                               COURT OF APPEALS OF VIRGINIA


Present: Judges Humphreys, Kelsey and Senior Judge Bumgardner
Argued at Chesapeake, Virginia

ANKUR A. MEHTA
                                                               MEMORANDUM OPINION* BY
v.     Record No. 2737-05-1                                     JUDGE D. ARTHUR KELSEY
                                                                     APRIL 10, 2007
CITY OF NORFOLK

                  FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                              Charles D. Griffith, Jr., Judge

                    Sterling H. Weaver, Sr. (Weaver Law Offices, on brief), for
                    appellant.

                    Tamele Yvette Hobson, Assistant City Attorney (Bernard A.
                    Pishko, City Attorney, on brief), for appellee.


       The trial court found Ankur A. Mehta guilty of reckless driving in a parking lot in

violation of Code § 46.2-864. On appeal, Mehta claims the evidence fails to support his

conviction as a matter of law. We disagree and affirm.

       On appeal, we review the evidence in the “light most favorable” to the Commonwealth.

Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003). This evidentiary

perspective 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.” Parks v. Commonwealth, 221 Va. 492, 498, 270

S.E.2d 755, 759 (1980) (emphasis and citation omitted).

       So viewed, the evidence at trial showed that Shanta Perry returned to her parked car in a

mall parking lot. A truck blocked her vision on her left side, so she pulled out of the parking



       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
space “very cautiously, driving slowly because of the obstructed view.” Without warning,

Mehta’s vehicle collided violently with Perry’s car, hitting the left front wheel and quarter panel.

The impact was forceful enough to break Perry’s front axle. Perry never saw Mehta’s vehicle

before the collision. Photographs show considerable damage to the vehicles. The collision badly

damaged the entire front end of Mehta’s vehicle, leaving the bumper bracket pushed into the

radiator and the bumper dislodged and dragging the ground on the right side.

       Police interviewed Mehta shortly after the accident. He first said he was traveling 5 to 10

miles an hour through the parking lot. Moments later, Mehta revised that estimate to 10 to 15

miles an hour. When the officer directly asked whether he was traveling 5 or 15 miles per hour,

Mehta refused to answer.

       Mehta did not take the stand at trial, deciding instead to challenge the prima facie

sufficiency of the prosecution’s evidence. The trial court rejected this challenge and, sitting as

factfinder, found Mehta guilty of reckless driving in a parking lot in violation of Code

§ 46.2-864. Mehta argues on appeal the trial court erred, as no reasonable factfinder could

conclude from this evidence that Mehta was guilty of reckless driving.1 We disagree.

       Code § 46.2-864 provides that a driver “shall be guilty of reckless driving” in a parking

lot when he “operates any motor vehicle at a speed or in a manner so as to endanger the life,

limb, or property of any person . . . .” Like the general reckless driving statute (Code

§ 46.2-852), Code § 46.2-864 incorporates familiar principles of criminal negligence. A higher

standard than mere negligence under tort law, criminal negligence (comparable to gross

negligence under common law principles) occurs when a driver recklessly disregards the harmful




       1
          “The trial judge’s factual findings cannot be disturbed on appeal unless no ‘rational trier
of fact’ could have come to the conclusions he did.” Boyd v. County of Henrico, 42 Va. App.
495, 525, 592 S.E.2d 768, 783 (2004) (en banc) (citations omitted).


                                                -2-
consequences of his driving and demonstrates a callous “indifference to the safety of life, limb or

property.” Spencer v. City of Norfolk, 271 Va. 460, 463, 628 S.E.2d 356, 358 (2006) (citation

omitted).

       This recklessness can take the form of “speed” of the vehicle or any other aspect of the

“manner” of its operation. Code § 46.2-864; see also Code § 46.2-852. While neither is

sufficient unless it “endangers life, limb, or property,” Spencer, 271 Va. at 463, 628 S.E.2d at

358 (citation omitted), either is sufficient if it does. “What distinguishes a speeding violation

from the misdemeanor of reckless driving” is the “likelihood of injury” to people or property.

Greenway v. Commonwealth, 254 Va. 147, 155, 487 S.E.2d 224, 228 (1997) (citation omitted).

Like so many legal distinctions, it is “one of degree,” Keech v. Commonwealth, 9 Va. App. 272,

278, 386 S.E.2d 813, 816 (1989) (footnote omitted), and “the degree of the hazard posed by a

speeding automobile depends upon the circumstances in each case.” Mayo v. Commonwealth,

218 Va. 644, 648, 238 S.E.2d 831, 833 (1977).

       The circumstances of this case involve a parking lot, not a public road. It is not at all

unusual for small cars to pull out of parking spaces next to larger vehicles blocking their view. It

is equally common for pedestrians, sometimes children, to step out from behind vehicles with

little or no warning. In such a high-risk environment, it is imperative that drivers proceed slowly

enough to be capable of stopping upon relatively short notice. The failure to do so may or may

not constitute reckless driving. It depends on the foreseeability of the risks and the magnitude of

the possible harm. “Obviously, when the driver proceeds in the face of a known risk, the degree

of the negligence is increased, and may turn that which would have been ordinary negligence

into gross, willful or wanton negligence.” Keech, 9 Va. App. at 278, 386 S.E.2d at 816.

       The evidence in this case provides ample support for the trial court’s factual finding that

Mehta recklessly drove through the parking lot at an excessive speed that endangered Perry’s

“life, limb, or property.” The photographs show Mehta hit the front left wheel and quarter panel

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of Perry’s car with considerable force. The extent of damage to both cars ⎯ particularly the

broken axle on Perry’s car ⎯ provides “mute evidence of high speed,” Crest v. Commonwealth,

40 Va. App. 165, 174-75, 578 S.E.2d 88, 92 (2003) (citations omitted), permitting the factfinder

to infer a reckless rate of speed despite Mehta’s self-serving and contradictory estimates.2

       Add to this Perry’s testimony that, given her obstructed vision on her left side, she

carefully and slowly edged her car out of the parking space. Thus, the risk of collision

developed slowly and incrementally, with Perry purposefully providing what she thought was

sufficient time for any vehicle traveling at a safe speed to either stop short of, or simply drive

around, the front of her vehicle. The photographs corroborate this point by showing that the

front of Mehta’s car struck the left side of Perry’s car at the point of her front wheel. The

collision itself, as well as the point of impact and Perry’s slow entrance into Mehta’s path,

together confirm the reckless speed at which Mehta was driving.

       For these reasons, we find the evidence sufficient to support Mehta’s conviction for

reckless driving in a parking lot in violation of Code § 46.2-864.3

                                                               Affirmed and remanded.



       2
          See Davis v. Webb, 189 Va. 80, 85, 52 S.E.2d 141, 143 (1949) (finding speed can be
inferred from the “force of the impact” and the “damage” to the vehicles); Temple v. Ellington,
177 Va. 134, 147, 12 S.E.2d 826, 831 (1941) (finding “inference of excessive speed” can be
drawn from “the force of the impact” and vehicular damage); see also Woodson v. Germas, 200
Va. 205, 210, 104 S.E.2d 739, 743 (1958) (recognizing “that physical facts may warrant a
finding of greater speed than that fixed by the uncontradicted verbal testimony” (citation
omitted)).
       3
          The summons charged Mehta with reckless driving in violation of Norfolk City Code
§ 25-218(12). The general district court found Mehta guilty “as charged.” On de novo appeal,
the circuit court entered a conviction order finding Mehta guilty of violating Code § 46.2-864.
The sufficiency issue remains the same in either event. See Spencer, 271 Va. at 463, 628 S.E.2d
at 358 (observing that the definition of reckless driving in the Norfolk City Code “substantially
mirrors” the definition in Code § 46.2-852, which, in turn, tracks the definition in Code
§ 46.2-864). Because of this ambiguity, however, we remand this case to the circuit court with
leave to take whatever action, if any, it deems appropriate under Code § 8.01-428(B).


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