Kennedy v. Com., 0062-85

• Decision Date: 18 February 1986
• Docket Number: No. 0062-85,0062-85
• Citation: 339 S.E.2d 905,1 Va.App. 469
• Parties: John Bernard KENNEDY v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 905

339 S.E.2d 905

1 Va.App. 469

John Bernard KENNEDY v. COMMONWEALTH of Virginia.

Record No. 0062-85.

Court of Appeals of Virginia.

Argued Oct. 8, 1985.

Decided Feb. 18, 1986.

William H. Logan, Jr. (Logan & Logan, Woodstock, on brief), for appellant.

Leah H. Darron, Asst. Atty. Gen. (William G. Broaddus, Atty. Gen., on brief), for appellee.

Present: DUFF, COLE and MOON, JJ.

DUFF, Judge.

The issue presented is whether the evidence was sufficient to find beyond a reasonable doubt that the appellant, John Bernard Kennedy, was guilty of reckless driving.

At approximately 1:00 a.m. on May 1, 1984, Kennedy, with his wife and children, was driving north on Interstate 81 when his 1973 van ran off the left side of the road into a wooded median strip. When the state trooper arrived on the scene, Kennedy advised him that he did not know what happened. Kennedy stated that approximately fifteen minutes earlier he had been sleepy and pulled off the highway at a rest area to take a nap. However, after getting out of the van and walking around, he felt refreshed, got back in and continued driving.

The trooper testified that there were no other vehicles at the scene. He stated that he observed tire tracks in the grassy area, but that there were no skid marks or evidence of braking in the area where the van left the road. After the van was towed out of the median strip, Kennedy was able to drive it away.

Although Kennedy could not recall either at the scene, or at the trial in the general district court, what caused him to run off the road, when he testified at the trial in circuit court on October 3, 1984, he offered an explanation for the accident and recounted the events preceding it. At the time the incident occurred, the Kennedys had been on the road for approximately eight hours travelling from Tennessee to their home in Maryland. Mrs. Kennedy had driven during the daylight hours while Mr. Kennedy napped. At dusk, Mr. Kennedy began driving.

Kennedy testified that just before he ran off the road, he had been looking for a sign indicating the exit to Route 66. He stated that he was passed on the right by a tractor trailer, and suggested that the combination of the wind and the passing truck caused him to lose control. He stated that he believed he was in an emergency situation and did not brake because he was afraid he would lose control of his vehicle. On cross-examination, Kennedy testified that he was not tired at the time of the incident.

In support of his explanation for running off the road, Kennedy testified that he had experienced problems maintaining control of his vehicle on a prior occasion. Because he believed the problem was caused by a set of two new tires on his van, he contacted both Montgomery Ward, where he purchased the tires, and the National Highway Traffic Safety Administration. Kennedy offered evidence which showed that he had an improper tire combination on his van not only at the time of the accident, but also on the prior occasion when he experienced difficulty maintaining control of his vehicle.

Mrs. Kennedy testified that while she was driving, she experienced some difficulty maintaining control of the van when passed by other vehicles and in windy conditions. She drove until dark, then her husband began driving. Her husband slept while she drove. Mrs. Kennedy could not recall the events leading up to the accident until sometime later. At trial, she was able to recall going off the road, but little more. She stated that when the van left the road, she felt as though they were being swept off the road, and was afraid that they were going to turn over. She testified that her husband was awake at the time.

Kennedy argues that other than the van running off the road, there was no evidence to support a finding that he was guilty of reckless driving. "The mere happening of an accident does not give rise to an inference of reckless driving." Powers v. Commonwealth, 211 Va. 386, 388, 177 S.E.2d 628, 630 (1970). While we agree that this is an accurate statement of the law, we find that in the instant case, the evidence showed more than the mere happening of an accident. There was sufficient evidence, without resort to speculation and conjecture, for the court to find Kennedy guilty beyond a reasonable doubt of the offense of reckless driving.

The defendant in Powers appealed a reckless driving conviction arguing that there was no way to determine from the evidence how and why the accident happened. The Commonwealth contended that the circumstances of the accident itself were such that reckless driving could be inferred. The Supreme Court disagreed and reversed the defendant's conviction on the basis that, without resorting to speculation and conjecture, it had no way of determining from...