COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Hale y and Senior Judge Annunziata Argued at Alexandria, Virginia

JEFFREY EUGENE NEEL OPINION BY v. Record No. 0369-06-4 JUDGE LARRY G. ELDER MARCH 13, 2007 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF FAUQUIER COUNTY Jeffrey W. Parker, Judge Jud A. Fischel for appellant. Josephine F. Whalen, Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.
Jeffrey E. Neel (appellant) appeals from his jury trial conviction fo r leaving the scene of an accident involving personal injury in violati on of Code § 46.2-894. On appeal, he concedes the evidence was sufficient to prove he failed to stop at the scene of an accident involving property damage, and he does not challenge his convi ction for that offense, but he contends the evidence was insufficient to prove he knew or s hould have known the acci dent involved personal injury. We hold the facts were insufficient to support his conviction. Thus, we reverse the conviction and dismiss the indictment.
I. BACKGROUND At about 5:30 p.m. on August 9, 2004, em ployees of the Prince William and Fauquier County Sheriff’s Departments responded to a Fauqui er County location where “a woman . . . had stopped in the middle of the road” and “was bl ocking traffic.” One deputy spoke with the- 2 - woman while a second, Deputy Ron Christefano, dire cted traffic. Their sheriff’s department vehicles were parked at the scene with emergency lights flashing. Deputy Christefano observed a car approach th e scene and “slow[] do wn properly.” That car was driven by Deanna Swanson. Just as Sw anson was coming to a stop about ten feet from Deputy Christefano, a car driven by appellant approached behind Swanson. Appellant’s car “slowed down some,” but while still traveli ng at “a good speed,” it “rea r-end[ed]” Swanson’s car. Swanson described the impact as “rather ha rd” and said “[i]t pushed [her vehicle forward] some.” Deputy Christefano described the impact as a “bang.” He said it was “like a crash. A rear-end. That’s all it was. But I definitely heard it and saw it.” The accident caused “[n]ot a great deal [of da mage to Swanson’s car], but some.” She described the damage as “a crack in the cover of the light on the back” and said, “I can’t hardly tell it’s there.” Her insurance company estimat ed the cost to repair the damage as “$600 and
some.” “[W]ithin seconds” after the impact, Deputy Christefano approached Swanson’s car and inquired whether “everybody” in Swanson’s ve hicle was “okay” and whether anybody was “hurting.” Swanson looked at the other occupants of her vehicle, two of her grandchildren, and responded to Deputy Christefano that “she was fine ,” they were “okay.” Deputy Christefano told Swanson to pull over to the side of the road, and she did so. Deputy Christefano did not know whether appellant was able to hear his convers ation with Swanson. Deputy Christefano did not assess the damage to Swanson’s vehicle at the ti me, but he did not recall that “any pieces of [Swanson’s] car” or any “broken glass that was attributable to this accident” were “in the roadway” at that time. Deputy Christefano then went immediately to appellant’s window and asked appellant, “Is everything okay?” Appellant “really had no response.” Deputy Christefano then “told- 3 - [appellant] to follow behind [Swanson] and pull over on the side of the road.” Deputy Christefano did not discuss with appellant anyt hing concerning the condition of Swanson or her
passengers. When Deputy Christefano completed his brie f initial conversations with Swanson and appellant, “an ambulance was on the scene for th e original [incident]” that had caused the officers to stop, and Deputy Christefano “let th em know about what happened there.” When Deputy Christefano turned his back to talk to th e other deputy on the scen e, appellant drove off. Deputy Christefano gave chase and apprehended a ppellant at least a mile from the scene. When the officers apprehended appellant, they ob served that his vehicle had a dent on the hood and bumper area that was “[n]ot very big,” “appr oximately twelve inches maybe at the most
across.” Unbeknownst to Deputy Christefano or appellan t, Swanson had “deter iorating discs” and had undergone neck surgery about eight months prior to the collision at issu e. Swanson testified that between her December 2003 neck surgery an d the rear-end collision with appellant on August 9, 2004, she had experienced no pain in her n eck and that after the accident she felt pain in her neck and head. She testified that as of the date of trial, Ju ly 6, 2005, she was “still hav[ing] problems with [her] neck.” Swanson re ceived medical attenti on at the scene of the August 9, 2004 accident, but no evidence indicated sh e received that atten tion while appellant was still present. Appellant was indicted, inter alia , for violating Code § 46.2-8 94 by leaving the scene of an accident in which a person was injured withou t stopping to report his name, address, and other personal information or render reasonab le assistance to the person injured. Following the Commonwealth’s presentation of evidence in appellant’s jury trial, appellant moved to strike, contending, inter alia , that the evidence faile d to prove he knew or- 4 - should have known anyone had been injured as a re sult of the accident. The trial court denied the motion. At the conclusion of all the evidence , appellant renewed his motion to strike, which the court again denied. The jury convicted appell ant of the charged offenses, and he noted this appeal.
II. ANALYSIS Under familiar principles of appellate review, we examine the evidence in the light most favorable to the Commonwealth, granting to th e evidence all reasonable inferences fairly deducible therefrom. See, e.g. , Martin v. Commonwealth , 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). The credibility of a witness, the we ight accorded the testimony, and the inferences to be drawn from proven facts are matters sole ly for the fact finder’s determination. Long v. Commonwealth , 8 Va. App. 194, 199, 379 S.E.2d 473, 476 (1989). Code § 46.2-894 provides in relevant part as follows: The driver of any vehicle involved in an accident in which a person is killed or injured or in which an attended vehicle or other attended property is damage d shall immediately stop as close to the scene of the accident as pos sible without obstructing traffic . . . and report his name, addre ss, driver’s license number, and vehicle registration number forthwit h to the State Police or local law-enforcement agency, to the person struck and injured if such person appears to be capable of understanding an d retaining the information, or to the driver or some other occupant of the vehicle collided with or to the custodi an of other damaged property. If the accident resulted in injury or death, failure to comply w ith Code § 46.2-894 is a felony. Code § 46.2-894. “The identification requirement is intended to facilitate accident investigation and to preserve public order.” Johnson v. Commonwealth , 14 Va. App. 769, 771, 418 S.E.2d 729, 731 (1992). In Herchenbach v. Commonwealth , 185 Va. 217, 38 S.E.2d 328 (1946), the Supreme Court interpreted a predecessor versi on of this statute as follows:- 5 - Knowledge necessarily is an essen tial element of the crime. This does not mean that the person s hould have positive knowledge of the extent of the damage or injuries inflicted. It does mean that, in order to be guilty of violating the statute, “the driver must be aware that harm has been done; it must be present in his mind that there has been an injury; and then, w ith that in his mind, he must deliberately go away without making himself known. If an injury is inflicted under such circum stances as would ordinarily superinduce the belief in a reason able person that injury would flow, or had flowed, from the accide nt or collision, then it is the duty of the operator to stop his vehicle.” Id. at 220, 38 S.E.2d at 329 (quoting 5 Am. Jur. 921). We subsequently interpreted this language as requiring the Commonwealth to prove “that the defendant possessed actual knowledge of the occurrence of the accident, and such knowledge of injury which would be attributed to a reasonable person under the circumstances of the case.” Kil v. Commonwealth , 12 Va. App. 802, 811, 407 S.E.2d 674, 679 (1991). “This approach . . . has been characterized as ‘requiring subjective knowledge of the col lision while holding the driver to a stricter reasonable man standard as to the fact or exte nt of the injury’ . . . .” Id. at 810, 407 S.E.2d at 679 (quoting Commonwealth v. Kauffman , 470 A.2d 634, 637 (Pa. Super. Ct. 1983)). Knowledge of injury may be imputed to a driv er “where the fact of personal injury is visible or where the seriousness of the collision would lead a reasonable person to assume there must have been resulting injuries.” People v. Carter , 52 Cal. Rptr. 207, 208 (Cal. Ct. App. 1966) (citation omitted) (holding that where impact “s lightly damaged” bumper or fender of both cars and bumper had to be pulled away from wheel of one so it could be moved, “collision was not of sufficient magnitude to compel the conclusion th at injuries had probabl y occurred”); see also Marjorie A. Caner, Annotation, Necessity and Su fficiency of Showing, in Criminal Prosecution Under “Hit-and-Run” Statute, Accused’s Knowledge of A ccident, Injury, or Damage , 26 A.L.R.5th 1, §§ 26, 29, 30 (1995 & Supp. 2006) (finding relevant the force of impact and amount of damage sustained by vehicles). “[I]n some cas es, such as [those involving] proof of intent or- 6 - knowledge, [circumstantial evidence] is practic ally the only method of proof.” Parks v. Commonwealth , 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980). “Circumstantial evidence is as competent and is entitled to as much weight as direct evidence, provided [the evidence as a whole] is sufficiently convincing to exclude ev ery reasonable hypothesis except that of guilt.” Coleman v. Commonwealth , 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983). Here, we conclude as a matter of law that the evidence, viewed in the light most favorable to the Commonwealth, was insufficient to support a finding that appellant knew or should have known anyone in Swanson’s car wa s injured. No evidence established that appellant or Swanson left their cars or that em ergency personnel, other than Deputy Christefano, approached Swanson’s car while appellant wa s at the scene. A lthough an ambulance was present when Deputy Christefano finished his br ief conversations with Swanson and appellant immediately following their rear-end collision, it was undisputed that the ambulance was present at the scene to respond to the original incident th at had disrupted traffic. It was also undisputed that medical personnel made no effort to attend to Swanson while appellant was at the scene. Thus, the arrival of an ambulance at the scene of the pre-existing tra ffic incident almost immediately following the occurrence of appellant’s rear-end collision wi th Swanson, viewed in the light most favorable to the Commonwealth, was not evidence indicating a reasonable person in appellant’s position knew or should have known before he fled that someone in Swanson’s car had been injured. 1 Further, although the impact from the rear-end collision was audible, described by Deputy Christefano as a “bang,” 2 and pushed Swanson’s car forward, appellant was present as

1 The Commonwealth, in apparent recognition of this lack of relevance, made no attempt to rely on the presence of the ambulance in arguing to the jury.

2 In ruling on the motion to strike, the tria l court cited the occu rrence of a “loud bang” and found this was enough to impose on appellant a duty to investigate in regard to property- 7 - Swanson, while remaining behind the wheel of her own car, spoke to Deputy Christefano and then pulled her car to the side of the road. Deputy Christef ano then came immediately to appellant’s car rather than attempting to rende r any type of aid to Swanson or any other occupants of her car or to call any of the other people then on the scene to render aid to Swanson or her passengers. Deputy Christefano also calle d attention to the fact that Swanson moved the car under her own power, telling appellant to “fol low behind her and pull over on the side of the road.” Finally, Swanson described the damage to her car as “a crack in the cover of the light on the back” that was so minor “[she could] hardly te ll [it was] there.” Deputy Christefano testified that he did not recall observing any debris in the roadway as a result of the impact between Swanson’s and appellant’s vehicles. Thus, the minimal nature of the damage to Swanson’s vehicle was insufficient to put appellant on notice that she ha d been injured. Although the evidence would support a finding that appellan t’s front bumper and hood may have sustained some damage in the collision, no evidence esta blishes that appellant would have known about this damage before he fled the scene. Compare Cottee v. Commonwealth , 31 Va. App. 546, 558, 525 S.E.2d 25, 31 (2000) (holding evidence suffici ent to prove knowledge where defendant “revved” engine and drove into the two victims, after which “[s] everal bystanders were shouting that people were tra pped under the car”); Kil , 12 Va. App. at 812-13, 407 S.E.2d at 680 (holding evidence sufficient to prove knowledge where impact caused extensive damage to right side of van, scattered numerous glass particles along fron t seat, threw bodies of three victims distances of 45 to 135 feet from point of impact, and resi dents inside nearby homes at time of accident described impact as “a loud noise”).

damage. However, the only witness who describe d the accident as causing a “bang” was Deputy Christefano, who was standing ten feet from the poi nt of impact, and he described the accident as causing only a “bang,” not a “loud bang.”- 8 - Viewing the facts in the light most favorable to the Commonwealth, we hold as a matter of law that the evidence failed to prove appell ant knew or should have kn own personal injury, as opposed to property damage, 3 had resulted from the collision at the time he fled the scene. To hold otherwise would be to permit a driver involved in any but the most minor of accidents to be convicted of felony hit-and-run for leaving th e scene of the accide nt without personally investigating whether injury had occurred, rega rdless of how unforeseeable an injury was under the circumstances surrounding the accident. Whatever one’s moral duty may be upon the occurrence of an accident, the appl icable law in the form of the text of the statute itself and Virginia’s appellate court decisions interp reting it does not permit conviction for felony hit-and-run based solely upon the ha ppening of an accident and a failure to investigate. Rather, such a conviction must be based on evidence, viewed in the light most favorable to the Commonwealth, proving beyond a reasonable doubt th e driver knew or should have known that personal injury, not just pr operty damage, had resulted from the collision. E.g. , Kil , 12 Va. App. at 810-11, 407 S.E.2d at 679.
III. For these reasons, we hold th e evidence was insufficient to support appellant’s felony conviction for leaving the scene of an accident involving personal injury in violation of Code § 46.2-894. Thus, we reverse the challenged conviction and dismiss the indictment. Reversed and dismissed.

3 As previously mentioned, appellant was c onvicted for the misdemeanor of leaving the scene of an accident involving property damage and does not challenge that conviction on appeal.- 9 - Haley, J., dissenting. I respectfully dissent.
I. Although admitting that a “jury’s verdict will not be dist urbed unless it is plainly wrong or without evidence to support it,” Guda v. Commonwealth , 42 Va. App. 453, 457, 592 S.E.2d 748, 750 (2004), the majority nonetheless concludes “as a matter of law that the evid ence, viewed in the light most favorable to the Commonwealth, was insu fficient to support a finding that appellant knew or should have known anyone in [the vict im’s] car was injured.” Respecting the jury’s decision to the contrary, I dissent.
II. FACTS The following adds to and emphasizes th e facts as set forth by the majority. In December of the year preceding the August 9, 2004 accident, Ms. Swanson had had two surgeries in which rods were inserted “in [her] upper and lower back” because of “deteriorating discs.” As to the accident, she tes tified that there was a “r ather hard impact. It pushed us some” and that she “was frightened. And I felt pain.” After she pulled to the shoulder, and the appellant had fled, “[t]he people from the emergency vehicles came over.” After taking her blood pressure, which was found elevated, and upon her telling them of her pain, medical personnel “took her to the hospital.” At the hospital a CT scan and X-rays were taken. Though Ms. Swanson was released from th e hospital seven hours after arrival, as of the date of trial, approximately elev en months after the incident, she “still [has] problems with [her] neck.” The damages to Ms. Swan son’s car totaled approximately $600. Deputy Ron Christefano heard a “bang” when appellant’s vehicle collided with Ms. Swanson’s. He testified that Ms. Swanson said she was okay. I told her to pull on the side of the road. I went over to the second vehicle and told [appellant] to . . . pull over on- 10 - the side of the road. When I di d that, at that time an ambulance was on the scene for the original reason 4 why I went out there . . . . When I turned my back to talk to the other deputy, I looked over my shoulder and the [appellant] in the second vehicle shot off. III. JURY INSTRUCTIONS The trial court considered the primary issue, that is, whether knowle dge of injury could be attributable to a reasonable person under the circ umstances, as one for jury determination. Relevant portions of the inst ructions to the jury follow: 5 From Instruction 5 defining the elements of th e offense: “(3) That the defendant knew, or should have known, that another pers on was injured by the accident.” Instruction 7: “The word ‘injury’ as used in these in struction[s] means any physical damage to the body caused by violence or accident.” From Instruction 8: “the Commonwealth must prove . . . knowledge of injury which would be attributed to a reasonable pe rson under the circumstances of the case.” 6 From Instruction 9: “for an element may also be proved by circum stantial evidence. You may convict the defendant on circum stantial evidence alone . . . .”
IV. ANALYSIS The verdict of a jury “cannot be overturne d on appeal unless no ‘ra tional trier of fact’ could have come to the conclusi on it did.” Stevens v. Commonwealth , 46 Va. App. 234, 248, 616 S.E.2d 754, 761 (2005) (quoting Kelly v. Commonwealth , 41 Va. App. 250, 257, 584 S.E.2d

4 The dissent acknowledges that the ambulance had been called as a result of the accident that caused Ms. Swanson to slow and stop befo re being hit in the rear by the appellant. Nonetheless, an ambulance was “on the scene” when appellant fled.

5 Appellant took no excepti on to these instructions.

6 The language of this in struction was taken verba tim from Kil v. Commonwealth , 12 Va. App. 802, 811, 407 S.E.2d 674, 679 (1991) (“and such knowledge of injury which would be attributed to a reasonable person unde r the circumstances of the case”).- 11 - 444, 447 (2003) (en banc)). See also Pease v. Commonwealth , 39 Va. App. 342, 355, 573 S.E.2d 272, 278 (2002) (en banc) (“We let the d ecision stand unless we conclude no rational juror could have reached that decision.”), aff’d , 266 Va. 397, 588 S.E.2d 149 (2003); O’Connell v. Commonwealth , 48 Va. App. 719, 726, 634 S.E.2d 379, 382 ( 2006). “This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts .” Jackson v. Virginia , 443 U.S. 307, 319 (1979) (emphasis added). That standard of review does not permit us to “substitute our judgment for that of” a properly instructed jury. See Wactor v. Commonwealth , 38 Va. App. 375, 380, 564 S.E.2d 160, 162 (2002). It is my view the majority does not honor that standard and engages in the substitution that standard prohi bits. Accordingly, I dissent.