COURT OF APPEALS OF VIRGINIA 

Present: Judges Bumgardner, Humphreys 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 COURT OF BOTETOURT COUNTY 

George E. Honts, III, Judge 

 Randy V. Cargill (Magee, Foster, Goldstein & 

Sayers, P.C., on brief), for appellant. 

 Paul C. Galanides, Assistant Attorney General 

(Jerry W. Kilgore, 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 court erred in finding the evidence sufficient 

to establish that he drove in a manner so gross, wanton and 

culpable as to show a reckless disregard for human life, as 

required by the statute. For the reasons that follow, we affirm 

the judgment of the trial court. 

 

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 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. Background 

 Virginia State Police Trooper Mike Bradley was dispatched to 

the scene of a car accident at approximately 2:10 a.m. on June 3, 

2001. When he arrived, emergency personnel were already present 

and treating two individuals on the ground. Bradley observed 

Wright standing nearby, in the company of two deputies. Trooper 

Bradley approached Wright and asked him what he knew about the 

accident. Wright stated, "I'm f---ing drunk, okay? I was 

driving. Run off the f---ing road. I'm f---ing drunk." Bradley 

asked Wright how much he had had to drink, and Wright responded "I 

don't f---ing know. A lot." He then asked Wright how fast he had 

been driving. Wright stated, "Don't know. Too f---ing fast." 

As emergency personnel attempted to treat Wright's injuries, 

Trooper Bradley observed that Wright cursed and spat at them. 

Wright's demeanor fluctuated from "one extreme to the other," as 

he was calm one moment and then "yelling, cursing and screaming," 

the next. Wright was eventually restrained by medical personnel 

and transported to the hospital. Trooper Bradley then obtained a 

search warrant for a sample of Wright's blood. The analysis 

showed that Wright had a blood alcohol content of 0.09%. Wright 

was arrested on charges of driving while intoxicated, in violation 

of Code § 18.2-266 and maiming, in violation of Code § 18.2-51.4. 

At trial, Trooper Bradley testified that, when he arrived at 

the scene, he observed emergency personnel performing CPR on 

Matthew Switzer, a passenger in Wright's car. He further stated 

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that, according to Wright, the accident occurred when he was 

travelling south on Route 640 and approached a sharp right curve 

in the road. Instead of making the turn, Wright continued 

straight and drove off the left side of the road, over an 

embankment, crashing into a tree. The "total distance off the 

left side of the road to the impact was one hundred forty-seven 

feet." The skid marks measured sixty-four feet. Trooper Bradley 

testified that there was no posted speed limit on that road, so 

the speed limit was "fifty-five" miles per hour. 

Switzer testified that he was a passenger in Wright's car 

when the accident occurred. Switzer stated that Wright picked him 

up that evening at about 5:00 or 6:00 p.m. and that they went 

riding around with another passenger named "Shaney." Switzer 

stated that at some point, they stopped and obtained over a dozen 

Xanax pills. He stated that everyone in the car took the pills. 

He personally took three-and-a-half pills. They later obtained 

some beer and drank while they continued to drive around. Switzer 

did not recall the accident. 

The doctor who treated Switzer testified that Switzer 

presented to the emergency room with "a lot of superficial 

lacerations," and a severely fractured jaw. 

At the close of the evidence, Wright moved to strike, 

contending that the Commonwealth had failed to establish that he 

drove in a manner so gross, wanton and culpable as to show a 

reckless disregard for human life. The trial court denied the 

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motion finding that although the evidence may not have proven that 

Wright was driving "in excess of the speed limit," "his speed was 

clearly too fast for the conditions and clearly too fast for him 

to be able to maintain proper control." The court then found 

Wright guilty of the charge and sentenced him to five years in 

prison, with four years suspended. 

 II. Analysis 

 On appeal, Wright contends the trial court erred in finding 

the evidence sufficient, as a matter of law, to support his 

conviction. Specifically, Wright contends Code § 18.2-51.4 

mandates "three elements of proof: 1) The person must drive 

while intoxicated; 2) The manner of driving while intoxicated must 

be so 'gross, wanton and culpable as to show a reckless disregard 

for human life'; and 3) The driving while intoxicated in the 

requisite manner must cause serious injury resulting in permanent 

physical impairment." Thus, Wright argues the element of driving 

while intoxicated is separate and distinct from the element of 

driving in a "gross, wanton and culpable" manner and that driving 

while intoxicated cannot serve as evidence to support the 

requisite manner of driving. We disagree. 

We first note that the standard for appellate review of 

criminal convictions is well established. "When a defendant 

challenges the sufficiency of the evidence, we are required to 

review the evidence 'in the light most favorable to the 

Commonwealth and give it all reasonable inferences fairly 

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deducible therefrom.'" 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, 537 (1975)). "The 

conviction will not be reversed unless it is plainly wrong or 

without evidence to support 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 court has issued a decision 

interpreting this particular statute, the common law definition of 

criminal negligence, as stated in the statute, is well settled. 

Indeed, in Bell v. Commonwealth, 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, 

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[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 Court of Virginia has further held that in 

determining the degree of a defendant's negligence, intoxication 

is relevant as an aggravating factor, increasing with the level of 

intoxication. Essex v. Commonwealth, 228 Va. 273, 283, 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). 

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Here, Wright conceded to Trooper Bradley that he was driving 

"too fast." Wright's conduct of driving his car in a manner that 

was too fast for him to control it properly, was necessarily 

rendered more culpable because Wright was driving while his 

intellectual and motor functions were substantially impaired by 

his voluntary consumption of alcohol and drugs. Indeed, 

immediately after the accident, Wright admitted he was drunk and 

despite only slight injury, was behaving in a considerably 

irrational manner. Accordingly, there was ample evidence on this 

record to justify the trial court's determination that Wright was 

guilty of such a callous indifference or disregard for "the rules 

of law and safety, and of the rights of others, as was 

incompatible with a proper regard for human life, and amounted to 

gross, wanton and culpable 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 presented in those cases are 

distinguishable from those presented here. In Jenkins, the Court 

held that the evidence was insufficient to demonstrate 

recklessness when it demonstrated merely that Jenkins struck a 

pedestrian while driving "down the center of a narrow, unlighted, 

unmarked, rural, secondary road in the early morning hours at a 

time when he was unlikely to encounter other traffic or 

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pedestrians." Jenkins, 220 Va. at 107, 225 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 the operation of his truck. Id. 

In Tubman, there was also no evidence that the defendant had been 

drinking, and we found that the evidence merely proved simple 

negligence where Tubman failed to come to a "complete stop before 

entering Route 3," causing him to fail to see a motorcycle, "which 

was admittedly partially obstructed by [a] hedge." Tubman, 3 

Va. App. at 275, 348 S.E.2d at 875. 

Accordingly, because we find that the trial court's 

determination that Wright's conduct amounted to criminal 

negligence, as provided for in Code § 18.2-51.4, was not "plainly 

wrong or without evidence to support it," we affirm the judgment 

of the trial court. 

Affirmed. 

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