Charles Thomas Elkins v. Commonwealth

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Benton and Overton Argued at Salem, Virginia

CHARLES THOMAS ELKINS

v. Record No. 0990-94-3 MEMORANDUM OPINION* BY JUDGE JOSEPH E. BAKER COMMONWEALTH OF VIRGINIA DECEMBER 19, 1995

FROM THE CIRCUIT COURT OF BOTETOURT COUNTY George E. Honts, III, Judge Jonathan M. Apgar (Damico & Apgar, on brief), for appellant.

Thomas C. Daniel, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

Charles Thomas Elkins (appellant) appeals from a judgment of

the Circuit Court of Botetourt County (trial court) that approved

a jury verdict convicting him for felonious driving after having

been adjudicated an habitual offender. The jury found that

appellant drove in such a manner as to endanger life, limb, or

property of another. Appellant contends that the evidence is

insufficient to support the charge and conviction that his

driving endangered the life, limb, or property of another and,

therefore, he asserts that we are required to reverse his

conviction.

Viewing the evidence, as we must, in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom, Higginbotham v. ____________________

*Pursuant to Code § 17-116.010 this opinion is not designated for publication.

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975), we

find from the record that at 12:10 a.m. on October 31, 1993,

Botetourt County Sheriff's Deputy B. J. Ulrich (Ulrich) was

driving southbound on Route 220. He came upon a 1971 Buick

automobile, being driven by appellant, which was traveling

approximately 35 miles per hour in a 45 miles per hour zone.

Ulrich observed appellant's vehicle weave "real bad" as it

ran off the right side of the shoulder into the gravel with its

two right tires being off the roadway. Appellant then jerked his

car to the left so that the two left tires crossed the dotted

line marking the passing lane. That same manner of driving was

twice repeated, whereupon Ulrich activated his lights signaling

appellant to stop. Appellant promptly brought his vehicle to a

stop. Ulrich observed three people inside appellant's car, all

sitting in the front seat. While the two passengers remained in

place, leaving the motor running, appellant "kind of dove right

over into the back seat to the passenger side." When appellant

exited his car, Ulrich observed that he was unsteady on his feet,

having to lean against the car to keep from falling. Ulrich also

testified that appellant had a strong odor of alcohol about him,

glassy bloodshot eyes, and his speech was "low and slurred."

Ulrich then learned that appellant had only recently been

declared an habitual offender.

- 2 - Appellant contends that a 1993 amendment to Code § 46.2-357

directs that under the above facts, his conviction could not be

for a felony. In relevant part, the amendment provides: (B)(1) If such driving does not, of itself, endanger the life, limb, or property of another, such person shall be guilty of a misdemeanor punishable by confinement in jail for no more than 90 days and a fine of not more than $2,500, either or both. However, ten days of any such confinement shall not be suspended except in cases designated in subdivision 2(ii) of this section.

(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, or by confinement in jail for twelve months and no portion of such sentence shall be suspended . . . .

Appellant argues that there is no evidence that he came too

close to hitting anything or anybody or violated any other

traffic laws of the Commonwealth; and that there is no evidence

that the area where he chose to pull off the highway was

inappropriate but rather that it can be inferred from the

evidence that the area could safely accommodate both the car

appellant was driving and the deputy's car. He further contends

that this inference is consistent with his testimony that he was

deliberately driving on the shoulder to bring the car to a stop

off of the paved highway. Therefore, he concludes, the evidence

is insufficient to show that, absent the question of

intoxication, the pulling onto the right shoulder of the highway

and coming to a stop was, in and of itself, not actually

- 3 - endangering anything. He insists that the statute requires more

than the mere "potential" for harm.

The jury and trial court rejected appellant's testimony that

he had decided to bring his car to a stop on the shoulder of the

road prior to Ulrich's warning to stop. We cannot say that

rejection was plainly wrong or without evidence to support it.

The evidence discloses that appellant was observed driving

his vehicle in an erratic manner, weaving from off the shoulder

of the road across the right-hand lane and into the passing lane,

each time jerking his vehicle back across the road. We hold that

appellant's conduct established a factual question supporting the

jury's verdict. There is no merit to appellant's double conviction argument.

The prosecutions of appellant for driving while intoxicated and

driving after being adjudged an habitual offender began at the

same time with his arrest upon both charges. Regardless of the

conclusion of proceedings on the driving while intoxicated charge

before appellant's trial for driving while an habitual offender,

Code § 19.2-294 does not bar the latter conviction because "[i]t

is the time of institution which determines whether multiple

charges are simultaneous or successive." Slater v. Commonwealth,

15 Va. App. 593, 596, 425 S.E.2d 816, 817 (1993).

For the reasons stated, the judgment of the trial court is

affirmed.

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