Leon Lorenzo Harris v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: December 21, 1999
• Docket: 2078982
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Frank and Senior Judge Hodges Argued at Richmond, Virginia

LEON LORENZO HARRIS MEMORANDUM OPINION * BY v. Record No. 2078-98-2 JUDGE ROBERT P. FRANK DECEMBER 21, 1999 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF NOTTOWAY COUNTY Thomas V. Warren, Judge

Sally P. McConnaughey for appellant.

Eugene Murphy, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Leon Lorenzo Harris (appellant) was convicted in a bench

trial for driving a motor vehicle after having been adjudged an

habitual offender, while such order was still in effect, in such a

manner as to endanger the life, limb, or property of another, a

violation of Code § 46.2-357(B)(2). Appellant contends that the

evidence was insufficient to show that he drove in a manner which

endangered life, limb, or property, and that the trial court erred

in imposing a felony sentence. We agree with appellant and

reverse the felony conviction under Code § 46.2-357(B)(2) and

remand for further proceedings consistent with this opinion.

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. I. ANALYSIS

Under familiar principles, we view the evidence in the

light most favorable to the Commonwealth, the party prevailing

below, granting to it all reasonable inferences fairly deducible

therefrom. See Clifton v. Commonwealth, 22 Va. App. 178, 180,

468 S.E.2d 155, 156 (1996). We will not reverse the judgment of

the trial court unless it is plainly wrong or without evidence

to support it. See Code § 8.01-680.

Code § 46.2-357(B)(2) states "any person found to be an

habitual offender under this article, who is thereafter

convicted of driving a motor vehicle . . . while the revocation

determination is in effect" shall be guilty of a felony

[i]f such driving of itself endangers the life, limb, or property of another or takes place while such person is in violation of § 18.2-266, irrespective of whether the driving of itself endangers the life, limb or property of another and one of the offender's underlying convictions is for §§ 18.2-36.1, 18.2-266 or a parallel local ordinance.

In Bishop v. Commonwealth, 20 Va. App. 206, 208, 455 S.E.2d

765, 766 (1995), the defendant drove a vehicle to a toll booth

and inquired about turning around because he was lost. A police

officer approached the vehicle and smelled an odor of alcohol on

the defendant. See id. The defendant admitted to the officer

that he had been drinking. See id. Thereafter, the officer

administered field sobriety tests, learned the defendant was an

habitual offender, and arrested the defendant. See id. The

- 2 - officer testified that she never saw the defendant's vehicle

while it was moving. See id. at 209, 455 S.E.2d at 766. The

trial judge found that the defendant's driving endangered the

two passengers in the vehicle because the defendant operated the

vehicle while under the influence of alcohol. See id. The

defendant was convicted under Code § 46.2-357(B) and received

the felony sentence under Code § 46.2-357(B)(2). See id.

We reversed the defendant's conviction and held that the

statutory phrase, "of itself," modified the word driving and,

therefore, required the fact finder to "find conduct, other than

the mere fact of operating the motor vehicle that imperiled or

threatened danger to the life, limb, or property of a person

other than the driver." Id. We rejected the Commonwealth's

argument that the defendant's intoxication constituted per se

proof that life, limb, or property was endangered. See id. at

210, 455 S.E.2d at 766. We stated that while the defendant's

conviction of driving under the influence pursuant to Code

§ 18.2-266 was proof of negligence, "no other facts or

circumstances prove[d] that his intoxication was such that it

elevated his 'conduct to the level of "negligence so gross,

wanton, and culpable as to show a reckless disregard of human

life."'" Id. at 211, 455 S.E.2d at 767 (citation omitted).

In Powers v. Commonwealth, 211 Va. 386, 388, 177 S.E.2d

628, 630 (1970), the Supreme Court of Virginia held that speed

- 3 - alone does not constitute reckless driving. 1 The Court wrote,

"The word 'recklessly' as used in the statute imparts a

disregard by the driver of a motor vehicle for the consequences

of his act and an indifference to the safety of life, limb or

property." Id.

We have employed the standard used under the reckless

driving statute in habitual offender endangerment cases. See

Bishop, 20 Va. App. at 211, 455 S.E.2d at 767; Thompson v.

Commonwealth, 27 Va. App. 720, 725, 501 S.E.2d 438, 440 (1998).

The language in Code § 46.2-357(B)(2) requiring the "driving of

itself to endanger life, limb, or property" is "virtually

identical to that found in the statute defining reckless

driving." Bishop, 20 Va. App. at 211, 455 S.E.2d at 767 (citing

Code § 46.2-852).

1 In Powers, there was no evidence as to the speed at which the defendant operated the vehicle. See Powers, 211 Va. at 388, 177 S.E.2d at 630. In Code § 46.2-862, the legislature has defined reckless driving to include operating a motor vehicle

(i) at a speed of twenty miles per hour or more in excess of the applicable maximum speed limit where the applicable speed limit is thirty miles per hour or less, (ii) at a speed of sixty miles per hour or more where the applicable maximum speed limit is thirty-five miles per hour, (iii) at a speed of twenty miles per hour or more in excess of the applicable maximum speed limits where the applicable maximum speed limit is forty miles per hour or more, or (iv) in excess of eighty miles per hour regardless of the applicable maximum speed limit.

- 4 - Therefore, we hold that since speed alone does not

constitute reckless driving under Powers, speed alone does not

of itself endanger life, limb, or property pursuant to Code

§ 46.2-37(B)(2).

In this case, the trial judge stated that because appellant

was driving over the speed limit and because appellant had been

drinking, appellant endangered property and was, therefore,

convicted of a felony under Code § 46.2-357(B)(2). We find the

evidence in the record insufficient to convict appellant of

habitual offender endangerment.

In this case, there was no evidence in the record as to

appellant's actual speed. The officer did not use radar.

Instead, he merely testified that he observed appellant driving

at a high rate of speed. The officer observed appellant shortly

after midnight. There was no evidence as to the weather

conditions, other traffic on the roadways, the presence of

pedestrians, erratic driving by appellant, or other factors

which would be determinative of whether life, limb, or property

was endangered.

The officer testified that appellant smelled of alcohol,

walked slowly, and had blood-shot eyes. Appellant also admitted

to drinking prior to the stop. However, this was the only

evidence of intoxication. There was no chemical report as to

appellant's blood alcohol content, and the officer did not

- 5 - perform the field sobriety tests. Further, appellant did not

stumble or stagger as he walked and his speech was not slurred.

We hold this evidence insufficient to support appellant's

conviction for habitual offender endangerment. There was no

evidence in the record to suggest that appellant's speed and

intoxication caused him to drive in a manner which of itself

endangered life, limb, or property of another person.

Therefore, we reverse appellant's conviction under Code

§ 46.2-357(B)(2).

The evidence did establish that appellant was driving after

having been determined an habitual offender, a violation of Code

§ 46.2-357(B)(1), a misdemeanor. We, therefore, remand for

further proceedings if the Commonwealth be so advised.

Reversed and remanded.

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