COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Senior Judge Cole 

Argued at Richmond, Virginia 

JAMES LEROY FORBES 

 OPINION BY 

v. Record No. 0113-97-2 JUDGE MARVIN F. COLE 

 MAY 5, 1998 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF HANOVER COUNTY 

Richard H. C. Taylor, Judge 

 Brenda L. Page (Tracey Randall Dunlap; Page & 

Associates, on brief), for appellant. 

 Michael T. Judge, Assistant Attorney General 

(Richard Cullen, Attorney General, on brief), 

for appellee. 

 James Leroy Forbes was convicted in a bench trial of 

involuntary manslaughter arising out of a traffic accident. On 

appeal, he contends the evidence was insufficient to support the 

conviction and that his sentence was excessive and improper 

because it was based on stale and unsubstantiated prior 

convictions. We agree that the evidence was insufficient to 

support the conviction and reverse. Because we reverse the 

conviction on the sufficiency issue, we need not decide the other 

issue. 

FACTS

 The evidence is essentially undisputed. On March 24, 1996, 

at about 4:00 a.m., the victim's car was stopped at a stop sign 

located at the end of an exit ramp off Interstate 95 near 

Ashland, Virginia. Forbes drove his car into the rear of the 
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victim's car, killing the victim. At the scene of the accident, 

and shortly after the accident occurred, Forbes asked Deputy 

Wickham "where he was, what had happened and why he was there." 

On the way to the hospital, Forbes told Wickham that he was 

diabetic and that he possibly could have "blacked out." Forbes 

also said he had experienced black-outs before. A blood alcohol 

test performed at the hospital after the accident showed no 

alcohol in Forbes' blood. No evidence was presented to prove 

Forbes' blood sugar level after the accident. 

 While in the hospital, Forbes told Deputy Smith that he had 

experienced diabetic black-outs on two or three other 

occasions--one in 1995 and one or two in 1994. Forbes said he 

had experienced no black-outs in 1996 until the accident on March 

24, 1996. Forbes also told Smith that he had never experienced a 

black-out while driving. 

 Forbes has been a diabetic for "thirty-some" years. At 

trial, Forbes testified that, on the morning of March 23, 1996, 

he awoke, took his insulin, and ate breakfast. He checked his 

blood sugar level at about 5:00 p.m. and found that it was 

"okay." He then took his insulin, ate supper, and drove from his 

residence in eastern Richmond to a friend's house on the south 

side of Richmond. 

 Forbes testified that, at about 11:00 or 11:30 p.m., he ate 

several chicken wings and drank a seven-ounce beer. He fell 

asleep until about 2:30 a.m., and, when he awoke, he felt "a 
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little woozy." Forbes testified that he ate "a couple of mints," 

drank a glass of orange juice, and sat down for about fifteen 

minutes. Forbes stated that he then felt "fine" and entered his 

car to drive home. As he warmed up his car, his friend, Mozelle 

Carter, brought him two more mints, which he ate. Forbes again 

told Carter that he felt "fine," and he started driving toward 

his home. 

 Forbes recalled driving on Jefferson Davis Highway, crossing 

the James River on the Lee Bridge, and seeing the Second Street 

exit. He did not recall anything else until after the accident. 

 Carter testified that she awoke Forbes at about 1:45 a.m. on 

March 24, 1996 and that Forbes said he felt "a little woozy" when 

he awoke. She gave Forbes two mints, and he walked to his car. 

Carter asked Forbes how he was feeling, and he said, "I'm fine, 

I'm fine." He then requested several more mints. Carter 

testified that Forbes ate the mints, and she gave him two more 

mints. Forbes again told Carter he felt fine, and he drove away. 

 Carter stated that Forbes "was driving fine" as he drove away 

from her house. 

 Dr. Randolph Palmore, Forbes' physician since January 1994, 

testified that he never instructed Forbes not to drive or advised 

Forbes that it would be hazardous to drive. Dr. Palmore also 

stated that he had no record that Forbes told him he had suffered 

black-outs. He did not know whether Forbes had "any diabetic 

reactions." 
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 Forbes' last visit with Dr. Palmore prior to the accident 

was on February 21, 1996. At that visit, Dr. Palmore said 

Forbes' "sugar was stable, and there were no changes made in his 

insulin." Dr. Palmore saw Forbes again on March 29, 1996, five 

days after the accident, and adjusted his insulin at that visit. 

 Dr. John Nestler treated Forbes on March 25, 1996, when 

Forbes was in the hospital after the accident. Dr. Nestler said 

Forbes told him he knew he was having a low blood sugar reaction 

on March 24, 1996 because he felt "confused" and woozy prior to 

driving his car. However, Forbes said he felt better after 

resting and eating mints. Dr. Nestler also testified that most 

diabetics go through two "stages" when they develop a low blood 

sugar attack. In the first stage, they release adrenalin, get 

nervous, have heart palpitations, shakiness and headaches. In 

the second stage, the patient experiences confusion. Dr. Nestler 

said that, based on his interview with Forbes concerning his low 

blood sugar attacks, he "clearly doesn't have that first phase. 

So he doesn't have those warning signs that most diabetic 

patients have. He goes straight into confusion, and that's 

something that's termed hypoglycemia unawareness." 

 Dr. Nestler also testified that he usually advises his 

patients to consume mints or drink one-half of a glass of orange 

juice, wait one-half hour, and check their blood sugar when they 

experience a low blood sugar episode. 

ANALYSIS
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 "To constitute involuntary manslaughter, the negligence 

[involved] must be criminal and not ordinary civil negligence. 

'Inadvertent acts of negligence without recklessness, while 

giving rise to civil liability, will not suffice to impose 

criminal responsibility.'" Tubman v. Commonwealth, 3 Va. App. 

267, 274, 348 S.E.2d 871, 875 (1986) (quoting King v. 

Commonwealth, 217 Va. 601, 606, 231 S.E.2d 312, 316 (1977)). In 

King, the Supreme Court defined involuntary manslaughter in the 

operation of a motor vehicle as "the 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." King, 217 Va. at 607, 231 S.E.2d at 316. 

 "'Generally, negligence (whether ordinary, gross, or willful 

and wanton), contributory negligence, and proximate cause are 

issues for a jury's resolution. They only become questions of 

law to be determined by a court, when reasonable minds could not 

differ.'" Tubman, 3 Va. App. at 273-74, 348 S.E.2d at 875 

(citation omitted). 

 [T]he application of the distinctions between 

these degrees of negligence is frequently 

difficult to apply and we have not hesitated 

to set aside verdicts predicated upon a 

finding of the higher degree of negligence 

where a review of the evidence convinced us 

that the minds of reasonable men could not 

differ as to the conclusion that such higher 

degree had not been shown. 

Town of Big Stone Gap v. Johnson, 184 Va. 375, 379, 35 S.E.2d 71, 

73 (1945). 
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 The terms "gross negligence" and "wanton negligence" have 

been defined by the Supreme Court. 

 "Gross negligence is substantially and 

appreciably higher in magnitude than ordinary 

negligence. . . . It is very great 

negligence, or the absence of slight 

diligence, or the want of even scant 

care. . . . It is a heedless and palpable 

violation of legal duty respecting the rights 

of others. The element of culpability which 

characterizes all negligence is, in gross 

negligence, magnified to a high degree as 

compared with that present in ordinary 

negligence." 

Id. at 378-79, 35 S.E.2d at 73 (citation omitted). "'[G]ross 

negligence is that degree of negligence which shows an utter 

disregard of prudence amounting to complete neglect of the safety 

of another.'" Id. at 379, 35 S.E.2d at 73 (citation omitted). 

 "'Wanton negligence' is of even a higher degree than 'gross 

negligence.' Webster's New International Dictionary, 2d Ed., 

defines 'wanton' as '[m]arked by or manifesting arrogant 

recklessness of justice, of the rights or feelings of 

others, . . . merciless; inhumane.'" Id. (citation omitted). 

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

(1989), this Court stated: 

 In determining the degree of negligence 

sufficient to support a conviction of 

vehicular involuntary manslaughter, the 

accused's conscious awareness of the risk of 

injury created by his conduct is necessarily 

a significant factor. Obviously, when the 

driver proceeds in the face of a known risk, 

the degree of the negligence is increased, 

and may turn that which would have been 

ordinary negligence into gross, willful or 

wanton negligence. 
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Id. at 278, 386 S.E.2d at 816. 

 In Keech, the Court further addressed the question whether 

to apply an objective or subjective standard when determining 

what is a "known risk." This Court held that an objective 

standard would apply and the degree of negligence would be 

"determined by the great risk of injury together with the 

knowledge [a defendant] had or should have had of that risk." 

Id. at 282, 386 S.E.2d at 818. 

 The Commonwealth asserts that the record establishes that 

Forbes had a history of diabetic attacks, resulting in 

black-outs. The Commonwealth contends that Forbes continued to 

drive, knowing that he was susceptible to black-outs and that he 

drove on March 24, 1996, knowing his blood sugar was low and 

disregarding the known risk that he posed to other motorists. 

Thus, the Commonwealth contends Forbes' conduct was criminally 

negligent. 

 Forbes argues that, because he took precautionary measures 

and felt "fine" before he drove on March 24, 1996, the evidence 

did not prove he acted in a criminally negligent manner. We 

agree. 

 Hypoglycemia, or low blood sugar, is seen in the diabetic 

"who takes too much insulin, too little food, or both or 

over-exercises." 4B Lawyers' Medical Cyclopedia of Personal 

Injuries and Allied Specialties 27 (James G. Zimmerly, M.D., 

J.D., M.P.H. ed. 1984). Corrective measures for the condition 
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include "giving the sufferer generous amounts of glucose by mouth 

in the form of sugar, honey, candy, or a sweetened beverage." 

Id. Dr. Nestler testified that he advises his patients to eat 

mints or drink one-half of a glass of orange juice, wait one-half 

hour, and check their blood sugar level when they experience low 

blood sugar. Further, Dr. Nestler testified that Forbes 

"clearly" did not have the warning signals that most diabetic 

patients experience when having a low blood sugar attack. Forbes 

testified that on one prior occasion he had experienced no 

warning signs prior to his black-out. On another occasion, he 

blacked-out before he could "treat [him]self." 

 On these facts, we find that Forbes' conduct did not 

constitute negligence so gross, wanton, and culpable as to show a 

reckless disregard of human life. For a diabetic to operate a 

motor vehicle is not negligence per se. Forbes followed the 

medical directions he had been given to correct an insulin 

imbalance. 

 "The [factual findings] of the court sitting 

without a jury will not be set aside unless 

it is plainly wrong or without evidence to 

support it. However, a trial court's 

conclusion based on evidence that is 'not in 

material conflict' does not have this binding 

effect on appeal. The trier of fact must 

determine the weight of the testimony and the 

credibility of the witnesses, but it 'may not 

arbitrarily disregard uncontradicted evidence 

of unimpeached witnesses which is not 

inherently incredible and not inconsistent 

with facts in the record.' A court may not 

base its findings on a suspicion which is 

contrary to the undisputed positive 

testimony." 
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Williams v. Commonwealth, 14 Va. App. 666, 669-70, 418 S.E.2d 

346, 348 (1992) (quoting Hankerson v. Moody, 229 Va. 270, 274-75, 

329 S.E.2d 791, 794 (1985)). 

 Forbes checked his sugar level at about 5:00 p.m. on March 

23, 1996. He ate breakfast and dinner that day. He took insulin 

at 5:00 p.m. Forbes also ate a small meal at about 11:30 p.m. on 

March 23, 1996 before he fell asleep. When he awoke and felt 

"woozy," Forbes ate "a couple of mints," drank a glass of orange 

juice, and rested for about fifteen minutes.1

 Forbes stated that 

he felt "fine" before he drove his car. As he sat in his car, 

his friend brought him two more mints, which he ate. Carter also 

testified that Forbes "was driving fine" as she watched him drive 

away from her house. He had not been advised by his physician to 

stop operating a motor vehicle. 

 Therefore, the evidence proved, without contradiction, that 

Forbes took precautionary measures when he felt "woozy" and 

suspected he was experiencing a low blood sugar episode. 

Although Forbes did not check his blood sugar level before he 

drove, he performed several other acts that are recommended to 

restore blood sugar level. Further, Forbes testified that he 

 

 1The Commonwealth contends we cannot consider Forbes' 

testimony that he drank a glass of orange juice because, in his 

statement to the police given after the accident, he did not say 

he drank orange juice and because Carter did not testify that 

Forbes drank orange juice prior to driving his car. However, the 

Commonwealth presented no evidence to contradict Forbes' positive 

statement that he drank a glass of orange juice. Therefore, his 

testimony may be considered by this Court. 
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felt "fine" before he drove his car.2

 Moreover, he had 

experienced black-outs on only two or three occasions in his 

thirty years as a diabetic, with the last black-out occurring in 

December 1995. Under these facts, we cannot say Forbes knew or 

should have known that his conduct created a great risk 

reasonably calculated to produce injury. Although Forbes' 

conduct may have been negligent under these circumstances, his 

negligence did not amount to wanton negligence so culpable as to 

show a "reckless disregard of human life." See Tubman, 3 Va. 

App. at 275, 348 S.E.2d at 875. 

 For these reasons, we reverse the involuntary manslaughter 

conviction. 

 Reversed and dismissed.

 

 2

The record is completely devoid of any medical evidence 

concerning Forbes' blood sugar level after the accident.