John D. Hurley v. Commonwealth ( 1996 )


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  •                   COURT OF APPEALS OF VIRGINIA
    Present: Judges Baker, Coleman and Elder
    Argued at Richmond, Virginia
    JOHN D. HURLEY
    v.         Record No. 0527-95-2        MEMORANDUM OPINION * BY
    JUDGE SAM W. COLEMAN III
    COMMONWEALTH OF VIRGINIA                    MARCH 5, 1996
    FROM THE CIRCUIT COURT OF MIDDLESEX COUNTY
    John M. Folkes, Judge
    James C. Breeden (Barbara H. Breeden;
    Hubbard, Breeden & Terry, on brief), for
    appellant.
    Margaret Ann B. Walker, Assistant Attorney
    General (James S. Gilmore, III, Attorney
    General, on brief), for appellee.
    John D. Hurley was convicted in a bench trial of driving
    under the influence of alcohol, second offense.   Hurley contends
    that the evidence is insufficient to prove that he operated an
    automobile while intoxicated and that the trial court erred by
    considering his prior conviction for driving while under the
    influence of alcohol as affirmative evidence of guilt.     We find
    no error and affirm the defendant's conviction.
    On appeal, the evidence is viewed in the light most
    favorable to the Commonwealth and accorded all reasonable
    inferences fairly deducible therefrom.   Higginbotham v.
    Commonwealth, 
    216 Va. 349
    , 352, 
    218 S.E.2d 534
    , 537 (1975).
    The trial court's verdict will not be disturbed unless "plainly
    *
    Pursuant to Code § 17-116.010 this opinion is not
    designated for publication.
    wrong or without evidence to support it."    Id.
    In Coffey v. Commonwealth, 
    202 Va. 185
    , 
    116 S.E.2d 257
    (1960), the Supreme Court reversed the accused's conviction for
    driving under the influence because although the evidence showed
    that he was intoxicated approximately one hour after the
    accident, "[n]o evidence was produced to establish [his]
    condition at the time he was actually operating the vehicle."
    Id. at 187, 116 S.E.2d at 258; see also Fowlkes v. Commonwealth,
    
    194 Va. 676
    , 678, 
    74 S.E.2d 683
    , 684 (1953).
    The facts in the present case are distinguishable from those
    in Coffey.    Here, only a short time after the defendant wrecked
    his car in a single car accident, Donna Sears testified that she
    smelled a "strong" odor of alcohol on the defendant's person when
    she attempted to help him out of his car.   Cindy Foor testified
    that she noticed an odor "that seemed to be alcohol" at the scene
    of the accident.   Both Sears and Foor claimed that the defendant
    was "combative" and wanted to be left alone.   Foor testified that
    he "staggered," and that his walk was "very unstable" when he
    left the scene of the accident.   In addition, Trooper E. W.
    Chaney testified that he still smelled a "very strong odor of
    alcohol" about the defendant approximately two hours after the
    accident.    This testimony is probative of the defendant's
    condition at the time of the accident because Trooper Chaney
    asked the defendant whether he had drunk anything since the
    accident and the defendant responded, "[h]ell no."   Although the
    - 2 -
    defendant's wife testified that she fixed him a drink when he
    came home, the trial court was entitled to rely on the
    defendant's statement to Trooper Chaney that he had not consumed
    any alcohol after the accident.     See Overbee v. Commonwealth, 
    227 Va. 238
    , 244, 
    315 S.E.2d 242
    , 245 (1984); Wheeling v. City of
    Roanoke, 
    2 Va. App. 42
    , 44, 
    341 S.E.2d 389
    , 390 (1986).    The
    evidence is sufficient, viewed in the light most favorable to the
    Commonwealth, to prove that the defendant was intoxicated at the
    time he was driving and had the accident.
    The defendant is barred from contending on appeal that the
    trial court erred by considering his prior conviction as
    affirmative evidence of guilt.    The defendant did not object to
    the trial court considering the evidence or in any manner raise
    the issue at trial.   Rule 5A:18.   In rendering the verdict, the
    trial judge stated:
    [T]here is just so much circumstantial
    evidence here that I can't close my eyes to.
    [The defendant] told the police officer that
    he had had nothing to drink since the
    accident and his wife said she gave him a
    drink, the excessive speed the first witness
    talked about, the odor of alcohol upon his
    breath when he stopped or when they came out
    to see to him, the fact that he has had a
    previous conviction.
    Because the defendant was charged with driving under the
    influence, second offense, the trial judge may have referred to
    the previous conviction solely to indicate that each element of
    the charge had been proved.   However, the defendant's failure to
    make a specific objection denied the trial judge the opportunity
    - 3 -
    to explain or reconsider his ruling.   See Martin v. Commonwealth,
    
    13 Va. App. 524
    , 530, 
    414 S.E.2d 401
    , 404 (1992) (en banc)
    ("primary function of Rule 5A:18 is to alert the trial judge to
    possible error so that the judge may consider the issue
    intelligently and take any corrective actions necessary to avoid
    unnecessary appeals, reversals and mistrials").
    Because the evidence was sufficient to prove beyond a
    reasonable doubt that the defendant was intoxicated while
    operating an automobile, we affirm the conviction.
    Affirmed.
    - 4 -
    

Document Info

Docket Number: 0527952

Filed Date: 3/5/1996

Precedential Status: Non-Precedential

Modified Date: 4/18/2021