COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Hu ff, Judges Petty and Beales Argued at Richmond, Virginia

DWAYNE GRAY MILLER, JR. MEMORANDUM OPINION * BY v. Record No . 0193-16-2 JUDGE RANDOLPH A. BEALES JULY 18, 2017 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF HANOVER COUNTY J. Overton Harris, Judge Miriam Airington (Airington, And raos, & Rockecha rlie PLLC, on briefs), for appellant. David M. Uberman, Ass istant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
At the conclusion of a three-day j ury trial, Dwayne Miller (“a ppellant”) was convicted of aggravated involuntary manslaughter in violation of Code § 18.2 -36.1(B) and felony hit-and-run in violation of Code § 46.2-894. Appe llant raises four issues on appeal: (1) that the evidence was insufficient to establish tha t appellant caused the decease d’s death, (2) that the deceased’s toxicology results should have been admitted into evidence, (3) that the trial court erred when it instructed the jury that appella nt’s degree of intoxication was relevant to establish appellant’s criminal negligence because “the instruction was confusing and was not supported by the evidence,” and (4) that this C ourt should invoke the ends of ju stice exception t o Rule 5A:18 and conclude that the trial court im properly instructed the jury wh en including in a jury instruction the language that a conviction “ does not require proof beyond a ll possible doubt.”

* Pursuant to Code § 17.1-413, this op inion is not designated fo r publication.UNPUBLISHED- 2 - I. B ACKGROUND On the evening of May 1, 2014, the deceased, Jason Bailey (“Bai ley”), responded to a request for a tow truck on Int erstate 295 in Hanover County, wh ere he was then struck and killed. Bailey was a tow truc k driver whose company had been c alled by Avonia Gregory (“Gregory”), a motorist with a f lat tire. She testified that B ailey parked his t ruck “perfectly straight” on the shoulder, and the truck’s lights were “flashin g.” Pictures taken at the scene and admitted into evidence show the upper bar light of the truck fl ashing. Gregory testified that Bailey was “polite, professional, concerned and appeared to kno w what he was doing.” Gregory then got a ride to the car deal ership and left Bailey with her car to follow behind with the tow truck. Another witness, Ein Conrad (“C onrad”), testified that he was t raveling on I-295 and “[i]t was getting pretty dark.” Conr ad noticed the driver of a Ford Explorer, later identified as appellant, driving “erratica lly . . . speeding and swerving in and out of traffic.” Conrad was driving next to and behind appellan t’s vehicle, which was in th e far right lane, closest to the right shoulder. Conrad could see Bail ey’s tow truck stopped on the s houlder with “the bar light on top of the flatbed” flashing, a nd knew “something had happened” whe n he saw that the “taillights of [appellant’s Explorer] were s werving . . . in front of the tow truck.” Kyreena Cromleigh (“Cromleigh”), Conrad’s fiancée and passenger, said that she kn ew right away that someone had been hurt because “there was blood everywhere.” Conrad pulled his car over off the road and stopped. As Conrad approached the tow truck, he saw Bailey’s b ody lying beside it. He testified that he did not bother checking f or a pulse, because Bailey “wo uldn’t have survived that.” Cromleigh testified that whe n they pulled over, she observed anSUV crashed beyond the tow truck and she saw a man s tumble out of the SUV and walk uns teadily away from his SUV. Residents from the neighborhood adjacent to the crash scene tes tified to seeing appellant walking- 3 - in the neighborhood and in residen ts’ yards shortly after heari ng the crash. Stacy Dixon (“Dixon”), a neighborhood resident, testified that she was outs ide her house when she heard a man scream, “Hey!” – and then he ard a loud crash. She describe d the crash as “the loudest sound that I have heard. ” Some time later, w hen she was inside her home again, she turned on some outside lights to illumin ate her backyard deck. Upon turn ing on the lights, she observed a man sitting on her back deck. The man had blood on him and was sitting there staring at the sky. At trial, Dixon identified the ma n in her backyard as appellant

. The police encountered appellant in the adjacent neighborhood a nd transported him back to the scene of the accident. T hey described him as bruised, b loodied, and displaying delayed movements and speech. When asked by police, appellant said tha t he had consumed “a lot” of alcohol and that he was driving “ 45 degrees” at the time of the collision. At trial, Dr. James Hutchings, a forensic toxicologi st, testified tha t, given that Miller’s blood alcohol content (“BAC”) was 0.181 more than three -and-a-half hours after the co llision, “[i]t mo st likely would have been higher” at the time of i mpact. He stated, “Commonly, you remove 0.01 to 0.02 percent per weight per volume per hour.” When asked about the effects on a person’s cognition at a BAC of 0.181, Dr. Hutchings replied, “[T]here would be sev ere disorientation, slurred speech. I would expect there to be some large gross motor func tion, inability to control your legs, loss of balance. I would a lso expect there to be severel y slowed psychomotor function. Expect the ability to react t o the outside world would be sever ely slowed. There would also be some severe visual acuity issues .” Dr. Hutchings also testifie d that if someone were driving with a BAC of 0.181 and he was able to perceive an object i n his path, he “would not be able to react in time to avoid” striking it . Dr. Hutchings also opined that a driver with such an elevated BAC could lose consciousness and may n ot “even be able to perceive or react at all.”- 4 - The medical examiner, Dr. Debor ah Kay, who performed the autops y of Bailey testified to his various injuries, and conc luded that the cause of death was “[b]lunt force injuries to the head, neck and torso.” Upon cross- examination, Dr. Kay testifi ed that any one of the injuries or any combination of the injuries could have caused Bailey’s deat h – and that there was no way to determine how many times he was struck. Blood taken from appellant’s vehi cle was matched to the decease d. The pictures of appellant’s Ford Explorer depict blood spatter and fragments on the SUV, as well as significant damage and some blood spatter on t he front passenger side (wher e the Explorer would have initially impacted Bailey and his tow truck). The pictures als o show fragments from the red tow truck embedded in the side of the silver Ford Explorer. The re cord does not reveal evidence that any other car collided with the t ow truck. At trial, Sergeant Anthony J. Puckett of the Virginia State Police testified in his capacity as a member of the Virgi nia Crash Reconstruction Team, a special team within the State Police. Sergeant Puckett had spe cial training in int erpreting crash data from vehicles. Sergeant Pu ckett testified that appellant’ s vehicle had an “event data recorder” which recorded the vehi cle’s response to its crash. According to the event data recorder, appellant was not wear ing a seatbelt at the time of t he crash. Puckett concluded that appellant did not try to slow dow n or steer away from the crash before impact. Appellant attempted to have a por tion of Bailey’s toxicology re port admitted into evidence, which the trial cour t did not allow. Appellant proff ered that the report would have established that Bailey had alevel of 0.0046 milligrams per li ter of tetrahydrocannabinol [“THC”], the active component i n marijuana, in his system at th e time of his death. Appellant proffered testimony that the effects can occur at any concentra tion and that common effects are inattentiveness, time and space distortion, and short-term memo ry impairment. However, appellant also had an opportunity t o question the Commonwealth’ s expert witness about the- 5 - THC found in Bailey’s system. T he expert could not testify con clusively to wha t the amount of .0046 milligrams per liter meant for Bailey: As far as the quantity goes, we don’t normally associate the le vel of effects with the quantity. T ypically, I use the quantity as a rough estimation of the time of use, and so I typically use a threshold of 0.005 and greater is indicative of more recent use , two to three hours. However, anything be low that is more indicativ e of less recent use, probably greater than three or four hours from the time of use. So in this case, 0.0046 is below th at threshold. It’s indicati ve of that. I try to use the word indicative because it’s not a hard and fast rule. It’s more of arough rule based upon the concentrat ion of the marijuana smoked, how much was smoked or even if it was smoked or eaten or all the differe nt forms of ingestion we have now. So in this case, it’s more of an indicator of time of use

. The prosecution asked of the expe rt witness, “So if I understan d your testimony, Dr. Hutchings, just seeing this number [.0046] doesn’t tell youwhether somebody is actually under the influence of marijuana ?” Dr. Hutchings replied, “Correct.” The trial court found of the proffered testimony and evide nce that “the probative value was outweighed by the prejudice and potential confusi on to the jury.”
II. ANALYSIS Appellant raises four issues on appeal, which this Court will a ddress in turn. First, appellant argues that the trial court erred when it denied appe llant’s motion to strike the evidence because the Commonwealth failed t o prove that appellant caused the deceased’s death. Second, appellant argues that the trial court erred in excluding toxico logy evidence from Bailey indicating that Bailey “had an ill egal substance in his system at the time of his death, because such evidence was relevant to the issue of causation of death.” Third, appellant argues that the trial court erred in instructing the jury that the degree of in toxication was relevant to determining whether appellant’s conduct was criminally negligent because th e instruction w as confusing and not supported by the evidence. Four th, appellant asks us to in voke the ends of justice exception- 6 - to Rule 5A:18 to find that the tr ial court erre d when it instru cted the jury “This does not require proof beyond all possible doubt, nor i s the Commonwealth requir ed to disprove every conceivable circumstance of i nnocence; however, suspicion or pr obability of guilt is not enough for a conviction. There is no bur den on the defendant to produ ce any evidence.”
1. Causation Appellant argues that the Comm onwealth failed t o prove that app ellant proximately caused Bailey’s death. When considering the sufficienc y of the evidence presented belo w, “a reviewing court does not ‘ask itself whether it believes that the evidence at t he trial established guilt beyo nd a reasonable doubt.’” Crowd er v. Commonwealth, 41 Va. App. 658, 663, 588 S.E.2d 384, 387 (2003) (quoting Jackson v. Vir ginia, 443 U.S. 307, 318-19 (1979 )). “Viewing the evidence in the light most favorable to the Commonwealth, as we must since it w as the prevailing party in the trial court,” Riner v. Commonwealth, 268 Va. 296, 330, 601 S.E. 2d 555, 574 (2004), “[w]e must instead ask whether ‘ any rational trier of fact coul d have found the essential elements of the crime beyond a reasonable doubt,’ ” Crowder, 41 Va. App. at 663, 588 S.E.2d at 387 (quoting Kelly v. Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444, 44 7 (2003) ( en banc )). “This familiar standard gives full play to the responsibility of the trier of fact fairly t o resolve conflicts in the testimony, to weigh the e vidence, and to draw reasonable inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at 319. “A proximate cause is ‘an act or omission that, in natural and continuous sequence unbroken by a superseding cause, pr oduces a particular event an d without which that event would not have occurred.’” R ich v. Commonwealth, 292 Va. 791, 800, 793 S.E.2d 798, 803 (2016) (quoting Brown v. Commonwealth, 278 Va. 523, 529, 685 S. E.2d 43, 46 (2009)).- 7 - Dixon testified that on the evening of May 1, 2014, she was out side her house when she heard a man scream, “Hey!” and s he then heard a loud crash. Ey ewitnesses who were also traveling on the road with appellan t’s vehicle testified “that there was blood everywhere” after they observed a collision betwee n the tow truck and the SUV. F orensic evidence shows that the SUV hit the tow truck. Bailey’ s body was found partially in th e road, lying beside the tow truck. Forensic evidence also shows Bailey’s blood on the side of the SUV – the same side that collided with the tow truck. We disagree with appellant’s asse rtion that, under the facts of this case, the Commonwealth’s evidence only am ounted to conjecture as to how t he accident occurred and that it is unclear whether appellant a ctually caused Bailey’s death. “We have repeatedly held that the factfinder may draw reasonable inferences from proven facts.” Id. “[I]n a circumstantial evidence case, such as the case cu rrently before us, the accumu lation of various facts and inferences, each mounting upon the others, may indeed provide s ufficient evidence beyond a reasonable doubt . . . .” Ervin v. Commonwealth, 57 Va. App. 4 95, 505, 704 S.E.2d 135, 140 (2011) ( en banc ). A reasonable factfinder could h ave inferred from the eviden ce presented at trial that appellant was a dir ect and proximate cause of Bailey ’s death because appellant’s SUV not only collided with Bailey’s tow truck but appellant also dr ove his SUV into Bailey – who was standing by the truck – with enough force to kill him. However, it is immaterial whethe r appellant’s car fatally struc k Bailey – or whether a subsequent car running over Bail ey once he was in the road caus ed the fatal injury. The Commonwealth was only required to prove that appellant’s vehicl e was a proximate cause of Bailey’s death. “[A]n interveni ng event, even if a cause of th e harm, does not operate to exempt a defendant” from criminal liab ility if the intervening event w as put into operation by the defendant’s criminally negligen t acts. Noakes v. Commonwealth, 280 Va. 338, 349, 699 S.E.2d- 8 - 284, 290 (2010) (quoting Gallimore v. Commonwealth, 246 Va. 441 , 447, 436 S.E.2d 421, 425 (1993)). Therefore, we hold that a rationa l trier of fact could have con cluded that appellant proximately caused B ailey’s death.
2. Toxicology Report Appellant argues that the trial court erred when it refused to admit Bailey’s toxicology results into evidence because , as appellant contends, Bailey’s potential impairment was relevant to the issue of causation. Eve n assuming without deciding that the trial court’s ruling was erroneous, we conclude that suc h error was nevertheless harmles s. As this case does not involve a n alleged constitutional error, we apply the statutory standard provided by Code § 8.01-678 t o determine whether the n on-constitutional error was harmless. Code § 8.01-678 provide s, in pertinent part: When it plainly appears from the record and the evidence given at the trial that the parties have had a fair trial on the merits and substantial justice has been reached, no judgment shall be arre sted or reversed . . . [f]or any . . . def ect, imperfection, or omis sion in the record, or for any other error committed on the trial. “Under this standard, a non-cons titutional error in a criminal case is harmless ‘[i]f, when all is said and done, . . . the error did not influence the jur y, or had but slight effect.’” Anderson v. Commonwealth, 282 Va. 457, 467, 717 S.E.2d 623, 628 (2011) ( quoting Rose v. Commonwealth, 270 Va. 3, 12, 613 S.E.2d 454, 458 (2005)). As t he Supreme Court has stated in Clay v. Commonwealth, 262 Va. 253, 259, 546 S.E.2d 728, 731 (2001), “In a criminal case, it is implicit that, in order to determ ine whether there has been ‘a fair trial on the merits’ and whether ‘substantial justice has been reached,’ a reviewing court must decide whether the alleged error substantially i nfluenced the [fact f inder]. If it did no t, the error is harmless.”- 9 - When we look at the trial as a w hole, we conclude that the toxi cology report could not have substantially influenced t he jury. Appellant proffered ev idence that Bailey had THC in his blood at his time of death and that marijuana was located in th e tow truck. Appellant proffered no additional evidence to show tha t Bailey was impaired at the time of the accident. The expert witness specifically testified t hat he could not infer impairme nt from the level of THC in Bailey’s blood or that the mar ijuana had even been ingested within the preceding three or four hours before Bailey’s death. At tr ial, there was a great deal of evidence to show that Bailey was acting cautiously and was not impai red. Viewing the evidence i n the light most favorable to the Commonwealth, as the party that p revailed below, the evidence s howed that Bailey parked his tow truck on the side of the r oad, he turned on the tow truck’s hazard lights, and he wore a safety vest while handling Avonia Gre gory’s car. Moreover, Ms. Gregory testified that Bailey was “polite, professional, concerne d and appeared to know what he w as doing.” Even if the trial court had allo wed the toxicol ogy findings andthe testimony that marijuana was found in the tow tru ck into evidence, the expert specifically testified that he could

not opine, based on .0046 milligrams per liter of THC in Bailey’s system, that Bailey was under the influence of marijuana at the time he died. 1 Thus, even if the trial court erred in excluding the toxicology report, such error was harmless because the ulti mate medical opinion which appellant sought to place before the jury – that Bailey was imp aired – would have had to have been rejected. Thus, the eviden ce that appellantput forward r egarding whether Bailey might have been under the influence of marijuana could not have had m ore than “slight effect” because

1 In fact, not only did the expert indi cate it was unclear wheth er Bailey was under the influence of marijuana, but the e vidence showed that Bailey pro bably had not ingested marijuana for at least three or four hour s before his death. Dr. Hutchin gs testified that “anything below [.005 milligrams per liter] is more indicative of less recent u se, probably greater than three or four hours from the time of use.”- 10 - appellant’s proffered evidence simply does not show impairment. Therefore, we conclude that appellant had a “fair trial on the merits” and that the error, if any, was harmless.
3. Jury Instruction on Degree of Intoxication Appellant contends that there wa s no “context” p rovided at tria l for the jury to determine, without additional evidence, tha t appellant’s BAC was sufficien tly elevated to support a finding of criminal negligence. The inst ruction that the trial court a ccepted read, “The degree of intoxication is a circumstance relevant to a determination of the question whether , in light of all other circumstances, the defenda nt’s driving conduct was so gro ss, wanton and culpable as to show a reckless disregard for human life.” A trial court’s decision whethe r to grant or refuse a proposed jury instruction is generally subject to appellate review fo r abuse of discretion. Cooper v. Commonwealth, 277 Va. 377, 381, 673 S.E.2d 185, 187 (2009). The reviewing court’s sole respon sibility is to ensure that the law has been clearly stated in the i nstructions and that they cover all the issues that the evidence fa irly raises. In deciding whethe r an instruction was appropr iate, the appellate court views the fact s in the light most favorable to t he instruction’ s proponent. Howsare v. Commonwealth, __ Va. __, __, 799 S.E.2d 512, 515 (20 17) (internal citations omitted). We begin by noting that the language of the jury instruction is an accurate statement of the law. See Beck v. Commonwealth, 216 Va. 1, 5, 216 S.E.2d 8, 10 (1975) (“[T]he degree of intoxication is a circumstance relevant to a determination of the question whether , in light of all other circumstances, the act of driving an automobile was such an ‘improper performance of a lawful act’ as to constitute neg ligence ‘so gro ss and culpable as to indicate a callous disregard of human life’.”).- 11 - Most importantly, appellant’s argument rests on a faulty premis e – that the jury instruction was not proper because appellant’s BAC level was th e only factor possible for the jury to consider. As the Commonw ealth correctl y points out, th ere was plenty of evidence in the record pointing to appellant’s in toxication in addition to appe llant’s extremely high BAC. Appellant was observed “driving erratically” before the acciden t, appellant was “swerving in and out of traffic,” and appellant di d not use the brakes on his SU V or attempt to steer away from the tow truck before impact. The Co mmonwealth also presented witne sses who testified that appellant exhibited erratic be havior, that he smelled of alcoho l, that he had slurred speech, that he was stumbling at the scene of the accident, that he had red eyes, and that he made nonsensical

statements. 2 Therefore, we reject appellant’s argument that the jury instruc tion was not supported by the evidence. Accordingly, we hol d that the trial court did no t err in submitting this instruction to the jury because “the instructions, taken as a whole, stated the law clearly and covered all issues fairly raised by the ev idence.” Howsare, __ Va. at __, 799 S.E.2d at 515.
4. Jury Instruction on Proof Beyond a Reasonable Doubt In his fourth assignment of error , appellant argues that a jury instruction, proffered by his attorney at trial, w as erroneous. The jury instruction at issu e reads in its entirety: The defendant is presumed t o be innocent. You should not assum e the defendant is guilty because he has been charged and he is o n trial. This presumption of inno cence remains with the defendan t throughout the trial and is e nough to require you to find the defendant not guilty unless and unt il the Commonwealth proves

2 We note that other opinions from our Court have held that evid ence of intoxication alone is sufficient to sustain a c onviction for aggravated involunta ry manslaughter. In Davis v. Commonwealth, 57 Va. App. 446, 464, 703 S.E.2d 259, 267 (2011) (italics added) , this Court considered the appellant’s “h igh blood alcohol c oncentration, w hich was higher than the legal limit,” as a factor, which “ by itself

. 

### . . justifies a finding that appe llant’s conduct was gross, wanton, and culpable.” However, because there was additional evidence in this case, we need not determine whether such a jury instruction would be accurate if the only evidence of criminal negligence is intoxication.- 12 - each and every element of the o ffense beyond a reasonable doubt

. This does not require proof bey ond all possible doubt, nor is the Commonwealth required to disprove every conceivable circumstance of innocence ; however, suspicion or probability of guilt is not enough for a conviction. There is no burden on th e defendant to produce any evidence. (Italics added). Appellant conten ds that the italicized langua ge (especially “does not require proof beyond all possible doubt”) cou ld be misleading to a jury and that “the Supreme Court of Virginia has repeatedly discourag ed trial courts from elaborati ng on the definition of reasonable doubt, for fear of muddying the wat ers for the jury.” Opening Brief at 18. However, appellant also acknowledges that trial counsel did not make a cont emporaneous objection to this jury
instruction , and asks this Court to reach the merits of this question thro ugh the ends of justice exception to Rule 5A:18. As the Commonwealth appropriate ly points out, appellant not onl y failed to objectbut actually proffered this instruction to the trial court himself

. 3 Thus, the Commonwealth, relying on Rowe v. Commonwealth, 277 Va. 495, 502, 675 S.E.2d 161, 164 (2009), and Alford v. Commonwealth, 56 Va. App. 706, 696 S.E.2d 266 (2010), argues th at appellant has taken successive inconsistent positions in the course of litigation f rom which he now seeks to benefit on appeal. In Alford, 56 Va. App. at 709-10, 696 S.E.2d at 267 -68, this Court held: The approbate-reproba te doctrine is broader and more demanding than Rule 5A:18. The very fact t hat Alford “invited the error” (by agreeing the assault and batter y jury instruction should be giv en) renders Rule 5A:18’s ends-of-ju stice exception inapplicable. I t can hardly be a “grave injustice” to a defendant’s essential ri ghts for a trial court to give a n agreed-upon jury instruction on as sault and battery (a misdemeanor with a maximum sentence of twelve months) in a case where the defe ndant is charged with attempted rape (a felony with a sentenci ng range of two to ten years).

3 Appellant does not dispute thathe proffered the jury instruct ion. See Reply Brief at 5-6.- 13 - Similarly, in this case appellantasked the trial court to give this Virginia Model Jury Instruction No. 2.100 to the jury. T herefore, appellant cannot show that there is any “grave injustice” to his essential ri ghts when the trial court submitt ed an agreed-upon jury instruction that accurately sta tes the standard f or the jury to apply. Therefore, we conclude that we cannot invoke the ends of justi ce exception to Rule 5A:18 because appellant has failed to show a grave injustice by asking for the very jury instruction about which he now complains on appeal.
III. C ONCLUSION In summary, this Court holds th at a rational factfinder certai nly could have concluded that appellant’s acts caused B ailey’s death. We find that, eve n if the toxicology evidence of THC in Bailey’s system was err oneously excluded, that exclusionof it from evidence was harmless error because the expert acknowledged that there was n o evidence from the toxicology findings that showed whether Ba iley was impaired by the THC. W e conclude that the jury instruction on the de gree of intoxication a s a factor to consid er for criminal negligence was properly given to the jury because it stated the law clearly an d covered all of the issues fairly raised. Finally, we decline t o invoke the ends of justice exce ption to Rule 5A:18 because we find that appellant did not suffer a grave injustice because he was actually the individual who offered the jury instruction on r easonable doubt before complai ning about it now on appeal. Therefore, for all of these reas ons, we affirm appellant’s conv ictions for aggravated involuntary manslaughter in violation of C ode § 18.2-36.1(B) and felony hit -and-run in violation of Code § 46.2-894. Affirmed.