Blevins v. Commonwealth

• Citation: 63 Va.App. 628,762 S.E.2d 396
• Decision Date: 26 August 2014
• Docket Number: Record No. 1508–13–4.
• Court: Court of Appeals of Virginia
• Parties: Steven Joseph BLEVINS v. COMMONWEALTH of Virginia.

63 Va.App. 628

762 S.E.2d 396

Steven Joseph BLEVINS

v.COMMONWEALTH of Virginia.

Record No. 1508–13–4.

Court of Appeals of Virginia, Richmond.

Aug. 26, 2014.

Edith M. Min (Eugene Frost; Mell & Frost, PC, on brief, Fredericksburg), for appellant.

Christopher P. Schandevel, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: HUMPHREYS, ALSTON and DECKER, JJ.

DECKER, Judge.

Steven Joseph Blevins appeals his conviction of reckless driving in violation of Code § 46.2–852. The appellant argues that the evidence was insufficient to support his conviction. He also contends that the trial court erred by not instructing the jury on improper driving as a lesser-included offense of reckless driving. We hold that the evidence was sufficient to prove the elements of reckless driving and the trial court properly refused the appellant's proposed jury instruction on improper driving. Accordingly, we affirm the conviction.

I. BACKGROUND

This case arises from a traffic accident that occurred on Interstate 95 in Stafford County. The appellant was driving his pickup truck and hit a car driven by Dale Robertson. A passenger in that car died as a result of the wreck.

The following evidence was presented at the appellant's trial for reckless driving. Robertson testified that as he drove past the appellant's truck, he heard the truck engine “rev ... like [the appellant] was attempting to pass the traffic.” The appellant's truck crossed into Robertson's lane. The front passenger side bumper of the truck struck Robertson's rear driver's side bumper. As a result, Robertson's car spun off the road, flipped, and hit a tree. The passenger in Robertson's car died, and Robertson suffered numerous injuries.

Robertson testified that the accident occurred on a rainy night with light to moderate traffic on the interstate. Additionally, according to Robertson, the appellant traveled near his vehicle for approximately forty-five minutes before the accident occurred. The appellant was driving his truck in the left lane of traffic. Robertson was driving his car in the center lane, initially behind the appellant. They drove in those respective lanes for approximately twenty minutes before the accident. Robertson was driving about seventy miles per hour. He testified that he and the appellant were driving appropriately for the conditions that night. He also stated that the appellant was not driving erratically.

Virginia State Trooper M.A. Oliver testified that he investigated the accident. He stated that the posted speed limit was sixty-five miles per hour. The appellant admitted to the trooper that he was driving between seventy-five and eighty miles per hour. He also told Oliver that he felt his truck shake and “pull in toward the left lane.” Further, the appellant said that “his back end [of the truck] started to slip.” He explained to the trooper that he had recently gotten his truck back after “get[ting] some work done on it.” The appellant provided two written statements to the police that were generally consistent with his verbal statements to Oliver.

The appellant testified at trial. Much of his testimony was consistent with what he had previously told the police. He stated that he was driving between seventy and seventy-five miles per hour at the time of the accident. As Robertson drove partially past the appellant on the right, the appellant “clipped” Robertson's car when he crossed into Robertson's lane of traffic. The appellant stated, “I didn't lose control, but I did drift over.” At that point, the appellant's truck struck the side rear portion of the car. The appellant noted that because his truck was an automatic, he could not “just rev [his] engine.... It stays in gear.” The appellant further explained that he recently had the motor replaced.

After the completion of all of the evidence, the appellant offered a jury instruction to allow the jury to consider whether the circumstances warranted a conviction for improper driving rather than reckless driving. The trial court determined that the appellant was not entitled to the instruction. The court reasoned that the plain language of the improper driving statute limited “the reduction of a charge of reckless driving solely to the discretion of the Court and not a jury hearing the case.”

The jury found the appellant guilty of reckless driving. Based on the jury's recommendation, the trial court sentenced the appellant to ten months in jail. The appellant challenges the sufficiency of the evidence to support his conviction as well as the trial court's refusal to instruct the jury on improper driving.

II. ANALYSIS

A. Sufficiency of the Evidence

The appellant contends that the trial court erred by denying his motion to strike the evidence. He asserts that the evidence was insufficient to prove that he was driving in disregard of life, limb, or property.¹ We hold that the evidence, viewed in the light most favorable to the Commonwealth, was sufficient to support the jury's finding of recklessness. Therefore, the trial court did not err in denying the motion to strike.

In this Court's review of the sufficiency of the evidence we must uphold the conviction unless it was plainly wrong or lacked evidence to support it. See, e.g., Hamilton v. Commonwealth, 279 Va. 94, 103, 688 S.E.2d 168, 173 (2010); Spencer v. City of Norfolk, 271 Va. 460, 463, 628 S.E.2d 356, 358 (2006); Sarafin v. Commonwealth, 62 Va.App. 385, 403, 748 S.E.2d 641, 649 (2013). Additionally, on appellate review, this Court “examine[s] the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible” from that evidence. Crest v. Commonwealth, 40 Va.App. 165, 168, 578 S.E.2d 88, 89 (2003); see also Greenway v. Commonwealth, 254 Va. 147, 149, 487 S.E.2d 224, 225 (1997). To do so, we “ ‘discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences that may be drawn therefrom.’ ” Crest, 40 Va.App. at 168, 578 S.E.2d at 89 (quoting Watkins v. Commonwealth, 26 Va.App. 335, 348, 494 S.E.2d 859, 866 (1998)).

Critical to our analysis is that this Court applies a very specific standard of review on appeal. The fact finder was in the position to see and hear the witnesses as they testified and to make credibility determinations. Consequently, decisions regarding the credibility of the witnesses and the weight of the evidence are matters left solely to the fact finder below, in this case the jury. See Redmond v. Commonwealth, 57 Va.App. 254, 265, 701 S.E.2d 81, 86 (2010). In other words, we do not substitute as the trier of fact.

Further, “[m]erely because [a] defendant's theory of the case differs from that taken by the Commonwealth does not mean that every reasonable hypothesis consistent with his innocence has not been excluded. What weight should be given evidence [remains] a matter for the [fact finder] to decide.” Miles v. Commonwealth, 205 Va. 462, 467, 138 S.E.2d 22, 27 (1964). The appellate court asks only whether a reasonable finder of fact could have rejected the defense theories and found the defendant guilty beyond a reasonable doubt. Jordan v. Commonwealth, 273 Va. 639, 646, 643 S.E.2d 166, 170 (2007).

In this case, the Commonwealth was required to establish beyond a reasonable doubt that the appellant was guilty of reckless driving. Bacon v. Commonwealth, 220 Va. 766, 769, 263 S.E.2d 390, 392 (1980). Code § 46.2–852 provides: “Irrespective of the maximum speeds permitted by law, any person who drives a vehicle on any highway recklessly or at a speed or in a manner so as to endanger the life, limb, or property of any person shall be guilty of reckless driving.”

The term “ ‘recklessly ... imparts a disregard by the driver ... for the consequences of his act and an indifference to the safety of life, limb, or property.’ ” Spencer, 271 Va. at 463, 628 S.E.2d at 358 (alterations in original) (quoting Powers v. Commonwealth, 211 Va. 386, 388, 177 S.E.2d 628, 630 (1970)). “The essence of the offence of reckless driving lies not in the act of operating a vehicle, but in the manner and circumstances of its operation.” Powers, 211 Va. at 388, 177 S.E.2d at 630. Factors tending to show recklessness include erratic driving, “the likelihood of injury to other users of the highways,” lack of control of the vehicle, driving in excess of the speed limit, “dangerous driving behavior,” intoxication, and noncompliance with traffic markers. See, e.g., Spencer, 271 Va. at 464, 628 S.E.2d at 358; Mayo v. Commonwealth, 218 Va. 644, 648, 238 S.E.2d 831, 833 (1977); Miles, 205 Va. at 468, 138 S.E.2d at 27; Sheckler v. Anderson, 182 Va. 701, 705–06, 29 S.E.2d 867, 868–69 (1944); Crest, 40 Va.App. at 172, 578 S.E.2d at 91; Hall v. Commonwealth, 25 Va.App. 352, 355 n. 3, 488 S.E.2d 651, 653 n. 3 (1997); Phillips v. Commonwealth, 25 Va.App. 144, 156, 487 S.E.2d 235, 241 (1997). However, “ ‘[f]ast’ driving alone, without the element of endangering life, limb, or property, is not sufficient to support a conviction for reckless driving.” Spencer, 271 Va. at 464, 628 S.E.2d at 358.

Viewing the evidence in the light most favorable to the Commonwealth, the record completely supports the jury's conclusion that the appellant was guilty of reckless driving. The appellant was driving on the interstate on a rainy night at a speed between seventy-five and eighty miles per hour, which was ten to fifteen miles per hour over the posted speed limit. Visibility was limited, and the road was wet. When Robertson started to pull his car ahead of the appellant, the appellant increased his speed. When he did so, his truck went into the lane occupied by Robertson's vehicle and caused the collision. The appellant's front bumper on the passenger's side of the truck struck Robertson's rear driver's side bumper. The impact from the collision caused...