Leon Lorenzo Harris v. Commonwealth of Virginia ( 1999 )


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  •                       COURT OF APPEALS OF VIRGINIA
    Present: Judges Elder, Frank and Senior Judge Hodges
    Argued at Richmond, Virginia
    LEON LORENZO HARRIS
    MEMORANDUM OPINION * BY
    v.   Record No. 2078-98-2                   JUDGE ROBERT P. FRANK
    DECEMBER 21, 1999
    COMMONWEALTH OF VIRGINIA
    FROM THE CIRCUIT COURT OF NOTTOWAY COUNTY
    Thomas V. Warren, Judge
    Sally P. McConnaughey for appellant.
    Eugene Murphy, Assistant Attorney General
    (Mark L. Earley, Attorney General, on brief),
    for appellee.
    Leon Lorenzo Harris (appellant) was convicted in a bench
    trial for driving a motor vehicle after having been adjudged an
    habitual offender, while such order was still in effect, in such a
    manner as to endanger the life, limb, or property of another, a
    violation of Code § 46.2-357(B)(2).    Appellant contends that the
    evidence was insufficient to show that he drove in a manner which
    endangered life, limb, or property, and that the trial court erred
    in imposing a felony sentence.    We agree with appellant and
    reverse the felony conviction under Code § 46.2-357(B)(2) and
    remand for further proceedings consistent with this opinion.
    * Pursuant to Code § 17.1-413, recodifying Code
    § 17-116.010, this opinion is not designated for publication.
    I.    ANALYSIS
    Under familiar principles, we view the evidence in the
    light most favorable to the Commonwealth, the party prevailing
    below, granting to it all reasonable inferences fairly deducible
    therefrom.     See Clifton v. Commonwealth, 
    22 Va. App. 178
    , 180,
    
    468 S.E.2d 155
    , 156 (1996).        We will not reverse the judgment of
    the trial court unless it is plainly wrong or without evidence
    to support it.     See Code § 8.01-680.
    Code § 46.2-357(B)(2) states "any person found to be an
    habitual offender under this article, who is thereafter
    convicted of driving a motor vehicle . . . while the revocation
    determination is in effect" shall be guilty of a felony
    [i]f such driving of itself endangers the
    life, limb, or property of another or takes
    place while such person is in violation of
    § 18.2-266, irrespective of whether the
    driving of itself endangers the life, limb
    or property of another and one of the
    offender's underlying convictions is for
    §§ 18.2-36.1, 18.2-266 or a parallel local
    ordinance.
    In Bishop v. Commonwealth, 
    20 Va. App. 206
    , 208, 
    455 S.E.2d 765
    , 766 (1995), the defendant drove a vehicle to a toll booth
    and inquired about turning around because he was lost.           A police
    officer approached the vehicle and smelled an odor of alcohol on
    the defendant.     See 
    id.
       The defendant admitted to the officer
    that he had been drinking.      See 
    id.
         Thereafter, the officer
    administered field sobriety tests, learned the defendant was an
    habitual offender, and arrested the defendant.         See 
    id.
        The
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    officer testified that she never saw the defendant's vehicle
    while it was moving.   See id. at 209, 
    455 S.E.2d at 766
    .      The
    trial judge found that the defendant's driving endangered the
    two passengers in the vehicle because the defendant operated the
    vehicle while under the influence of alcohol.    See 
    id.
        The
    defendant was convicted under Code § 46.2-357(B) and received
    the felony sentence under Code § 46.2-357(B)(2).     See id.
    We reversed the defendant's conviction and held that the
    statutory phrase, "of itself," modified the word driving and,
    therefore, required the fact finder to "find conduct, other than
    the mere fact of operating the motor vehicle that imperiled or
    threatened danger to the life, limb, or property of a person
    other than the driver."   Id.   We rejected the Commonwealth's
    argument that the defendant's intoxication constituted per se
    proof that life, limb, or property was endangered.     See id. at
    210, 
    455 S.E.2d at 766
    .   We stated that while the defendant's
    conviction of driving under the influence pursuant to Code
    § 18.2-266 was proof of negligence, "no other facts or
    circumstances prove[d] that his intoxication was such that it
    elevated his 'conduct to the level of "negligence so gross,
    wanton, and culpable as to show a reckless disregard of human
    life."'"   Id. at 211, 
    455 S.E.2d at 767
     (citation omitted).
    In Powers v. Commonwealth, 
    211 Va. 386
    , 388, 
    177 S.E.2d 628
    , 630 (1970), the Supreme Court of Virginia held that speed
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    alone does not constitute reckless driving. 1   The Court wrote,
    "The word 'recklessly' as used in the statute imparts a
    disregard by the driver of a motor vehicle for the consequences
    of his act and an indifference to the safety of life, limb or
    property."     
    Id.
    We have employed the standard used under the reckless
    driving statute in habitual offender endangerment cases.     See
    Bishop, 
    20 Va. App. at 211
    , 
    455 S.E.2d at 767
    ; Thompson v.
    Commonwealth, 
    27 Va. App. 720
    , 725, 
    501 S.E.2d 438
    , 440 (1998).
    The language in Code § 46.2-357(B)(2) requiring the "driving of
    itself to endanger life, limb, or property" is "virtually
    identical to that found in the statute defining reckless
    driving."     Bishop, 
    20 Va. App. at 211
    , 
    455 S.E.2d at
    767 (citing
    Code § 46.2-852).
    1
    In Powers, there was no evidence as to the speed at which
    the defendant operated the vehicle. See Powers, 
    211 Va. at 388
    ,
    177 S.E.2d at 630. In Code § 46.2-862, the legislature has
    defined reckless driving to include operating a motor vehicle
    (i) at a speed of twenty miles per hour or
    more in excess of the applicable maximum
    speed limit where the applicable speed limit
    is thirty miles per hour or less, (ii) at a
    speed of sixty miles per hour or more where
    the applicable maximum speed limit is
    thirty-five miles per hour, (iii) at a speed
    of twenty miles per hour or more in excess
    of the applicable maximum speed limits where
    the applicable maximum speed limit is forty
    miles per hour or more, or (iv) in excess of
    eighty miles per hour regardless of the
    applicable maximum speed limit.
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    Therefore, we hold that since speed alone does not
    constitute reckless driving under Powers, speed alone does not
    of itself endanger life, limb, or property pursuant to Code
    § 46.2-37(B)(2).
    In this case, the trial judge stated that because appellant
    was driving over the speed limit and because appellant had been
    drinking, appellant endangered property and was, therefore,
    convicted of a felony under Code § 46.2-357(B)(2).   We find the
    evidence in the record insufficient to convict appellant of
    habitual offender endangerment.
    In this case, there was no evidence in the record as to
    appellant's actual speed.   The officer did not use radar.
    Instead, he merely testified that he observed appellant driving
    at a high rate of speed.    The officer observed appellant shortly
    after midnight.    There was no evidence as to the weather
    conditions, other traffic on the roadways, the presence of
    pedestrians, erratic driving by appellant, or other factors
    which would be determinative of whether life, limb, or property
    was endangered.
    The officer testified that appellant smelled of alcohol,
    walked slowly, and had blood-shot eyes.   Appellant also admitted
    to drinking prior to the stop.    However, this was the only
    evidence of intoxication.   There was no chemical report as to
    appellant's blood alcohol content, and the officer did not
    - 5 -
    perform the field sobriety tests.   Further, appellant did not
    stumble or stagger as he walked and his speech was not slurred.
    We hold this evidence insufficient to support appellant's
    conviction for habitual offender endangerment.   There was no
    evidence in the record to suggest that appellant's speed and
    intoxication caused him to drive in a manner which of itself
    endangered life, limb, or property of another person.
    Therefore, we reverse appellant's conviction under Code
    § 46.2-357(B)(2).
    The evidence did establish that appellant was driving after
    having been determined an habitual offender, a violation of Code
    § 46.2-357(B)(1), a misdemeanor.    We, therefore, remand for
    further proceedings if the Commonwealth be so advised.
    Reversed and remanded.
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Document Info

Docket Number: 2078982

Filed Date: 12/21/1999

Precedential Status: Non-Precedential

Modified Date: 10/30/2014