COURT OF APPEALS OF VIRGINIA

Present: Judges Hum phreys, Petty and Decker Argued at Richmond, Virginia

CORNELLUS LAVON OLIVER MEMORANDUM OPINION * BY v. Record No. 0642-14-2 JUDGE WILLIAM G. P ETTY MARCH 10, 2015 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY Harold W. Burgess, Jr., Judge Travis R. Williams (Todd M. R itter; Daniels, W illiams, Tuck & Ritter, on brief), for appellant. Benjamin H. Katz, Assistant At torney General (M ark R. Herring, Attorney General, on brief), for appellee.

Cornellus Lavon Oliver was convicted for dr iving a motor vehicle wh ile intoxicated, in violation of Code § 18.2-266. On appeal, Oliver argues: (1) the trial court erred by denying his motion to suppress, where he was subjected to a warrantless stop unsupported by probable cause or reasonable suspicion; and (2) the trial court erred in finding suffic ient evidence to convict him of driving under the influence, wher e the evidence failed to prove guilt beyond a reas onable doubt. For the following reasons, we affirm the decision of the trial court.

I. Because the parties are fully conversant w ith the record in this case and this memorandum opinion carries no precedential value, we recite only those facts and incidents of the proceedings as are necessary to the parties’ understa nding of the dispositi on of this appeal. “On appeal, ‘we review the eviden ce in the light most favorable to the Commonwealth, granting

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.UNPUBLISHED- 2 - to it all reasonable inferences fairly deducib le therefrom.’” Archer v. Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987)). So viewed, the evidence presented at the suppression hearing esta blished that on May 12, 2012, at approximately 3:42 a.m., Officer McLau ghlin of the Chesterf ield County Police Department was standing outside of his car while conducting a tra ffic stop on Route 60, just east of Boulders Parkway. Oliver, traveling southbou nd on Boulders Parkway, made a left turn onto Route 60, heading east, and passed Officer McLaugh lin. The officer testif ied that Oliver came

into the intersection at an excessive rate of speed, accelerated through the turn and then, without signaling, crossed three eastbound lane s of Route 60 before he actua lly completed his left turn. According to Officer McLaughlin, Oliver was trav eling at approximately 45 to 50 miles per hour as he turned onto Route 60 and passed him. Th e speed limit at that location was 45 miles per

hour. The officer testified that he “didn’t feel sa fe” having a vehicle drive by him that fast, so he decided to stop Oliver to inve stigate “why an individual would drive by a police car with lights

on that fast.” Approximately a quarter of a mile from the intersection, Oliver made a right turn onto Granite Springs Road. By the time Officer McLaugh lin caught up with Oliver, he had parked his car, gotten out, and wa s standing beside it. 1 At that point, Officer McLa ughlin asked Oliver if he had had anything to drink and Oliver admitted ha ving had “two liquor shots just prior to our

encounter.” The officer then began to conduct an investigatio n to determine if Oliver was driving while intoxicated.

1 The record does not establish that the officer had turned his emergency lights on prior to approaching Oliver.- 3 - First, Oliver did a one-leg stand test. He had to stand on one foot, holding the other six inches off the ground while counting to thirty. O fficer McLaughlin testifie d that Oliver swayed back and forth all the while he performed the test and that he had to dr op his foot to the ground four times throughout the test. During the ni ne-step walk-and-turn te st, where Oliver was supposed to walk heel-to-toe, one foot in front of the other for nine steps, Oliver dragged his feet, swayed while he walked, and walked in a diagonal instead of a straight line. Officer McLaughlin then asked Oliver to say the alphab et from the letter F to the letter O. Oliver answered, “F, T, U, W, X, Y, Z.” 2 When asked to countdown backwards from 69 to 53, Oliver was nearly successful, only missing the number 60. The fifth test Oliver performed was a finger dexterity test. In that test, Oliver had to use one hand and press his fingert ips against his thumb in a series, counting up to four then down from four to one. On his third time through the series, Oliver did

number three twice. Officer McLau ghlin then administered the HGN test. 3

As a result of what he observed of O liver’s performance and behavior, Officer McLaughlin arrested Oliver for driving under the in fluence. Before trial on that charge, Oliver made a motion to suppress the evidence from the fi eld sobriety test, argui ng that the officer did not have a reasonable suspicion to stop Oliver in the first place. After a hearing on the motion, the trial court denied it. Oliver appealed that ruling as well as the trial court’s finding that the

evidence was sufficient to convict Ol iver of driving while intoxicated.

2 Officer McLaughlin testified that prior to administering the test, he asked Oliver the extent of Oliver’s education. Oliver answered that he “h ad a twelfth gr ade education.”

3 No evidence was presented to explain the meaning of “HGN.”- 4 - II. A. Motion to Suppress First, Oliver argues that the trial court erre d by denying his motion to suppress because he was subjected to a warrantless stop unsuppor ted by probable cause or reasonable suspicion. Concluding that at the time Oliv er was actually seized the officer had a reasonable suspicion that Oliver might be intoxicated, we disagree.

The standard of review for a ruling denying a moti on to suppress for violation of a person’s Fourth Amendment righ ts is well-settled: “‘The burden is on the defend ant to show that the trial

court committed reversible error. We are bound by the trial court’s fact ual findings unless those findings are plainly wrong or uns upported by the evidence. We will review th e trial court’s application of the law de novo.’” McGhee v. Commonwealth, 280 Va . 620, 623, 701 S.E.2d 58, 59 (2010) (quoting Whitehead v. Commo nwealth, 278 Va. 300, 306-07, 683 S.E.2d 29 9, 301 (2009)). “Under Terry v. Ohio, 392 U.S. 1 (1968), and its progeny, a police officer ‘may constitutionally conduct a brief, investigatory st op when the officer has a reasonable, articulable suspicion that criminal activ ity is afoot.’” Beasley v. Co mmonwealth, 60 Va. App. 381, 395, 728 S.E.2d 499, 505 (2012) (quoting Bass v. Commonwealth, 259 Va. 470, 474-75, 525 S.E.2d 921, 923 (2000)). “The ‘reasonable suspicion’ necessary to justify such a stop ‘is dependent upon both the content of information po ssessed by police and its degree of reliability.’” Id. (quoting Alabama v. White, 496 U.S. 325, 330 (1990)). “‘In determining whether an articulable and reasonable suspicion justifying an investigatory stop of a vehicle ex ists, courts must consider the totality of the circumstances—the whole picture.’” Logan v. Commonwealth, 19 Va. App. 437, 441, 452 S.E.2d 364, 36 7 (1994) (quoting Murphy v. Commonwealth, 9 Va. Ap p. 139, 143-44, 384 S.E.2d 125, 127 (1989)). Furthermore, a police officer’s “action is ‘reason able’ under the Fourth Amendment, regardless of the in dividual officer’s state of mind, ‘as long as the circumstances,- 5 - viewed objectively, justify [the] action.’” Brigha m City v. Stuart, 547 U.S. 398, 404 (2006) (quoting Scott v. United States, 436 U.S. 128, 138 (1978)). Viewed as a whole, the evidence presented at Oliver’s suppression hearing 4 demonstrates that Officer McLaughlin had reason able, articulable suspicion to believe that Oliver was driving while under the influence of alcohol, justifying O fficer McLaughlin’s decision to detain him for purposes of requiring Oliver to perform field sobriety tests. 5 From where Officer McLaughlin

4 We recognize that there was additional eviden ce regarding the stop pr esented at trial. Generally, when affirming a trial court’s denial of a pre-trial motion, it is appropriate for this Court to consider evidence presented at both th e motion hearing and at trial. See Emerson v. Commonwealth, 43 Va. App. 263, 272, 597 S.E.2d 242, 247 (2004). However, [a]s an appellate basis for re versing a pretrial [motions] ruling, . . . evidence at trial become s relevant only if the defendant renews his motion at trial. “[T]he fact a pretrial motion has been denied is no reason for not rene wing the motion during the course of the trial.” 5 Wayne R. LaFave , Criminal Procedure § 17.3(d), at 57 (3d ed. 2007). Only by doing so does the defendant invite the trial court to reconsider its pret rial ruling in light of the actual evidence presented—rather than merely relying (as the trial court ordinarily must when deciding the issue prior to tr ial) solely upon the charging documents and the pret rial [evidence or] proffers of the parties. Allen v. Commonwealth, 58 Va. App. 618, 621, 712 S.E.2d 748, 749 (2011). Because Oliver did not renew his motion to suppress after the additional evidence was presented, we will consider only the facts pr esented at the suppression motion hearing upon which the trial judge re lied in his decision.

5 Neither of the parties argued, nor did the trial court make a finding, as to when a seizure, for purposes of the Fourth Amendment, occurred. Not all police encounters implicate the Fourth Amendment. In fact, consensual encounters, whether they involve questioning or searches, simply “do not implicate the Four th Amendment.” McGhee v. Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259, 261(1997) (en banc). The test to determine whether there has been a seizure is well-settled: “If . . . a r easonable person would not feel free to decline an officer’s requests or would not feel free to leav e, the encounter is not consensual and constitutes an illegal seizure under the Fourth Amendm ent.” Harris v. Commonwealth, 266 Va. 28, 32, 581 S.E.2d 206, 209 (2003). “[T]he question whether a pe rson has been seized in violation of the Fourth Amendment is reviewed de novo on appeal.” Reittinger v. Commonwealth, 260 Va. 232, 236, 532 S.E.2d 25, 27 (2000). Here, there was no ev idence presented at the suppression hearing suggesting that the officer did an ything other than engage in a consensual encounter when he approached Oliver after Oliver had gotten out of his car. Thus, in our de novo review, viewing- 6 - was standing as he was conducti ng a traffic stop, he saw Olive r’s car accelerate through the intersection and come within only fifty feet of where the officer was standing outside the protection of his police cruiser. As he made the turn, Oliver cro ssed three lanes of traffic without signaling. In fact, Oliver’s turn onto Route 60 east from Boulders Parkway was more like a straight line than a tur n, cutting directly to the farthest ri ght lane of Route 60 eastbound traffic and failing to maintain his dedicated turn lane. 6 The officer describe d Oliver’s speed as

“excessive” for the turn. Although Officer McLaughlin testified to having a number of reasons to support his decision to investigate Oliver’s intoxication leve l, including Oliver’s speed, failure to signal, admission that he had taken shots of liquor, and Officer McLaughlin feeling himself to be in danger, it is not the subjective viewpoint of the o fficer that we evaluate. See Stuart, 547 U.S. at 404 (A police officer’s “action is ‘reasonable’ u nder the Fourth Amendmen t, regardless of the individual officer’s state of mind, ‘as long as th e circumstances, viewed objectively, justify [the] action.’” (quoting Scott, 436 U.S. at 138)). Th erefore, it is not necessary that all of Officer McLaughlin’s stated reasons for investigating Oliv er are justified. What matters is that we, in viewing the evidence objectively as a whole, can point to circumstances that ju stified the officer’s action. Here, Oliver’s ac celeration through the tur n, failure to remain in his designated turn lane,

the evidence in the light most favorable to th e Commonwealth, we find th at the seizure occurred when the officer required Oliver to perform a series of field sobrie ty tests. This occurred after Oliver admitted he had consumed alcohol.

6 We note here that Code § 46.2-846 mandates, [a]n approach for a left turn shall be made from the right half of the roadway and as close as possible to the roadway’s center line, passing to the right of the center line where it enters the intersection. After en tering the intersection, the left turn shall be made so as to leave the intersection to the right of the center line of the roadway being entered. Whenever practicable, the left turn shall be made to the left of the center of the intersection.- 7 - failure to use his turn signal, and then admission that he had two s hots of liquor just prior to the encounter provided the officer a sufficient objectiv e basis to seize Oliver by requiring him to perform field sobriety tests. B. Second Assignment of Error Next, Oliver argues that the trial court erred in finding sufficient evidence to convict him of driving under the influence, wher e the evidence failed to prove guilt beyond a reasonable doubt. We disagree. The appellate standard of review for suffici ency of the evidence is well established. “‘[T]he judgment of the trial court sitting without a jury is entitled to the same weight as a jury verdict.’” Saunders v. Commonwealth, 242 Va. 107, 113, 406 S.E.2d 39, 42 (1991) (quoting Evans v. Commonwealth, 215 Va. 609, 613, 212 S.E.2d 268, 271 (1975)). Thus, we presume the trial court’s judgment to be corr ect and reverse only if its deci sion is “‘plainly wrong or without evidence to support it.’” Davis v. Co mmonwealth, 39 Va. App. 96, 99-100, 570 S.E.2d 875, 876-77 (2002) (quoting Dodge v. Dodge, 2 Va. App. 238, 242, 343 S.E.2d 363, 365 (1986)); see Code § 8.01-680. Oliver alleges that his performance on the field sobriety tests was, “at worst, mixed.” He claims that any mishaps in his performance were minor and that there was no evidence to put his performance in context. According to Oliver , the Commonwealth failed to demonstrate how a

sober individual would have performed on the tests. Code § 18.2-266 provides, It shall be unlawful for any person to drive or operate any motor vehicle, engine or train (i ) while such person has a blood alcohol concentration of 0.08 pe rcent or more by weight by volume or 0.08 grams or more per 21 0 liters of breath as indicated by a chemical test administered as provided in this article, (ii) while such person is under th e influence of alcohol . . . .- 8 - Because the Commonwealth did not have a brea th or blood test to submit into evidence, Oliver was prosecuted under subsection (ii) of th e statute. Code § 18.2-26 6(ii) prohibits driving “while such person is under the influence of alcohol.” “That degree of intoxication, or being ‘under the influence of alcohol,’ is established when any person has consumed enough alcoholic beverages to ‘so affect his manner, dispositi on, speech, muscular movement, general appearance or behavior, as to be appa rent to observation.’” Thurst on v. Lynchburg, 15 Va. App. 475, 483, 424 S.E.2d 701, 705 (1992) (quoting Gardner v. Commonwealth, 195 Va. 945, 954, 81 S.E.2d 614, 619 (1954)). Based upon the evidence in this record, a rational trier of fact could have found that Oliver was operating his vehicle while under the influence of alcohol. Simply put, we cannot say

that no rational trier of fact could have concluded—given Oliver’s suspicious driving behavior through the Route 60 intersection; his admission that he had two shots of liquor “prior” to driving; the strong odor of alcoho l; his bloodshot eyes; his failure to hold his foot off the ground during the one-leg stand without dropping it down four times; his inability to do the walk-andturn without swaying, walking in a diagonal line, or dragging his feet; and his demolition of the alphabet—that Oliver had consumed enough alcohol to “‘affect his manner, disposition, speech, muscular movement, general appearance or behavi or.’” Id. (quoting Gardner, 195 Va. at 954, 81 S.E.2d at 619). See Fierst v. Commonwealth, 210 Va. 757, 760, 173 S.E.2d 807, 810 (1970) (holding officer had probable cause for an arrest based on suspect ’s posture, fumbling, appearance, and manner of exiting his car, although the officer dete cted no odor of alcohol and did not conduct any field sobriety tests). The trial court’s decision wa s not plainly wrong or without evidence to support it. Accordingly, we hold that the trial court did not err in finding appellant guilty of driving while intoxicated, in viol ation of Code § 18.2-266.- 9 - III. For the reasons stated above, we affi rm the decision of the trial court.

Affirmed.