COURT OF APPEALS OF VIRGINIA
Present: Judges Russell, Malveaux and Friedman UNPUBLISHED
Argued at Richmond, Virginia
LESTER LOUIS LABARGE MEMORANDUM OPINION * BY v. Record No. 0081-21-2 JUDGE MARY BENNETT MALVEAUX FEBRUARY 22, 2022 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HANOVER COUNTY Patricia Kelly, Judge
Theodore D. Bruns (Blackburn, Conte, Schilling & Click, on brief), for appellant.
Liam A. Curry, Assistant Attorney General (Mark R. Herring,1 Attorney General, on brief), for appellee.
Lester Louis Labarge (“appellant”) was convicted of involuntary manslaughter, in
violation of Code § 18.2-36, and reckless driving, in violation of Code § 46.2-852. On appeal,
appellant argues that the trial court erred in finding the evidence sufficient to convict him of each
offense. For the following reasons, we affirm.
I. BACKGROUND
In accord with familiar principles of appellate review, we state the facts in the light most
favorable to the Commonwealth, the prevailing party at trial. Gerald v. Commonwealth, 295 Va.
469, 472 (2018).
On the night of October 11, 2018, a motor vehicle accident occurred near Exit 38-B on
Interstate 295 South. At approximately 9:00 p.m., Hanover County dispatchers directed Engine
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 1 Jason S. Miyares succeeded Mark R. Herring as Attorney General on January 15, 2022. 6, Medic 6, and Rescue 10—respectively a fire engine, an ambulance, and a heavy rescue
vehicle—to an accident scene.
Engine 6 crew members Christopher Elish and Carter Lewis testified that it was windy
and raining heavily as the engine made its way to the accident scene. Lewis also noted that there
was a “lot of water on the road.” Elish heard Lieutenant Brad Clark, Engine 6’s officer, instruct
his driver to “take it easy” and caution him that “you don’t want to lose control, just make sure
we get there.” Lewis estimated that Engine 6 drove to the accident scene at approximately forty
miles per hour.
When Engine 6 arrived at the accident scene, the driver parked it with its front end on the
shoulder by the median and its back end in the left-hand lane (“Lane 1”). Lewis and Elish
testified that after Engine 6 stopped, its emergency lights remained activated and flashing. The
crew dismounted, and as Elish reached for some equipment, he heard Clark say, “ya gotta be
kidding me.” Elish looked at Clark, who was standing in front of Engine 6 and watching to the
rear, and then looked back to see a tractor-trailer “coming through the rain[,] coming for us.”
Elish noted that the vehicle, driven by appellant, was in the second lane from the median (“Lane
2”). The tractor-trailer struck the rear of Engine 6.
As a result of the collision, Lieutenant Clark was pinned beneath Engine 6 and died of
blunt force trauma to the torso. Appellant was indicted for involuntary manslaughter and
reckless driving.
At trial, Zachary Daniel testified as an expert in forensic meteorology and described the
weather conditions that existed along 295 South on October 11. Daniel noted that the remnants
of Hurricane Michael were moving through the area and that at 9:00 p.m., the area remained
under flash flood and high wind warnings. Based upon data recorded at two sites proximate to
Exit 38-B, Daniel stated his conservative opinion that about four inches of rain fell in the area
-2- throughout October 11. He further opined that at about 9:00 p.m., the wind was blowing from
the north at a sustained speed of twenty-five to thirty-five miles per hour and gusting above forty
miles per hour. Daniel explained that this wind would have struck a vehicle traveling on 295
South near Exit 38-B on its left side. He further stated that under such conditions, a high-profile
vehicle such as a panel truck or tractor-trailer would be susceptible to “catch[ing] the wind like a
sail.”
Lieutenant Colin Bunn, the driver of Medic 6, testified that while driving to the accident
scene, he experienced heavy rain and high winds. Bunn further stated that he limited his speed
to forty-five miles per hour to “try[] to maintain complete control of the vehicle in . . . the wind.”
Nevertheless, at one point, the wind was heavy enough to blow Medic 6 from Lane 1 into Lane
2. As Bunn drove with his siren and emergency lights activated, he saw a pickup truck and two
tractor-trailers pass his ambulance. The tractor-trailers were in the right-hand center lane of the
highway (“Lane 3”). Bunn testified that he was “concern[ed]” when the tractor-trailers passed
him at a speed exceeding his own. While the tractor-trailers were passing, Bunn could see
Engine 6 ahead of him. The engine was parked on the left shoulder with its rear extending into
Lane 1, and its emergency lights were flashing. Bunn soon witnessed one of the tractor-trailers
lose control and “hydroplane, jackknife,” so that its trailer swung to the right while its tractor
remained “still in line . . . to where it was heading,” which was “towards the back of Engine 6.”
He estimated that “[m]aybe three seconds” elapsed between the moment the tractor-trailer began
to slide and the moment it hit the rear of Engine 6.
Captain David Johnston, the officer for Rescue 10, testified that when Rescue 10
responded to the initial accident, the conditions were very windy and extremely rainy. Johnston
stated that his emergency lights and siren were on and that as Rescue 10 exited from Interstate 95
South onto 295 South, two in-line tractor-trailers passed it to the right. Johnston recalled
-3- commenting to Rescue 10’s driver that “they must have a deadline” because he was “surprised at
how fast they were traveling based on the conditions that we were seeing.” As Rescue 10
approached the initial accident scene, Johnston could see Engine 6 parked with its emergency
lights flashing. Johnston then “lost that visual” and did not know why until he realized that a
tractor-trailer had crashed “across the roadway.”
Following appellant’s crash, Sergeant Matthew Jester and Trooper David Fleenor of the
Virginia State Police were dispatched separately to the scene. Both men testified that the
weather conditions that evening were very poor and included heavy winds and high amounts of
rain, and Jester stated that the conditions were the worst he had ever experienced while on duty.
Due to the weather conditions, both men reduced their speed as they drove to the accident: Jester
to between thirty and thirty-five miles per hour and Fleenor to forty-five to fifty-five miles per
hour. Even at this reduced speed, Jester’s vehicle was blown laterally on the highway and at
times he found it difficult to keep a straight course due to the wind. Fleenor described
occasionally losing traction because his tires were “digging into puddles.” Jester also
encountered standing water and “was hydroplaning on and off.”
From the crash scene, appellant was taken to the hospital where he was interviewed by
Trooper D.M. Fisher of the Virginia State Police. Appellant explained to Fisher that he had been
“in the right middle lane [Lane 3] going about 65 miles an hour, it was raining really hard, and
the wind was pushing [him] to the left, so [he] decided to change lanes into the left middle lane
[Lane 2].” When appellant changed lanes, he “hydroplaned and lost control” and struck the rear
of Engine 6. Trooper Fleenor was also present during this interview. He recalled appellant
stating that there had been heavy rain and wind on 295 South and that ever since driving onto
295 South the wind had been “blowing his empty trailer around.” Appellant also said that when
he approached the site of the accident, a crosswind struck his tractor-trailer from the right and
-4- caused him to change lanes from Lane 3 to Lane 2. At that point, appellant’s trailer hydroplaned
and veered to the left towards the fire truck; when appellant “attempted to correct the veer,” he
struck Engine 6. Appellant stated that he had been traveling at approximately sixty to sixty-five
Sergeant Jester was also at the hospital and overheard a telephone conversation between
appellant and appellant’s son. Appellant stated that he had been in the right center lane (Lane 3)
as he approached the accident scene and that he had seen emergency equipment and personnel in
the left lane (Lane 1). Appellant said that when he hydroplaned, his tractor-trailer “just went
where it wanted to go.” Appellant stated that he had been driving about sixty miles per hour,
thought there had been several inches of water on the road, and had experienced his truck being
“blown around” by very strong winds. During cross-examination, Jester was questioned about
his contemporaneous notes of appellant’s conversation. Asked whether his notes stated, “[s]aw
fire engine half in left lane, blocking left lane, was changing lanes, right center lane to left center
lane, said truck just went where it wanted . . . [,]” Jester replied, “Yes, that’s initially what I
wrote down.”
Thomas Yager testified at trial as an expert on hydroplaning. Yager had examined the
crash site and appellant’s trailer and opined that appellant had experienced “dynamic
hydroplaning.” He explained that this occurs when “a wedge of water . . . lift[s] the tire tread off
of the pavement and it becomes a water ski.” Under such conditions, a driver would lose
steering control. Yager stated that several factors are implicated in a hydroplaning event
including the weight on a vehicle’s tires, because as the load on a specific tire changes “the
footprint area changes.” Yager opined that weight had been a factor in appellant’s crash because
appellant’s empty trailer had made a smaller “footprint,” and thus had lacked the ability to drain
water from between the tires and the road “at the normal hydroplaning speed.” Thus,
-5- hydroplaning “would happen at a much lower speed, . . . probably more in the 30 to 40 miles per
hour range.” Yager also explained that changing lanes with a trailer increases the risk of
hydroplaning because a trailer’s length “aggravate[s] the control problem.” Yager opined that
appellant had a “[h]igh risk” of hydroplaning on the evening of October 11, based on the specific
factors of “high speed, wind conditions up to 40 miles per hour, and the light weight on the
trailer tires.”
Appellant testified that he had been driving professionally for about twenty years and that
on October 11 he had been driving an empty trailer from Springfield to Chester. As appellant
drove south of Ashland the weather had become stormy with increasing rain and wind.
Appellant stated that when he exited Interstate 95 onto 295 South, he had been driving about
sixty or sixty-five miles per hour. On 295 South, it began raining harder and the wind “started
kind of moving [the] trailer.” Appellant described the movement as “[l]ike when a gust . . . hits
the side of the trailer like a punch.” He testified that at that point, he had been in Lane 3 and the
wind was pushing him from the left, so he “went to the left center lane [Lane 2].” Appellant
clarified that he changed lanes “[t]o try to get the wind to stop pushing on my trailer.” When
appellant saw Engine 6 in Lane 1, he had “tried to get back into [Lane 3], and that’s when [he]
hydroplaned.”
During cross-examination, appellant agreed that he was an experienced truck driver who
was familiar with driving hazards such as strong winds and heavy rains and that he knew he
should take precautions in bad weather, including reducing speed and avoiding abrupt lane
changes which could cause loss of control. Appellant also agreed that on October 11, there was
a lot of rain on the highway and “[m]ost likely” standing water. Appellant acknowledged
understanding that wind can create performance problems with trailers, that an empty trailer is
-6- susceptible to greater problems, and that wind blowing on an empty trailer may cause an effect
“sort of like a sail.”
Appellant also acknowledged telling police that he had been driving sixty to sixty-five
miles per hour in Lane 3, the wind had been pushing his trailer to the left, and he had decided to
move from Lane 3 into Lane 2. Appellant denied passing an ambulance on 295 South and stated
that he had been in Lane 2 for about one-half mile prior to seeing Engine 6. He testified that
Engine 6’s lights had been activated, he had understood that the vehicle was a fire truck, and he
had seen something that was “probably” a person in reflective clothing. Appellant also
acknowledged his awareness of Virginia’s “move over” law.
Tim Cheek, a forensic engineer, testified as an expert witness on behalf of appellant.
Cheek had inspected appellant’s tractor-trailer, reviewed data from the vehicle’s “black box”
control module, and reviewed data that had been remotely uploaded during the tractor-trailer’s
operation, including information about the vehicle’s location, speed, and braking. Cheek stated
that the last remote speed data for appellant’s tractor-trailer indicated that appellant had been
driving at sixty-four miles per hour on 295 South. That data was uploaded just after 9:05 p.m.,
approximately four minutes before power to the vehicle was interrupted. Cheek testified that
when appellant’s tractor-trailer lost power, appellant was depressing his brake pedal and his
speedometer indicated that he was moving at about forty-six or forty-seven miles per hour.
Cheek opined that at the time of appellant’s collision with Engine 6, he was still traveling at an
average speed of between forty-six and fifty-seven miles per hour. However, on
cross-examination, Cheek agreed that because his speed calculations were based upon
determining an average speed over several miles’ distance, he could not exclude the possibility
that appellant was driving faster than forty-five to fifty-seven miles per hour at the time of the
-7- collision. Further, Cheek agreed that appellant’s speedometer only indicated his speed at impact
and not his speed in the moments before he collided with Engine 6.
The trial court convicted appellant of involuntary manslaughter and reckless driving.
This appeal followed.
II. ANALYSIS
“When considering the sufficiency of the evidence, an appellate court views the evidence
‘in the light most favorable to the Commonwealth, the prevailing party below.’” Williams v.
Commonwealth, 71 Va. App. 462, 483 (2020) (quoting Smallwood v. Commonwealth, 278 Va.
625, 629 (2009)). “This Court must ‘discard the evidence of the accused in conflict with that of
the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth
and all fair inferences to be drawn [from that evidence].’” Bagley v. Commonwealth, 73
Va. App. 1, 26 (2021) (alteration in original) (quoting Cooper v. Commonwealth, 54 Va. App.
558, 562 (2009)). “Considering the evidence from that vantage point, ‘[a]n appellate court does
not ask itself whether it believes that the evidence at the trial established guilt beyond a
reasonable doubt.’” Commonwealth v. Cady, 300 Va. 325, ___ (2021) (alteration in original)
(quoting Williams v. Commonwealth, 278 Va. 190, 193 (2009)). “It asks instead ‘whether any
rational trier of fact could have found the essential elements of the crime’ under the applicable
standard.” Bagley, 73 Va. App. at 26 (quoting Davis v. Commonwealth, 65 Va. App. 485, 500
(2015)). Thus, “[i]f there is evidentiary support for the conviction, the reviewing court is not
permitted to substitute its own judgment, even if its opinion might differ from the conclusions
reached by the finder of fact at the trial.” Blackwell v. Commonwealth, 73 Va. App. 30, 54
(2021) (quoting Chavez v. Commonwealth, 69 Va. App. 149, 161 (2018)). Accordingly, this
Court will “affirm the trial court’s judgment ‘unless it appears from the evidence that the
judgment is plainly wrong or without evidence to support it.’” Poole v. Commonwealth, 73
-8- Va. App. 357, 363 (2021) (quoting Alvarez Saucedo v. Commonwealth, 71 Va. App. 31, 47
(2019)).
A sufficiency inquiry “does not distinguish between direct and circumstantial evidence,
as the fact finder itself is entitled to consider all of the evidence, without distinction, in reaching
its determination.” Bagley, 73 Va. App. at 26-27 (quoting Commonwealth v. Moseley, 293 Va.
455, 463 (2017)). “Similarly, the appellate court’s review of the record generally ‘is not limited
to the evidence mentioned by a party in trial argument or by the trial court in its ruling.’
Appellate review requires a ‘totality-of-the-evidence analysis,’ . . . rather than a ‘fragmented
assessment of the record.’” Mollenhauer v. Commonwealth, 73 Va. App. 318, 334 (2021) (first
quoting Bolden v. Commonwealth, 275 Va. 144, 147 (2008); then quoting Moseley, 293 Va. at
464). “While no single piece of evidence may be sufficient, the combined force of many
concurrent and related circumstances, each insufficient in itself, may lead a reasonable mind
irresistibly to a conclusion.” Pick v. Commonwealth, 72 Va. App. 651, 668 (2021) (quoting
Finney v. Commonwealth, 277 Va. 83, 89 (2009)).
A. Involuntary Manslaughter
Appellant argues that the trial court erred in finding the evidence sufficient to convict him
of involuntary manslaughter. He contends that he was driving below the posted speed limit
when he hydroplaned and collided with Engine 6 and that he made normal lane changes, first to
mitigate crosswinds and then to give space to Engine 6 when he realized it was blocking Lane 1.
Accordingly, appellant argues, there was insufficient evidence to convict him of involuntary
manslaughter because nothing about appellant’s conduct suggests that he acted with a reckless
disregard for human life.
“The Supreme Court has defined ‘the common law crime of involuntary manslaughter as
the killing of one accidentally, contrary to the intention of the parties, in the prosecution of some
-9- unlawful, but not felonious, act; or in the improper performance of a lawful act.’” Brown v.
Commonwealth, 68 Va. App. 44, 51 (2017) (quoting Noakes v. Commonwealth, 280 Va. 338,
345 (2010)). More specifically, “[i]n cases involving the operation of a motor vehicle, we
generally have defined involuntary manslaughter as an accidental killing that is proximately
caused by criminal negligence involving conduct ‘so gross, wanton, and culpable as to show a
reckless disregard of human life.’” Brown v. Commonwealth, 278 Va. 523, 528 (2009) (quoting
Greenway v. Commonwealth, 254 Va. 147, 154 (1997)). Conduct rises to the level of criminal
negligence when
acts of a wanton or willful character, committed or omitted, show “a reckless or indifferent disregard of the rights of others, under circumstances reasonably calculated to produce injury, or which make it not improbable that injury will be occasioned, and the offender knows, or is charged with the knowledge of, the probable result of his acts.”
Id. at 528-29 (quoting Riley v. Commonwealth, 277 Va. 467, 484 (2009)). Thus, criminal
negligence “must be something more than mere inadvertence or misadventure. It is a
recklessness or indifference incompatible with a proper regard for human life.” Banks v.
Commonwealth, 41 Va. App. 539, 546 (2003) (quoting Bell v. Commonwealth, 170 Va. 597, 611
(1938)). “Criminal negligence is judged according to an objective standard,” Brown, 278 Va. at
528, “and the requisite mens rea ‘may be found to exist when the defendant either knew or
should have known the probable results of his acts,’” Cady, 300 Va. at ___ (quoting Noakes, 280
Va. at 346).
“Determining ‘the degree of the hazard posed’ by [a] defendant’s driving . . . heavily
‘depends upon the circumstances in each case.’” Id. (quoting Mayo v. Commonwealth, 218 Va.
644, 648 (1977)). “[T]he cumulative effect of a series of connected, or independent negligent
acts causing a death may be considered in determining if a defendant has exhibited a reckless
disregard for human life.” Cheung v. Commonwealth, 63 Va. App. 1, 9 (2014) (quoting Stover v. - 10 - Commonwealth, 31 Va. App. 225, 231 (1999)). “Generally, negligence . . . [is a] factual
finding[],” and thus an issue for a trier of fact to resolve; it only becomes a question of law
“‘when reasonable minds could not differ.’” Levenson v. Commonwealth, 68 Va. App. 255, 258
(2017) (quoting Hawkins v. Commonwealth, 64 Va. App. 650, 655 (2015)). Such factual
findings “are not to be disturbed unless they are plainly wrong or are without evidence to support
them.” Id. at 259 (quoting Wilkins v. Commonwealth, 292 Va. 2, 7 (2016)).
We hold, contrary to appellant’s argument, that sufficient evidence supports the finding
that appellant operated his tractor-trailer with a reckless or indifferent disregard of the rights of
others under circumstances which made it not improbable that others would be injured. The
evidence established that weather conditions along 295 South on the night of October 11, 2018
were bad. A flash flood warning was in effect around Exit 38-B after several inches of rain had
fallen, and a high wind warning was also in effect with winds of twenty-five to thirty-five miles
per hour and gusts over forty miles per hour blowing from the left side of the highway.
Emergency responders from the Virginia State Police, Engine 6, Medic 6, and Rescue 10
testified that they experienced very bad weather conditions that evening. Appellant himself
acknowledged how bad the weather was, telling police that there had been heavy rain and wind
on 295 South and testifying to the same at trial.
This bad weather negatively affected driving conditions near Exit 38-B. Engine 6’s
driver was instructed to “take it easy” so that he would not lose control under the conditions, and
he limited his speed in responding to an emergency to about forty miles per hour. Medic 6 was
pushed from Lane 1 into Lane 2 by high winds from the left, and its driver, Lieutenant Bunn,
limited his speed to approximately forty-five miles per hour to maintain control of the vehicle.
Sergeant Jester could feel his vehicle being blown from left to right across the highway, and he
hydroplaned off and on when responding to appellant’s collision. Similarly, Trooper Fleenor
- 11 - testified to his difficulty maintaining traction due to “puddles” on the road. Thomas Yager
testified that appellant was at a high risk of hydroplaning on the evening of October 11, in part
because of high winds. His testimony also established that in the presence of much water on the
highway, hydroplaning could occur at lower than usual speeds.
Appellant himself was aware of the negative effects of the poor weather upon driving
conditions that evening. He told Troopers Fleenor and Fisher that on 295 South, the wind was
blowing his empty trailer around and pushing on his tractor-trailer. Sergeant Jester overheard
appellant tell his son that his truck was being blown around and that there was a large amount of
water on the road. In his own testimony, appellant acknowledged that while he was driving on
295 South, the wind was moving his trailer as if it were being “punch[ed].”
More generally, appellant’s testimony established that he was an experienced truck driver
who was familiar with the hazards of driving in strong winds and heavy rain and that he knew
that in poor weather he should take precautions such as reducing speed and avoiding abrupt lane
changes that might cause him to lose control of his vehicle. Appellant acknowledged his
understanding that wind can create performance problems with trailers, that empty trailers are
more susceptible to such problems, and that wind blowing on an empty trailer can cause an effect
like that of wind on a sail.
Despite appellant’s cognizance of the very poor weather and its effects upon driving
conditions, and his awareness of steps he should take to mitigate driving hazards that might
cause loss of control, appellant followed none of these precautionary measures. Instead, he made
a series of unsafe decisions within a short time frame while knowingly encountering very poor
driving conditions.
First, appellant passed two emergency vehicles that had their lights and sirens activated.
Code § 46.2-829 makes it a violation to pass such an emergency vehicle, and the presence of two
- 12 - first responder vehicles with lights and sirens activated was a signal to slow down because there
was likely first responder activity in the area. Instead, appellant rushed past the responder
vehicles and then moved from Lane 3 to Lane 2. In doing so, appellant moved closer to Engine
6 which was visibly parked on the side of the roadway and in Lane 1, as its crew worked at an
accident scene. Appellant’s presence in Lane 2, adjacent to Engine 6 in Lane 1, violated
Virginia’s “move over” law which, again, is specifically designed to protect first responders in
these precise circumstances. See Code § 46.2-861.1(A) (providing that when a driver approaches
a vehicle that displays flashing emergency lights and is stationary along a multi-lane highway,
the driver is required to “change into a lane not adjacent to the stationary vehicle”). 2 Throughout
these maneuvers, according to his statements to police, appellant maintained a speed between
sixty and sixty-five miles per hour in terrible weather conditions. 3 The record shows there was
substantial water on the roadway and that driving was hampered by high winds and poor
2 At the time of appellant’s offense, Virginia’s “move over” law was set forth in Code § 46.2-921.1. In 2019, the General Assembly repealed that code section and added Code § 46.2-861.1. See 2019 Va. Acts ch. 850. The language of the two code sections is identical except for Code § 46.2-861.1’s inclusion of a new statutory reference and elevation of the offense from a moving violation to reckless driving. 3 Although not briefed by appellant, appellant’s counsel suggested at oral argument that Forbes v. Commonwealth, 27 Va. App. 304 (1998), would preclude a trier of fact from disregarding Cheek’s testimony that at the time of the collision, appellant was traveling at between forty-six and fifty-seven miles per hour. However, the language of Forbes relied upon by appellant is inapposite here. See id. at 312 (“The trier of fact must determine the weight of the testimony and the credibility of the witnesses, but it ‘may not arbitrarily disregard uncontradicted evidence of unimpeached witnesses which is not inherently incredible and not inconsistent with facts in the record.’” (quoting Williams v. Commonwealth, 14 Va. App. 666, 669-70 (1992))). In the instant case, Cheek’s testimony about appellant’s speed at the time of the collision was not uncontradicted, because appellant himself stated to police and his son that he was traveling at approximately sixty to sixty-five miles per hour. Nor was Cheek’s testimony about speed unambiguous. As appellant’s counsel acknowledged during argument, Cheek’s speed estimate was based upon averages calculated over several miles’ distance. Thus, when asked whether Cheek “couldn’t say what the speed was before” the moment of impact, counsel for appellant responded, “No, you’re right.” Further, even assuming arguendo that a rational trier of fact was to credit Cheek’s speed calculation, that trier of fact could still conclude that appellant’s speed was too fast for conditions. - 13 - visibility as the remnants of a tropical storm moved through the area. From this record, a
rational trier of fact could infer that even if appellant was driving below the posted speed limit at
the time of his collision with Engine 6, he was nonetheless driving too fast for the existing
conditions. 4 See Code § 46.2-861 (“A person shall be guilty of reckless driving who exceeds a
reasonable speed under the circumstances and traffic conditions existing at the time, regardless
of any posted speed limit.”).
Appellant contends that, despite his multiple errors in judgment, his conduct does not
exhibit the type of “outlier” or egregious misconduct generally required to establish involuntary
manslaughter. In support of this proposition, he argues there is no evidence that he was
impaired, intoxicated, distracted, texting, or driving erratically. Our case law confirms that the
standard required to prove involuntary manslaughter is a high one. Conrad v. Commonwealth,
31 Va. App. 113, 121 (1999); Tubman v. Commonwealth, 3 Va. App. 267, 271 (1986); see also
Harris v. Harman, 253 Va. 336, 341 (1997).
However, “[T]he cumulative effect of a series of connected, or independent negligent acts
causing a death may be considered in determining whether a defendant has exhibited a reckless
disregard for human life.” Cheung, 63 Va. App. at 9 (quoting Stover, 31 Va. App. at 231). Here
we must weigh the cumulative effect of appellant’s decisions to (1) rush past two emergency
vehicles with their lights and sirens engaged, (2) move closer to Engine 6 and into the lane
4 In discussing the reasonable inferences to be drawn from the evidence of the weather, the driving conditions, and appellant’s speed, counsel for appellant acknowledged at oral argument that “I think that you could certainly conclude, if you wished, that [appellant’s speed] was too fast for conditions.” At a later point, counsel for appellant contended that the fact that a pickup truck and another tractor-trailer were driving at similar speeds to appellant’s suggested that appellant was “not an outlier” in his conduct. However, when asked whether he was arguing that “because [an accident] didn’t happen to the other vehicles, that that makes [appellant’s conduct] outside the realm of being willful and wanton,” counsel for appellant clarified that he was “not suggesting that the fact that the other vehicles didn’t have the same result . . . has any bearing on [appellant’s] decision-making.” - 14 - adjacent to it while its lights were activated at an accident scene, in violation of the “move over”
law, and (3) drive at excessive speeds while knowing conditions were treacherous and that his
empty trailer was being “blown around.” In undertaking this analysis, we are satisfied that the
evidence supports the trial court’s finding that appellant operated his tractor-trailer with the
requisite mens rea to convict him of involuntary manslaughter—that is, that appellant’s series of
risky maneuvers, under the conditions present on October 11, 2018, demonstrated a reckless,
indifferent disregard for Engine 6’s crew under circumstances which made it not unlikely that
injury would occur and that appellant knew or should have known the probable consequences of
his acts and omissions. 5 See Brown, 278 Va. at 528-29. Because the trial court’s finding with
respect to criminal negligence was neither plainly wrong nor without evidence to support it, we
cannot disturb that finding.
B. Reckless Driving
Appellant also argues that the trial court erred in finding the evidence sufficient to
convict him of reckless driving. He contends that there was no evidence that he was tired,
distracted, impaired, or driving erratically. Appellant also contends that his speed was below the
posted speed limit and that although he changed lanes, there was no evidence that his lane
change was abrupt, unreasonable, or irresponsible. Accordingly, appellant maintains that there
was insufficient evidence to prove that he operated his tractor-trailer with an indifference
incompatible with a proper regard for human life.
Code § 46.2-852 provides that “[i]rrespective of the maximum speeds permitted by law,
any person who drives a vehicle on any highway recklessly or at a speed or in a manner so as to
5 In reaching this conclusion we do not accept the Commonwealth’s suggestion that appellant’s conviction can be upheld simply because, as an experienced truck driver, he “should have known” he had an increased likelihood of hydroplaning in these weather conditions and his lack of care caused this accident. The standard for proving involuntary manslaughter is significantly higher than for establishing simple negligence. Conrad, 31 Va. App. at 121. - 15 - endanger the life, limb, or property of any person shall be guilty of reckless driving.” “The
essence of the offen[s]e of reckless driving lies not in the act of operating a vehicle, but in the
manner and circumstances of its operation.” Blevins v. Commonwealth, 63 Va. App. 628, 635
(2014) (quoting Powers v. Commonwealth, 211 Va. 386, 388 (1970)). “Criminal recklessness,
the requisite mens rea specified in Code § 46.2-852 for a misdemeanor reckless-driving
conviction, requires a reckless ‘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’ of others.” Cady, 300 Va. at
___ (quoting Powers, 211 Va. at 388). While “[t]his requirement is more than simple
negligence, as that concept is used in civil tort cases, . . . it is less than ‘gross, wanton, and
culpable’ negligence, the mens rea requirement for felony involuntary manslaughter.” 6 Id. at
___ (quoting Noakes, 280 Va. at 345-46). In determining whether conduct rises to the level of
criminal recklessness, an objective standard applies, and criminal recklessness “may be found to
exist when the defendant either knew or should have known the probable results of his acts.” Id.
(quoting Noakes, 280 Va. at 346).
“[T]he degree of the hazard posed by a speeding [motor vehicle] depends upon the
circumstances in each case.” Greenway, 254 Va. at 155 (quoting Mayo, 218 Va. at 648).
“Factors tending to show recklessness include erratic driving, ‘the likelihood of injury to other
users of the highways,’ lack of control of the vehicle, driving in excess of the speed limit,
‘dangerous driving behavior,’ intoxication, and noncompliance with traffic markers.” Blevins,
63 Va. App. at 635 (first quoting Mayo, 218 Va. at 648; then quoting Crest v. Commonwealth, 40
6 Thus, despite the “subtle differences” between the mens rea standards for reckless driving and involuntary manslaughter in the operation of a motor vehicle, which are “primarily . . . differences in degree,” the two offenses are distinct. Cady, 300 Va. at ___. See also Delawder v. Commonwealth, 214 Va. 55, 58 (1973) (holding that the defendant was not entitled to a jury instruction on reckless driving as a lesser-included offense of involuntary manslaughter because “although arising out of the same occurrence,” the two offenses were separate and distinct). - 16 - Va. App. 165, 172 (2003)). However, “[t]he mere happening of an accident does not give rise to
an inference of reckless driving.” Crest, 40 Va. App. at 174 (quoting Powers, 211 Va. at 388).
A series of independent or connected negligent acts causing a death, when evaluated
cumulatively, may be considered in determining whether the defendant exhibited a reckless
disregard for human life. Cheung, 63 Va. App. at 9.
We hold, contrary to appellant’s argument, that sufficient evidence supports appellant’s
conviction for reckless driving. We reach this conclusion because a rational trier of fact,
evaluating the same evidence the trial court considered in convicting appellant of involuntary
manslaughter, could have employed that evidence differently to find that the distinct mens rea
required to convict for reckless driving had also been satisfied. Such a trier of fact could have
concluded that appellant’s speed alone constituted reckless driving under the circumstances that
existed on the night of October 11, 2018. See Code § 46.2-861 (“A person shall be guilty of
reckless driving who exceeds a reasonable speed under the circumstances and traffic conditions
existing at the time, regardless of any posted speed limit.”). Alternatively, a trier of fact could
have concluded that appellant’s conduct in passing Medic 6 and Rescue 6 constituted reckless
driving. See Code § 46.2-829 (providing, in pertinent part, that overtaking or passing a moving
emergency vehicle while it displays activated warning lights and gives an audible signal
constitutes reckless driving). In addition, a rational trier of fact could have relied upon other
evidence that supported appellant’s conviction for involuntary manslaughter, including
appellant’s lane change near Engine 6 under adverse driving conditions and his knowledge of the
risks of hydroplaning, to conclude that appellant acted with the requisite mens rea—that is, that
appellant knew or should have known that his acts and omissions created a substantial risk of
harm to others and that he displayed a reckless disregard for the consequences of his conduct and
an indifference to the safety of others. Because a rational trier of fact could have found from the
- 17 - evidence in this case that appellant acted with the necessary degree of recklessness to convict
him of reckless driving, we will not disturb the trial court’s ruling. Accordingly, we hold that the
trial court did not err in finding the evidence sufficient to convict appellant of reckless driving.
III. CONCLUSION
For the foregoing reasons, we hold that the trial court did not err in finding the evidence
sufficient to convict appellant of involuntary manslaughter and reckless driving and affirm the
trial court’s judgment.
Affirmed.
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