Tony Douglas Huffman v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Fitzpatrick and Overton
Argued at Salem, Virginia
TONY DOUGLAS HUFFMAN
v. Record No. 1310-95-3 MEMORANDUM OPINION * BY
JUDGE JOHANNA L. FITZPATRICK
COMMONWEALTH OF VIRGINIA APRIL 23, 1996
FROM THE CIRCUIT COURT OF BOTETOURT COUNTY
George E. Honts, III, Judge
Jonathan M. Apgar (Damico & Apgar, on brief),
for appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Tony Douglas Huffman (appellant) was convicted in a bench
trial of driving after having been adjudicated an habitual
offender in violation of Code § 46.2-357. On appeal, he argues
that the trial court erred in finding the evidence sufficient to
support a felony conviction under Code § 46.2-357(B)(2). Finding
no error, we affirm the trial court.
On November 26, 1994 at 12:40 a.m., Trooper S. T. Oliver
(Oliver) of the Virginia State Police was driving south in the
left-hand lane of Interstate 81, near the truck scales in
Botetourt County. A vehicle travelling in the right-hand lane
"abruptly" swerved over into Oliver's lane to avoid hitting the
pickup truck driven by appellant. The pickup truck had no tail
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
lights and, when the vehicles exited "the lighted area [near the
scales] going into the darkness, it was very difficult to see."
Oliver stopped the pickup truck and immediately noticed a strong
odor of alcohol on appellant. Appellant told Oliver that he was
an habitual offender, that the pickup truck did not belong to
him, and that he did not know that the tail lights were out.
Oliver called the dispatcher to run a computer check and
confirmed that appellant had been adjudicated an habitual
offender in 1992. Appellant failed all three field sobriety
tests administered by Oliver, and Oliver arrested appellant for
felony habitual offender and drunk driving.
At trial, appellant moved to strike the Commonwealth's
evidence on the felony habitual offender charge, arguing that his
driving did not constitute specific endangerment of the life,
limb, or property of another. The trial judge denied the motion
and stated as follows:
[U]nder all the circumstances of the case
operating a motor vehicle that you're not
familiar with without checking as to its
safety features including its lights and the
way you operated there that the trooper
observed causing the other car to swerve to
avoid you plus the fact that you were under
the influence of alcohol is sufficient to
raise that to the felony level . . . .
Appellant was convicted of both the felony habitual offender and
drunk driving charges.
When the sufficiency of the evidence is challenged on
appeal, we view the evidence "in the light most favorable to the
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Commonwealth, granting to it all reasonable inferences fairly
deducible therefrom." Martin v. Commonwealth, 4 Va. App. 438,
443, 358 S.E.2d 415, 418 (1986).
Code § 46.2-357(B) provides as follows:
2. If such driving, of itself, does
endanger the life, limb, or property of
another, such person shall be guilty of a
felony punishable by confinement in the state
correctional facility for not less than one
year nor more than five years or, in the
discretion of the jury or the court trying
the case without a jury, by confinement in
jail for twelve months . . . .
(Emphasis added). This Court recently held in Lawrence v.
Commonwealth, 20 Va. App. 653, 460 S.E.2d 259 (1995), that
evidence of intoxication, combined with evidence of negligent
driving behavior, is sufficient to support a felony habitual
offender conviction. Id. at 657, 460 S.E.2d at 260-61. See also
Travis v. Commonwealth, 20 Va. App. 410, 417, 457 S.E.2d 420, 423
(1995) (evidence of intoxication and weaving driving behavior
sufficient to support felony habitual offender conviction). This
Court has held that driving while intoxicated, standing alone, is
not deserving of felony treatment under Code § 46.2-357. Bishop
v. Commonwealth, 20 Va. App. 206, 210, 455 S.E.2d 765, 767
(1995). However, a defendant's driving behavior need not
"actually harm another person or his property or . . . require
another person to take evasive action to avoid injury or damage
to his property for the felony section to apply." Lawrence, 20
Va. App. at 657, 460 S.E.2d at 261.
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In the instant case, the trial court did not err in finding
the evidence sufficient to support appellant's conviction for
felony habitual offender. The record established that appellant
was intoxicated; that he was negligent in driving the pickup
truck without operating tail lights; and that his negligent
operation of the vehicle endangered the life of the driver who
was forced to swerve to avoid a collision with the truck.
Although Code § 46.2-357(B)(2) does not require evidence that a
defendant's driving behavior actually harm the life, limb, or
property of another, such evidence is present in this case.
Thus, appellant's intoxication, combined with his negligent
driving behavior, was sufficient to prove that appellant's
"driving, of itself, . . . endanger[ed] the life, limb, or
property of another."
Accordingly, the decision of the trial court is affirmed.
Affirmed.
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