COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Huff, Judge Decker and Senior Judge Clements Argued at Richmond, Virginia

JOSHUA MICAH LILLARD MEMORANDUM OPINION * BY v. Record No. 1063-14-2 JUDGE JEAN HARRISON CLEMENTS JULY 14, 2015 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF SPOTSYLVANIA COUNTY J. Howe Brown, Jr., Judge Designate Joseph E. Hicks (Jarrell, Hick s & Waldman, P.C. , on brief), for appellant. Susan Mozley Harris, Assistant A ttorney General (Mark R. Herring, Attorney General, on brief), for appellee.

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication. Appellant appeals his conviction of reckless driving. Appellant cont ends he was wrongly convicted because the trial court erred in finding he “should have known” he was involved in an accident, even though the trial c ourt acquitted him of fe lony hit and run and found him to be a credible witness. Finding the record supports the trial court’s rulings, we affirm the conviction. Background Appellant was driving his trac tor trailer southbound on Inte rstate 95. Susan and David Fanfarillo were in their Volvo, also travelling on Interstate 95. The Fanfar illos testified Susan was driving in the center lane when they heard and felt a “big ba ng” at the rear end of the driver’s side of the car. They stated the car turn ed perpendicular to the highway an d was being pushed by a tractor trailer truck. Their car separated from the truck and began to spin acr oss the left lane. Their vehicle hit another car, driven by Terry Rosvall, and their ca r continued to spin until it came to rest on theUNPUBLISHED- 2 - left-hand shoulder. David surmised appellant was in the left lane and clipped the rear driver’s side quarter of their car as appellant was maneuvering into the center lane. Rosvall testified he was travelling in the left lane when he heard wh at sounded like a collision behind him. He looked to the rear right to see what happ ened. He saw th e Fanfarillos’ car spinning toward his vehicl e. Their car hit his vehicle in the left lane, and his car spun across the three lanes of traffic until it came to rest on the right shoulder of the highway. Rosvall stated the Fanfarillos’ car was in the “middle lane.” The witnesses stated the truck continued trav elling south on the hi ghway without stopping or braking. Trooper Robert Hindenlang testifie d he investigated the accident and spoke with appellant at a nearby truck stop. Hindenlang poin ted out damage to the truck, which included green paint consistent with the Fanfarillos’ car and tire sm ears. Appellant stated that he was unaware he had been in an accident, but conceded that the damage to hi s truck had not been there when he started his trip that morning and that he must have had some kind of accident. After speaking with the witnesses and assessing the damage to the vehicles, the trooper concluded appellant was travelling in the left lane and hit the Fanfarill os’ car as he was moving into the center lane. Hindenlang introduced photographs of appellant’s truck, one of wh ich closely depicted damage to the truck’s front right bumper and headlight, as well as pa int transfer, consistent with contact with the Fanfarillos’ vehicle. Appellant testified he had been travelling southbound and stop ped at the truck stop for his mandatory break. Appellant stated th at he would not be in the left lane because he knows trucks are prohibited in the left lane and that he would get a ticket . Appellant explained, and admitted photographs that showed, the blind spots on his truck are such that he would not see a car in the areas the Fanfarillos’ car would have been. Appellant claimed if he had known ab out the accident, he would have stopped.- 3 - The trial court found th at there was not sufficient evidence to prove appellant knew that the accident occurred to support the fel ony hit and run charge. Therefore, the trial court found appellant not guilty of the felony . However, the trial court also concluded the accident happened exactly as the Commonwealth’s witnesses said it did . . ., but I ca nnot find beyond a reasonable doubt that he did know and ran from the scene. His actions afte r that are not really consistent with one running from the s cene. . . . The reckless driving is another question. Driving down the road oblivious to these kinds of things that are happening to you in a huge tractor trailer truck is endangering the public and he is guilty of re ckless driving. The trial court convi cted appellant of reckless driving. Analysis In this Court’s review of the sufficiency of the evidence we must uphold the convi ction unless it was plainly wrong or lacked evidence to support it. See, e.g., Hamilton v. Commonwealth, 279 Va. 94, 103, 688 S. E.2d 168, 173 (2010) . Additionally, on appellate review, this Court “exami ne[s] the evidence in the light most favorable to the Commonwealth , granting to it all reasonable inferences fairly deducible” fr om that evidence. Crest v. Commonwealth, 40 Va. Ap p. 165, 168, 578 S.E. 2d 88, 89 (2003). To do so, we “‘discard the evidence of the accused in conflict with that of the Commonwealth, and rega rd as true all the credible evidence favorable to the Commonwea lth and all fair inferences that may be drawn therefrom.’” Id. at 168, 578 S.E.2d at 89 (quoting Watkins v. Commonwealth, 26 Va. Ap p. 335, 348, 494 S.E.2d 859, 866 (1998)). Blevins v. Commonwealth, 63 Va. App. 628, 634, 762 S.E.2d 396, 398-99 (2014) (citations omitted). Code § 46.2-852 states: “ Irrespective of the maximum speeds permitted by la w, any person who drives a vehicle on any highwa y recklessly or at a speed or in a manner so as to endanger the life, limb or property of any person shall be guilty of reckless driving.” The term “‘recklessly . . . imparts a di sregard by the driv er . . . for the consequences of his act and an indiff erence to the safe ty of life, limb, or property.’” Spencer [v. City of Norfolk, 271 Va. 460, 463, 628 S.E.2d 356, 358 (2 006)] (alterations in or iginal) (quoting Powers v. Commonwealth, 211 Va. 386, 388, 177 S.E.2d 628, 630 (1970)).- 4 - “The essence of the offence of reck less driving lies no t in the act of operating a vehicle, but in the manner and circum stances of its operation.” Powers, 211 Va. at 38 8, 177 S.E.2d at 630. Factors tending to show recklessness include . . . “the likelihood of injury to other users of the highways,” lack of control of the vehicle, . . . “dangerous driving behavior,” . . . and noncompliance with traffic markers. Id. at 635, 762 S.E.2d at 399 (citations omitted). Appellant conceded he was involved in th e accident, though he was unaware that it occurred. The trial court determined the eviden ce did not prove beyond reasonable doubt that appellant knew the accident occurred. However, th e trial court could furthe r consider whether the manner and circumstances of appellant’s driving we re reckless. In making that determination, the trial court clearly rejected appellant ’s claim that he was no t driving in the left lane. This Court will not disturb that finding. The trier of fact is not re quired to accept a party’s evidence in its entirety, Barrett v. Commonwealth, 23 1 Va. 102, 107, 341 S.E.2d 190, 193 (1986), but is free to believe and disbelieve in part or in whole the testimony of any witness, Roll ston v. Commonwealth, 11 Va. App. 535, 547, 399 S. E.2d 823, 830 (1991). The trial court determ ined that the accident happened in the way th e Commonwealth’s witnesses testified. The trooper’s photographs de monstrated that the truc k hit the Fanfarillos’ vehicle at the front right of the tr uck. Despite appellant’s claim to the contrary, and consistent with the Fanfarillos’ testimony, th e evidence showed appellan t was travelling in the left lane, in violation of Code § 46.2-803.1. The trial court reasonably conclude d that appellant was driving in a prohibited lane of travel . Further, appellant ack nowledged that the Fanfarillos’ car had to be in his blind spot. Failing to keep watch of surrounding vehicles moving into a tr actor trailer’s blind spots endangers the lives of othe rs. By not ensuring a cl ear pathway to change lanes, while travelling at sixty-five miles-per-hour in a trac tor trailer, appellant drove his truck in a dangerous manner that- 5 - was likely to cause injury to others. Therefor e, the manner and circum stances of appellant’s operation of the tractor trailer proved he was driving recklessly. Accordingly, the evidence supp orted the trial court’s findings and the conviction for reckless driving is affirmed. Affirmed.