COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Mal veaux and Senior Judge Frank Argued at Newport News, Virginia

JUSTIN DEAN HEDGPETH MEMORANDUM OPINION * BY v. Record No . 0107-17-1 JUDGE ROBERT J. HUMPHREYS DECEMBER 27, 2017 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT C OURT OF THE CITY OF WILLIAMSBURG AND COUNTY OF JAMES CITY Randolph T. West, Judge Designate Michael A. Hyman (Collins & H yman PLC, on brief), for appella nt. David M. Uberman, Assistant A ttorney General (Mark R. Herring , Attorney General, on brief), for appellee.

On September 7, 2016, in the Circuit Court for the City of Will iamsburg and the County of James City (the “circuit cour t”), Justin Dean Hedgpeth (“Hed gpeth”) was convicted of two counts of misdemeanor eludi ng police, in violation of Code § 46 .2-817, driving while intoxicated (third or subsequent in ten y ears), in violation of Code § 18.2 -266, and two counts of driving on a revoked license, in violati on of Code § 46.2-391(D)(2). Hedg peth was also convicted of petit larceny, second offense, in vi olation of Code § 18.2-96. 1 On appeal, Hedgpeth alleges two

* Pursuant to Code § 17.1-413, this op inion is not designated fo r publication.

1 On March 17, 2016, Hedgpeth became the subject of an investiga tion for petit larceny that occurred at a Martin’s sto re. At the trial on September 7 , 2016, Hedgpeth stipulated that he took beer from Martin’s without paying and without permission a nd that he was thereafter sought by police while operating a motor vehicle on March 17, 2016. A fter being stopped by a police officer, Hedgpeth fled the scene . Here, however, Hedgpeth chal lenges only his conviction for driving while intoxicated and one of his convictions for drivin g on a revoked license, which stem from a separate incident on March 12, 2016. The March 12, 2016 incident is the subject matter of this appeal.UNPUBLISHED- 2 - assignments of error: (1) that t he facts are insufficient to c onvict him of driving while intoxicated, third or subsequent within ten years, and (2) that the facts are insufficient to convict him of driving on a revoked license. “When reviewing a defendant’s chall enge to the sufficiency of t he evidence to sustain a conviction, this Court reviews th e evidence in the light most f avorable to the Commonwealth, as the prevailing party at trial, a nd considers all inferences fai rly deducible from that evidence.” Allen v. Commonwealth, 287 Va. 68, 72, 752 S.E.2d 856, 858-59 ( 2014). An appellate court may reverse the judgment of the t rial court “if the judgment ‘i s plainly wrong or without evidence to support it.’” C rawford v. Commonwealth, 281 Va. 84 , 112, 704 S.E.2d 107, 123 (2011) (quoting Code § 8.01-680). “If there is evidence to sup port the convictions, the reviewing court is not permitted to substitute its own judgment, even if its opinion might differ from the conclusions reached by the finder of fact at the trial.” Id. ( quoting Commonwealth v. Jenkins, 255 Va. 516, 520, 499 S.E.2d 263, 265 (1998)). The issue on ap peal is “whether, after viewing the evidence in the light mos t favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable d oubt.” McMillan v. Commonwealth, 277 Va. 11, 19, 671 S.E.2d 396, 399 (2009) (quoti ng Maxwell v. Commonwealth, 275 Va. 437, 442, 657 S.E.2d 499, 502 (2008)). Accordingly, the evidence is that on March 12, 2016, Williamsbu rg Police Officer D. Mizelle (“Officer Mizelle”) witn essed Hedgpeth make an illegal right turn. Two clearly visible traffic signs prohibiting right turns were posted at the inters ection. Officer Mizelle initiated a traffic stop on Hedgpeth’s vehicl e after Hedgpeth maneuvered hi s vehicle through a narrow alleyway and parked in a parki ng lot. When Hedgpeth gave Offic er Mizelle his driver’s license, Officer Mizelle “could smell a strong odor of an alcoholic beve rage coming from the vehicle.”- 3 - Officer Mizelle asked Hedgpeth t o step out of his vehicle to co mplete a field sobriety test. Hedgpeth exited his vehicle but r efused to take a field sobriet y test. Instead, Hedgpeth attempted to light a cigarette. When Offi cer Mizelle asked Hedgpeth not to do so, Hedgpeth replied “[i]f you’re going to take me to jail for whatever, go ahead and take me to jail.” Officer Mizelle asked Hedgpeth to perform a fiel d sobriety test a second time, but Hedgpeth again refused. Officer Mizelle noticed a str ong odor of alcohol emanating from Hedgpeth’s person and that Hedgpeth’s speech was slurred. Hedgpeth attempted to light ano ther cigarette but then ran from the scene. Hedgpeth’s flight f rom Officer Mizelle took him thr ough the parking lot, down an embankment, and into a wooded area. Remaining with a passenger in Hed gpeth’s vehicle, Officer Mizel le observed an open bottle of whiskey and an open t wo-liter bottle of soda in the b ackseat. Hedgpeth’s vehicle contained two cups in the center console that “were filled with a brown liquid that . . . smelled of an alcoholic beverage.” Officer Mizelle also noticed that the key to Hedgpeth’s vehicle was removed from the ignition and dropped behind the front pass enger seat. Hedgpeth was subsequently apprehended. On September 7, 2016, H edgpeth pleaded not guilty to all charges against him—two counts of misdemeanor elu ding, driving while intoxicated, two counts of driving on a revoke d license, and one count of pe tit larceny. Hedgpeth stipulated that he fled from Officer Mizelle . Hedgpeth also stipulated th at his license was revoked at the time. Finally, Hedgpeth concede d that he had two prior convict ions for driving while intoxicated in the ten years prior to his a rrest and that he was the driver of the vehicle during the incident upon which this appeal is based. Following a bench trial where onl y Officer Mizelle testified, the circuit court convicted Hedgpeth of all charges. Explai ning its decision, the circuit court noted that the case was a “close call as far as the DUI is concerned.” The circuit court then convicted Hedgpeth and- 4 - specifically noted the fact thatHedgpeth refused to take a fie ld sobriety test and subsequently fled the scene. Additionally, the circuit court observed that there was a “strong odor of alcohol coming from [Hedgpeth’s] car” as w ell as an “odor of alcohol” o n Hedgpeth’s breath. This appeal follows. Code § 18.2-266 prohibits a person from operating a motor vehic le “while such person is under the influence of alcohol . . . .” In the absence of fore nsic testing demonstrating blood alcohol content in excess of the proscribed limit, the degree o f intoxication, or being under the influence of alcohol, “is esta blished when any person has consu med enough alcoholic beverages to ‘so affect his manner, disposition, speech, muscular movemen t, general appearance or behavior, as to be apparent t o observation.’” Thurston v. Lync hburg, 15 Va. App. 475, 483, 424 S.E.2d 701, 705 (1992) (quoting Gardner v. Commonwealth, 195 Va . 945, 954, 81 S.E.2d 614, 619 (1954)). In determining whether a defendant was intoxicate d, a factfinder considers “all of the evidence of his condition at the time of the alleged offens e.” Leake v. Commonwealth, 27 Va. App. 101, 109, 497 S.E.2d 522, 526 (1998) (quoting Brooks v . City of Newport News, 224 Va. 311, 315, 295 S.E.2d 801, 804 (1982)). Hedgpeth supports his first assi gnment of error by offering alt ernative explanations for each piece of circumstantial evid ence that the circuit court re lied upon to convict Hedgpeth of driving while intoxicated. A ttempting to explain the odor of a lcohol emanating from his vehicle and person, Hedgpeth argues that, since he fled the scene short ly after Office Mizelle approached him, Officer Mizelle only had a limited i nteraction with him an d, consequently, Officer Mizelle could not conclusively establish t hat he was intoxicated. Hedg peth also insinuates that the passenger in his vehicle was res ponsible for the odor of alcoho l and the open containers. Attempting to explain his attempts to light a cigarette againstthe wishes of Officer Mizelle, Hedgpeth posits that “his decision t o light a cigarette againstthe direction of O fficer Mizelle is- 5 - immaterial to the issue of int oxication.” Finally, Hedgpeth ar gues that, “[d]espite the Commonwealth’s efforts, the evide nce demonstrates reasonable do ubt as to whether [Hedgpeth] was intoxicated.” In support of this last argument, Hedgpeth a sserts that since he maneuvered his vehicle through a difficult tu rn, down a narrow alleyway, s uccessfully parked in a tight parking space, and had no difficu lty in running “down a pathway through a wooded area and down an embankment” in his successful attempt to elude Officer Mizelle, he could not have been impaired to the point of intoxi cation. According to Hedgpeth, these facts demonstrate “that his ability to drive at the time [was] exceptional.” Hedgpeth also argues that, other than slurred speech, Officer M izelle’s testimony did not present any other indicia of intoxication typically found in a driving while intoxicated case. Hedgpeth notes that the evidence did not show that he had a flu shed face, bloodshot eyes, or otherwise intoxicated disposition. Further, Hedgpeth attempts to justify his flight from Officer Mizelle by relying on Jones v. Commonwealth, 279 Va. 52, 688 S. E.2d 269 (2010). Hedgpeth argues that, under Jones, “[a] re fusal to submit to field sobri ety tests . . . can often be explained in terms of innocent human behavior.” Id. at 58, 688 S.E.2d at 272. Hedgpeth’s reliance on Jones, however, is misplaced. Hedgpeth is correct that the refusal to submit to a field sobriety tes t alone is insufficient to inf er consciousness of guilt. Hedgpeth, however, chooses to ignore the ve ry next sentence in Jones, whi ch states “ [u]nlike instances of flight . . . or other acts of deception, a driv er refusing to submit to a fi eld sobriety test has not undertaken affirmative action t o deceive or to evade the police .” Id. (emphasis added). While our Supreme Court set forth sever al examples of innocent human behavior justifying a field sobriety test refusal—includi ng tiredness, a lack of physical d exterity, a limited ability to speak the English language, or a reluc tance to submit to subjective a ssessments by a police officer— those justifications do not appl y here. Further, Jones stands for the proposition that the refusal to- 6 - perform a field sobriety test, without more , is insufficient to demonstrate a defendant’s consciousness of guilt. S ee id. at 60, 688 S.E.2d at 273. In this case there was more than his mere refusal to perform a field s obriety test. Moreover, it is clear that “the refusal to submit to field sobriety tests is eviden ce of a defendant’s consciousness of guilt.” See id. Because the record does not support any reas onable inference of any innocen t explanation for Hedgpeth’s actions, Jones lends no support to Hedgpeth’s argument. Here, the circuit court properly w eighed all of the evidence, i ncluding Hedgpeth’s novel speculations suggesting alternate conclusions from those facts, before finding Hedgpeth guilty of driving while intoxicated. In doi ng so, the circuit court expl icitly relied on the totality of the evidence that, taken together, present compelling circumstantia l evidence that Hedgpeth was driving while intoxicated. “While no single piece of evidence may be sufficient, the combined force of many concurrent and related circumstances, each insuff icient in itself, may lead a reasonable mind irresistibly to a conclusion.” Emerson v. Comm onwealth, 43 Va. App. 263, 277, 597 S.E.2d 242, 249 (2002) (quoting Derr v. Commonwealth, 242 Va. 413, 425, 410 S.E.2d 662, 669 (1991)) (internal quotation marks omitted). Specifica lly, the evidence supporting the circuit court’s conclusion tha t Hedgpeth was intoxicated in the light most favorable to the Commonwealth as the prevailing party below is that while Hedgpe th was driving, Hedgpeth and his companion were both drinking alcoholic beverages. Hedgpetheither failed to notice or deliberately disregarded two pos ted and clearly visible traffic signs at an intersection where he made an illegal right turn. A strong odor of alcohol emanated from Hedgpeth’s person, and Hedgpeth’s speech was slurred. H edgpeth was uncooperative withOfficer Mizelle’s attempts to conduct a field sobriety test a nd fled from Officer Mizelle imm ediately after Mizelle’s second request that Hedgpeth do so. Bas ed on this evidence, we cannot say that no rational factfinder could reach the same conclusion as the circuit court did in thi s matter.- 7 - Hedgpeth, in his second assignment of error, argues that the ev idence was insufficient to support his conviction for driv ing on a revoked license, in vio lation of Code § 46.2-391(D)(2). Code § 46.2-391(D)(2) provides, in relevant part, that any pers on who is convicted of violating Code § 18.2-266, after pr eviously having had his or h er driver’s license revoked, is guilty of a felony. See Code § 46.2- 391(D)(2). Hedgpeth does not challenge the statute’s validity. Rather, Hedgpeth ind icates that Code § 46.2-391(D)(1 ) states “[i]f such driving does not of itself endanger the life , limb, or property of another, such person shall be guilty of a Class 1 misdemeanor.” Code § 46.2-391(D)(1). And, because Hedgpeth argues that the evidence was insufficient for the circuit co urt to find that he was driving while intoxicated he claims that the circuit court erred in failing to reduce the driving revoked ch arge to a misdemeanor. Stated another way, Hedgpeth argues th at his driving while revoked cha rge “should have been reduced to a misdemeanor, as there is i nsufficient evidence to prove th e enhancements necessary for a felony charge.” Despite Hedgpeth’s assertions t hat his conduct did not endanger life, limb, or property of another, the law recognizes tha t “the act of driving while into xicated . . . is inherently dangerous.” Davis v. Commonwealth, 12 Va. App. 408, 413, 404 S .E.2d 377, 380 (1991). “A drunken driver has dulled his perc eptions, blunted his skill, and slowed his reflexes in advance.” Wyatt v. Commonwealth, 47 Va. App. 411, 418, 624 S.E.2d 118, 12 2 (2006) (quoting Essex v. Commonwealth, 228 Va. 273, 283, 322 S.E.2d 216, 221 (1984)). F urther, the predominant purpose of any drunk driving statute is to protect innocent peo ple from the devastating harm so easily caused by an intoxicated driver. 2 See, e.g, Gallagher v. Commonwealth, 205 Va. 666, 139 S.E.2d 37 (1964).

2 Hedgpeth also posed a danger t o other drivers because his driv er’s license was revoked. As previously noted by this Cour t, “the purpose of revoking a d river’s license is not to punish the- 8 - At trial, Hedgpeth stipulated to the authenticity of his Depart ment of Motor Vehicles (“DMV”) transcript showing that his driver’s lic ense was revoke d as a result of a second offense for driving while intoxicate d. Hedgpeth did not object to the admission of his DMV transcript or prior conviction orders. Further , Hedgpeth stipulated that he was driving when Officer Mizelle initiated the traffic stop o n March 12, 2016. Therefore, the o nly factual issue left for the circuit court’s determination was wheth er Hedgpeth drove while intoxica ted, in violation of Code § 18.2-266. For the reasons stated above, the circuit court did not err in finding that Hedgpeth was guilty of driving while intoxi cated, in violation of Code § 18. 2-266. It follows that the elements of Code § 46.2-391(D)(2) were sa tisfied, and the circuit court did not err in concluding that the evidence was sufficient to prove that Hedgpeth was guilty of fe lony driving on a revoked license. For the foregoing reasons, the j udgment of the circuit court is affirmed. Affirmed.

offender but to remove from the highways an operator who is a p otential danger to other users.” Ingram v. Commonwealth, 29 Va. App. 759, 763, 514 S.E.2d 792, 794 (1999).