COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Fitzpatrick and Overton 

Argued at Salem, Virginia 

ROGER DALE SNODY 

v. Record No. 1104-95-3 MEMORANDUM OPINION* BY 

 JUDGE JERE M. H. WILLIS, JR. 

COMMONWEALTH OF VIRGINIA APRIL 23, 1996 

 FROM THE CIRCUIT COURT OF THE CITY OF MARTINSVILLE 

David V. Williams, Judge 

 Wayne T. Baucino (Office of the Public 

Defender, on brief), for appellant. 

 Monica S. McElyea, Assistant Attorney General 

(James S. Gilmore, III, Attorney General; 

Thomas C. Daniel, Assistant Attorney General, 

on brief), for appellee. 

 On appeal from a felony conviction for driving after having 

been declared an habitual offender in violation of Code 

§ 46.2-357(B)(2), Roger Dale Snody contends that the evidence 

supports only a conviction for a misdemeanor under Code 

§ 46.2-357(B)(1). We agree and reverse the felony sentence and 

remand the case for a misdemeanor conviction and resentencing. 

 On October 8, 1994, Officer Ross "heard a car with its 

engine racing and then heard tires break traction for several 

seconds." At the time, Ross was outside his car. He walked 

around his car for a better view and "saw a cloud of tire smoke" 

and a Monte Carlo with its brake lights on at the intersection of 

Moss and Market Streets. 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
- 2 - 

 Officer Ross pursued the car and pulled it over. Snody was 

driving and a passenger occupied the front seat. Ross discovered 

that Snody had been adjudicated an habitual offender. Ross 

testified that Snody told him that he had spun his tires to get 

away from some trouble on Moss Street. Ross testified that he 

saw no other vehicles on the street, that Snody did not deviate 

from his lane of traffic, and that he did not come close to 

hitting any other car, or property, or person. 

 At trial, Snody moved to reduce the charge to a misdemeanor 

on the ground that his driving did not endanger the life, limb, 

or property of another. The trial court denied this motion and 

found that Snody's driving endangered his passenger. The trial 

court convicted Snody of violating Code § 46.2-357(B)(2) and 

imposed a felony sentence. 

 "The distinction between negligent driving and reckless 

driving is the critical element in determining punishment under 

Code § 46.2-357." Bishop v. Commonwealth, 20 Va. App. 206, 

210-11, 455 S.E.2d 765, 767 (1995). Code § 46.2-357(B)(2) states 

in pertinent part: 

 If such driving, of itself, does endanger the 

life, limb, or property of another, such 

person shall be guilty of a felony . . . . 

 The evidence fails to prove that Snody's driving endangered 

the life, limb, or property of another. Mere rapid acceleration, 

with a spinning of wheels, over a short course that involved no 

other vehicle or property and proposed no hazard of accident, did 
- 3 - 

not actually create such a danger. Thus, the evidence does not 

support the imposition of a felony sentence. The evidence does, 

however, prove beyond a reasonable doubt the elements of Code 

§ 46.2-357(B)(1). We remand this case to the trial court for 

conviction of a misdemeanor and appropriate sentencing. 

 Reversed and remanded.