COURT OF APPEALS OF VIRGINIA

Present: Ju dges Bumgardner, Hump hreys and Clements Argued at Salem, Virginia

THOMAS TYLER WRIGHT OPINION BY v. Record No. 0889-02-3 JUDGE ROBERT J. HUMPHREYS FEBRUARY 11, 2003 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF BOTETOURT COUNTY George E. Honts, III, Judge Randy V. Cargill (Mag ee, Foster, Goldstein & Sayers, P.C., on brief), for appellant. Paul C. Galanides, As sistant Attorn ey General (Jerry W. Kilg ore, Attorney General, on brief), for appellee.

Thomas Tyler Wright appeals his conviction, after a bench trial, for maiming, in violation of Code § 18.2-51.4. 1 Wright contends the trial cour t erred in finding the evidence sufficient to establish that he drove in a manner so gross, wanton and culpable as to show a reckless disregar d for human life, as required by the statute. For th e reasons that fo llow, we affirm the judgment of th e trial court.

1 Wright was also convicted, after his plea of no contest, of driving while intoxicated. However, Wright raises no issue as to this conviction on appeal.I. B ackground Virginia State Police Trooper Mike Bradle y was dispat ched to the scene of a car accide nt at approxim ately 2:10 a.m. on June 3, 2001. When he arrive d, emergency pe rsonnel were already present and treating two indi viduals on the ground . Bradley observed Wright standing nearby , in the company of tw o deputies. Trooper Bradley approa ched Wright and asked him what he knew about the accident. Wright st ated, "I'm f---ing dr unk, okay? I was driving. Run of f the f---ing road . I'm f---ing dr unk." Bradley asked Wright how much he had had to drink, an d Wright responded "I don't f---ing kn ow. A lot." He then aske d Wright how fast he had been driving. Wright stated, "Don't know . Too f--- ing fast." As emergency pe rsonnel attempte d to treat Wright's injuries, Trooper Bradley ob served that Wright curs ed and spat at them. Wright's demeanor fluc tuated from "one extr eme to the other," as he was calm one moment and then "yelling, cu rsing and sc reaming," the next. Wright was eventually restrained by medical personnel and transported to the hospital. Trooper Bradley then obtained a search warrant for a sa mple of Wright's bl ood. The analysis showed that Wright had a blood al cohol content of 0.09%. Wright was arrested on charges of driving while in toxicated, in violation of Code § 18.2-266 and maiming, in vi olation of Code § 18.2-51.4. At trial, Trooper Br adley testified that, when he arrived at the scene, he ob served emergency person nel performing CPR on Matthew Switzer, a passenger in Wright's car. He further stated

- 2 -that, according to Wright, the ac cident occurred when he was travelling south on Ro ute 640 and appr oached a sharp right curve in the road. Instead of maki ng the turn, Wright continued straight and drove off the left side of the road, over an embankment, cr ashing into a tree. The "total distance off the left side of the road to the impact was on e hundred fo rty-seven feet." The skid marks measured sixty-four feet. Troo per Bradley testified that there wa s no posted speed limi t on that road, so the speed limit wa s "fifty-five" miles per hour. Switzer testifie d that he was a passenger in Wright's car when the accident occurr ed. Switzer stated th at Wright picked him up that evening at ab out 5:00 or 6:00 p.m. and that they went riding around with another passenge r named "Shane y." Switzer stated that at some po int, they stop ped and obtained over a dozen Xanax pills. He stated that ev eryone in the car took the pills. He personally took th ree-and-a-half pills. They later obtained some beer and drank wh ile they continued to drive around. Switzer did not recall the accident. The doctor who treated Swit zer testified that Switzer presented to the emer gency room with "a lot of superficial lacerations," an d a severely fractured jaw. At the close of the evidence , Wright move d to strike, contending that the Commonweal th had failed to establish that he drove in a manner so gross, wanton and culp able as to show a reckless disregard fo r human life. The tr ial court de nied the

- 3 -motion finding that although the evidence may not have proven that Wright was driving "in excess of the speed limit," "h is speed was clearly too fast for the conditions and clearly to o fast for him to be able to mainta in proper control." The court then found Wright guilty of the charge and sentenced hi m to five years in prison, with four ye ars suspended. II. Analysis On appeal, Wright contends the trial co urt erred in finding the evidence sufficient, as a ma tter of law, to support his conviction. Specific ally, Wright contends Code § 18.2-51.4 mandates "three elemen ts of proof: 1) The person must drive while intoxicate d; 2) The manner of driving while intoxicated must be so 'gross, want on and culpable as to show a re ckless disregard for human life'; and 3) The driving wh ile intoxica ted in the requisite mann er must cause seri ous injury result ing in permanent physical impairment." Thus, Wright argues the element of driving while intoxica ted is separate and distin ct from the element of driving in a "gross, wa nton and culpable" mann er and that driving while intoxicate d cannot serve as evid ence to su pport the requisite manner of driving. We disagree. We first note that the standard for ap pellate review of criminal convictions is well established. "When a defendant challenges the sufficie ncy of the evidence, we are required to review the evidence 'in the light most favorable to the Commonwealth and give it all reasonable infe rences fairly

- 4 -deducible ther efrom.'" Collins v. Commonwealth , 13 Va. App. 177, 179, 409 S.E.2d 175, 176 (1991) (quoting Higginbotham v. Commonwealth , 216 Va. 349, 352, 218 S.E.2d 534, 53 7 (1975)). "The conviction will not be reversed unless it is plainl y wrong or without eviden ce to supp ort it." Id. ; see also Code § 8.01-680. Code § 18.2-51.4 provides that [a]ny person who, as a result of driving while intoxicated . . . in a manner so gross, wanton and culpable as to show a reckless disregard for human life, unintentionally causes the serious bodily injury of another person resulting in permanent and significant physical impairment shall be guilty of a Class 6 felony. While no Virginia appellate cour t has issued a decision interpreting this particular statut e, the common la w definition of criminal negligence, as stated in the statute, is well settled. Indeed, in Bell v. Co mmonwealth , 170 Va. 597, 611, 195 S.E. 675, 681 (1938), the Supreme Court of Virginia defined criminal negligence in terms of "gross negligence," stating that conduct "is culpable or criminal when accompanied by acts of commission or omission of a wanton or wil[l]ful nature, showing a reckless or indifferent disregard of the rights of others, under circumstances reasonably calculated to produce injury, or which make it not improbable that injury will be occasioned, and the offender knows, or is charged with the knowledge of, the probable result of his acts." 170 Va. at 611-12, 195 S.E. at 681. Ellis v. Commonwealth , 29 Va. App. 548, 557, 513 S.E.2d 453, 457-58 (1999). Thus,

- 5 -[w]hile willful misconduct requires an intentional or purposeful act or failure to act, gross or criminal negligence involves [an act or] a failure to act under circumstances that indicate a passive and indifferent attitude toward the welfare of others. Moreover, the defendant must be proved indifferent in the face of knowledge that injury or illegality will be the probable result or, in the alternative, that circumstances exist under which the defendant may be chargeable with such knowledge. Id. (citations omitted). The Supreme Cour t of Virginia has fu rther held that in determining the de gree of a defend ant's negligence , intoxication is relevant as an aggr avating factor, increasing with the level of intoxication. Essex v. Commonwealth , 228 Va. 273, 28 3, 322 S.E.2d 216, 221-22 (1984); see also Huffman v. Love , 245 Va. 311, 315, 427 S.E.2d 357, 360 (1993). Nevertheless , although the Court has been consistent in stating that "'[o]ne who knowingly drives [an] automobile on the highway under the influence of intoxicants, in violation of statute, is, of course, negligent[,]'" [ Essex , 228 Va. at 282, 322 S.E.2d at 221] (quoting Baker v. Marcus , 201 Va. 905, 910, 114 S.E.2d 617, 621 (1960))[,] [t]he Supreme Court [of Virginia] also has observed that "no case . . . holds that one driving under the influence of an intoxicant must necessarily be driving recklessly." Spickard v. City of Lynchburg , 174 Va. 502, 505, 6 S.E.2d 610, 611 (1940). Thus, while evidence of intoxication is a factor that might bear upon proof of dangerous or reckless driving in a given case, it does not, of itself, prove reckless driving. Bishop v. Commonwealth , 20 Va. App. 206, 210, 455 S.E.2d 765, 766-67 (1995).

- 6 -Here, Wright conceded to Trooper Br adley that he was driving "too fast." Wrig ht's conduct of driving hi s car in a manner that was too fast for him to control it proper ly, was ne cessarily rendered more culpab le because Wright wa s driving while his intellectual and motor functions were substa ntially impa ired by his voluntary co nsumption of alcohol and drugs. Indeed, immediately af ter the accident, Wright admitted he was drunk and despite only slight injury, was be having in a considerably irrational manner. Ac cordingly, there was am ple evidence on this record to justif y the trial court' s determination th at Wright was guilty of such a call ous indifference or disregard for "the rules of law and safety, and of the rights of others, as was incompatible with a proper regard for huma n life, and am ounted to gross, wanton and culp able misconduct." Bell , 170 Va. at 613, 195 S.E. at 682. Furthermore, we reject Wright's argument that Jenkins v. Commonwealth , 220 Va. 104, 255 S. E.2d 504 (1979), and Tubman v. Commonwealth , 3 Va. App. 267, 348 S.E.2d 871 (1986), compel a different result . The facts pr esented in those cases are distinguishabl e from those pres ented here. In Jenkins , the Court held that the evid ence was insufficie nt to demonstrate recklessness when it demonstrated merely that Jenkin s struck a pedestrian while drivin g "down the cent er of a narrow , unlighted, unmarked, rura l, secondary road in the early mo rning hours at a time when he was un likely to encounte r other traffic or

- 7 -pedestrians." Jenkins , 220 Va. at 107, 22 5 S.E.2d at 506. Indeed, the court noted that the evidence proved "Jenkins was driving at a speed well within the posted speed limit, " and had not been drinking, or reckless in th e operation of his truck. Id.

In Tubman , there was also no evidence that the defendant had been drinking, and we found that the evidence me rely proved simple negligence where Tubman failed to come to a "complete stop before entering Route 3," caus ing him to fail to se e a motorcyc le, "which was admittedly partially ob structed by [a] hedge." Tubman , 3 Va. App. at 275, 34 8 S.E.2d at 875. Accordingly, because we fi nd that the trial court's determination th at Wright's conduct am ounted to criminal negligence, as provided for in Code § 18.2-5 1.4, was not "plainly wrong or without eviden ce to support it," we affirm the judgment of the trial court. Affirmed.

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