COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Benton, Coleman, Willis, 

 Elder, Bray, Annunziata, Bumgardner, Lemons and Frank 

Argued at Richmond, Virginia 

CHRISTOPHER SCOTT CONRAD 

 OPINION BY 

v. Record No. 0321-98-2 CHIEF JUDGE JOHANNA L. FITZPATRICK 

 NOVEMBER 30, 1999 

COMMONWEALTH OF VIRGINIA 

UPON A REHEARING EN BANC 

FROM THE CIRCUIT COURT OF HENRICO COUNTY 

L. A. Harris, Jr., Judge 

 Lee W. Kilduff (Morchower, Luxton & Whaley, 

on brief), for appellant. 

 Leah A. Darron, Assistant Attorney General 

(Mark L. Earley, Attorney General, on 

brief), for appellee. 

 Christopher Scott Conrad (appellant) appealed the trial 

court's conviction for involuntary manslaughter. Appellant 

argued that the evidence was insufficient to prove he acted in a 

criminally negligent manner. A panel of this Court agreed and 

reversed his conviction. See Conrad v. Commonwealth, 29 Va. 

App. 661, 514 S.E.2d 364 (1999). We granted the Commonwealth's 

request for rehearing en banc, and upon rehearing, we affirm 

appellant's conviction. 

I. 

 Under familiar principles of appellate review, we examine 

the evidence in the light most favorable to the Commonwealth, 
the prevailing party below, granting to it all reasonable 

inferences fairly deducible therefrom. See Juares v. 

Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997). 

The judgment of a trial court, sitting without a jury, is 

entitled to the same weight as a jury verdict and will not be 

set aside unless it appears from the evidence that it is plainly 

wrong or without evidence to support it. See Stevens v. 

Commonwealth, 14 Va. App. 238, 240, 415 S.E.2d 881, 882-83 

(1992). 

 So viewed, the evidence established that on May 11, 1997, 

at about 9:00 a.m., on Gayton Road in Henrico County, appellant 

fell asleep at the wheel of his automobile and drove off the 

road, striking and killing Judy Dahlkemper, who was jogging on 

the side of the road. Officer R.J. Smith (Smith) responded to 

the scene. Shortly after 11:00 a.m., after examining the 

physical evidence, Smith took appellant's statement. Smith 

described appellant as "extremely tired" with bloodshot eyes and 

a faint odor of alcohol about his person. 

- 2 -

 Appellant told Smith that he had last slept on May 10, the 

day before the accident, arising at 11:00 a.m. after six hours 

of sleep. It was not unusual for appellant to stay up for long 

periods of time because he had been working an irregular 

schedule at a retail store and playing in a band. On May 10, 

appellant worked a shift at the retail store, ran errands, 

practiced with his band and went to the home of a friend in 
Richmond. While at his friend's home, between about 11:00 p.m. 

and 1:30 a.m., appellant consumed about fifty ounces of beer.1 

He remained at his friend's home, awake and watching television, 

until about 8:45 a.m. on May 11, at which time he left to drive 

home. Appellant testified that he was not sleepy before he left 

for home and that it had not occurred to him that he might fall 

asleep on the drive home. 

 Appellant traveled about twenty minutes on Interstate 64 to 

Gaskins Road. As appellant exited Interstate 64, "he really got 

tired and felt himself going to sleep." Because he was only 

about five minutes or four-and-one-half miles from home, "he did 

not really want to stop." He reported to Officer Smith that "he 

ran off the road only after dozing off for a half second, caught 

himself drifting four or five times, still nodding, but said he 

would catch himself and said [he] would snap out of it." On 

Gayton Road, a little over one-half mile from his home, he fell 

asleep and heard a loud noise. He initially thought someone had 

hit his car with a bottle, but then he saw the body and stopped 

his vehicle. 

 1

 When Officer Smith first asked appellant whether he had 

consumed any alcohol, appellant said he had not. However, when 

Smith asked appellant for consent to test his blood for alcohol, 

appellant admitted his alcohol consumption. A blood test 

performed "a little after noon" on May 11 was negative for drugs 

or alcohol. During argument, the trial court commented, 

"[T]here's no evidence that his drinking . . . was the cause of 

[the accident]," and the court made no mention of appellant's 

drinking in finding him guilty. 

- 3 -

 
 Another driver on the road, Mary Elizabeth Harris (Harris), 

testified that she had been driving behind appellant, who was 

traveling at the forty-five mile-per-hour speed limit. 

Appellant traveled approximately two-tenths of a mile before 

Harris saw his car veer right into a turn lane and strike the 

jogger, Ms. Dahlkemper, who had been running, facing traffic, on 

the edge of the turn lane near the adjacent grass. Appellant's 

vehicle displayed no turn indicator and did not brake prior to 

impact. Officer Smith determined that Ms. Dahlkemper had been 

jogging eighteen inches from the edge of the pavement when she 

was struck, and he confirmed that appellant had not applied his 

brakes prior to impact. 

 At trial, appellant testified to substantially the same 

version of events that he had given to Officer Smith at the 

scene. Appellant stated that when he turned onto Gayton Road, 

he began to yawn, was "incredibly close to dozing off," and "was 

starting to kind of drift . . . in the road." However, he "[did 

not] recall" telling Officer Smith that he had caught himself 

about to doze off on four to five occasions prior to the 

accident and said he believed that he told Officer Smith he had 

done so only one or two times. He also said he had not gone off 

the road prior to the accident but had "com[e] [within] about 

. . . an inch [of] the line." 

- 4 -

 At the conclusion of the presentation of evidence by both 

parties, the trial court found that appellant's actions 
constituted a gross, wanton disregard for human life, stating 

the following: 

What I feel I have to do is look at the 

evidence under the law and see if . . . the 

conduct rises to the level of reckless 

driving or involuntary manslaughter. And I 

think the situation is this: 

* * * * * * * 

 You've got the fact that Mr. Conrad had 

been up for 22 hours. He chose to drive the 

car some distance, . . . a fairly long 

distance, and did okay, under the evidence, 

until he got off of [Interstate] 64. But I 

think that's where the problem comes. He 

got off of 64, and at that point, as 

described both to Officer Smith, as well as 

his own testimony today, . . . he felt 

himself just about going to sleep. And to 

an extent, as he very well described, his 

car just drifted over to the right, but he 

was able to catch it on four or five 

different occasions, as he told Officer 

Smith, and that he was, in fact, nodding in 

and out. 

 . . . And under those circumstances, 

he's driving after he's been up for 22 

hours, after he knows that he is about to 

fall asleep to an extent that it's affecting 

his operation of the motor vehicle. He 

chose to continue to drive for 45 miles an 

hour in the residential area, not that 

that's exceeding the speed limit, because it 

is not, but driving at that speed to try to 

get home. 

 And I think from the evidence that, at 

that time, that he was operating that motor 

vehicle in a state that he knew very well or 

should have known very well that he may, in 

fact, fall asleep. . . . 

- 5 -

(Emphasis added). The trial court concluded that appellant's 

conduct was "gross, wanton, and culpable, [and] showed a 
disregard for human life." Accordingly, the trial court 

convicted appellant of involuntary manslaughter, in violation of 

Code § 18.2-36. 

II. 

 When the sufficiency of the evidence is challenged on 

appeal, we determine whether the evidence, viewed in the light 

most favorable to the prevailing party below, and the reasonable 

inferences fairly deducible from that evidence support each and 

every element of the charged offense. See Moore v. 

Commonwealth, 254 Va. 184, 186, 491 S.E.2d 739, 740 (1997); Derr 

v. Commonwealth, 242 Va. 413, 424, 410 S.E.2d 662, 668 (1991). 

"In so doing, we must discard the evidence of the accused in 

conflict 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." Watkins v. 

Commonwealth, 26 Va. App. 335, 349, 494 S.E.2d 859, 866 (1998). 

We will not reverse the judgment of the trial court, sitting as 

the finder of fact in a bench trial, unless it is plainly wrong 

or without evidence to support it. See Martin v. Commonwealth, 

4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). 

- 6 -

 "[I]nvoluntary manslaughter in the operation of a motor 

vehicle [is defined] as an 'accidental killing which, although 

unintended, is the proximate result of negligence so gross, 

wanton, and culpable as to show a reckless disregard of human 

life.'" Greenway v. Commonwealth, 254 Va. 147, 154, 487 S.E.2d 
224, 228 (1997) (quoting King v. Commonwealth, 217 Va. 601, 607, 

231 S.E.2d 312, 316 (1977)). "[A] higher degree of negligence 

in the operation of a motor vehicle is required to establish 

criminal liability for involuntary manslaughter than to 

establish liability in a civil action for ordinary or even gross 

negligence. This higher degree of negligence has come to be 

known as 'criminal negligence.'" Keech v. Commonwealth, 9 Va. 

App. 272, 277, 386 S.E.2d 813, 816 (1989). 

"[Criminal negligence] must be more than 

mere inadvertence or misadventure. It is a 

recklessness or indifference incompatible 

with a proper regard for human life." 

Criminal negligence has also been defined as 

conduct "so gross, wanton, and culpable as 

to show a reckless disregard of human life," 

and conduct "so flagrant, culpable, and 

wanton as to show utter disregard of the 

safety of others under circumstances likely 

to cause injury," and conduct "so gross and 

culpable as to indicate a callous disregard 

of human life." 

Id. at 278, 386 S.E.2d at 816 (citations omitted). As we stated 

in Keech, "[t]hese various definitions make clear that the 

distinction between the negligence which will support a 

conviction of involuntary manslaughter involving the operation 

of a motor vehicle and the negligence that will merely support a 

civil action is one of degree." Id.

- 7 -

 "'The law recognizes three degrees of negligence, (1) 

ordinary or simple, (2) gross, and (3) willful, wanton and 

reckless.'" Tubman v. Commonwealth, 3 Va. App. 267, 270, 348 

S.E.2d 871, 873 (1986) (quoting Griffin v. Shively, 227 Va. 317, 
321, 315 S.E.2d 210, 212 (1984)). Ordinary negligence is 

"failure to use 'that degree of care which an ordinarily prudent 

person would exercise under the same or similar circumstances to 

avoid injury to another.'" Id. at 271, 348 S.E.2d at 873 

(quoting Griffin, 227 Va. at 321, 315 S.E.2d at 212-13). Gross 

negligence "is a manifestly smaller amount of watchfulness and 

circumspection than the circumstances require of a person of 

ordinary prudence. . . . It falls short of being such reckless 

disregard of probable consequence as is equivalent to a willful 

and intentional wrong." Newell v. Riggins, 197 Va. 490, 495, 90 

S.E.2d 150, 153 (1955) (citation omitted). Finally, criminal or 

willful and wanton negligence "'"involves a greater degree of 

negligence than gross negligence, particularly in the sense that 

in the former an actual or constructive consciousness of the 

danger involved is an essential ingredient of the act or 

omission."'" Tubman, 3 Va. App. at 271, 348 S.E.2d at 873 

(quoting Griffin, 227 Va. at 321-22, 315 S.E.2d at 213 (quoting 

Boward v. Leftwich, 197 Va. 227, 231, 89 S.E.2d 32, 35 (1955))). 

- 8 -

 Criminal negligence as the basis for involuntary 

manslaughter is judged under an objective standard and, 

therefore, may be found to exist where the offender either knew 

or should have known the probable results of his acts. See

Keech, 9 Va. App. at 279, 386 S.E.2d at 817 (citing Bell v. 

Commonwealth, 170 Va. 597, 611-12, 195 S.E. 675, 681 (1938)). 

Thus, criminal negligence "'is acting consciously in disregard 
of another person's rights or acting with reckless indifference 

to the consequences, with the defendant aware, from his 

knowledge of existing circumstances and conditions, that his 

conduct probably would cause injury to another.'" Tubman, 3 Va. 

App. at 271, 348 S.E.2d at 873 (emphasis added) (quoting 

Griffin, 227 Va. at 321, 315 S.E.2d at 213; Friedman v. Jordan, 

166 Va. 65, 68, 184 S.E. 186, 187 (1935)). 

 We have not addressed whether a driver who previously has 

fallen asleep while driving and who subsequently, during that 

same trip, again falls asleep causing an injury or death is 

guilty of involuntary manslaughter. However, our decision in 

Hargrove v. Commonwealth, 10 Va. App. 618, 394 S.E.2d 729 

(1990), provides some guidance. In Hargrove, the defendant fell 

asleep while driving home after working the 

midnight-to-8:00-a.m. shift, striking and killing a pedestrian 

who was walking across the highway. See id. at 620, 394 S.E.2d 

at 730-31. The defendant made a statement at the accident scene 

that he was "extremely tired," he dozed off "for one second" and 

the accident occurred. Id. at 620, 394 S.E.2d at 731. 

- 9 -

 We noted in Hargrove that courts in other states have found 

that "when a driver falls asleep and causes death a jury issue 

is created on the issue of whether it constituted involuntary 

manslaughter." Id. at 621, 394 S.E.2d at 731 (citations 

omitted). However, in reversing Hargrove's conviction for 

involuntary manslaughter, we concluded that the evidence failed 
to show that he should have known that his conduct constituted a 

reckless disregard for human life. We wrote: 

In this case, all the record shows about 

Hargrove is that he had worked the previous 

night and was "extremely tired" and in need 

of sleep. We do not know . . . that 

Hargrove should have known that it was not 

improbable that he would fall asleep during 

his travel from the workplace to home. . . . 

In this case, the record is devoid of 

evidence as to the distance or time it would 

have required Hargrove to drive from work to 

home. . . . The evidence does not exclude 

the reasonable hypothesis that, although 

Hargrove had worked all night, he had not 

fallen asleep, had not previously dozed 

during the trip before the accident, and, 

although tired and in need of sleep and 

having only a short distance or a trip of a 

few minutes to reach his home, he could 

reasonably have believed that he could 

negotiate his vehicle a short distance 

without endangering human life. 

Id. at 621-22, 394 S.E.2d at 731-32 (emphasis added). Thus, we 

recognized in Hargrove that if the defendant "had been operating 

his vehicle for a number of hours in a tired and sleepy 

condition, or while in such a state undertook a trip of such a 

substantial distance or time that he should have known he might 

fall asleep, the evidence might support a finding that he was 

acting in reckless disregard for human life." Id. at 621-22, 

394 S.E.2d at 731. 

 Our Supreme Court has recently enunciated the following 

principles of appellate review in a voluntary manslaughter case: 

- 10 -

When a defendant challenges on appeal the 

sufficiency of the evidence to sustain his 

conviction, it is the duty of an appellate 
court to examine the evidence that tends to 

support the conviction and to permit the 

conviction to stand unless the conviction is 

plainly wrong or without evidentiary 

support. If there is evidence to support 

the conviction, an appellate court is not 

permitted to substitute its own judgment for 

that of the finder of fact, even if the 

appellate court might have reached a 

different conclusion. 

 

 Additionally, upon appellate review, 

the evidence and all inferences reasonably 

deducible therefrom must be examined in the 

light most favorable to the Commonwealth, 

the prevailing party in the trial court. 

Any evidence properly admitted at trial is 

subject to this review. 

Presley v. Commonwealth, 256 Va. 465, 466-67, 507 S.E.2d 72, 72 

(1998) (citations omitted). 

 Adhering to these well established principles, we conclude 

the evidence was sufficient to prove criminal negligence on 

appellant's part. Indeed, the facts of the instant case were 

almost presciently stated in Hargrove, where we noted that had 

the evidence in that case shown a propensity to fall asleep or 

nod off while driving, such evidence could support a finding 

that the accused was "acting in reckless disregard for human 

life." Hargrove, 10 Va. App. at 621-22, 394 S.E.2d at 731-32. 

Here, appellant had been up for twenty-two hours without sleep 

and chose to drive his vehicle "a fairly long distance" to his 

home in the early morning. After he exited the interstate onto 

Gaskins Road, he "really got tired" and "felt himself going to 

sleep" but did not want to stop because he was only five minutes 

- 11 -
from home. Appellant told Officer Smith that "he nodded in and 

out, . . . he ran off the road only after dozing off for a half 

second, caught himself drifting four or five times, still 

nodding, but . . . he would catch himself and . . . he would 

snap out of it." The trier of fact accepted the Commonwealth's 

evidence that appellant had dozed off four or five times prior 

to the impact with the victim. See Montgomery v. Commonwealth, 

221 Va. 188, 190, 269 S.E.2d 352, 353 (1980) (per curiam) 

("[E]ven if the defendant's story was not inherently incredible, 

the trier of fact need not have believed the explanation."). 

 Under the circumstances of this case, we conclude that 

sufficient evidence supports the trial court's finding that 

appellant should have known that his "dozing off" four or five 

times affected his driving abilities and, therefore, should have 

known of the risks that his driving conduct created. See Keech, 

9 Va. App. at 279, 386 S.E.2d at 817 (noting that criminal 

negligence is framed "in terms of a great risk of injury coupled 

with an objective awareness of that risk on the part of the 

offender"). We also conclude that appellant's decision to 

continue driving in such an impaired state was a callous act of 

indifference to the safety of others. Accordingly, appellant's 

involuntary manslaughter conviction is affirmed. 

 Affirmed.

- 12 -
Elder, J., with whom Benton, Coleman and Annunziata, JJ., join, 

 dissenting. 

 I disagree with the majority's legal conclusion. I would 

hold that the evidence is insufficient, as a matter of law, to 

support an involuntary manslaughter conviction. I believe the 

evidence fails to support a finding that appellant knew or 

should have known that driving no more than five minutes to his 

home once he became sleepy was "'likely to cause injury'" and 

that his failure to stop under such circumstances was "'so gross 

and culpable as to indicate a callous disregard of human life.'" 

Keech v. Commonwealth, 9 Va. App. 272, 278, 386 S.E.2d 813, 816 

(1989) (citations omitted). Therefore, I respectfully dissent. 

 The Virginia Supreme Court has acknowledged that "the 

application of distinctions between [the various] degrees of 

negligence [recognized by the law] is frequently difficult to 

apply." Town of Big Stone Gap v. Johnson, 184 Va. 375, 379, 35 

S.E.2d 71, 73 (1945). Although the majority correctly sets 

forth the general principles of law governing the crime of 

involuntary manslaughter, I consider it helpful to further 

clarify the distinctions. Ordinary negligence is "failure to 

use 'that degree of care which an ordinarily prudent person 

would exercise under the same or similar circumstances to avoid 

injury to another.'" Tubman v. Commonwealth, 3 Va. App. 267, 

271, 348 S.E.2d 871, 873 (1986) (quoting Griffin v. Shively, 227 

Va. 317, 321, 315 S.E.2d 210, 212-13 (1984)). Gross negligence 

- 13 -
"is a manifestly smaller amount of watchfulness and 

circumspection than the circumstances require of a person of 

ordinary prudence." Newell v. Riggins, 197 Va. 490, 495, 90 

S.E.2d 150, 153 (1955). It is "that degree of negligence which 

shows indifference to others as constitutes an utter disregard 

of prudence . . . . It must be such a degree of negligence as 

would shock fair minded men although something less than willful 

recklessness[, i.e., criminal negligence]." Ferguson v. 

Ferguson, 212 Va. 86, 92, 181 S.E.2d 648, 653 (1971) (emphasis 

added). Finally, criminal or willful and wanton negligence is 

"'[m]arked by or manifesting arrogant recklessness of justice, 

of the rights or feelings of others, . . . merciless; 

inhumane.'" Forbes v. Commonwealth, 27 Va. App. 304, 310, 498 

S.E.2d 457, 459 (1998) (citation omitted) (emphasis added). 

- 14 -

 These distinctions establish that criminal responsibility 

cannot be predicated upon every act carelessly performed merely 

because the carelessness results in the death of another. 

Rather, the negligence must be of such a high degree of 

"carelessness or recklessness" that the act of commission or 

"'omission must be one likely to cause death.'" Goodman v. 

Commonwealth, 153 Va. 943, 948, 151 S.E. 168, 169 (1930) 

(citation omitted) (emphasis added). For example, it is settled 

law in Virginia that "[a]nyone who falls asleep while operating 

an automobile on a public road is guilty of a degree of 

negligence exceeding lack of ordinary care." Kennedy v. 
Commonwealth, 1 Va. App. 469, 473, 339 S.E.2d 905, 907-08 

(1986); see Newell, 197 Va. at 494, 90 S.E.2d at 152 (in civil 

context, observing "fact that [a driver] who permits himself to 

go to sleep while driving is sufficient to make out a prima

facie case of want of due and proper care"). Such behavior also 

may be "sufficient to find the operator guilty of the offense of 

reckless driving." Kennedy, 1 Va. App. at 473, 339 S.E.2d at 

907-08 (upholding reckless driving conviction where driver 

admitted he had been sleepy fifteen minutes before unexplained 

accident and evidence established that family had been on the 

road for eight hours and that vehicle left no skid marks or 

other evidence of braking prior to running off the road). 

However, such evidence, standing alone, proves no more than 

ordinary negligence or reckless driving and will not support a 

finding of criminal negligence required for an involuntary 

manslaughter conviction. See King v. Commonwealth, 217 Va. 601, 

605-06, 231 S.E.2d 312, 316 (1977) (citing Richardson v. 

Commonwealth, 192 Va. 55, 63 S.E.2d 731 (1951)). 

- 15 -

 A conviction for reckless driving requires proof of driving 

"on a highway recklessly or at a speed or in a manner so as to 

endanger the life, limb, or property of any person." Code 

§ 46.2-852. Violation of this statute "is insufficient to bring 

the negligent act within the common law definition of 

manslaughter unless it is so flagrant, culpable, and wanton as 

to show utter disregard of the safety of others under 
circumstances likely to cause injury." King, 217 Va. at 605-06, 

231 S.E.2d at 316; see also Darnell v. Commonwealth, 6 Va. App. 

485, 489-92, 370 S.E.2d 717, 719-21 (1988) (applying King

rationale to violation of statute prohibiting reckless handling 

of firearm and rejecting argument that such reckless handling 

equates to recklessness required to prove criminal negligence 

element of involuntary manslaughter). King clearly 

distinguishes between acts which constitute reckless driving and 

acts of recklessness which constitute involuntary manslaughter. 

 Some states provide by statute that certain acts 

proximately causing death are crimes. See King, 217 Va. at 

605-06, 231 S.E.2d at 316 (citing Annotation, 20 A.L.R.3d 473 

(1968)). Virginia's legislature has enacted such a statute, 

providing that an unintentional death which results from an act 

of driving under the influence in violation of specified 

portions of Code § 18.2-266 constitutes involuntary 

manslaughter. See Code § 18.2-36.1. Such a conviction requires 

no proof that "the conduct of the defendant was so gross, wanton 

and culpable as to show a reckless disregard for human life," 

and if the Commonwealth makes such a showing, the defendant is 

subject to greater punishment for "aggravated involuntary 

manslaughter." Id. The legislature, however, has not provided 

that death resulting from falling asleep while driving 

constitutes involuntary manslaughter as a matter of law. 

- 16 -
 To make such a finding, a court must conclude that the act 

of negligence proximately causing the death would do more than 

"shock fair minded men," the language of the standard for gross 

negligence. See Ferguson, 212 Va. at 92, 181 S.E.2d at 653. 

Instead, it must be negligence "so flagrant, culpable, and 

wanton as to show utter disregard of the safety of others under 

circumstances likely to cause injury." King, 217 Va. at 605-06, 

231 S.E.2d at 316 (emphasis added). As quoted above, we have 

previously characterized criminal negligence as "'manifesting 

[an] arrogant recklessness of justice'" and rising to the level 

of being "'merciless'" or "'inhumane.'" Forbes, 27 Va. App. at 

310, 498 S.E.2d at 459 (citation omitted) (emphasis added). In 

assessing the degree of negligence involved, a court must 

consider all "existing circumstances and conditions." Tubman, 3 

Va. App. at 271, 348 S.E.2d at 873. 

- 17 -

 I do not believe the evidence supports a finding that 

appellant acted mercilessly or inhumanely when he concluded, 

albeit incorrectly, that he could safely complete his trip to 

his home, which was only four-and-one-half miles away when he 

first became sleepy. In affirming appellant's conviction, the 

majority relies in part on this Court's decision in Hargrove v. 

Commonwealth, 10 Va. App. 618, 394 S.E.2d 729 (1990). It 

observes that the facts of appellant's case "were almost 

presciently stated in Hargrove, where we noted that had the 

evidence . . . shown a propensity to fall asleep or nod off 
while driving, such evidence could support a finding that the 

accused was 'acting in reckless disregard for human life.'" In 

reversing the involuntary manslaughter conviction in Hargrove, 

we held: 

[T]he evidence does not exclude the 

reasonable hypothesis that, although 

Hargrove had worked all night, he had not 

fallen asleep, had not previously dozed 

during the trip before the accident, and, 

although tired and in need of sleep and 

having only a short distance or a trip of a 

few minutes to reach his home, he could 

reasonably have believed that he could 

negotiate his vehicle a short distance 

without endangering human life. 

Id. at 622, 394 S.E.2d at 731-32. I believe the majority 

erroneously utilizes Hargrove to support its holding. 

 First, we did not hold in Hargrove that a driver's 

"[having] previously dozed during the trip before the accident" 

mandated a finding, or even was sufficient to support a finding, 

that the driver was on notice that he would fall asleep again, 

causing injury to another, before reaching his destination. See

id. at 622, 394 S.E.2d at 732. Even if we purported to make 

such a finding in Hargrove, it would have been dicta, for no 

evidence indicated that Hargrove, in fact, had previously fallen 

asleep during his travel from work to home. The facts in 

Hargrove proved only that Hargrove knew he was sleepy before 

leaving for home, which we found insufficient to prove the 

criminal negligence necessary to support an involuntary 

- 18 -
manslaughter conviction. See id. at 621-22, 394 S.E.2d at 

731-32. 

 Second, Hargrove erroneously attempted to distinguish the 

events in Hargrove from those in Kennedy v. Commonwealth, 1 Va. 

App. 469, 339 S.E.2d 905 (1986). See Hargrove, 10 Va. App. at 

621-22, 394 S.E.2d at 731-32. In Kennedy, we affirmed a 

conviction for reckless driving upon evidence establishing that 

Kennedy knew he was tired and subsequently fell asleep at the 

wheel, running off the road. See Kennedy, 1 Va. App. at 472-73, 

339 S.E.2d at 907-08. However, no death resulted from Kennedy's 

reckless driving, and we had no occasion to consider whether 

Kennedy's acts amounted to criminal negligence. See King, 217 

Va. at 605-06, 231 S.E.2d at 316 (holding that reckless driving 

conviction does not require proof of criminal negligence). 

Therefore, Hargrove's attempt to distinguish Kennedy also is 

dicta and does not control the outcome of this case.2

 

- 19 -

2

 In Hargrove, in its unnecessary effort to distinguish the 

facts in Kennedy, the panel noted that Kennedy involved a driver 

who "knew he was fatigued and sleepy and had been driving 

several hours in that condition before the accident." Hargrove, 

10 Va. App. at 621, 394 S.E.2d at 731. However, the opinion in 

Kennedy does not support the assertion that Kennedy "had been 

driving several hours in [a fatigued and sleepy] condition." 

Although Kennedy had napped earlier and had been driving for 

several hours, the only evidence described in the opinion 

regarding fatigue in the period of time leading up to the 

accident indicated that appellant "had pulled into a rest stop 

fifteen minutes earlier to take a nap because he was sleepy" but 

that he felt refreshed and capable of proceeding after simply 

walking around. See Kennedy, 1 Va. App. at 470-72, 339 S.E.2d 

at 906-07. 
 Third, the language in Hargrove necessary to the decision 

in that case does not support the result the majority reaches. 

Had appellant fallen asleep and struck the jogger immediately 

after exiting Interstate 64 onto Gaskins Road before becoming 

tired, he would have been no more culpable than Hargrove and 

perhaps even less so. Hargrove knew he was tired before he 

dozed off and struck the pedestrian, and the record did not 

establish how far he had to drive. See Hargrove, 10 Va. App. at 

621, 394 S.E.2d at 731. Appellant, however, was not tired until 

he reached a point only five minutes from home. Therefore, when 

appellant exited Interstate 64, "he could reasonably have 

believed that he could negotiate his vehicle a short distance 

without endangering human life." See id. at 622, 394 S.E.2d at 

732. Of course, the evidence establishes that, after appellant 

exited the interstate, he became sleepy and felt himself "[run] 

off the road . . . after dozing off for [only] a half second." 

However, to conclude that appellant acted mercilessly or 

inhumanely in failing to pull over the instant he felt himself 

doze would be to ignore other "existing circumstances and 

conditions" in the case. Those other circumstances indicate 

that appellant, who was less than five minutes from home at that 

point, "caught himself drifting four or five times" but was able 

to "catch himself and . . . snap out of it" on each occasion. 

Thereafter, for about two-tenths of a mile before leaving the 

- 20 -
road and striking the jogger, appellant maintained the speed 

limit and engaged in no weaving or other erratic driving. 

 Although appellant testified he was not sleepy before he 

left his friend's home, the trial court was entitled to 

disbelieve and reject appellant’s testimony. See Speight v. 

Commonwealth, 4 Va. App. 83, 88, 354 S.E.2d 95, 98 (1987) (en

banc). However, rejecting that explanation did not provide 

affirmative evidence that appellant was, in fact, sleepy before 

he left his friend's home. Therefore, the evidence, viewed in 

the light most favorable to the Commonwealth, did not exclude 

the reasonable hypothesis that appellant became sleepy, as he 

told Officer Smith, only after leaving Interstate 64, when he 

was only five minutes from home. Under all these circumstances, 

I cannot conclude that appellant knew or should have known that 

his conduct in proceeding the short distance to his home "likely 

would cause injury to another" or that he acted mercilessly or 

inhumanely in failing to stop. That his conduct did, in fact, 

result in death is tragic and may constitute ordinary or even 

gross negligence, but it does not, without more, support a 

finding of criminal negligence. 

 For these reasons, I would reverse appellant's conviction. 

- 21 -