COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Al ston and Senior Judge Willis

WILLIAM MICHAEL BERGER MEMORANDUM OPINION * BY v. Record No. 0445-12-4 JUDGE ROSSIE D. ALSTON, JR. FEBRUARY 19, 2013 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF FAUQUIER COUNTY Herman A. Whisenant, Jr., Judge Designate (John Primeau; Law Offices of John Primeau, on brief), for appellant. Appellant submitting on brief. (Kenneth T. Cuccinelli, II, Attorn ey General; Aaron J. Campbell, Assistant Attorney General, on brief), for appellee. Appellee submitting on brief.

William Michael Berger (appellant) appeal s his conviction for improper driving in violation of Code § 46.2-869. On appeal, appellant contends that the tria l court erred in finding the evidence presented sufficient to sustain his co nviction. For the reasons that follow, we agree and reverse the judgment of the trial court.

I. BACKGROUND On appeal, we view “the evidence in the light most favorable to the Commonwealth, the party prevailing in the circuit court, and we accord the Commonwealth the benefit of all

reasonable inferences deducible from the ev idence.” Britt v. Comm onwealth, 276 Va. 569, 573, 667 S.E.2d 763, 765 (2008) (citing Jay v. Co mmonwealth, 275 Va. 510, 524, 659 S.E.2d 311, 319 (2008)).

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.UNPUBLISHED- 2 - So viewed, the evidence showed that on September 14, 2011, Deputy Shane Jacobs of the Fauquier County Sheriff’s Office ar rived at the scene of a single car accident on Route 50. Upon his arrival, Deputy Jacobs observe d that appellant’s car had been pulled out of the median by fire and rescue personnel. Before Deputy Jacobs had the opportunity to question appellant, appellant left the scene of the accident. Deputy Jacobs followed appellant and performed a traffic stop. During the traffic stop, Deputy Jacobs de tected the odor of alcohol coming from appellant. Deputy Jacobs asked appellant whether he had anythi ng to drink, to which appellant responded, “he had a few beers.” Deputy Jacobs al so questioned appellant about the cause of the accident, to which appellant stated that “he hit a patch of water and hydroplaned into the median.” Deputy Jacobs observed “very minor” damage to appellant’s car. After Deputy Jacobs’ investigation, appellant was charged with reckless dr iving pursuant to Code § 46.2-869.

At the conclusion of the Co mmonwealth’s case, appellant ma de a motion to strike, which the trial court denied. Appellant did not presen t any evidence and renewed his motion to strike, which the trial court again denied. The tria l court then found appellant guilty of improper driving in violation of Code § 46.2-869 and fined appellant fifty dol lars. This appeal followed.

II. ANALYSIS Code § 46.2-869 states that “upon the trial of any person charged with reckless driving where the degree of culpability is slight, the court in its discretion may find the accused not guilty of reckless driving but guilty of improper driving.” On appeal, appellant contends that the

evidence was insufficient to s upport his conviction for improp er driving because the only explanation offered at trial was that the accide nt was the result of a sudden emergency and not appellant’s negligence or recklessness.- 3 - “On appeal, ‘we review the ev idence in the light most fa vorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom.’” Archer v. Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quo ting Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987)). “When faced with a challenge to the sufficiency of the evidence, we ‘presume the judgment of the trial c ourt to be correct’ and re verse only if the trial court’s decision is ‘plainly wrong or without ev idence’ to support it.” Myers v. Commonwealth, 43 Va. App. 113, 118, 596 S.E.2d 536, 538 (2004) (quoting Kelly v. Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) ( en banc )). From the record before us, we cannot fi nd evidence to support appellant’s conviction. 1 Accordingly, we reverse the j udgment of the trial court. In reaching this conclusion, we find th e Supreme Court’s holding in Bacon v. Commonwealth, 220 Va. 766, 263 S.E.2d 390 (1980), inst ructive. There, the defendant was charged and convicted of improper driving after he lost control of his car and struck multiple trees and grazed one telephone pol e. Id. at 767, 263 S.E.2d at 390- 91. “The defendant told the [investigating] trooper that anothe r car ran him off the road, causing him to hit [a] ditch and to lose control of the vehicle.” Id. at 767, 263 S.E.2d at 391. Although the investigating officer detected the odor of alcohol coming from the de fendant, the Commonwealth did not allege any charges involving the use of alcohol, nor did the Commonwealth present evidence that the

defendant “was intoxicated or that he had been affected by the alc ohol he had consumed.” Id. at 768, 263 S.E.2d at 391. On appeal, the Supreme Court reversed the defendant’s conviction, noting that the “[d]efendant’s explanation that he was forced off the highway by another vehicle

1 We note that the transcript from defendant ’s trial in the Circ uit Court of Fauquier County mistakenly refers to the Genera l District Court of Fauquier County.- 4 - [wa]s not contradicted.” Id. The Supreme Court concluded th at the defendant’s explanation, if true, demonstrated that he “was confronted with a sudden emerge ncy that was not caused by his own negligence,” and, if the Court rejected hi s explanation, then “we are left without any explanation of how the acci dent occurred.” Id. As in Bacon, the record here does not provi de sufficient evidence to uphold appellant’s conviction. While appellant admitted that “he had a few beers,” the record does not include “evidence that [appellant’s] speech, muscular movement, general appearance, or behavior

indicated that he was in toxicated or that he had been aff ected by the alcohol he had consumed prior to the accident.” Id. at 768, 263 S.E.2d at 391. Moreover, the only explanation for appellant’s accident offered at trial was his statement to Deputy Jacobs that “he hit a patch of water and hydroplaned into the median.” While appellant’s explanation does not exclude the possibility that he operated his vehicle in a negl igent manner, there is no evidence in the record that evinces reckless or negligent behavior on his part. Thus, the ev idence does not exclude “every reasonable hypothesis of inno cence nor is it consistent only w ith the guilt of [appellant].” Id. at 769, 263 S.E.2d at 392. Accordingly, the judgme nt of the court below is reversed, and this

conviction is dismissed.

Reversed and dismissed.C O R R E C T E D C O P Y 

# VIRGINIA: In the Court of Appe als of Virginia on Monday 

### the 11th 

### day of February, 2013

.

William Michael Berger, Appellant, against Record No. 0445-12-4 Circuit Court No. CR11-714 Commonwealth of Virginia, Appellee.

Upon a Petition for Rehearing Before Judges Elder, Alston and Senior Judge Willis

On December 10, 2012 came appellant, by counsel, a nd filed a petition prayi ng that the Court set aside the judgment rendered herein on Nove mber 27, 2012, and grant a rehearing thereof. On consideration whereof, the petition for rehe aring is granted, the opini on rendered on November 27, 2012 is withdrawn, the mandate entered on that date is vacated, and the appeal case is reinstated on the

docket of the Court.

A Copy, Teste: Cynthia L. McCoy, Clerk By: Deputy ClerkCOURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Al ston and Senior Judge Willis

WILLIAM MICHAEL BERGER MEMORANDUM OPINION * BY v. Record No. 0445-12-4 JUDGE ROSSIE D. ALSTON, JR. NOVEMBER 27, 2012 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF FAUQUIER COUNTY Herman A. Whisenant, Jr., Judge Designate (John Primeau; Law Offices of John Primeau, on brief), for appellant. Appellant submitting on brief. (Kenneth T. Cuccinelli, II, Atto rney General; Aaron J. Campbell, Assistant Attorney General, on brief), for appellee. Appellee submitting on brief.

William Michael Berger (appellant) was convicte d in the trial court of improper driving in violation of Code § 46.2-869 . For the reason that follo ws, we dismiss this appeal. In appellant’s petition for appeal, he include d a single assignment of error: “The trial court erred in finding the evidence presented suffici ent to sustain the conv iction of appellant.” Rule 5A:12(c)(1)(ii) provides that “[a]n assignmen t of error . . . which merely states that the judgment or award is contrary to the law and th e evidence is not sufficient” and that “[i]f the assignments of error are insufficient . . . , the pe tition for appeal shall be dismissed.” See Davis v. Commonwealth, 282 Va. 339, 339-40, 717 S.E.2d 796, 796-97 (2011) (holding similar Rule 5:17 “establish[es] the inclusion of sufficient as signments of error is a mandatory procedural requirement and that the failure to comply with th is requirement deprives this Court of its active jurisdiction to consider the appeal”).

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.UNPUBLISHED- 2 - Appellant’s assignment of error challenges, in general, the sufficiency of the evidence to support his conviction. In accordance with the Supr eme Court’s decision in Davis, we conclude that appellant’s assignment of error is insufficient under Rule 5A:12(c)(1)(ii), and thus deprives this Court of active jurisdiction over the a ppeal. Therefore, we dismiss the appeal.

Dismissed.