COURT OF APPEALS OF VIRGINIA 

Present: Judges Clements, Agee∗ and Felton 

Argued at Richmond, Virginia 

MARK ANTHONY KIRBY 

 MEMORANDUM OPINION∗∗ BY 

v. Record No. 0494-02-2 JUDGE G. STEVEN AGEE 

 MARCH 25, 2003 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF HALIFAX COUNTY 

Leslie M. Osborn, Judge 

 Buddy A. Ward, Public Defender (Office of the 

Public Defender, on brief), for appellant. 

 Stephen R. McCullough, Assistant Attorney 

General (Jerry W. Kilgore, Attorney General, 

on brief), for appellee. 

 Mark Anthony Kirby ("Kirby") was convicted in a bench trial 

in the Circuit Court of Halifax County of violating Code 

§ 46.2-817(B) which prohibits a driver from ignoring a police 

officer's signal to stop and driving a motor vehicle in such a 

willful and wanton manner that it endangers a person. Kirby 

asserts that he cannot be convicted under this statute if he is 

 ∗

 Justice Agee participated in the hearing and decision of 

this case prior to his investiture as a Justice of the Supreme 

Court of Virginia. 

∗∗ Pursuant to Code § 17.1-413, this opinion is not 

designated for publication. 
the only person endangered by his driving. For the reasons that 

follow, we affirm the decision of the circuit court. 

I. BACKGROUND 

 On the morning of June 23, 2001, Officer Freeman 

("Freeman") of the Halifax Police Department was operating 

stationary radar when he observed Kirby drive past his radar 

unit at 64 miles per hour (m.p.h.) in a 45 m.p.h. zone. Freeman 

activated his emergency lights, but not his siren, and pursued 

Kirby's vehicle. "Within a short distance, probably a couple 

tenths of a mile," Freeman caught up with Kirby's vehicle. At 

that time Kirby rapidly pulled away. Freeman reached speeds of 

94 m.p.h. while chasing Kirby and experienced difficulty closing 

the distance with Kirby's car. They passed at least one vehicle 

going in the opposite direction during the pursuit. Kirby's car 

then skidded through a stop sign, hit a fence post and came to 

rest on an embankment. When Freeman asked Kirby why he was 

running from him, Kirby responded that he was only doing 55 

m.p.h., did not see the emergency lights, and was not running 

from the police officer. Officer Freeman later determined that 

Kirby was driving with a suspended operator's license. 

 Kirby was convicted of eluding a police officer while 

driving a motor vehicle in such willful and wanton disregard so 

as to endanger a person in violation of Code § 46.2-817(B), a 

felony. He now appeals. 

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II. ANALYSIS 

 Code § 46.2-817(B) provides that: 

Any person who, having received a visible or 

audible signal from any law-enforcement 

officer to bring his motor vehicle to a 

stop, drives such motor vehicle in a willful 

and wanton disregard of such signal so as to 

interfere with or endanger the operation of 

the law-enforcement vehicle or endanger a 

person is guilty of a Class 6 felony. It 

shall be an affirmative defense to a charge 

of a violation of this subsection if the 

defendant shows he reasonably believed he 

was being pursued by a person other than a 

law-enforcement officer. 

(Emphasis added). 

 Construing the meaning of "endanger a person" under the 

statute, the trial court opined from the bench as to the intent 

of the General Assembly, "that's fairly clear that they intended 

that it be a person. So it could be the individual in this 

case." On appeal Kirby contends his conviction under Code 

§ 46.2-817(B) is in error because he alone was the person 

endangered by his driving and that action is not proscribed by 

the statute.1

 Subsequent to the trial court's decision in this case, this 

Court issued its opinion in Tucker v. Commonwealth, 38 Va. App. 

343, 564 S.E.2d 144 (2002), which also involved a conviction 

under Code § 46.2-817(B). In Tucker we held: 

 1

 Kirby does not challenge the trial court's finding that he 

was "in willful and wanton disregard" of the officer's signal. 

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a manifest purpose of the statute is to 

protect the public against a driver eluding 

police "so as to . . . endanger a person." 

Hence, conduct that raises the specter of 

endangerment is the evil contemplated and 

proscribed by the statute. To require the 

threat to be imminent would engraft an 

element to the offense, thereby permitting 

the dangerous operation of motor vehicles 

until a person is actually imperiled, an 

absurd result that subverts the salutary 

purposes of the statute. 

Id. at 347, 564 S.E.2d at 146 (quoting Code § 46.2-817(B)) 

(emphasis added). 

 It is well settled that an appellate court may affirm a 

trial court's judgment when it has reached the right result for 

the wrong reason. Driscoll v. Commonwealth, 14 Va. App. 449, 

452, 417 S.E.2d 312, 312 (1992); see e.g. White v. Commonwealth, 

37 Va. App. 658, 665, 561 S.E.2d 12, 16 (2002); McLellan v. 

Commonwealth, 37 Va. App. 144, 154, 554 S.E.2d 699, 704 (2001). 

This rule applies in criminal cases. See Frye v. Commonwealth, 

231 Va. 370, 389, 345 S.E.2d 267, 281 (1986). However, this 

rule is not applicable in "cases where, because the trial court 

has rejected the right reason or confined its decision to a 

specific ground, further factual resolution is needed before the 

right reason may be assigned to support the trial court's 

decision." Driscoll, 14 Va. App. at 452, 417 S.E.2d at 312 

(citing Sateren v. Montgomery Ward & Co., 234 Va. 303, 306, 362 

S.E.2d 324, 326 (1987)). Further, the rule does not apply "if 

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the correct reason for affirming the trial court was not raised 

in any manner at trial." Id. (citing Eason v. Eason, 204 Va. 

347, 352, 131 S.E.2d 280, 283 (1963)). 

 The Commonwealth specifically argued to the trial court 

that with Kirby's action of going through the stop sign and 

hitting the embankment "there is very much the potential that 

someone can be hurt." The Commonwealth noted "[i]t is the 

potential to cause serious harm" to other people on the road 

that Code § 46.2-817(B) seeks to prevent. Thus, the 

Commonwealth clearly brought before the trial court the 

proposition that Kirby's actions raised the "specter of 

endangerment." The Commonwealth then proved that Kirby caused 

the "specter of endangerment" to persons who might have been and 

were on the highway at the time of his reckless acts. Those 

acts included traveling at a very high rate of speed on a 

curving rural road while fleeing the pursuing police vehicle, 

meeting oncoming traffic and running through a posted stop sign 

at an intersection before crashing into a fence. 

 However, the trial court stated that "the legislature may 

have intended it that we do not have to have an identifiable 

person who was put in danger. I don't think that's the case. I 

think we do have to have an identifiable person who is put in 

danger." Based on that assumption, the trial court concluded 

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that Kirby himself was "a person" as contemplated by the statute 

and found him guilty. 

 As Tucker has since clarified, the trial court wrongly 

assumed that the endangered person had to be specifically 

identified. Nonetheless, the trial court also found that "a 

person, some other person, could have been put at risk" by 

Kirby's excessive speed, skidding through the stop sign and 

hitting a fence post. Such a finding is all Tucker requires for 

conviction under Code § 46.2-817(B), because Kirby's actions 

raised "the specter of endangerment." The correct reason under 

Tucker was raised in the trial court, and no further fact 

determinations are required to sustain the trial court's 

ultimate verdict. While the trial court did not base its 

decision on the "specter of endangerment," it did not reject 

that basis and made a specific factual finding in support of it. 

Accordingly, application of the standard set forth in Tucker to 

the record in this case reflects sufficient evidence to sustain 

the finding of guilty against Kirby.2

 2

 As the application of the Tucker standard to the facts of 

this case resolves the appeal, we do not address the statutory 

question issue raised by Kirby as to whether he alone is a 

"person" as contemplated by the endangerment provision of Code 

§ 46.2-817(B). 

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III. CONCLUSION 

 In light of our holding in Tucker, the trial court reached 

the right result for the wrong reason. We therefore affirm the 

conviction. 

Affirmed.

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