COURT OF APPEALS OF VIRGINIA 

Present: Judges Bray, Overton and Bumgardner 

Argued at Salem, Virginia 

HENRY ADOLPHUS THOMPSON 

 OPINION BY 

v. Record No. 1498-97-3 JUDGE RICHARD S. BRAY 

 JULY 7, 1998 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG 

Mosby G. Perrow, III, Judge 

 Margaret A. Nelson, Assistant Public 

Defender, for appellant. 

 Donald E. Jeffrey, III, Assistant Attorney 

General (Mark L. Earley, Attorney General; 

Leah A. Darron, Assistant Attorney General, 

on brief), for appellee. 

 Henry Adolphus Thompson (defendant) was convicted in a bench 

trial for reckless driving and feloniously driving after having 

been adjudicated an habitual offender, violations of Code 

§§ 46.2-852 and 46.2-357(B)(2), respectively. On appeal, 

defendant complains that the evidence was insufficient to support 

the convictions. We agree and reverse and remand for further 

proceedings consistent with this opinion. 

 Under familiar principles, we view the evidence in the light 

most favorable to the Commonwealth, granting to it all reasonable 

inferences fairly deducible therefrom. Higginbotham v. 

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

 On January 1, 1997, Lynchburg Police Officer M.R. Gillispie 

was dispatched to a single car accident at 12th and Federal 

Streets. Upon arrival, Gillispie found an automobile crashed 
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into a utility pole and medical personnel treating a passenger 

for "severe head injuries." Neither the driver nor other 

occupants of the vehicle were at the scene, but Gillispie soon 

learned that another officer had detained a suspect a "couple 

blocks from the accident." Gillispie proceeded immediately to 

that location and encountered defendant, bleeding from a "visible 

cut to his face and nose and . . . complaining of chest pain," 

injuries "consistent with the crushed steering wheel and the face 

print on the driver's side windshield." Gillispie also observed 

that defendant's eyes were "glassy," he was "unsteady on his 

feet," and emitted "a strong odor of alcohol." When defendant 

was unable to successfully perform a series of field sobriety 

tests, Gillispie arrested him for driving under the influence of 

alcohol.1

 Subsequent to arrest, defendant stated he drove the vehicle 

at the time of the accident, "because the others were too drunk," 

and "had been an habitual offender for about ten years." 

Although he denied drinking alcohol after the accident, defendant 

admitted consuming "about four beers and two shots of liquor" 

sometime previously, at an unnamed location on Federal Street. 

 At trial, the court, after accepting defendant's guilty plea 

 1Defendant was found not guilty of driving under the 

influence by the general district court. Although evidence of 

intoxication was presented during the instant trial for reckless 

driving, the record does not disclose defendant's blood alcohol 

content, and the trial court did not find that he was intoxicated 

either at the time of the accident or arrest. 
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to leaving the scene of the accident in violation of Code 

§ 46.2-894, convicted him upon pleas of not guilty to reckless 

driving and felonious endangerment by an habitual offender, the 

instant offenses. On appeal, defendant challenges the 

sufficiency of the evidence to support the latter convictions. 

I. Reckless Driving

 Code § 46.2-852 provides, in pertinent part, that "any 

person who drives a vehicle on any highway recklessly or at a 

speed in a manner so as to endanger the life, limb, or property 

of any person shall be guilty of reckless driving." Code 

§ 46.2-852. "The word 'recklessly' as used in the statute 

imparts a disregard by the driver of a motor vehicle for the 

consequences of his act and an indifference to the safety of 

life, limb or property." Powers v. Commonwealth, 211 Va. 386, 

388, 177 S.E.2d 628, 630 (1970). "The essence of the offense 

. . . lies not in the act of operating a vehicle, but in the 

manner and circumstances of its operation." Id.; Hall v. 

Commonwealth, 25 Va. App. 352, 355, 488 S.E.2d 651, 653 (1997). 

Thus, "[t]he mere happening of an accident does not give rise to 

an inference of reckless driving." Powers, 211 Va. at 388, 177 

S.E.2d at 630. To convict, the Commonwealth must "prove every 

essential element of the offense beyond a reasonable doubt," with 

evidence which excludes "every reasonable hypothesis of innocence 

and . . . consistent only with . . . guilt . . . ." Id. at 388, 

177 S.E.2d at 629. 
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 In Hall, we considered the import of intoxication evidence 

in a prosecution for reckless driving. Hall was discovered by 

police "'passed out' behind the wheel" of an automobile stopped 

in a heavily traveled roadway, with "ignition switch and 

headlights . . . on and . . . indicator lights . . . 

illuminated." Hall smelled of alcohol, was confused, unsteady, 

slurred in speech and admitted "driving" the vehicle. However, 

the record was silent with respect to the "manner and 

circumstances" of Hall's driving. Hall, 25 Va. App. at 355, 488 

S.E.2d at 653. Guided by Powers, we concluded that such 

"circumstances . . . do not give rise to an inference that 

[defendant] drove . . . in a reckless manner." Id. In reversing 

the conviction, the panel noted that "'evidence of intoxication 

is a factor that might bear upon proof of dangerousness or 

reckless driving in a given case,'" but "'does not, of itself, 

prove reckless driving.' '"One may be both drunk and reckless 

. . . [or] reckless though not drunk . . .[, or] under the 

influence of intoxicants and yet drive carefully."'" Id. at 355 

n.3, 488 S.E.2d at 653 n.3 (quoting Bishop v. Commonwealth, 20 

Va. App. 206, 210, 455 S.E.2d 765, 767 (1995)). 

 Here, assuming, without deciding, that the evidence proved 

defendant had been driving the car while intoxicated at the time 

of the collision, it establishes little else. The record does 

not disclose the time of the accident, the manner in which 

defendant drove the car, his blood alcohol level, the road 
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conditions, weather, traffic controls, or other circumstances 

probative of a Code § 46.2-852 violation. Reckless driving is 

not a status offense, and defendant cannot be convicted upon 

"speculation and conjecture as to what caused [him] to lose 

control of the car." Powers, 211 Va. at 389, 177 S.E.2d at 630. 

 Thus, under the instant facts, we find the evidence insufficient 

to support a conviction for reckless driving.2

II. Habitual Offender Endangerment

 Code § 46.2-357(B)(2) elevates driving by an habitual 

offender from a misdemeanor to a felony when "such driving . . . 

of itself endangers the life, limb, or property of another," Code 

§ 46.2-357 (emphasis added), "language virtually identical to 

that found in the statute defining reckless driving." Bishop, 20 

Va. App. at 211, 455 S.E.2d at 767; Code § 46.2-852. Hence, we 

also find the evidence insufficient to support a finding of 

felonious habitual offender endangerment and reverse the 

conviction. However, because the record clearly establishes that 

defendant violated Code § 46.2-357(B)(1), the misdemeanor 

offense, we remand for further proceedings, if the Commonwealth 

be so advised. See Gorham v. Commonwealth, 15 Va. App. 673, 

 

 2The Commonwealth mistakenly relies upon Kennedy v. 

Commonwealth, 1 Va. App. 469, 339 S.E.2d 905 (1986), as support 

for the inference that proof of defendant's intoxication 

sufficiently explained the accident. In Kennedy, the evidence 

clearly supported the inference that the accused "fell asleep at 

the wheel," resulting in a collision. Id. at 472, 339 S.E.2d at 

907. Manifestly, driving a vehicle while sleeping evinces the 

disregard for the life, limb and property contemplated by Code 

§ 46.2-852. 
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678-79, 426 S.E.2d 493, 497 (1993). 

 Reversed and remanded.