Tooke v. Com.

• Decision Date: 28 March 2006
• Docket Number: Record No. 2335-04-2.
• Citation: 47 Va. App. 759,627 S.E.2d 533
• Parties: Bo Jason TOOKE v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

627 S.E.2d 533

47 Va. App. 759

Bo Jason TOOKE v. COMMONWEALTH of Virginia.

Record No. 2335-04-2.

Court of Appeals of Virginia, Richmond.

March 28, 2006.

Gregory R. Sheldon (Goodwin, Sutton & DuVal, P.L.C., on brief), Richmond, for appellant.

Kathleen B. Martin, Assistant Attorney General (Judith Williams Jagdmann, Attorney General, on brief), for appellee.

Present: BENTON, McCLANAHAN, JJ., and COLEMAN, S.J.

COLEMAN III, Judge.

Bo Jason Tooke was convicted in a bench trial of two counts of failure to stop at the scene of an accident in violation of Code § 46.2-894. The convictions arose from a motor vehicle accident in which Tooke forced an oncoming vehicle to go off the road and crash without any collision or impact between the two vehicles.

On appeal, Tooke contends the evidence was (1) insufficient to support two separate counts of failing to stop at an accident scene when there had been a single accident but two people injured and (2) insufficient to prove he knew an accident had occurred. Because the accident was a single incident, the evidence was insufficient to prove two separate offenses; thus, we reverse and vacate one conviction and affirm the other.

I. BACKGROUND

On appeal, we view the evidence in the light most favorable to the prevailing party, granting to it all reasonable inferences fairly deducible therefrom. Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).

On the afternoon of December 24, 2003, Tooke was driving north on Route 301, a two-lane highway, in Caroline County. He was on his way home in Bowling Green from work at a construction site in Mechanicsville. It was early in the afternoon, and Tooke had worked only a half-day because it was Christmas Eve. Dennis Buchanan, an insurance investigator and retired police officer, was driving behind Tooke before and at the time of the accident. Buchanan testified that he first observed Tooke when they stopped at the traffic light at the intersection of Route 301 with Route 30, at which time all four wheels of Tooke's vehicle extended past the stop line and into the intersection. As Buchanan drove northward behind Tooke for the next five or six miles, he observed Tooke driving erratically, with the driver's side tires twice completely crossing the center line into the southbound lane and twice the right side tires went onto the shoulder. According to Buchanan, they were both driving within the posted speed limit at fifty to fifty-five miles per hour. At some point before the accident, Tooke began following a slower moving older pickup truck. According to Buchanan, after following the truck for some distance Tooke drove his vehicle entirely into the left southbound lane as if to pass the truck.

As Tooke moved into the left lane, a van was approaching, traveling southbound. The van was only about fifty to seventy-five yards away. To avoid the collision Tooke immediately veered back into the northbound lane behind the pickup. Although the vehicles did not collide, they passed within a couple of feet of each other. According to Buchanan, he observed the driver of the van, Leslie Purdem, veer to the right to avoid a collision and onto the shoulder of the road, then back onto the road and into the northbound lane, and then back onto the southbound shoulder and into the woods.¹ Purdem and her passenger husband were severely injured in the accident. Buchanan saw the Purdem van crash into the woods, as did the driver behind Buchanan who stopped to render aid to the crash victims. Buchanan continued to follow Tooke in order to get his license number and report the accident. Buchanan testified that as he followed Tooke after the accident Tooke no longer drove erratically, did not attempt to pass the pickup truck, and did not weave or drift into the other lane or off the shoulder.

Tooke denied that he was attempting to pass; he said instead that he fell asleep and his vehicle drifted entirely into the southbound lane and oncoming traffic. Tooke testified that he awoke to find himself in the path of oncoming traffic, and immediately swerved back into the correct lane when he realized what was happening. He testified that he did not see the van go off of the road or crash into the woods and was unaware an accident had occurred.

II. ANALYSIS

Sufficiency of the Evidence to Support Two Separate Charges

On appeal, Tooke contends the trial court erred in finding the evidence sufficient to support two separate charges of failure to stop at the scene of an accident. He failed, however, to raise this issue at trial. Rule 5A:18 precludes this Court from considering an issue on appeal unless the appellant objected at trial in order to provide the trial judge an opportunity to consider and rule upon the issue unless "good cause [is] shown [for failing to object] or [unless it is necessary for us to address the issue] to enable [this Court] to attain the ends of justice" and prevent a miscarriage of justice.

"The ends of justice exception is narrow and is to be used sparingly," and only when a trial court error is "clear, substantial and material." Brown v. Commonwealth, 8 Va.App. 126, 132, 380 S.E.2d 8, 11 (1989). "In order to avail oneself of the exception, a defendant must affirmatively show that a miscarriage of justice has occurred, not that a miscarriage might have occurred." Id. (citing Mounce v. Commonwealth, 4 Va.App. 433, 436, 357 S.E.2d 742, 744 (1987)). "In examining a case for miscarriage of justice, we do not simply review the sufficiency of the evidence under the usual standard, but instead determine whether the record contains affirmative evidence of innocence or lack of a criminal offense." Lewis v. Commonwealth, 43 Va.App. 126, 134, 596 S.E.2d 542, 546 (2004), rev'd on other grounds, 269 Va. 209, 608 S.E.2d 907 (2005). See also Michaels v. Commonwealth, 32 Va.App. 601, 529 S.E.2d 822 (2000); Redman v. Commonwealth, 25 Va.App. 215, 221, 487 S.E.2d 269, 272 (1997).

Code § 46.2-894 states:

The driver of any vehicle involved in an accident in which a person is killed or injured or in which an attended vehicle or other attended property is damaged shall immediately stop as close to the scene of the accident as possible without obstructing traffic ... and report his name, address, driver's license number, and vehicle registration number forthwith to the State Police or local law-enforcement agency, to the person struck and injured if such person appears to be capable of understanding and retaining the information, or to the driver or some other occupant of the vehicle collided with or to the custodian of other damaged property. The driver shall also render reasonable assistance to any person injured in such accident, including taking such injured person to a physician, surgeon, or hospital if it is apparent that medical treatment is necessary or is requested by the injured person.

(Emphasis added.)

The gravamen of the offense under the statute is a single accident, regardless of the number of persons injured or the extent of the damage. Nowhere does the statute mention that failure to stop and assist each person involved in a single accident is a separate crime. Thus, in construing Code § 46.2-894, the Supreme Court has held:

The extent of the property damaged or the number of people injured or killed does not constitute an element of the offense. It is the flight from the scene, and the failure to give the information required to the person in charge of the property damaged or succor to the injured which constitute the completed offense.

James v. Commonwealth, 178 Va. 28, 37, 16 S.E.2d 296, 300 (1941).

The Attorney General acknowledges that the holding in James is controlling and that Tooke should not have been convicted of two violations of Code § 46.2-894. In view of James and the concession, we hold that appellant was convicted of two counts of failure to stop at the scene of an accident when, as a matter of law, the evidence proved a single offense. Because appellant was convicted twice for conduct that was but one criminal offense, a miscarriage of justice occurred. We therefore reverse and vacate the criminal conviction as to one of the two convictions. We remand for the dismissal of that indictment.

Sufficiency of the Evidence to Support that Appellant Knew an Accident Occurred

An element of the charged crime, commonly referred to as "hit and run," is actual knowledge that an accident occurred.

Actual knowledge is a fact that may be proved by direct or circumstantial evidence. "Circumstantial evidence is as competent and is entitled to as much weight as direct evidence, provided it is sufficiently convincing to exclude every reasonable hypothesis except that of guilt." Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983). A fact finder may rely upon a combination of circumstances to support a conviction, even though each circumstance in isolation would be insufficient. Stamper v. Commonwealth, 220 Va. 260, 273, 257 S.E.2d 808, 818 (1979). Moreover,

"[i]f the proof relied upon by the Commonwealth is wholly circumstantial . . . then to establish guilt beyond a reasonable doubt all necessary circumstances proved must be consistent with guilt and inconsistent with innocence. They must overcome the presumption of innocence and exclude all reasonable conclusions inconsistent with that of guilt."

Higginbotham, 216 Va. at 352-53, 218 S.E.2d at 537 (quoting LaPrade v. Commonwealth, 191 Va. 410, 418, 61 S.E.2d 313, 316 (1950)). The trial judge, in his role as fact finder, found that Tooke had actual knowledge of the accident and that an injury would have occurred, and his judgment cannot be set aside unless it is "plainly wrong." Naulty v. Commonwealth, 2 Va.App. 523, 527, 346 S.E.2d 540, 542 (1986).

Here, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential element[ ] of ...