Roger Dale Snody v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Fitzpatrick and Overton
Argued at Salem, Virginia
ROGER DALE SNODY
v. Record No. 1104-95-3 MEMORANDUM OPINION * BY
JUDGE JERE M. H. WILLIS, JR.
COMMONWEALTH OF VIRGINIA APRIL 23, 1996
FROM THE CIRCUIT COURT OF THE CITY OF MARTINSVILLE
David V. Williams, Judge
Wayne T. Baucino (Office of the Public
Defender, on brief), for appellant.
Monica S. McElyea, Assistant Attorney General
(James S. Gilmore, III, Attorney General;
Thomas C. Daniel, Assistant Attorney General,
on brief), for appellee.
On appeal from a felony conviction for driving after having
been declared an habitual offender in violation of Code
§ 46.2-357(B)(2), Roger Dale Snody contends that the evidence
supports only a conviction for a misdemeanor under Code
§ 46.2-357(B)(1). We agree and reverse the felony sentence and
remand the case for a misdemeanor conviction and resentencing.
On October 8, 1994, Officer Ross "heard a car with its
engine racing and then heard tires break traction for several
seconds." At the time, Ross was outside his car. He walked
around his car for a better view and "saw a cloud of tire smoke"
and a Monte Carlo with its brake lights on at the intersection of
Moss and Market Streets.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Officer Ross pursued the car and pulled it over. Snody was
driving and a passenger occupied the front seat. Ross discovered
that Snody had been adjudicated an habitual offender. Ross
testified that Snody told him that he had spun his tires to get
away from some trouble on Moss Street. Ross testified that he
saw no other vehicles on the street, that Snody did not deviate
from his lane of traffic, and that he did not come close to
hitting any other car, or property, or person.
At trial, Snody moved to reduce the charge to a misdemeanor
on the ground that his driving did not endanger the life, limb,
or property of another. The trial court denied this motion and
found that Snody's driving endangered his passenger. The trial
court convicted Snody of violating Code § 46.2-357(B)(2) and
imposed a felony sentence.
"The distinction between negligent driving and reckless
driving is the critical element in determining punishment under
Code § 46.2-357." Bishop v. Commonwealth, 20 Va. App. 206,
210-11, 455 S.E.2d 765, 767 (1995). Code § 46.2-357(B)(2) states
in pertinent part:
If such driving, of itself, does endanger the
life, limb, or property of another, such
person shall be guilty of a felony . . . .
The evidence fails to prove that Snody's driving endangered
the life, limb, or property of another. Mere rapid acceleration,
with a spinning of wheels, over a short course that involved no
other vehicle or property and proposed no hazard of accident, did
- 2 -
not actually create such a danger. Thus, the evidence does not
support the imposition of a felony sentence. The evidence does,
however, prove beyond a reasonable doubt the elements of Code
§ 46.2-357(B)(1). We remand this case to the trial court for
conviction of a misdemeanor and appropriate sentencing.
Reversed and remanded.
- 3 -