Kevin Wayne Killingsworth v. Commonwealth of VA

• Court: Court of Appeals of Virginia
• Decided: November 9, 1999
• Docket: 2447983
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Bray and Bumgardner Argued at Salem, Virginia

KEVIN WAYNE KILLINGSWORTH MEMORANDUM OPINION * BY v. Record No. 2447-98-3 JUDGE JAMES W. BENTON, JR. NOVEMBER 9, 1999 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE Robert P. Doherty, Jr., Judge

Christopher K. Kowalczuk for appellant.

H. Elizabeth Shaffer, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Kevin Wayne Killingsworth was convicted of driving under the

influence of alcohol as a subsequent offense. See Code

§§ 18.2-266 and 18.2-270. He contends the trial judge erred

(1) in denying his motion to suppress, (2) by permitting an

officer who lacked the requisite training to testify concerning a

breath test, and (3) by denying his motion to strike the evidence.

For the reasons that follow we affirm the conviction.

I.

"In reviewing a trial [judge's] denial of a motion to

suppress, '[t]he burden is upon [the defendant] to show that th[e]

ruling, when the evidence is considered most favorably to the

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. Commonwealth, constituted reversible error.'" McGee v.

Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261 (1997)

(en banc) (citation omitted). The standard for evaluating an

investigatory detention is as follows:

In order to justify the brief seizure of a person by an investigatory stop, a police officer need not have probable cause; however, he must have "a reasonable suspicion, based on objective facts, that the [person] is involved in criminal activity." In determining whether a police officer had a particularized and objective basis for suspecting that the person stopped may be involved in criminal activity, a court must consider the totality of the circumstances.

Ewell v. Commonwealth, 254 Va. 214, 217, 491 S.E.2d 721, 722

(1997) (citations omitted).

Although we are bound to review de novo the ultimate question

of reasonable suspicion, "fact[ual findings] are binding on appeal

unless 'plainly wrong.'" McGee at 198 n.1, 487 S.E.2d at 261 n.1

(citations omitted). Moreover, when we review the trial judge's

refusal to suppress evidence, we consider the "evidence adduced at

both the trial and suppression hearing." Greene v. Commonwealth,

17 Va. App. 606, 608, 440 S.E.2d 138, 139 (1994); see also Spivey

v. Commonwealth, 23 Va. App. 715, 721, 479 S.E.2d 543, 546 (1997).

An employee at a Hardees' Restaurant testified that on

November 9, 1997, he saw Kevin Wayne Killingsworth operating a

large Dodge Ram truck on the restaurant's lot. The truck was in

a service line with other vehicles, and it was "[m]oving back

- 2 - and forth." Killingsworth was "revving the engine" and moving

the truck "like he was almost getting ready to hit the car" in

front of him. The employee telephoned the police and reported

the incident.

A police officer testified that he was sent to investigate

a driver that "was lunging [his truck] forward at other vehicles

and . . . yelling out the window." The dispatcher gave the

officer the description and license plate number of the truck,

told the officer "to investigate a drunk driver at that

location," and advised the officer that the restaurant's manager

had made the complaint. When the officer arrived at the

restaurant, he saw a truck in the service line that matched the

description and bore the license plate number he had been given.

The officer approached the passenger side window and asked

Killingsworth to leave the service line and park the truck.

After Killingsworth parked the truck, the officer spoke

with Killingsworth and detected "a strong odor of alcoholic

beverage on his breath . . . and bloodshot eyes." The officer

asked Killingsworth to exit the truck and perform "field tests."

After Killingsworth improperly performed the tests, the officer

arrested him for driving under the influence of alcohol. During

the encounter, Killingsworth told the officer he had drunk four

beers at a bar.

"Existing case law supports the Commonwealth's contention

that when [the officer] stopped [Killingsworth], based on the

- 3 - information he had received and the facts observed, he had a

reasonable basis for making a brief investigative stop to

determine whether [Killingsworth] was or had been engaged in

criminal conduct." Lee v. Commonwealth, 18 Va. App. 235, 240,

443 S.E.2d 180, 182 (1994). As in Lee, the officer detained the

accused based on a radio dispatch that a person who was

allegedly intoxicated was creating a disturbance at a store.

The information concerning Killingsworth came from the store

manager, not an anonymous informant. Thus, when the officer

arrived and confirmed that the truck was the vehicle involved in

the disturbance, the officer "possessed a particularized and

objective basis for making an investigatory stop of [the

accused's] automobile." Id.; see also Layne v. Commonwealth, 15

Va. App. 23, 24-25, 421 S.E.2d 215, 216 (1992) (upholding a stop

based on information from a dispatcher directing the officer to

investigate a report from an identified person of an assault and

battery). Accordingly, we hold the trial judge did not err in

denying Killingsworth's motion to suppress.

II.

Killingsworth contends that the trial judge erroneously

admitted the breath test results because the operator was not

properly licensed pursuant to the statute. We addressed the

requirements of Code § 18.2-268.9 in Reynolds v. Commonwealth,

30 Va. App. 153, 515 S.E.2d 808 (1999). There, we held that an

officer who had received forty hours of training on the

- 4 - Breathalyzer 900A machine and an additional eight hours of

training on the Intoxilyzer 5000 met the requirements of the

statute. See id. at 160-62, 515 S.E.2d at 811-13. That holding

is dispositive of this issue.

The officer testified that he was licensed to conduct

breath alcohol tests on the Intoxilyzer 5000. He completed

forty hours of training on the Breathalyzer 900A machine during

a one-week course in 1996; he later completed "an eight-hour

course on the Intoxilyzer 5000." Applying the ruling in

Reynolds, we hold that the trial judge did not err in admitting

the results of the Intoxilyzer 5000 breath test.

III.

Killingsworth made a motion to strike the evidence on the

ground that no evidence established a time link between the

results of the breath test and his driving. On appeal, he

contends the trial judge erred in denying the motion.

During the trial, the judge ruled that "the Commonwealth

may not introduce the Certificate of Blood Alcohol Analysis" and

also ruled that the Commonwealth was "not entitled to the

[statutory] presumptions [of intoxication] normally available to

the prosecution." The judge further ruled, however, that "the

Commonwealth may introduce evidence concerning the results of

the tests given [Killingsworth] . . . by scientific experts

and/or other means." According to those rulings, the

Commonwealth still was required to prove that Killingsworth

- 5 - drove while under the influence of alcohol in violation of Code

§ 18.2-266(ii). See Essex v. Commonwealth, 228 Va. 273, 286,

322 S.E.2d 216, 223 (1984) (holding that where a blood alcohol

test was not conducted within the statutory framework, the test

results could be used as probative evidence of intoxication

without a statutory presumption of intoxication).

Killingsworth limits his sufficiency argument to the issue

of the timing of the breath test results. At trial, he did not

contest the admissibility of the test results. Instead, he

contends the evidence, which fails to establish the time period

between driving and testing, was insufficient to support his

conviction. The officer testified, however, that Killingsworth

remained with him continuously from arrest until they reached

the police station and that Killingsworth did not drink or eat

anything during that time. Consistent with "the checklist

provided . . . by the Division of Forensic Science," the officer

observed Killingsworth for twenty minutes after he arrested

Killingsworth and before obtaining his breath sample. Although

the officer did not provide the exact time that he gave the

breath test, he did indicate that he gave it after

Killingsworth's arrest and after Killingsworth appeared before

the magistrate and volunteered to take the breath test. The

result of the breath test indicated a blood alcohol content of

0.17 percent by weight by volume.

- 6 - Dr. Irma Adams, who was qualified as an expert in

toxicology and pharmacology, opined that a person becomes

impaired at a blood alcohol concentration of .05 percent by

weight by volume. She further testified that the blood alcohol

concentration "shoots up fairly rapidly" while a person is

drinking alcohol. She said, "once [the alcohol] is all

absorbed, you will reach a peak," and remain at that blood

alcohol concentration level for a short while before the level

decreases.

The testimony of the officer and Dr. Adams provided a

sufficient basis upon which the jury could find beyond a

reasonable doubt a link between Killingsworth's alcohol

consumption and his driving. The jury had before it, however,

much more evidence than the test result. Killingsworth told the

officer that he had earlier consumed four beers at a bar. The

officer recovered from Killingsworth's truck "two bottles of

Budweiser, one wine cooler, [and] six cans of Coors Light." The

officer also detected a strong odor of alcohol on

Killingsworth's breath and noticed his eyes were bloodshot.

During the "finger-to-nose" field sobriety test, Killingsworth

was "unsteady on his feet" and could not perform the

"heel-to-toe test" as instructed.

The absence of evidence establishing when the test was

administered went to the weight of the evidence and was a

factor, as was the other evidence, for the jury to consider.

- 7 - It is well established that the trier of fact ascertains a witness' credibility, determines the weight to be given to their testimony, and has the discretion to accept or reject any of the witness' testimony. . . . In determining the weight to be given the testimony of an expert witness, the fact finder may consider the basis for the expert's opinion.

Street v. Street, 25 Va. App. 380, 387, 488 S.E.2d 665, 668-69

(1997) (en banc) (citations omitted).

The Commonwealth's evidence was competent, was not

inherently incredible, and was sufficient to prove beyond a

reasonable doubt that Killingsworth was driving under the

influence of alcohol. Accordingly, the trial judge did not err

in denying Killingsworth's motion to strike.

For these reasons, we affirm the conviction.

Affirmed.

- 8 -