Joshua Micah Lillard v. Commonwealth of Virginia ( 2015 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Huff, Judge Decker and Senior Judge Clements
UNPUBLISHED
Argued at Richmond, Virginia
JOSHUA MICAH LILLARD
MEMORANDUM OPINION* BY
v. Record No. 1063-14-2 JUDGE JEAN HARRISON CLEMENTS
JULY 14, 2015
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY
J. Howe Brown, Jr., Judge Designate
Joseph E. Hicks (Jarrell, Hicks & Waldman, P.C., on brief), for
appellant.
Susan Mozley Harris, Assistant Attorney General (Mark R. Herring,
Attorney General, on brief), for appellee.
Appellant appeals his conviction of reckless driving. Appellant contends he was wrongly
convicted because the trial court erred in finding he “should have known” he was involved in an
accident, even though the trial court acquitted him of felony hit and run and found him to be a
credible witness. Finding the record supports the trial court’s rulings, we affirm the conviction.
Background
Appellant was driving his tractor trailer southbound on Interstate 95. Susan and David
Fanfarillo were in their Volvo, also travelling on Interstate 95. The Fanfarillos testified Susan was
driving in the center lane when they heard and felt a “big bang” at the rear end of the driver’s side of
the car. They stated the car turned perpendicular to the highway and was being pushed by a tractor
trailer truck. Their car separated from the truck and began to spin across the left lane. Their vehicle
hit another car, driven by Terry Rosvall, and their car continued to spin until it came to rest on the
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
left-hand shoulder. David surmised appellant was in the left lane and clipped the rear driver’s side
quarter of their car as appellant was maneuvering into the center lane.
Rosvall testified he was travelling in the left lane when he heard what sounded like a
collision behind him. He looked to the rear right to see what happened. He saw the Fanfarillos’ car
spinning toward his vehicle. Their car hit his vehicle in the left lane, and his car spun across the
three lanes of traffic until it came to rest on the right shoulder of the highway. Rosvall stated the
Fanfarillos’ car was in the “middle lane.”
The witnesses stated the truck continued travelling south on the highway without stopping
or braking. Trooper Robert Hindenlang testified he investigated the accident and spoke with
appellant at a nearby truck stop. Hindenlang pointed out damage to the truck, which included green
paint consistent with the Fanfarillos’ car and tire smears. Appellant stated that he was unaware he
had been in an accident, but conceded that the damage to his truck had not been there when he
started his trip that morning and that he must have had some kind of accident. After speaking with
the witnesses and assessing the damage to the vehicles, the trooper concluded appellant was
travelling in the left lane and hit the Fanfarillos’ car as he was moving into the center lane.
Hindenlang introduced photographs of appellant’s truck, one of which closely depicted damage to
the truck’s front right bumper and headlight, as well as paint transfer, consistent with contact with
the Fanfarillos’ vehicle.
Appellant testified he had been travelling southbound and stopped at the truck stop for his
mandatory break. Appellant stated that he would not be in the left lane because he knows trucks are
prohibited in the left lane and that he would get a ticket. Appellant explained, and admitted
photographs that showed, the blind spots on his truck are such that he would not see a car in the
areas the Fanfarillos’ car would have been. Appellant claimed if he had known about the accident,
he would have stopped.
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The trial court found that there was not sufficient evidence to prove appellant knew that the
accident occurred to support the felony hit and run charge. Therefore, the trial court found appellant
not guilty of the felony. However, the trial court also concluded
the accident happened exactly as the Commonwealth’s witnesses
said it did . . ., but I cannot find beyond a reasonable doubt that he
did know and ran from the scene. His actions after that are not really
consistent with one running from the scene. . . . The reckless driving
is another question. Driving down the road oblivious to these kinds
of things that are happening to you in a huge tractor trailer truck is
endangering the public and he is guilty of reckless driving.
The trial court convicted appellant of reckless driving.
Analysis
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). 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).
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.’” Id. at 168, 578 S.E.2d at 89 (quoting
Watkins v. Commonwealth, 26 Va. App. 335, 348, 494 S.E.2d 859,
866 (1998)).
Blevins v. Commonwealth, 63 Va. App. 628, 634, 762 S.E.2d 396, 398-99 (2014) (citations
omitted).
Code § 46.2-852 states: “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 [v. City of Norfolk, 271 Va. 460, 463,
628 S.E.2d 356, 358 (2006)] (alterations in original) (quoting Powers
v. Commonwealth, 211 Va. 386, 388, 177 S.E.2d 628, 630 (1970)).
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“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 . . . “the likelihood of injury to
other users of the highways,” lack of control of the vehicle, . . .
“dangerous driving behavior,” . . . and noncompliance with traffic
markers.
Id. at 635, 762 S.E.2d at 399 (citations omitted).
Appellant conceded he was involved in the accident, though he was unaware that it
occurred. The trial court determined the evidence did not prove beyond reasonable doubt that
appellant knew the accident occurred. However, the trial court could further consider whether the
manner and circumstances of appellant’s driving were reckless. In making that determination, the
trial court clearly rejected appellant’s claim that he was not driving in the left lane. This Court will
not disturb that finding. The trier of fact is not required to accept a party’s evidence in its entirety,
Barrett v. Commonwealth, 231 Va. 102, 107, 341 S.E.2d 190, 193 (1986), but is free to believe and
disbelieve in part or in whole the testimony of any witness, Rollston v. Commonwealth, 11
Va. App. 535, 547, 399 S.E.2d 823, 830 (1991).
The trial court determined that the accident happened in the way the Commonwealth’s
witnesses testified. The trooper’s photographs demonstrated that the truck hit the Fanfarillos’
vehicle at the front right of the truck. Despite appellant’s claim to the contrary, and consistent with
the Fanfarillos’ testimony, the evidence showed appellant was travelling in the left lane, in violation
of Code § 46.2-803.1. The trial court reasonably concluded that appellant was driving in a
prohibited lane of travel. Further, appellant acknowledged that the Fanfarillos’ car had to be in his
blind spot. Failing to keep watch of surrounding vehicles moving into a tractor trailer’s blind spots
endangers the lives of others. By not ensuring a clear pathway to change lanes, while travelling at
sixty-five miles-per-hour in a tractor trailer, appellant drove his truck in a dangerous manner that
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was likely to cause injury to others. Therefore, the manner and circumstances of appellant’s
operation of the tractor trailer proved he was driving recklessly.
Accordingly, the evidence supported the trial court’s findings and the conviction for reckless
driving is affirmed.
Affirmed.
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