                       COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Willis and Bumgardner
Argued by teleconference


HERSHEL FRANK SULLIVAN, JR.
                                             MEMORANDUM OPINION ∗ BY
v.       Record No. 1038-98-3             JUDGE JERE M. H. WILLIS, JR.
                                                  APRIL 6, 1999
COMMONWEALTH OF VIRGINIA


                   FROM THE CIRCUIT COURT OF LEE COUNTY
                    William C. Fugate, Judge Designate

              Anthony E. Collins (Collins & Collins, on
              brief), for appellant.

              Kathleen B. Martin, Assistant Attorney
              General (Mark L. Earley, Attorney General, on
              brief), for appellee.


         On appeal from his convictions of involuntary manslaughter,

in violation of Code § 18.2-36, Hershel Frank Sullivan, Jr.,

contends (1) that the trial court erred in ruling that the road

upon which he was driving was not a "highway" as defined by Code

§ 46.2-100, and (2) that the evidence is insufficient to sustain

his conviction.      Because Sullivan's conduct did not rise to the

level of willful or wanton negligence, evidencing a reckless

disregard for human life, we reverse his convictions and dismiss

the charges. 1


     ∗
     Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication
     1
     Because the evidence is insufficient to sustain the
convictions whether or not "new" Route 58 was a highway, we do not
address whether the trial court erred in ruling that it was a
                 On appeal, we review the evidence in
            the light most favorable to the
            Commonwealth, granting to it all reasonable
            inferences fairly deducible therefrom. The
            judgment of a trial court sitting without a
            jury is entitled to the same weight as a
            jury verdict and will not be set aside
            unless it appears from the evidence that the
            judgment is plainly wrong or without
            evidence to support it.

Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418

(1987).

     On August 4, 1995, Paula Rouse and her young daughter were

killed in a collision at the intersection of Route 724 and a new

segment of Route 58, which was still under construction.   At the

time of the collision, the two eastbound lanes of "new" Route 58

were partially paved.   The two westbound lanes were surfaced

with gravel.    The new Route 58 was not officially open to the

general public, but it was in use by local traffic.   No traffic

controls or barriers were located at the intersection, but

barriers were in place approximately two miles east and two

miles west of the intersection.

     Sullivan was delivering asphalt in a dump truck to a paving

site on "new" Route 58.   He had been instructed to use the

partially constructed new road and had done so several times

that day.   He was making his last delivery of the day when the

accident occurred.


private road.




                                - 2 -
     Ms. Rouse was proceeding south on Route 724.    A witness,

who lived about four hundred feet from the intersection,

testified that he saw her pass his home and estimated her speed

at twenty-five miles per hour.    However, the same witness

testified that about three or four seconds later, he heard the

sound of the collision.    Expert witnesses calculated that Ms.

Rouse would have been driving about sixty-five miles per hour in

order to travel approximately four hundred feet in three to four

seconds.

     The accident occurred when Sullivan's truck, proceeding

east on new Route 58, struck the right side of Ms. Rouse's car,

which was southbound on Route 724, crossing the eastbound lanes

of new Route 58.   Sullivan testified that he had been driving

between forty-five and fifty miles per hour, the speed being

driven by other similar vehicles over that stretch of the new

construction and that he had slowed down as he approached the

intersection, but seeing no other traffic, had just begun

accelerating when he felt the impact.    He did not see the Rouse

car before the accident.   Sullivan was the only surviving

witness to the accident.

     For purposes of our analysis, we assume, without deciding,

that new Route 58 was not a public highway.   In that event, no

speed limit would have applied to new Route 58.   Route 724 would

have had the right of way over traffic proceeding along the new




                                 - 3 -
construction.   Thus, it was Sullivan's duty to operate his truck

at a reasonable and safe speed, under the circumstances, to keep

it under proper control, to maintain a proper lookout for

vehicles crossing the new construction on Route 724, and to

yield the right of way to any such vehicles.     His failure to

exercise reasonable care to perform those duties would

constitute negligence.   However, our inquiry is not whether

Sullivan was guilty of negligence, but whether he was guilty of

conduct that supports his convictions of involuntary

manslaughter.

     While involuntary manslaughter is a Class 5 felony, it is

not statutorily defined.   See Code § 18.2-36.    "Involuntary

manslaughter is

          the accidental killing of a person, contrary
          to the intentions of the parties, during the
          prosecution of an unlawful, but not
          felonious act, or during the improper
          performance of some lawful act. The
          'improper' performance of the lawful act, to
          constitute involuntary manslaughter, must
          amount to an unlawful commission of such
          lawful act, not merely a negligent
          performance. The negligence must be
          criminal negligence. The accidental killing
          must be the proximate result of a lawful act
          performed in a manner 'so gross, wanton, and
          culpable as to show a reckless disregard of
          human life.'"

Cable v. Commonwealth, 12 Va. App. 565, 567-68, 405 S.E.2d 444,

445 (1991) (citation omitted), aff'd, 243 Va. 236, 415 S.E.2d




                               - 4 -
218 (1992).   A finding of criminally culpable negligence

requires that the defendant have

          act[ed] consciously in disregard of another
          person's rights or act[ed] with reckless
          indifference to the consequences, with the
          defendant aware, from his knowledge of
          existing circumstances and conditions, that
          his conduct probably would cause injury to
          another. . . . Willful or wanton negligence
          involves a greater degree of negligence than
          gross negligence, particularly in the sense
          that in the former an actual or constructive
          consciousness of the danger involved is an
          essential ingredient of the act or omission.

Griffin v. Shively, 227 Va. 317, 321-22, 315 S.E.2d 210, 213

(1984) (citations omitted).

     In Tubman v. Commonwealth, 3 Va. App. 267, 348 S.E.2d 871

(1986), the defendant entered a dual highway from the side,

crossing the westbound lanes and then the median, and entered

the eastbound lanes, striking a motorcycle that he had failed to

see approaching.   Noting the defendant's duty, before entering a

public highway, to stop, to maintain a lookout for vehicles on

the highway, and to yield the right of way to vehicles

approaching on the highway, we held:

          Tubman's negligence is not so gross, wanton,
          and culpable as to show reckless disregard
          of human life. We do not find that Tubman
          acted "consciously in disregard of another
          person's rights," nor do we find that he was
          driving with reckless indifference to the
          consequences of his actions.

Id. at 275, 348 S.E.2d at 875.




                                 - 5 -
     Sullivan possessed a valid commercial operator's license.

He drove his truck on new Route 58 at a speed that was lawful,

not inherently dangerous, and consistent with the speed of other

similar vehicles on the same stretch of road.    He had his truck

under control.   The most that can be said against him is that he

failed to maintain a proper lookout.     No evidence establishes

that he did so willfully, deliberately, recklessly, or with an

intentional disregard of the safety of others.    The evidence

fails to prove that he was guilty of an utter or reckless

disregard for human life and fails to prove involuntary

manslaughter.

     The judgment of the trial court is reversed, and the

charges are ordered dismissed.

                                           Reversed and dismissed.




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