COURT OF APPEALS OF VIRGINIA 

Present: Judges Humphreys, Haley and Alston 

Argued at Alexandria, Virginia 

DORIS S. CHIBIKOM 

 OPINION BY 

v. Record No. 1699-08-4 JUDGE ROSSIE D. ALSTON, JR. 

 AUGUST 4, 2009 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF LOUDOUN COUNTY 

Herman A. Whisenant, Jr., Judge Designate 

 David W. Walls, Assistant Public Defender (Office of the Public 

Defender, on brief), for appellant. 

 Jennifer C. Williamson, Assistant Attorney General (Robert F. 

McDonnell, Attorney General, on brief), for appellee. 

 Doris S. Chibikom was convicted in a jury trial of reckless driving by speed, in violation 

of Code § 46.2-862.1

 On appeal, she contends the trial court erred in denying her proposed jury 

instruction that improper driving, an offense set forth in Code § 46.2-869,2 is a lesser-included 

 1

 Code § 46.2-862 states as follows: 

A person shall be guilty of reckless driving who drives a 

motor vehicle on the highways in the Commonwealth (i) at a speed 

of twenty miles per hour or more in excess of the applicable 

maximum speed limit or (ii) in excess of eighty miles per hour 

regardless of the applicable maximum speed limit. 

2

 Code § 46.2-869 provides, in pertinent part, as follows: 

Notwithstanding the foregoing provisions of this article, 

upon the trial of any person charged with reckless driving where 

the degree of culpability is slight, the court in its discretion may 

find the accused not guilty of reckless driving but guilty of 

improper driving. However, an attorney for the Commonwealth 

may reduce a charge of reckless driving to improper driving at any 

time prior to the court’s decision . . . . 
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offense of reckless driving by speed. Finding no error, we affirm the trial court’s judgment and 

Chibikom’s conviction. 

I. BACKGROUND 

The relevant facts in this case are not in dispute. On August 10, 2007, Chibikom was 

driving on a highway in the Commonwealth in excess of eighty miles per hour. As a result, 

Chibikom was issued a summons for reckless driving by speed. On June 11, 2008, the trial court 

conducted a trial on the charge. At the close of the evidence, the Commonwealth proffered a 

jury instruction instructing the jury that in order to find Chibikom guilty of reckless driving by 

speed, the jury had to find beyond a reasonable doubt that Chibikom was traveling on a public 

highway and that she was traveling in excess of eighty miles per hour. 

Chibikom objected to the Commonwealth’s instruction on the ground that it failed to 

include the lesser-included offense of improper driving under Code § 46.2-869. Chibikom 

proffered a jury instruction containing the reckless driving by speed offense under Code 

§ 46.2-862. In addition, her proposed instruction included language closely tracking Code 

§ 46.2-869, that is, that anyone found guilty of reckless driving, but with slight culpability, could 

instead be found guilty of improper driving. 

The Commonwealth responded by arguing that improper driving is not a lesser-included 

offense of reckless driving by speed. Specifically, the Commonwealth contended that reckless 

driving by speed is a strict liability offense and the statute prohibiting reckless driving by speed 

does not refer to degrees of culpability. The trial court agreed with the Commonwealth and 

denied Chibikom’s proposed instruction. The trial court instructed the jury in accord with the 

Commonwealth’s proffered instruction. 

Subsequently, the jury found Chibikom guilty as charged. This appeal followed. 
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II. ANALYSIS 

 On appeal, Chibikom contends the trial court erred by denying her proposed jury 

instruction that improper driving, as prohibited in Code § 46.2-869, is a lesser-included offense 

of reckless driving by speed set forth in Code § 46.2-862. We disagree. 

The legal principles applicable to this appeal are well settled. “‘The trial judge has broad 

discretion in giving or denying instructions requested.’” Gaines v. Commonwealth, 39 Va. App. 

562, 568, 574 S.E.2d 775, 778 (2003) (en banc) (quoting John L. Costello, Virginia Criminal 

Law and Procedure § 60.6-8, 810 (2d ed. 1995)). “A reviewing court’s responsibility in 

reviewing jury instructions is ‘to see that the law has been clearly stated and that the instructions 

cover all issues which the evidence fairly raises.’” Darnell v. Commonwealth, 6 Va. App. 485, 

488, 370 S.E.2d 717, 719 (1988) (quoting Swisher v. Swisher, 223 Va. 499, 503, 290 S.E.2d 856, 

858 (1982)). Because the issue presented is a question of law involving the interpretation of 

Code § 46.2-869, we review the trial court’s statutory interpretation and legal conclusions de 

novo. See Sink v. Commonwealth, 28 Va. App. 655, 658, 507 S.E.2d 670, 671 (1998). 

“When reviewing a trial court’s refusal of a proposed lesser-included offense jury 

instruction, we must first decide whether the proffered instruction presents a lesser-included 

offense.” Sanchez v. Commonwealth, 32 Va. App. 238, 241, 527 S.E.2d 461, 463 (2000). “The 

elements of the greater offense as charged must be examined in relation to the purported lesser 

offense, and where every commission of the greater offense is also a commission of the lesser 

offense, a lesser offense may be deemed to exist.” Id. “A lesser[-]included offense is an offense 

which is composed entirely of elements that are also elements of the greater offense.” 

Kauffmann v. Commonwealth, 8 Va. App. 400, 409, 382 S.E.2d 279, 283 (1989). 

For a defendant to be found guilty of reckless driving by speed under Code § 46.2-862, 

the Commonwealth must prove that the defendant was driving on a highway in the 
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Commonwealth, and was driving “(i) at a speed of twenty miles per hour or more in excess of 

the applicable maximum speed limit or (ii) in excess of eighty miles per hour regardless of the 

applicable maximum speed limit.” Code § 46.2-869, the improper driving statute, provides in 

relevant part, that “[n]otwithstanding the foregoing provisions of this article, upon the trial of any 

person charged with reckless driving where the degree of culpability is slight, the court in its 

discretion may find the accused not guilty of reckless driving but guilty of improper driving.” In 

addition, “an attorney for the Commonwealth may reduce a charge of reckless driving to 

improper driving at any time prior to the court’s decision . . . .” Code § 46.2-869. 

Upon our review of Code § 46.2-869, it is clear that improper driving is not a 

lesser-included offense of reckless driving by speed. Every commission of reckless driving by 

speed does not also constitute a commission of improper driving. In addition, improper driving 

is not composed entirely of the elements of reckless driving by speed. Improper driving requires 

an additional finding of slight culpability, an element excluded from the reckless driving by 

speed statute. Thus, we conclude that improper driving is not a lesser-included offense of 

reckless driving by speed. 

Moreover, the improper driving statute states that the “court in its discretion” may reduce 

the reckless driving charge to improper driving “where the degree of culpability is slight.” 

“When interpreting a statute, courts ‘are required to ascertain and give effect to the intention of 

the legislature, which is usually self-evident from the statutory language.’” Johnson v. 

Commonwealth, 53 Va. App. 608, 612, 674 S.E.2d 541, 543 (2009) (quoting Va. Polytechnic 

Inst. & State Univ. v. Interactive Return Serv., 271 Va. 304, 309, 626 S.E.2d 436, 438 (2006)). 

Furthermore, “[w]hen statutory language is clear and unambiguous, there is no need for 

construction by the court; the plain meaning of the enactment will be given it.” HCA Health 

Servs. of Va., Inc. v. Levin, 260 Va. 215, 220, 530 S.E.2d 417, 420 (2000). The plain and 
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unambiguous reading of the improper driving statute makes clear that authority rests with the 

trial judge and not the jury to make the lesser degree of culpability determination. In the 

alternative, an attorney for the Commonwealth may reduce a reckless driving charge to improper 

driving at any time prior to the court’s decision. Thus, only the trial judge, or the prosecutor 

before the verdict is rendered, has the prerogative to reduce a reckless driving charge to improper 

driving under Code § 46.2-869.3

Chibikom also claims the trial court erred in rejecting her proposed instruction because 

the instruction was “supported by more than a scintilla of evidence.” Boone v. Commonwealth, 

14 Va. App. 130, 132, 415 S.E.2d 250, 251 (1992) (“If any credible evidence in the record 

supports a proffered instruction on a lesser[-]included offense, failure to give the instruction is 

reversible error. . . . Such an instruction, however, must be supported by more than a mere 

scintilla of evidence.”). Because we conclude that improper driving is not a lesser-included 

offense of reckless driving by speed, we need not address whether the evidence supported 

Chibikom’s proposed instruction. 

III. CONCLUSION 

For these reasons, we affirm the judgment of the trial court and Chibikom’s conviction. 

Affirmed.

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 Indeed, had the legislature intended to permit the jury to make the lesser-degree of 

culpability determination under Code § 46.2-869, it could have included language in Code 

§ 46.2-869 to reflect that intent. See, e.g., Code § 18.2-10(e), (f) (penalty for a Class 5 or 6 

felony may be reduced “in the discretion of the jury or the court trying the case without a jury”); 

Code § 18.2-22(a)(3) (the punishment for conspiring to commit a felony where the maximum 

punishment is less than five years may be reduced “in the discretion of the jury or the court 

trying the case without a jury”); Code § 18.2-91 (penalty for statutory burglary may be reduced 

“in the discretion of the jury or the court trying the case without a jury”); Code § 18.2-95 

(penalty for grand larceny may be reduced “in the discretion of the jury or the court trying the 

case without a jury”).