Camp v. Com., 1021-90-1

• Decision Date: 28 July 1992
• Docket Number: No. 1021-90-1,1021-90-1
• Citation: 14 Va.App. 879,419 S.E.2d 435
• Parties: Thomas J. CAMP v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 435

419 S.E.2d 435

14 Va.App. 879

Thomas J. CAMP v. COMMONWEALTH of Virginia.

Record No. 1021-90-1.

Court of Appeals of Virginia.

July 28, 1992.

Guilford D. Ware, Norfolk (Martha M. Poindexter, Crenshaw, Ware & Martin, on briefs), for appellant.

Michael T. Judge, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: BAKER, DUFF and WILLIS, JJ.

BAKER, Judge.

Thomas J. Camp (appellant) appeals from his bench trial conviction by the Circuit Court of Virginia Beach (trial court) for violation of Code § 29.1-738(A). That code section provides:

§ 29.1-738. Operating boat or manipulating water skis, etc., in reckless manner or while intoxicated, etc.--A. No person shall operate any motorboat or vessel, or manipulate any skis, surfboard, or similar device, or engage in any spearfishing while skin diving or scuba diving in a reckless manner so as to endanger the life, limb, or property of any person.

Among other alleged errors, appellant asserts that the trial court erroneously declined to strike the Commonwealth's evidence. Because we agree that the evidence is insufficient to prove beyond a reasonable doubt that appellant was guilty of a criminal offense, we reverse the conviction and dismiss appellant from further prosecution. In view of our decision, we need not address the other issues raised by this appeal.

On appeal, we view the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). However, while we view the evidence in that light, the burden remains on the Commonwealth to produce evidence consistent with guilt of a crime and inconsistent with innocence. See Cameron v. Commonwealth, 211 Va. 108, 175 S.E.2d 275 (1970).

The record discloses that on July 30, 1989, a bright, clear, calm Sunday, Dr. Richard J. Seeley, his wife and Mr. and Mrs. Joe Foulkes were returning ashore from a Chesapeake Bay cruise on Dr. Seeley's boat. As they approached the channel leading under the Lesner Bridge, Dr. Seeley sighted a Grady-White boat operated by appellant between three and four hundred yards to his right. Dr. Seeley did not see the Grady-White again until after the boats collided; however, as he neared the bridge, Dr. Seeley observed two powerboats coming toward him at a high rate of speed. Seconds later, Dr. Seeley heard Mrs. Foulkes say: "What is he going to do? What is he doing? Is he going to hit us?" At that moment, Dr. Seeley felt the stern of his boat go down and he was pushed to the left. He subsequently heard someone on the Grady-White say that it had collided with his boat. ¹

Mr. Foulkes testified that he also had seen the Grady-White off to the right and had no reason to believe there was any danger of a collision between the two boats. He did not see the Grady-White again until after the collision. He said that things happened "very rapidly" and that they could not see what the Grady-White was doing, only that suddenly there was a "crunch." He also heard a voice from the Grady-White say that it had collided with the Seeley boat.

Mrs. Foulkes testified that when she first saw the Grady-White it was a good distance to her right "going awfully fast," but that it seemed far enough away "that there wasn't apparently any kind of a problem." When she next saw the Grady-White, it was "in back of us," approximately twenty-five feet away. She was unable to estimate the Grady-White's speed at that time but indicated that it struck the Seeley boat at an angle. Mrs. Foulkes did not say that she saw the powerboats or the wake caused by their speed. Her testimony does not contradict Dr. Seeley's statement that he heard her exclamations seconds after he sighted the approaching powerboats.

Virginia Beach marine patrol police officer Larry Willis testified that he interviewed appellant at the dock shortly after "this boating accident." Willis gave this account of his interview with appellant, which occurred at the dock immediately following the accident.

I asked Mr. Camp what had happened. He stated that they had been out fishing; that they had left Little Creek and were on their way back to Lynnhaven Inlet, coming up through the small boat channel which runs parallel to the beach.

As they approached the Lynnhaven Inlet marker channel, he stated to me that he observed Mr. Seeley's boat in the channel. He proceeded to pull into the channel area behind Dr. Seeley, pulled up behind Dr. Seeley's vessel and proceeded to pass on the port side.

He stated that he observed two fast powerboats coming out of the channel. As he proceeded to pull out, he determined that there was not enough room between his boat, Dr. Seeley's boat, and the vessels that were coming out to pass safely. He pulled back in behind Dr Seeley. He stated that the boat wakes from the two boats coming out washed up off his boat across the stern of Dr. Seeley's boat. And he then passed on the starboard side, the right side, of Dr. Seeley's boat and attempted to back down to full power, but the momentum of the vessel was too great.

Willis identified a picture, Commonwealth's Exhibit # 4, showing the right-hand stern section of the Seeley boat. He noted the picture depicted damage to the seat cushion and railing caused by the collision. He saw no damage to the Grady-White. Willis further stated that he personally knew appellant had a good reputation as a boat operator and that there were no posted speed limits in the area but there were several "no wake" signs. Willis did not assert that appellant was speeding or had himself caused an excessive wake. Approximately two weeks later, Willis issued a summons against appellant.

The Commonwealth called Coast Guard Master Chief Petty Officer Stone who related undisputed rules of the road. He stated that in this case he did not know how far the Grady-White was behind the Seeley boat and could...