John D. Hurley v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: March 5, 1996
• Docket: 0527952
• Status: Unpublished

Opinion

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.

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