COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Hump hreys and Retire d Judge Olitsky * Argued at Rich mond, Virginia

ODEH BENJAMIN MEMORANDUM OPINION ** BY v. Record No. 2254-98- 2 JUDGE NORMAN OLITSKY JULY 18, 2000 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG Oliver A. Pollard, Jr., Judge Mary Katherine Mart in, Senior Assistant Public Defender, for appellant. Linwood T. Wells, Jr ., Assistan t Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

* Retired Judge Norman Olitsky took part in the consideration of this case by designation pursuant to Code § 17.1-400, recodifying Code § 17-116.01.

** Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. Odeh Benjamin, appell ant, was convicted of felony failure to stop at the scen e of an accident involv ing physical injury in violation of Code § 46.2-894. He argues the evidence was insufficient to convict him of th is offense. We affirm his conviction.
FACTS Reginald Morris test ified that on November 28, 1996 at about 11:00 p.m., he was in his car, stopped at an intersecti on, waitingto make a left turn. A car driven by appellant stru ck Morris' car on the rear passenger side. Morris testifie d the impact "knocked [his car] up maybe two or three feet." Appellant's car drove onto the sidewalk and stop ped about forty or fifty feet away from Morris' car. Mo rris estimated "[ a]bout two-thirds " of appellant's car was on the sidewalk. Morris saw appell ant "look back " at Morris' car, then appellant made a righ t turn and drove away . Morris obtained appellant's li cense plate nu mber and gave the po lice a description of appellant's car. Morris testified the impact "took out like a good portion of the trunk," pushin g the trunk up. It also damaged chrome fender trim on the side of the car and dama ged rear lights . Morris saw headlight damage on appellant' s car. Office r Kevin Johnson reported to the accident scene and descri bed Morris' vehicle as "pretty seve rely damaged." Morris suffered back and neck pain from the incident and had to be assisted into an ambulance. He testif ied he felt "tense as if [he]'d fallen or something." Hospital staff admi nistered x-rays and gave Morris "some sh ots." Morris later obtained prescription pills for the pain, which lasted for several months after the accident . Morris also receiv ed "heat an d traction" treatments after the incident. Officer Mark Stefania k looked for the car after the ac cident. He saw appellant's ve hicle, which had a da maged driver's side

- 2 -headlight and matc hed the descript ion Morris gave the police. Stefaniak stop ped the car at 11:53 p.m. about three or four miles from the scene of the accident. Stefaniak stated the driver's side door was "d ifficult to open," and th ere was "prett y extensive damage" to appellant's car. Stefania k had to wrench open the door. Stefaniak ar rested appellant fo r driving under the influence of alcohol. Appellant testif ied Morris' car suddenly stoppe d in front of appellant's car wi thout using a turn signal. Appell ant stated he tried to avoid striking Morris' car, and he turned his car to the right. However, the left side of appell ant's car struck Morris' car. Appellan t said he stop ped "briefly," but because his driver's license was su spended at the time, he drove toward his home. Appellant also testified he did not believe the accident damaged Morris' vehicle.
ANALYSIS "On appeal, 'we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom.'" Archer v. Commonwealth , 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (citation omitted). Appellant was convicted of violating Code § 46.2-894, which provides in pe rtinent part: The driver of any vehicle involved in an accident in which a person is killed or injured or in which an attended vehicle or

- 3 -other attended property is damaged shall immediately stop as close to the scene of the accident as possible without obstructing traffic, as provided in § 46.2-888, and report his name, address, driver's license number, and vehicle registration number forthwith to the State Police or local law-enforcement agency, to the person struck and injured if such person appears to be capable of understanding and retaining the information, or to the driver or some other occupant of the vehicle collided with or to the custodian of other damaged property. "The duty imposed up on the driver of a ve hicle involv ed in an accident is not passive. It requires positive, affirmative action; -- that is, to stop and give th e aid and in formation specified." Herchenbach v. Commonwealth , 185 Va. 217, 220, 38 S.E.2d 328, 329 (1946). Knowledge necessarily is an essential element of the crime. This does not mean that the person should have positive knowledge of the extent of the damage or injuries inflicted. It does mean that, in order to be guilty of violating the statute, "the driver must be aware that harm has been done; it must be present in his mind that there has been an injury; and then, with that in his mind, he must deliberately go away without making himself known. If an injury is inflicted under such circumstances as would ordinarily superinduce the belief in a reasonable person that injury would flow, or had flowed, from the accident or collision, then it is the duty of the operator to stop his vehicle." Id. (citation omitted).

In Kil v. Commonwealth , 12 Va. App. 802, 811, 407 S.E.2d 674, 679 (1991), we held, "the Commonwealth must prove that the defendant possessed actual knowledge of the occurrence of the

- 4 -accident, and such knowledge of injury which would be attributed to a reasonable person under the circumstances of the case." Appellant admits he had actual knowledge of the occurrence of the accident. However, he argues he did not have knowledge of any injury to Morris. The evidence proved appellant's car struck Morris' car with such force that it caused Morris' car to move forward two to three feet from a stationary position, and it caused appellant's vehicle to veer out of control, stopping on the sidewalk forty or fifty feet from the point of collision. The impact pushed up the trunk on Morris' car and damaged the side chrome fender trim on the side of the car. An officer at the scene described Morris' car as "pretty severely damaged." Appellant looked toward Morris' car before leaving the scene, but he testified at the trial that he did not believe the accident caused any damage to Morris' car. The trial judge was not required to accept appellant's testimony. "In its role of judging witness credibility, the fact finder is entitled to disbelieve the self-serving testimony of the accused and to conclude that the accused is lying to conceal his guilt." Marable v. Commonwealth , 27 Va. App. 505, 509-10, 500 S.E.2d 233, 235 (1998). In addition, after the impact, appellant's car was damaged to the point where the officer had difficulty opening the driver's side door. Under the circumstances of this accident, a

- 5 -reasonable person would have known that Morris was injured by the force of the collision. Furthermore, the evidence proved Morris complained of back and neck pain at the scene of the accident and received treatment at the hospital immediately after the accident. Therefore, from the evidence of the circumstances of the accident, the damage caused to both vehicles, and the nature of Morris' injuries, the trial judge could conclude beyond a reasonable doubt that appellant feloniously violated Code § 46.2-894. Accordingly, we affirm appellant's conviction. Affirmed.

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