COURT OF APPEAL S OF VIRGINIA

Present: Judges Hu mphreys, 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 C OURT 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, Assist ant 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 co urt 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 pr ovisions of this article, upon the trial of any person charge d 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 dr iving to improper driving at any time prior to the court’s decision . . . .- 2 - offense of reckless driving by spee d. 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 Comm onwealth in excess of eighty miles per hour. As a result,

Chibikom was issued a summons for reckless dr iving 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 or der 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 impr oper 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 instructio n included language cl osely tracking Code § 46.2-869, that is, that anyone found guilty of reckless driving, but w ith 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. Specifical ly, the Commonwealth contended that reckless driving by speed is a strict liability offense a nd 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 tria l court instructed the jury in accord with the Commonwealth’s proffered instruction. Subsequently, the jury found Chibikom guilty as charged. This appeal followed.- 3 - II. ANALYSIS On appeal, Chibikom contends the tria l court erred by denying her proposed jury instruction that improper drivi ng, 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. “‘Th e 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 revi ewing court’s re sponsibility in reviewing jury instructions is ‘to see that the law has been clea rly 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 st atutory 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 pr esents 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 gr eater 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 de fendant was driving on a highway in the- 4 - 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 foregoi ng provisions of this arti cle, upon the trial of any person charged with reckless driving where the degr ee of culpability is slight, the court in its discretion may find the accused not guilty of reckle ss driving but guilty of improper driving.” In addition, “an attorney for the Commonwealth ma y reduce a charge of reckless driving to improper driving at any time prior to th e 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 sp eed. 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 r eckless 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 impr oper driving is not a le sser-included offense of reckless driving by speed. Moreover, the improper driving st atute 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 asce rtain and give effect to the intention of the legislature, which is usually self-e vident 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- 5 - unambiguous reading of the imprope r driving statute makes clear th at authority re sts with the trial judge and not the jury to make the lesser degree of culp ability determination. In the alternative, an attorney for the Commonwealth may reduce a reck less 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 prerogativ e 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.

3 Indeed, had the legislature intended to pe rmit 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 ju ry or the court trying th e case without a jury”); Code § 18.2-22(a)(3) (the punishment for cons piring to commit a felony where the maximum punishment is less than five years may be redu ced “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 th e jury or the court trying the case without a jury”).