300 yards later, 

Nichols observed a "cloud of dust" as Rorech was "fishtailing" 

and "wiping out." Nichols saw Rorech's vehicle proceed through 

a median and over a guardrail. 

Nichols stopped and offered assistance. Rorech seemed "out 

of it" when Nichols arrived. Each front "air bag had deployed," 

but Rorech told Nichols "that he was okay to drive." After 

Rorech tried to restart the car, Nichols took the keys out of 

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the ignition and advised Rorech: "[N]o, you are not driving 

anywhere." Seconds later, however, Rorech restarted his car, 

backed it back onto the road, and drove away even though the 

tire had come off the front left wheel, both air bags had 

deployed, and the front end of the vehicle had been severely 

damaged. 

An EMT truck arrived on the scene and pulled alongside 

Rorech's moving vehicle. A second EMT truck pulled up on the 

other side of Rorech "telling him to pull over" through a loud 

speaker. With EMT trucks on both sides of his moving vehicle, 

Rorech "made a U-turn" and pulled into a nearby parking lot. 

Edward DeCarlo, a paramedic, approached Rorech. Rorech 

appeared disoriented and could not identify the day of the week. 

When questioned by Decarlo, Rorech refused to acknowledge that 

he had just been in an accident. Rorech asked DeCarlo "to call 

him a taxi" or "bring him home in the ambulance." Rorech 

initially refused to be taken to a hospital, but later agreed 

upon DeCarlo's insistence. When DeCarlo helped Rorech stand up 

out of the car, DeCarlo observed a "half empty bottle of vodka 

underneath the driver's seat." Rorech also noticed it and asked 

DeCarlo "to throw that away." 

At the hospital, police officer Sam Song questioned Rorech 

about the accident. Song smelled an "odor of alcohol" coming 

from Rorech. Rorech appeared to the officer to be "in a daze." 

When confronted by the officer, Rorech admitted that he "just 

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lost control" and that he had "two shots of vodka in the 

afternoon." 

After hearing this evidence, the trial court found Rorech 

guilty of driving under the influence. "I don't think there is 

any question about the defendant's guilt," the trial judge 

explained. "I think the evidence is absolutely overwhelming." 

Rorech received a fully suspended 180-day sentence, a $500 fine, 

and a twelve-month revocation of his license to operate a motor 

vehicle.1

II. 

When faced with a challenge to the sufficiency of the 

evidence, we "presume the judgment of the trial court to be 

correct," Davis v. Commonwealth, 39 Va. App. 96, 99, 570 S.E.2d 

875, 876-77 (2002), and reverse only if the trial court's 

decision is "plainly wrong or without evidence" to support it. 

Wright v. Commonwealth, 39 Va. App. 698, 703, 576 S.E.2d 242, 

244 (2003) (citations omitted); see also McGee v. Commonwealth, 

25 Va. App. 193, 197-98, 487 S.E.2d 259, 261 (1997) (en banc). 

When a jury decides the case, Code § 8.01-680 requires that 

"we review the jury's decision to see if reasonable jurors could 

have made the choices that the jury did make. We let the 

 

1

 Though Rorech submitted to a blood test to determine his 

alcohol level, the trial court suppressed the certificate of 

analysis because of "problems" in the administration of the 

test. 

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decision stand unless we conclude no rational juror could have 

reached that decision." Pease v. Commonwealth, 39 Va. App. 342, 

355, 573 S.E.2d 272, 278 (2002) (en banc). The same standard 

applies when a trial judge sits as the factfinder because the 

"judgment of a trial court sitting without a jury is entitled to 

the same weight as a jury verdict." Cairns v. Commonwealth, 40 

Va. App. 271, 293, 579 S.E.2d 340, 351 (2003) (citation 

omitted); see also Shackleford v. Commonwealth, 262 Va. 196, 

209, 547 S.E.2d 899, 907 (2001).2 

In other words, a reviewing court does not "ask itself 

whether it believes that the evidence at the trial established 

guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 

307, 318-19 (1979) (emphasis in original and citation omitted). 

Instead, the relevant question is whether "any rational trier of 

fact could have found the essential elements of the crime beyond 

a reasonable doubt." Id. at 319 (emphasis in original). This 

deference applies not only to the historical facts themselves, 

but the inferences from those facts as well. "The inferences to 

be drawn from proven facts, so long as they are reasonable, are 

 2

 Unless the factfinder acted unreasonably, we consider it 

our duty not to "substitute our judgment for that of the trier 

of fact, even were our opinion to differ." Wactor v. 

Commonwealth, 38 Va. App. 375, 380, 564 S.E.2d 160, 162 (2002) 

(citation omitted); see also Mohajer v. Commonwealth, 40 

Va. App. 312, 321, 579 S.E.2d 359, 364 (2003) (en banc) ("On 

review of a claim asserting the sufficiency of the evidence, 

this Court does not substitute its judgment for that of the 

trier of fact."); Pease, 39 Va. App. at 355, 573 S.E.2d at 278 

(internal quotations and citation omitted). 

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within the province of the trier of fact." Hancock v. 

Commonwealth, 12 Va. App. 774, 782, 407 S.E.2d 301, 306 (1991). 

Governed by this standard of review, we find the evidence 

sufficient to support Rorech's conviction for driving a vehicle 

while "under the influence of alcohol." Code § 18.2-266(ii). 

Though breath or blood tests can provide evidence of 

intoxication, they "are not necessary or required to prove 

driving under the influence of alcohol or drugs." Oliver v. 

Commonwealth, 40 Va. App. 20, 24, 577 S.E.2d 514, 516 (2003). 

The observable characteristics of the defendant's "manner, 

disposition, speech, muscular movement, general appearance or 

behavior" may alone provide sufficient proof of intoxication. 

Farren v. Commonwealth, 30 Va. App. 234, 240, 516 S.E.2d 253, 

256 (1999); see also Oliver, 40 Va. App. at 24, 577 S.E.2d at 

516 (quoting Brooks v. City of Newport News, 224 Va. 311, 

315-16, 295 S.E.2d 801, 804 (1982)).

In this case, after smelling alcohol on Rorech, Officer 

Song directly confronted him about it. Rorech admitted to 

drinking vodka earlier that afternoon. Given the half-empty 

bottle of vodka under Rorech's seat, coupled with his effort to 

get rid of it before the police arrived, the trial court no 

doubt rejected Rorech's estimate of drinking only "two shots" of 

vodka as an obvious prevarication. A factfinder may discount an 

accused's self-serving explanation as a mere effort at "lying to 

conceal his guilt." Dugger, 40 Va. App. at 594 n.2, 580 S.E.2d 

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at 481 n.2 (quoting Shackleford v. Commonwealth, 262 Va. 196, 

209, 547 S.E.2d 899, 907 (2001)); see also Black v. 

Commonwealth, 222 Va. 838, 842, 284 S.E.2d 608, 610 (1981). To 

be sure, a defendant's "false statements are probative to show 

he is trying to conceal his guilt, and thus is evidence of his 

guilt." Emmett v. Commonwealth, 264 Va. 364, 372, 569 S.E.2d 

39, 45 (2002) (quoting in parenthetical from Rollston v. 

Commonwealth, 11 Va. App. 535, 548, 399 S.E.2d 823, 831 (1991)). 

In addition, the evidence proved that Rorech's consumption 

of alcohol influenced his driving. Rorech's erratic and 

dangerous driving put himself, Nichols, and the occupants of two 

EMT trucks in considerable danger. Rorech's reckless effort to 

drive away from the scene of the first accident, with one wheel 

on its rim and both airbags deployed, reveals an attempt to flee 

the scene —— itself an incriminating fact. See Lovitt v. 

Commonwealth, 260 Va. 497, 512, 537 S.E.2d 866, 876 (2000) 

("Flight by a defendant after the commission of a crime is 

probative evidence of guilt of that crime.").3 Rorech's 

disoriented and incoherent condition, observed by Nichols, the 

 

3 See also Clagett v. Commonwealth, 252 Va. 79, 93, 472 

S.E.2d 263, 271 (1996); Marsh v. Commonwealth, 32 Va. App. 669, 

683, 530 S.E.2d 425, 432 (2000); Harter v. Commonwealth, 31 

Va. App. 743, 748, 525 S.E.2d 606, 608 (2000); Burke v. 

Commonwealth, 30 Va. App. 89, 93, 515 S.E.2d 777, 780 (1999); 

Langhorne v. Commonwealth, 13 Va. App. 97, 102, 409 S.E.2d 476, 

479-81 (1991); Hope v. Commonwealth, 10 Va. App. 381, 386, 392 

S.E.2d 830, 833-34 (1990) (en banc). 

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paramedic, and Officer Song, also shows the extent to which the 

vodka had affected his mental and physical abilities. See

Lemond v. Commonwealth, 19 Va. App. 687, 694, 454 S.E.2d 31, 

35-36 (1995) ("A defendant's admission that he consumed several 

alcoholic beverages, together with the testimony of the 

arresting officer regarding the defendant's appearance and lack 

of coordination, is sufficient to support a conviction for 

driving under the influence of alcohol.").4

In aggregate, therefore, the evidence supports a "finding 

that the defendant had drunk enough alcoholic beverage to so 

affect his manner, disposition, speech, muscular movement, 

general appearance or behavior as to be apparent to 

observation." Farren, 30 Va. App. at 240, 516 S.E.2d at 256 

(citation omitted). "Thus, the evidence was sufficient to 

support a conviction of driving under the influence." Id. at 

240, 516 S.E.2d at 256-57. 

Despite the incriminating evidence against him, Rorech 

contends a reasonable hypothesis of innocence nonetheless exists 

because "his behavior was just as consistent with one who was 

ill, perhaps having a seizure." We disagree. 

 

4

 For the reasons we discussed in Wheeling v. City of 

Roanoke, 2 Va. App. 42, 341 S.E.2d 389 (1986), we find 

unpersuasive Rorech's reliance on Fowlkes v. Commonwealth, 194 

Va. 676, 74 S.E.2d 683 (1953). In Fowlkes, "[t]here was no 

evidence as to when the accident occurred, or whether Fowlkes 

had consumed the beer before or after the accident." Wheeling, 

2 Va. App. at 45, 341 S.E.2d at 390. 

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Whether an alternative hypothesis of innocence is reasonable 

is a "question of fact." Pease, 39 Va. App. at 355, 573 S.E.2d at 

278. A trial court's rejection of a hypothesis of innocence "is 

binding on appeal unless plainly wrong." Christian v. 

Commonwealth, 33 Va. App. 704, 715, 536 S.E.2d 477, 483 (2000) 

(en banc) (citation omitted); Stevens v. Commonwealth, 38 Va. App. 

528, 535, 567 S.E.2d 537, 540 (2002) (citation omitted). We 

examine the reasonableness of the hypothesis not in an abstract 

sense, but at the level of specificity shown by the unique facts 

and circumstances of the case. See Commonwealth v. Hudson, 265 

Va. 505, 517, 578 S.E.2d 781, 787 (2003). The question then 

becomes whether a "rational" factfinder, facing the evidence 

before it, could have reached the decision that it did. Pease, 

39 Va. App. at 355, 573 S.E.2d at 278; see also Hudson, 265 Va. at 

513, 578 S.E.2d at 785 (observing that the issue is whether a 

"reasonable" factfinder could have rejected the hypothesis of 

innocence). 

Under the specific facts of this case, the trial court did 

not err in rejecting as unreasonable Rorech's proffered 

hypothesis of innocence. Rorech's admitted consumption of vodka 

that afternoon, the half-empty bottle of vodka under the 

driver's seat of his wrecked car, his effort to get rid of the 

bottle before the police discovered it, his attempted flight 

from the scene of the accident, the smell of alcohol about him, 

and the absence of any evidence of a disabling medical 

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condition, all combine to demonstrate the rationality of the 

trial court's decision. 

III. 

 Finding sufficient evidence to support Rorech's conviction 

for driving under the influence in violation of Code 

§ 18.2-266(ii), we affirm. 

 Affirmed. 

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