COURT OF APPEALS OF VIRGINIA UNPUBLISHED
Present: Judges Athey, Callins and Frucci Argued at Salem, Virginia
LONNIE LEWIS RICHERSON MEMORANDUM OPINION* BY v. Record No. 0493-24-3 JUDGE CLIFFORD L. ATHEY, JR. JANUARY 7, 2025 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG J. Frederick Watson, Judge
Ronnie H. West (West Law Firm, PLC, on brief), for appellant.
Mary Catherine Talbott, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.
Following a bench trial in the Circuit Court of the City of Lynchburg (“trial court”), Lonnie
Lewis Richerson (“Richerson”) was convicted of driving while under the influence of alcohol in
violation of Code § 18.2-266, driving after forfeiture of license in violation of Code §§ 18.2-270 and
18.2-272, and refusal, second offense within ten years, in violation of Code § 18.2-268.3.1 On
appeal, Richerson contends that the Commonwealth failed to establish that he was under the
influence of alcohol while driving, thus rendering the evidence insufficient to support his driving
under the influence of alcohol conviction. For the following reasons, we find the evidence
insufficient and therefore reverse his conviction.
* This opinion is not designated for publication. See Code § 17.1-413(A). 1 Richerson does not challenge his driving on a suspended license and refusal convictions. I. BACKGROUND2
Late in the evening of May 21, 2023, Officer John Person (“Officer Person”) and another
officer of the Lynchburg Police Department initiated a traffic stop of a vehicle traveling on a
public highway after determining that the driver’s license of the registered owner of the vehicle
was suspended. When Officer Person activated his emergency lights and siren, the vehicle failed
to come to a stop for 0.2 miles before finally turning into the parking lot of a 7-Eleven and
coming to a stop. During the short pursuit, Officer Person did not document Richerson driving
erratically.
After activating his body-worn camera, Officer Person approached the vehicle’s driver
side, while his accompanying officer approached the passenger side. Officer Person found
Richerson seated in the driver’s seat of the vehicle with the window rolled up. A woman was
seated in the front passenger’s seat. In order to determine whether Richerson was the vehicle’s
registered owner, Officer Person knocked on the driver’s side window and requested that
Richerson roll the window down. Richerson rolled his window down, and Officer Person
detected the odor of alcohol emanating from inside the vehicle.3 Officer Person was able to
identify Richerson, whose driver’s license was suspended, as the registered owner of the vehicle.
Officer Person then asked Richerson why it took him so long to pull his vehicle over into the
7-Eleven parking lot. Richerson explained that he “didn’t see” Officer Person’s patrol vehicle
2 “Consistent with the standard of review when a criminal appellant challenges the sufficiency of the evidence, we recite the evidence below ‘in the “light most favorable” to the Commonwealth, the prevailing party in the trial court.’” Hammer v. Commonwealth, 74 Va. App. 225, 231 (2022) (quoting Commonwealth v. Cady, 300 Va. 325, 329 (2021)). This standard “requires us to ‘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 therefrom.’” Cady, 300 Va. at 329 (quoting Commonwealth v. Perkins, 295 Va. 323, 324 (2018)). 3 The body camera video documents Richerson talking with Officer Person in a low and sometimes muffled voice. -2- until his female passenger alerted him to the patrol vehicle’s presence. Richerson then asked
Officer Person why he had been pulled over for driving on a suspended license. Officer Person
responded that he had “r[un] his tags.” Richerson’s front passenger further informed Officer
Person that Richerson was trying to “drive her home” since she also lacked a valid driver’s
license. During this initial interview, Officer Person observed that Richerson had “glassy eyes,”
slurred his speech, and appeared to be confused regarding why he had been stopped. But the
body-worn-camera footage documents Richerson avoiding eye contact with Officer Person, by
looking in a different direction or by glancing back at his passenger, as they talked.
Officer Person next asked three separate times for Richerson to exit the vehicle. After
initially refusing to do so on the grounds that he did not believe that Officer Person had a reason
to run his tags, Richerson eventually acquiesced and exited the vehicle. Once outside the
vehicle, the body-worn-camera footage showed Richerson departing his vehicle while looking in
the opposite direction of Officer Person, before turning around to permit the officers to pat him
down. Officer Person verbally noted that Richerson was refusing to make eye contact with him
and also stated that he smelled the odor of alcohol on Richerson’s breath. Once the pat down
concluded, Richerson is seen walking toward the front of his vehicle before being redirected to
walk to the police vehicle. The body-worn-camera footage then shows Richerson slowly
walking toward the police vehicle while looking at the police vehicle and away from Officer
Person and his accompanying officer. And this footage does not document Richerson exhibiting
issues with his stability as he walked with the officers.
Officer Person then had Richerson walk with him away from Richerson’s vehicle and
confronted Richerson about the presence of alcohol on his person, asking him specifically “how
much have you been drinking?” Richerson then denied that he had consumed alcohol that
evening. Officer Person followed this question by requesting that Richerson perform field
-3- sobriety tests, which Richerson refused on the grounds that he “had nothing to drink.” Officer
Person then asked Richerson if he was “okay” because “he was acting a little funny” and was
continuing to not make eye contact with him. Richerson responded that he was “fine” and that
he was not making eye contact with the officer because “he didn’t have to.” Based on Officer
Person’s observations during the interview, he arrested Richerson for driving under the influence
of alcohol. In total, Richerson’s interactions with Officer Person lasted less than five minutes.
After being transported to the Lynchburg Police Department, Officer Person requested
that Richerson perform a breathalyzer test. Richerson refused. As a result of the refusal, in
addition to the charges of driving on a suspended license and driving under the influence of
alcohol (third or subsequent offense within ten years), Richerson was also charged with
unreasonably refusing to submit to a chemical test to determine his blood alcohol content
(second or subsequent offense within ten years).
Richerson subsequently pleaded not guilty to the alleged offenses and waived his right to
trial by jury. At trial, the Commonwealth also entered into evidence footage from Officer
Person’s body camera recording the traffic stop as well as footage of Richerson’s refusal to
provide a breath sample for analysis at the police station. At the conclusion of the
Commonwealth’s case in chief, Richerson moved to strike, asserting that the Commonwealth’s
evidence was insufficient to support each of the charges. In support of his motion to strike his
driving under the influence of alcohol charge, Richerson contended that because the
Commonwealth failed to enter into evidence a “chemical analysis showing a BAC of .08 or
higher,” and the evidence otherwise reflected “no erratic driving behavior,” the evidence as to
each of the charges was insufficient as a matter of law to convict him of the offense. The trial
court then denied Richerson’s motion to strike the charges against him.
-4- Richerson neither testified in his own defense nor introduced any evidence before resting
his case. At the conclusion of all the evidence, Richerson renewed his motion to strike the
driving under the influence charge, again asserting that the evidence supporting the charge was
insufficient as a matter of law on the same grounds as previously argued. The trial court then
denied Richerson’s renewed motion to strike and following closing arguments, convicted
Richerson on each charge.
Following a sentencing hearing, on March 8, 2024, the trial court entered a final order
sentencing Richerson to serve 5 years and 24 months of incarceration, with all but 1 year
suspended; 18 months of probation; and 5 years of good behavior. The trial court also fined
Richerson $1,000 and suspended his driver’s license for an indefinite period. Richerson
appealed and challenges his driving under the influence of alcohol conviction.
II. ANALYSIS
A. Standard of Review
“When an appellate court reviews the sufficiency of the evidence underlying a criminal
conviction, its role is a limited one.” Commonwealth v. Garrick, 303 Va. 176, 182 (2024). “The
judgment of the trial court is presumed correct and will not be disturbed unless it is ‘plainly
wrong or without evidence to support it.’” Pijor v. Commonwealth, 294 Va. 502, 512 (2017)
(quoting Code § 8.01-680). “Thus, ‘it is not for this [C]ourt to say that the evidence does or does
not establish [the defendant’s] guilt beyond a reasonable doubt because as an original proposition
it might have reached a different conclusion.’” Commonwealth v. Barney, 302 Va. 84, 97 (2023)
(alterations in original) (quoting Cobb v. Commonwealth, 152 Va. 941, 953 (1929)). The only
relevant question for this Court on review “is, after reviewing the evidence in the light most
favorable to the prosecution, whether any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Id. (quoting Sullivan v. Commonwealth, 280
-5- Va. 672, 676 (2010)). “If 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.’” McGowan v. Commonwealth, 72 Va. App. 513, 521
(2020) (quoting Chavez v. Commonwealth, 69 Va. App. 149, 161 (2018)).
B. The evidence in the record was insufficient to support Richerson’s conviction.
Challenging only his driving under the influence of alcohol conviction, Richerson asserts
that the trial court erred by convicting him when he denied consuming alcohol, did not undertake
a field sobriety test, and the Commonwealth failed to cite driving behavior indicating that he was
intoxicated. He further contends that the absence of alcohol in the car as well as the absence of
any chemical test establishing intoxication is fatal to his conviction for driving under the
influence of alcohol (third or subsequent offense). As a result, he argues that the evidence in
support of the conviction is insufficient as a matter of law. We agree in part.
Code § 18.2-266(ii), which makes it “unlawful for any person to drive or operate any
motor vehicle . . . while such person is under the influence of alcohol,” does not “require[] proof
of a specific blood-alcohol level.” Beckham v. Commonwealth, 67 Va. App. 654, 662 (2017).
Rather, “proof that the accused is simply ‘under the influence’ . . . is sufficient to convict.” Id.
(quoting Code § 18.2-266(ii)). For guidance in determining whether a defendant is “under the
influence,” we look to the statutory definition of “intoxicated” provided in the Alcoholic
Beverage Control Act. Leake v. Commonwealth, 27 Va. App. 101, 109-10 (1998); Code
§§ 4.1-100 to -133. “‘Intoxicated’ means a condition in which a person has drunk enough
alcoholic beverages to observably affect his manner, disposition, speech, muscular movement,
general appearance or behavior.” Leake, 27 Va. App. at 110 (quoting Code § 4.1-100).
To that end, the Commonwealth is not required to present scientific proof, such as blood
alcohol test results, to support a driving while under the influence conviction. See, e.g., Stevens
-6- v. Commonwealth, 46 Va. App. 234, 245 (2005) (noting that “blood test results are not required
to prove intoxication for prosecution under clauses (ii), (iii) or (iv) of Code § 18.2-266”); Oliver
v. Commonwealth, 40 Va. App. 20, 24 (2003) (“Test results from a breath or blood test are not
necessary or required to prove driving under the influence of alcohol or drugs.”).4 Instead, “the
result of . . . [such an] analysis is but auxiliary proof which may tend to corroborate evidence of
the objective symptoms [of being under the influence of alcohol].” Thurston v. City of
Lynchburg, 15 Va. App. 475, 483 (1992) (third alteration in original) (quoting Brooks v. City of
Newport News, 224 Va. 311, 316 (1982)). Hence, in cases where the Commonwealth does not
introduce a chemical test of a defendant’s blood or breath at trial, “whether a [person i]s under
the influence[ must be determined from] ‘all of the evidence of his condition at the time of the
alleged offense.’” Hogle v. Commonwealth, 75 Va. App. 743, 754 (2022) (emphasis added)
(quoting Leake, 27 Va. App. at 109).
Also, in making this inquiry, this Court “does not distinguish between direct and
circumstantial evidence, as the fact finder . . . ‘is entitled to consider all of the evidence, without
distinction, in reaching its determination.’” Commonwealth v. Moseley, 293 Va. 455, 463 (2017)
(quoting Commonwealth v. Hudson, 265 Va. 505, 513 (2003)). “Circumstantial evidence is not
‘viewed in isolation’ because the ‘combined force of many concurrent and related circumstances,
each insufficient in itself, may lead a reasonable [fact finder]’ to conclude beyond a reasonable
4 “Had the General Assembly intended to require the [Commonwealth to produce such evidence] for a prosecution under [Code § 18.2-266], it would have specifically provided so; however, it did not.” Stevens, 46 Va. App. at 245. Therefore, “[t]he omission, in this context, makes it apparent that the legislature did not require [such evidentiary] hurdles.” Id.; see, e.g., Jordan v. Town of South Boston, 138 Va. 838, 844-45 (1924) (“Courts ‘cannot read into a statute something that is not within the manifest intention of the legislature as gathered from the statute itself. To depart from the meaning expressed by the words is to alter the statute, to legislate and not to interpret.” (quoting 25 Ruling Case Law § 218, at 963 (1919))). -7- doubt that a defendant is guilty.” Rams v. Commonwealth, 70 Va. App. 12, 27 (2019) (alteration
in original) (quoting Muhammad v. Commonwealth, 269 Va. 451, 479 (2005)).
But “[e]vidence is insufficient ‘to support a conviction if it engenders only a suspicion or
even a probability of guilt. . . . The evidence must be such that it excludes every reasonable
hypothesis of innocence.” Potts v. Commonwealth, 12 Va. App. 1093, 1097-98 (1991) (second
alteration in original) (quoting Coffey v. Commonwealth, 202 Va. 185, 188 (1960)). And in
driving under the influence cases, this reasonable hypothesis is not excluded where, in the
totality of the circumstances, the Commonwealth primarily relies on evidence of the defendant’s
physical state as testified to by law enforcement, see id. at 1098, evidence of “bizarre conduct,”
Clemmer v. Commonwealth, 208 Va. 661, 666 (1968), or evidence of the defendant’s
“unreasonable statements” without connection to the conduct in question, Coffey, 202 Va. at 188.
In Potts, this Court found that the Commonwealth failed to meet its burden of proving
that the defendant drove under the influence where “the only evidence of record” introduced was
that the responding officer noted that “[the defendant’s] eyes were bloodshot, his face was
flushed and reddish in color, and he had a ‘strong odor of alcohol,’” and no other evidence in the
record showed the defendant was in that condition at the time he was behind the wheel. 12
Va. App. at 1098. Further, in Clemmer, the Supreme Court of Virginia found that evidence
introduced by the Commonwealth was insufficient to support a driving under the influence
conviction where it showed that the defendant was seen “stuttering and staggering around” the
scene of an accident, appearing to law enforcement to be “very unsteady and belligerent,” and
responding that “[it] wasn’t any of [the searching officer’s] business what he had been drinking”
when the officer “asked him about his drinking” that evening. 208 Va. at 662-63. There, the
Court reasoned that the Commonwealth failed to exclude “every reasonable hypothesis” of the
defendant’s innocence as “[t]he manner in which the accident occurred, the appearance and
-8- behavior of defendant, and his bizarre conduct generally, constitute sufficient evidence to
engender a probability of guilt” but this evidence “fail[ed] to establish that the drinking of
alcohol or the self-administering of drugs caused this conduct, and, in its absence, we are unable
to conclude that beyond a reasonable doubt defendant operated his automobile under the
influence of alcohol.” Id. at 666 (emphasis added). And, in Coffey, the Supreme Court found
that evidence of “unreasonable statements made by the [defendant] regarding the brushing of his
teeth with alcohol, the drinking of vinegar, and consuming ‘camphor or rock candy solution’”
and that “he ‘had had nothing to drink for four days’” (in response to being questioned about
why he smelled like alcohol) were insufficient by themselves to support a driving under the
influence conviction. 202 Va. at 187-88. There, the Court reasoned that although these
statements on their own were sufficient to “engender[] . . . a suspicion or even a probability of
guilt” regarding his consumption of alcohol, they were insufficient to exclude the defendant’s
reasonable hypothesis of innocence “beyond a reasonable doubt.” Id. at 188.
Here, even viewing the record in the light most favorable to the Commonwealth, we find
insufficient evidence to support Richerson’s conviction. To support Richerson’s conviction, the
Commonwealth introduced Officer Person’s testimony regarding his observations of Richerson’s
behavior and manner at the time of the stop, and the less than five-minute body camera video he
recorded in doing so, to support the conclusion that he was intoxicated at the time he was behind
the wheel. This evidence focused on inferring Richerson’s intoxication from his physical
appearance in a similar way to the evidence before this Court in Potts. 12 Va. App. at 1099.
In Potts, the Commonwealth had introduced evidence noting that “[the defendant’s] eyes
were bloodshot, his face was flushed and reddish in color, and he had a ‘strong odor of alcohol’”
without evidence showing that the defendant had been in such condition while he was driving.
12 Va. App. at 1098. And, this Court found, standing alone, that this affirmative evidence was
-9- insufficient to support convicting him of driving under the influence of alcohol. Id. at 1099.
But, unlike Potts, the record before this Court does not even affirmatively support portions of the
Commonwealth’s account of Richerson’s behaviors. Officer Person testified that an odor of
alcohol emanated from the vehicle and from Richerson’s person upon his exiting the vehicle, and
Officer Person noted that he witnessed Richerson with “glassy eyes, slurred speech,” and that
Richerson was “sweating” and behaving in a manner he perceived as confusion. In reviewing
the record, not all of Officer Person’s testimony is supported by his body camera footage. Even
viewed in the light most favorable to the Commonwealth, the footage shows Richerson
completely avoiding eye contact with Officer Person and his accompanying officer, slowly
walking about the scene without exhibiting issues with his balance, and responding to the
officers’ questions and directions in a normal manner. This inconsistency deprives the
Commonwealth of the full inferential value of Officer Person’s testimony, see, e.g., Turner v.
Commonwealth, 65 Va. App. 312, 331 (2015) (“This Court’s deference to the fact finder ‘applies
not only to findings of fact, but also to any reasonable and justified inferences the fact-finder
may have drawn from the facts proved.’” (quoting Sullivan, 280 Va. at 676)); Cnty. of
Chesterfield v. Windy Hill, Ltd., 263 Va. 197, 200 (2002) (noting that an inference is not
reasonable if “strained, forced, or contrary to reason”), and the remaining evidence otherwise
fails to exclude other “reasonable hypothes[es] of innocence” for Richerson’s behavior that flow
from the circumstances, such as that he was tired or nervous, both plausible causes for his
“sweating” and attempts to avoid eye contact. Maust v. Commonwealth, 77 Va. App. 687, 700
(2023) (“The Commonwealth . . . is not required to exclude every possibility that others may
have committed the crime for which a defendant is charged, but is only required to exclude
hypotheses of innocence that flow from the evidence.” (alteration in original) (emphasis added)
(quoting Dowden v. Commonwealth, 260 Va. 459, 468 (2000))). As a result, this evidence, in
- 10 - capturing Richerson’s behaviors and statements to Officer Person without anything more, we
find “engenders only a suspicion or even a probability of guilt” and does not satisfy the
Commonwealth’s burden of proof. Coffey, 202 Va. at 188.
Further, even presuming that Officer Person’s perceptions of Richerson were completely
supported by the record, these perceptions would pale in comparison to the evidence of “bizarre
conduct” the searching officer perceived in Clemmer that was found to be, standing alone,
insufficient to support a driving under the influence conviction. 208 Va. at 666. There, the
searching officer testified to witnessing the defendant “stuttering and staggering around,
unsteady on his feet, belligerent, non-cooperative and arrogant.” Id. at 663. The Supreme Court
found that even these observations, with nothing more, “fail[ed] to establish that the drinking of
alcohol or the self-administering of drugs caused this conduct” and prevented the Court from
“conclud[ing] that beyond a reasonable doubt defendant operated his automobile under the
influence of alcohol.” Id. at 666 (emphasis added). Hence, as the body-worn-camera footage
did not document Richerson exhibiting some clearer sign of intoxication in the form of erratic
driving, instability in movement, or poor motor control, we cannot gleam support for Richerson’s
conviction from this otherwise innocuous evidence.
Moreover, Richerson admitted that he drove 0.2 miles before pulling over because he
“didn’t see” Officer Person’s police cruiser, which had activated its siren and emergency lights,
only becoming aware of the police cruiser when the passenger in his car alerted him. But
Richerson’s explanation in no way approaches the starkly “unreasonable statement” made in
Coffey. 202 Va. at 188. In that case, the defendant attempted to explain away the strong smell of
alcohol on his person by claiming that it was caused by “brushing . . . his teeth with alcohol, the
drinking of vinegar, and consuming ‘camphor or rock candy solution.’” 202 Va. at 188. The
Supreme Court found these outlandish statements were only sufficient to show “a suspicion or
- 11 - even a probability of guilt” and were not enough on their own to exclude the defendant’s
reasonable hypothesis of innocence “beyond a reasonable doubt.” Id. To wit, Richerson’s
statements and conduct observed by Officer Person were in no way similar to those in Coffey.
Richerson spoke in a low voice and appeared nervous. He also struggled to enunciate as he
collected his thoughts and determined how he wanted to respond to the officer. But these
considerations merely made him more “suspicio[us]” pertaining to whether he was under the
influence of alcohol and, in the totality of the circumstances, only made it “probable” that he was
intoxicated. Potts, 12 Va. App. at 1097-98 (quoting Coffey, 202 Va. at 188). Hence, in light of
this juxtaposition, we find that the facts before us are similar to those in Potts, Clemmer, and
Coffey and that all three apply with full force here. As sagely noted in Coffey, a “[c]onviction
cannot rest upon conjecture. The evidence must be such that it excludes every reasonable
hypothesis of innocence.” 202 Va. at 188. And we find the evidence here failed to do so;
therefore, we reverse Richerson’s conviction.
III. CONCLUSION
For the foregoing reasons, we find that the trial court erred in finding the evidence in the
record sufficient to convict Richerson of driving under the influence. Therefore, the trial court’s
judgment is reversed and the driving under the influence charge against him is dismissed.
Reversed and dismissed.
- 12 -