Corbin v. Com.

• Decision Date: 02 November 2004
• Docket Number: Record No. 2560-03-4.
• Citation: 44 Va. App. 196,604 S.E.2d 111
• Parties: Charles McArthur CORBIN v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

604 S.E.2d 111

44 Va. App. 196

Charles McArthur CORBIN v. COMMONWEALTH of Virginia.

Record No. 2560-03-4.

Court of Appeals of Virginia, Alexandria.

November 2, 2004.

Franklin B. Reynolds, Jr., for appellant.

Amy L. Marshall, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

Present: WILLIS, S.J., and FRANK and CLEMENTS, JJ.

FRANK, Judge.

Charles McArthur Corbin, appellant, was convicted in a bench trial of driving under the influence, second or subsequent offense, in violation of Code § 18.2-266. On appeal, he contends the trial court erred in (1) finding the evidence sufficient that appellant was the driver of the vehicle and (2) denying appellant's motion to suspend the suspension of his operator's license pending appeal. For the reasons stated, we affirm in part and reverse in part.

BACKGROUND¹

It is well settled that "[o]n appeal, we review the evidence in the light most favorable to the party prevailing below, together with all reasonable inferences that may be drawn." Benton v. Commonwealth, 40 Va. App. 136, 139, 578 S.E.2d 74, 75 (2003).

So viewed, the evidence establishes that between 10:00 p.m. and 11:00 p.m. on November 27, 2002, John Allison came upon an overturned pickup truck while he was driving on Route 522. Allison observed appellant exit from the driver's side, struggling with the steering wheel to get out. Nothing prevented appellant from exiting from the passenger's side. According to Allison, appellant looked "dazed and confused." While waiting for the police to arrive, Allison observed appellant vomit.

On cross-examination, Allison indicated appellant got out of the "downhill" side of the overturned vehicle. Allison admitted he might have the position of the truck incorrect in reference to the passenger and driver sides because the truck was upside down. Nevertheless, he stated appellant was "contending" with the steering wheel.

At the scene, appellant told Deputy Sheriff Mark Currence he did not know who was driving, but denied he was the driver.

Appellant testified that around 5:00 p.m. on November 27, he met a man named "James" at a convenience store. "James," whose last name was unknown to appellant, offered to drive because appellant had been drinking. "James" drove appellant to Rappahannock County. When the accident occurred, appellant was "half asleep." Appellant indicated he had not tried to find "James" and did not know what became of him. He admitted that initially he did not tell the deputy that "James" was the driver, but later indicated to the deputy that "James" was, in fact, the driver. Appellant also admitted he was drunk that evening. Appellant testified he had no memory of the accident, yet he was certain he was not the driver.

Chris Senter testified on behalf of appellant that around 8:00 p.m. on the same evening, he saw appellant at a fast food store. Appellant was the passenger, and another person was the driver.

In finding appellant guilty, the trial court discounted Mr. Senter's testimony and noted appellant was the only person seen exiting the vehicle. Allison saw appellant "contending" with the steering wheel, even though there was some confusion as to whether he exited the passenger's side or the driver's side. The trial court found Allison's testimony credible and indicated appellant's testimony was conflicting.

The trial court found appellant guilty of driving under the influence, a second violation in five (5) years. In addition to a suspended jail sentence and a fine, the trial court suspended appellant's operator's license for three (3) years. Appellant surrendered his license to the clerk.

Appellant moved for the court to suspend execution of the suspension of his operator's license pending appeal. The trial court denied that motion.

ANALYSIS

SUFFICIENCY OF THE EVIDENCE

Appellant's sufficiency argument is limited to whether the evidence is sufficient to prove he was the driver.² He contends the Commonwealth's only credible evidence is that appellant was seen crawling out of the vehicle. He points to Allison's uncertainty as to whether appellant exited the driver's side or the passenger's side of the vehicle.

As stated above, when considering the sufficiency of the evidence on appeal, we view the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. See Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975)

. "In so doing we must `"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."'" Norman v. Commonwealth, 2 Va.App. 518, 520, 346 S.E.2d 44, 45 (1986) (quoting Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980) (quoting Wright v. Commonwealth, 196 Va. 132, 137, 82 S.E.2d 603, 606 (1954))). The trial court's judgment will not be set aside unless plainly wrong or without evidence to support it. Josephs v. Commonwealth, 10 Va.App. 87, 99, 390 S.E.2d 491, 497 (1990) (en banc). Additionally:

The credibility of a witness and the inferences to be drawn from proven facts are matters solely for the fact finder's determination. In its role of judging witness credibility, the fact finder is entitled to disbelieve the self-serving testimony of the accused and to conclude that the accused is lying to conceal his guilt.

Marable v. Commonwealth, 27 Va.App. 505, 509-10, 500 S.E.2d 233, 235 (1998) (citations omitted).

While no eyewitness saw appellant actually driving the vehicle, this circumstance is not determinative of the outcome. Circumstantial evidence may establish the elements of a crime, provided it excludes every reasonable hypothesis of innocence. Tucker v. Commonwealth, 18 Va.App. 141, 143, 442 S.E.2d 419, 420 (1994). "The statement that circumstantial evidence must exclude every reasonable theory of innocence is simply another way of stating that the Commonwealth has the burden of proof beyond a reasonable doubt." Commonwealth v. Hudson, 265 Va. 505, 513, 578 S.E.2d 781, 785 (2003). This Court must determine not whether there is some evidence to support Corbin's hypothesis of innocence but, rather, whether a reasonable fact finder, upon consideration of all the evidence, could have rejected appellant's theories and found him guilty beyond a reasonable doubt. See Correll v. Commonwealth, 42 Va.App. 311, 327, 591 S.E.2d 712, 721 (2004)

. Whether a hypothesis of innocence is reasonable is a question of fact. Id.

On direct examination, Allison testified that he saw appellant climb out of the driver's side of the vehicle, struggling with the steering wheel to exit. If appellant was seated on the passenger side, nothing prevented him from exiting from that side. The fact finder could properly conclude appellant was not seated on the passenger side. While on cross-examination, however, Allison admitted he might have the position of the truck incorrect in reference to the passenger and driver sides. Nevertheless, Allison never wavered on his certainty that appellant was "contending with the steering wheel."

The trial court was not required to accept the totality of Allison's testimony. See generally Montague v. Commonwealth, 40 Va. App. 430, 436, 579 S.E.2d 667, 669 (2003)

(noting that a fact finder need not decide between rejecting or accepting a witness' testimony in full, but may find it credible in part and incredible in part); see also Barrett v. Commonwealth, 231 Va. 102, 107, 341 S.E.2d 190, 193 (1986) (recognizing that jurors "have the right to reject that part of the evidence believed by them to be untrue and to accept that found by them to be true").

Further, appellant was the only one seen leaving the vehicle. No one else was seen in the area. As the trial court indicated, appellant's testimony was "conflicting." At the scene, appellant, while denying he was the driver, did not know the driver's identity. Yet later, he testified the driver was a man named "James." "In its role of judging witness credibility, the fact finder is entitled to disbelieve the self-serving testimony of the accused and to conclude that the accused is lying to conceal his guilt." Marable, 27 Va. App. at 509-10, 500 S.E.2d at 235 (citations omitted).

Thus, we conclude a reasonable fact finder could have rejected appellant's hypothesis of innocence that James was the driver of the vehicle and could have found that the appellant was the driver.

SUSPENSION OF OPERATOR'S LICENSE

Appellant contends Code § 19.2-319,³ which, in part, gives the trial court the discretion to postpone the execution of the judgment pending appeal, supports his position that the trial court must also suspend the suspension of his operator's license pending appeal. Appellant's argument incorrectly assumes a license revocation is part of the sentence.

Appeal of a criminal conviction does not affect the finality of the judgment; it only suspends execution of the sentence. Code § 19.2-319; Hirschkop v. Commonwealth, 209 Va. 678, 166 S.E.2d 322, cert. denied, 396 U.S. 845, 90 S.Ct. 72, 24 L.Ed.2d 94 (1969). The "`revocation of a privilege voluntarily granted'" is an act which "`is characteristically free of the punitive criminal element.'" Hudson v. United States, 522 U.S. 93, 104, 118 S.Ct. 488, 496, 139 L.Ed.2d 450 (1997) (quoting Helvering v. Mitchell, 303 U.S. 391, 399 & n. 2, 58 S.Ct. 630, 633 & n. 2, 82 L.Ed. 917 (1938)); see also Commonwealth v. Ellett, 174 Va. 403, 414, 4 S.E.2d 762, 767 (1939) ("The operation of a motor vehicle ... is a conditional privilege, which may be suspended or revoked under the police power.... [It] is not a contract or property right in a constitutional sense."). As such, drivers' license suspensions historically have not been considered punishment in Virginia. Brame v. Commonwealth, 252 Va. 122, 130, 476 S.E.2d 177, 181 (1996).

As the Supreme Court of...