COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Benton and Overton 

Argued at Salem, Virginia 

CHARLES THOMAS ELKINS 

v. Record No. 0990-94-3 MEMORANDUM OPINION* 

 BY JUDGE JOSEPH E. BAKER 

COMMONWEALTH OF VIRGINIA DECEMBER 19, 1995 

FROM THE CIRCUIT COURT OF BOTETOURT COUNTY 

George E. Honts, III, Judge 

 Jonathan M. Apgar (Damico & Apgar, on brief), 

 for appellant. 

 Thomas C. Daniel, Assistant Attorney General 

 (James S. Gilmore, III, Attorney General, on brief), 

 for appellee. 

 Charles Thomas Elkins (appellant) appeals from a judgment of 

the Circuit Court of Botetourt County (trial court) that approved 

a jury verdict convicting him for felonious driving after having 

been adjudicated an habitual offender. The jury found that 

appellant drove in such a manner as to endanger life, limb, or 

property of another. Appellant contends that the evidence is 

insufficient to support the charge and conviction that his 

driving endangered the life, limb, or property of another and, 

therefore, he asserts that we are required to reverse his 

conviction. 

 Viewing the evidence, as we must, in the light most 

favorable to the Commonwealth, granting to it all reasonable 

inferences fairly deducible therefrom, Higginbotham v. 

____________________ 

 *Pursuant to Code § 17-116.010 this opinion is not 
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designated for publication. 

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975), we 

find from the record that at 12:10 a.m. on October 31, 1993, 

Botetourt County Sheriff's Deputy B. J. Ulrich (Ulrich) was 

driving southbound on Route 220. He came upon a 1971 Buick 

automobile, being driven by appellant, which was traveling 

approximately 35 miles per hour in a 45 miles per hour zone. 

 Ulrich observed appellant's vehicle weave "real bad" as it 

ran off the right side of the shoulder into the gravel with its 

two right tires being off the roadway. Appellant then jerked his 

car to the left so that the two left tires crossed the dotted 

line marking the passing lane. That same manner of driving was 

twice repeated, whereupon Ulrich activated his lights signaling 

appellant to stop. Appellant promptly brought his vehicle to a 

stop. 

 Ulrich observed three people inside appellant's car, all 

sitting in the front seat. While the two passengers remained in 

place, leaving the motor running, appellant "kind of dove right 

over into the back seat to the passenger side." When appellant 

exited his car, Ulrich observed that he was unsteady on his feet, 

having to lean against the car to keep from falling. Ulrich also 

testified that appellant had a strong odor of alcohol about him, 

glassy bloodshot eyes, and his speech was "low and slurred." 

Ulrich then learned that appellant had only recently been 

declared an habitual offender. 
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 Appellant contends that a 1993 amendment to Code § 46.2-357 

directs that under the above facts, his conviction could not be 

for a felony. In relevant part, the amendment provides: 

(B)(1) If such driving does not, of itself, 

endanger the life, limb, or property of 

another, such person shall be guilty of a 

misdemeanor punishable by confinement in jail 

for no more than 90 days and a fine of not 

more than $2,500, either or both. However, 

ten days of any such confinement shall not be 

suspended except in cases designated in 

subdivision 2(ii) of this section. 

(2) If such driving, of itself, does 

endanger the life, limb, or property of 

another, such person shall be guilty of a 

felony punishable by confinement in the state 

correctional facility for not less than one 

year nor more than five, or by confinement in 

jail for twelve months and no portion of such 

sentence shall be suspended . . . . 

 Appellant argues that there is no evidence that he came too 

close to hitting anything or anybody or violated any other 

traffic laws of the Commonwealth; and that there is no evidence 

that the area where he chose to pull off the highway was 

inappropriate but rather that it can be inferred from the 

evidence that the area could safely accommodate both the car 

appellant was driving and the deputy's car. He further contends 

that this inference is consistent with his testimony that he was 

deliberately driving on the shoulder to bring the car to a stop 

off of the paved highway. Therefore, he concludes, the evidence 

is insufficient to show that, absent the question of 

intoxication, the pulling onto the right shoulder of the highway 

and coming to a stop was, in and of itself, not actually 
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endangering anything. He insists that the statute requires more 

than the mere "potential" for harm. 

 The jury and trial court rejected appellant's testimony that 

 he had decided to bring his car to a stop on the shoulder of the 

road prior to Ulrich's warning to stop. We cannot say that 

rejection was plainly wrong or without evidence to support it. 

 The evidence discloses that appellant was observed driving 

his vehicle in an erratic manner, weaving from off the shoulder 

of the road across the right-hand lane and into the passing lane, 

each time jerking his vehicle back across the road. We hold that 

appellant's conduct established a factual question supporting the 

jury's verdict. 

 There is no merit to appellant's double conviction argument. 

 The prosecutions of appellant for driving while intoxicated and 

driving after being adjudged an habitual offender began at the 

same time with his arrest upon both charges. Regardless of the 

conclusion of proceedings on the driving while intoxicated charge 

before appellant's trial for driving while an habitual offender, 

Code § 19.2-294 does not bar the latter conviction because "[i]t 

is the time of institution which determines whether multiple 

charges are simultaneous or successive." Slater v. Commonwealth, 

15 Va. App. 593, 596, 425 S.E.2d 816, 817 (1993). 

 For the reasons stated, the judgment of the trial court is 

affirmed. 

 Affirmed.