                                                                                                         


                                                                      COURT OF APPEALS OF VIRGINIA


              Present: Judges Beales, Chafin and O’Brien
UNPUBLISHED


              Argued at Norfolk, Virginia


              RIANA MICHELLE RICH
                                                                                              MEMORANDUM OPINION* BY
              v.            Record No. 0565-14-1                                              JUDGE RANDOLPH A. BEALES
                                                                                                  NOVEMBER 10, 2015
              COMMONWEALTH OF VIRGINIA


                                       FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                                                        Glenn R. Croshaw, Judge

                                           Kevin E. Martingayle (Bischoff Martingayle P.C., on briefs), for
                                           appellant.

                                           Christopher P. Schandevel, Assistant Attorney General (Mark R.
                                           Herring, Attorney General, on brief), for appellee.


                            Riana Michelle Rich (appellant) was convicted in a bench trial of one count of DUI in

              violation of Code § 18.2-266 and one count of DUI maiming in violation of Code § 18.2-51.4.1

              Appellant argues on appeal that the evidence was insufficient to prove the causation element of the

              DUI maiming charge pursuant to Code § 18.2-51.4. In addition, appellant argues that the evidence

              was insufficient to prove the criminal negligence element of the same charge as set forth by the

              same statute. For the following reasons, we affirm the trial court.

                                                                              I. BACKGROUND

                            We consider the evidence on appeal “‘in the light most favorable to the Commonwealth as

              we must since it was the prevailing party’” in the trial court. Beasley v. Commonwealth, 60

              Va. App. 381, 391, 728 S.E.2d 499, 504 (2012) (quoting Riner v. Commonwealth, 268 Va. 296,
                                                                          
                            *
                                Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                            1
                       Appellant does not contest the sufficiency of the evidence finding her guilty of DUI in
              violation of Code § 18.2-266.
330, 601 S.E.2d 555, 574 (2004)). At trial, Daja Young (Young) testified that in the early

morning hours of August 6, 2011, she was traveling westbound toward Norfolk on Virginia

Beach Boulevard. As she was driving down that street, she noticed a man on a medical scooter

crossing the street from the Convention Center to the other side of the street across her path of

travel. She stopped and allowed him to cross, and told him to be careful because “if I was

anybody else driving fast, he would have gotten hit if I wasn’t cautious.” According to Young,

the victim was traveling at around two to three miles per hour.

        As Young continued down the street, she noticed a vehicle traveling eastbound in the

opposite lane as the scooter was still in the process of crossing the street. In Young’s estimation,

that vehicle was traveling about twenty-five or thirty miles per hour. After that vehicle passed

Young, she heard a crash behind her. Through her rearview mirror, Young indicated that she

saw “everything scatter . . . I seen the wheelchair go up and everything detach.” Young testified

that only a very brief time elapsed from the time she allowed the victim to pass to when she

heard the crash. Realizing there had been an accident, Young returned to the scene where she

found the victim lying on the ground and where she testified that appellant – the driver of the

vehicle that crashed into the scooter – was “just panicking” and “was scared.” According to

Young, appellant’s boyfriend, who had been riding as a passenger in appellant’s car, was

“extremely intoxicated” based on the way he was talking. When Young asked appellant what

had happened, “[s]he said she was just looking down. And then she said – that’s it.” Young also

testified that the victim was operating the scooter in an erratic fashion as he tried to make his

way across the street. The scooter did not have any lights or reflectors on it, although Young

testified that she did not need to turn on her bright lights in order to see the victim.

        Just around the time of the crash, Officer Kolby Reese was in the Pavilion parking lot in

the 900 block of Virginia Beach Boulevard. All of a sudden, Officer Reese heard “what sounded
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like a motor vehicle collision” coming from “probably 150 feet, 200 feet” away from where the

officers were stationed. Officer Reese went promptly over to the scene, where he heard

appellant say that “she looked down for only a second and didn’t see the scooter.”

       Officer Colin Mack, another officer on the scene, spoke with appellant, administered

field sobriety tests on her, and transported her to the jail. He stated that appellant had a very

strong odor of alcohol coming from her breath; had bloodshot, watery, and glassy eyes; and was

swaying. After appellant then performed poorly on the field sobriety tests, Officer Mack placed

appellant under arrest. During an interview, appellant admitted to consuming alcohol that night.

She also told the officer that she leaned over so that her boyfriend could light her cigarette for

her. Appellant even demonstrated this action to Officer Mack, who described her actions by stating,

“She basically leaned forward and put her head to the right where [the boyfriend] was and took her

eyes off the road.” As she took her eyes off the road, the crash had occurred.

       At 4:01 a.m. – approximately ninety minutes after the collision – appellant took a breath

test, which registered a blood alcohol content (“BAC”) of .13. During the administration of the

breath test, appellant told Officer Mack that she had gotten only two hours of sleep the night

before – waking up at 8:00 a.m. the next day. Melissa Kennedy (Kennedy), Supervisor of the

Breath Alcohol section of the Richmond office of the Department of Forensic Science, testified

that a BAC of .05 is the point at which reaction time starts to slow. Kennedy testified that, at a

BAC of .10, a person’s glare recovery can be affected, which means that nighttime driving is

more difficult, and that between .10 and .15, a person can have slurred speech and staggering.

She also testified that being intoxicated slows a person down in recognizing that there might be a

problem and in responding to a problem. Finally, Kennedy stated that being impaired by alcohol

slows everything down for the person under the influence of alcohol, such as muscle reactions

and perception of time. Dr. Alphonse Poklis, testifying for the defense, testified as to the
                                                 ‐ 3 - 
significance of the victim’s BAC level of .25 and to how that level of intoxication would have

impaired him.

       Officer Ted Walters, who was part of the Fatal Crash team at the time of the offense and

qualified as an expert witness in the physical characteristics of the accident, testified about his

involvement in the crash investigation. Officer Walters acknowledged on cross-examination that

he could not know precisely how long the scooter had been sitting in the road before the crash.

However, based on the reconstruction analysis he performed, Officer Walters determined that the

front driver’s side of appellant’s vehicle impacted the right side of the scooter. He provided

pictures of the scooter and the car lined up against one another as they would have at the time of

impact, illustrating that the scooter was perpendicular to the car. The photographs, introduced

into evidence as Commonwealth’s Exhibit 17, were sufficiently clear to allow the trial court to

observe the absence of any skid marks in the roadway behind appellant’s stopped car.

       The trial court ultimately found appellant not guilty of DUI manslaughter, guilty of DUI

maiming, and guilty of the DUI itself. In explaining his ruling, the trial court said:

                On the count of driving under the influence, reckless, where the
                victim is permanently impaired, the court finds the defendant
                guilty. The court believes her conduct was gross, wanton, and
                culpable such as to show a disregard for human life.

                In addition to the alcohol, the other factors that contributed to that
                gross, wanton, and culpable finding were sleep deprivation, were
                the distracted [sic], and failure to maintain a proper lookout. In
                and of itself the act of asking for a cigarette to be lit was reckless
                while diving an automobile.

                The defendant further failed to brake, and failure [sic] to keep a
                proper lookout, as I indicated, in that another driver in the same
                place more or less successfully avoided the victim in this case.

This appeal followed.




                                                 ‐ 4 - 
                                             II. ANALYSIS

                                          Standard of Review

        When considering the sufficiency of the evidence on appeal, “a reviewing court does not

‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable

doubt.’” Crowder v. Commonwealth, 41 Va. App. 658, 663, 588 S.E.2d 384, 387 (2003)

(quoting Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). “Viewing the evidence in the light

most favorable to the Commonwealth, as we must since it was the prevailing party in the trial

court,” Riner v. Commonwealth, 268 Va. 296, 330, 601 S.E.2d 555, 574 (2004), “[w]e must

instead ask whether ‘any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.’” Crowder, 41 Va. App. at 663, 588 S.E.2d at 387 (quoting

Kelly v. Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) (en banc)). See

also Maxwell v. Commonwealth, 275 Va. 437, 442, 657 S.E.2d 499, 502 (2008). “This familiar

standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the

testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate

facts.” Jackson, 443 U.S. at 319.

                            Appellant as the Cause of the Victim’s Injuries

        Code § 18.2-51.4 states, in relevant part:

                Any person who, as a result of driving while intoxicated in violation
                of § 18.2-266 or any local ordinance substantially similar thereto in a
                manner so gross, wanton and culpable as to show a reckless
                disregard for human life, unintentionally causes the serious bodily
                injury of another person resulting in permanent and significant
                physical impairment shall be guilty of a Class 6 felony.




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Appellant argues that the Commonwealth failed to prove the causation element of Code

§ 18.2-51.4.2 A proximate cause is “‘an act or omission that, in natural and continuous sequence

unbroken by a superseding cause, produces a particular event and without which that event would

not have occurred.’” Davis v. Commonwealth, 57 Va. App. 446, 462, 703 S.E.2d 259, 266 (2011)

(quoting Brown v. Commonwealth, 278 Va. 523, 529, 685 S.E.2d 43, 46 (2009)). “‘There can be

more than one proximate cause [of an incident] and liability attaches to each person whose negligent

act results in the victim’s injury or death.’” Id. (quoting Gallimore v. Commonwealth, 246 Va. 441,

447, 436 S.E.2d 421, 425 (1993)). Only if the conduct of the deceased amounts to an independent,

intervening act alone causing the fatal injury can the accused be exonerated from liability for his or

her criminal negligence. Stevens v. Commonwealth, 44 Va. App. 122, 140, 603 S.E.2d 642, 651

(2004) (citing Mayo v. Commonwealth, 218 Va. 644, 647, 238 S.E.2d 831, 833 (1977) (emphasis

added)). “Therefore, the conduct of another party plays no part in the case, unless that conduct is

proven to be an independent, intervening cause, rendering the defendant’s negligence so remote it

ceases to be a proximate cause of the accident.” Id.

              Considering the evidence in the light most favorable to the Commonwealth, as we must

since the Commonwealth prevailed below, we hold that the evidence was sufficient for a rational

factfinder to conclude that appellant’s actions caused the injury in this case. First, the evidence at

trial was sufficient for a rational factfinder to conclude that – but for appellant’s acts and

omissions – the accident would not have occurred. On the night of the accident, appellant was

driving while intoxicated. The evidence also showed that appellant was sleep-deprived and

fatigued, based on her admission to Officer Mack that she only slept for two hours the previous

                                                            
              2
           While Virginia appellate courts have not yet considered the causation element in this
statute, the Court notes that the same causation language has been interpreted in Code § 18.2-36.1.
The case law surrounding Code § 18.2-36.1 provides the necessary legal framework for our
analysis.

                                                               ‐ 6 - 
night and had been awake since 8:00 a.m. of the previous day. Further, appellant admitted to

inattentiveness while driving, telling Officer Mack that she took her eyes off the road long

enough for her intoxicated boyfriend to light her cigarette. In addition, Officer Walters testified

that there were three streetlights in the area. Young testified that the weather conditions were

clear at the time of the accident and that she was able to see the victim in time to allow him to

cross the street. This evidence is more than sufficient to allow a rational trier of fact to conclude

that appellant was the proximate cause of the accident. See Auman v. Commonwealth, 2014

Va. App. LEXIS 347, at *12-13 (Va. Ct. App. Oct. 21, 2014) (finding evidence sufficient to

prove causation where the defendant was drunk, swerved twice off the road, looked down and

reached for her coffee just before hitting the victim, and barely slowed down at all before

impact).

       Second, even though there was evidence that the victim was highly intoxicated and was

operating his scooter in an erratic fashion, the evidence before the trial court failed to

demonstrate that the victim’s actions amounted to an independent, intervening act that alone

caused the victim’s injuries. Stevens, 44 Va. App. at 140, 603 S.E.2d at 651. In Davis, the

defendant argued that his sending text messages, rather than his driving under the influence of

alcohol, caused him to strike and kill the victim. Davis, 57 Va. App. at 462, 703 S.E.2d at 267.

This Court affirmed the defendant’s aggravated involuntary manslaughter conviction on the

ground that the defendant’s driving under the influence caused the victim’s death. Id. at 464-65,

703 S.E.2d at 268. In that case, the Court reasoned that the “jury was entitled to reject appellant’s

testimony that he swerved to miss [the victim], and conclude that appellant had time to take

evasive action, but because of his intoxicated state, failed to do so.” Id. at 463, 703 S.E.2d at

267. The Court made that ruling despite the fact that the victim had been lying in the road at the

time of the accident. Id.
                                                 ‐ 7 - 
       In light of appellant’s admitted inattentiveness while driving, her voluntary consumption of

alcohol up to and well beyond the point of intoxication, and her voluntary decision to drive while

having so little sleep over a twenty-four-hour period, we find that appellant’s actions formed a

natural and continuous sequence – unbroken by a superseding cause – that caused this accident. Id.

at 462, 703 S.E.2d at 266. Without appellant’s actions, we find that this accident would not have

occurred – a conclusion supported by the fact that Young avoided the same victim on the same

roadway only moments before this accident. Therefore, the evidence was sufficient for a rational

trier of fact to conclude that the essential elements of causation had been proven beyond a

reasonable doubt.

                       Appellant’s Driving Behavior as Criminally Negligent

       As stated supra, a conviction under Code § 18.2-51.4 also requires proof of criminal

negligence. Appellant argues that the Commonwealth failed to prove criminal negligence beyond a

reasonable doubt. Code § 18.2-51.4 “incorporates, by its terms, the culpability standard found in

common law criminal negligence.” Riley v. Commonwealth, 277 Va. 467, 483, 675 S.E.2d 168,

177 (2009). “Conduct that is ‘gross, wanton and culpable’ demonstrating a ‘reckless disregard for

human life’ is synonymous with ‘criminal negligence.’” Id. (quoting Jones v. Commonwealth, 272

Va. 692, 701, 636 S.E.2d 403, 408 (2006) (internal citation omitted)). “‘Criminal negligence is

judged under an objective standard and, therefore, may be found to exist where the offender

either knew or should have known the probable results of his acts.’” Id. at 483-84, 675 S.E.2d at

177 (quoting Jones, 272 Va. at 701, 636 S.E.2d at 408).

       Criminal negligence in the context of Code § 18.2-51.4 has been defined in terms of

gross negligence:

               “‘Gross negligence’ is culpable or criminal when accompanied by
               acts of commission or omission of a wanton or willful nature,
               showing a reckless or indifferent disregard of the rights of others,
                                                 ‐ 8 - 
                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 484, 675 S.E.2d at 177 (quoting Cable v. Commonwealth, 243 Va. 236, 240, 415 S.E.2d

218, 220 (1992)). The trial court’s findings on criminal negligence “are examined on appeal by

reviewing the totality of the evidence.” Noakes v. Commonwealth, 54 Va. App. 577, 585, 681

S.E.2d 48, 52 (2009) (en banc), aff’d, 280 Va. 338, 699 S.E.2d 284 (2010).

        Considering the evidence in the light most favorable to the Commonwealth, we hold that the

evidence was sufficient for a rational factfinder to conclude that appellant’s actions were criminally

negligent. Appellant admitted to one of the officers at the scene that she leaned over towards her

intoxicated boyfriend in the passenger seat to light a cigarette. Appellant even demonstrated this

action to Officer Mack, who described her actions by stating, “She basically leaned forward and put

her head to the right where [the boyfriend] was and took her eyes off the road” – presumably for the

amount of time it would require a person to light a cigarette. While she claimed that she only took

her eyes off the road for a second, the trial court did not have to believe her self-serving statement

that she took her eyes off the road for only a second. Appellant performed poorly on a series of

field sobriety tests administered shortly after the accident. Appellant’s BAC was tested

approximately ninety minutes after the accident and was recorded at .13 – well above the legal limit.

Appellant also told officers that she had only two hours of sleep the previous night, from which the

trial court could and did infer that she was fatigued while driving. The trial court also inferred from

the lack of skid marks at the scene of the accident that appellant’s inattentiveness or intoxication or

fatigue – or some combination of the three – prevented her from applying the brakes.

        When dealing with circumstantial evidence, the accumulation of various facts and

inferences, each mounting upon the others, can indeed provide sufficient evidence to find a


                                                  ‐ 9 - 
defendant guilty beyond a reasonable doubt. Ervin v. Commonwealth, 57 Va. App. 495, 505, 704

S.E.2d 135, 140 (2011) (en banc). Given appellant’s admitted inattentiveness while driving, her

voluntary consumption of alcohol up to and well beyond the point of intoxication, and her voluntary

decision to drive while having so little sleep over a twenty-four-hour period, appellant acted with “a

reckless or indifferent disregard for the safety of others” in violation of Code § 18.2-51.4. Riley,

277 Va. at 484, 675 S.E.2d at 177. Therefore, the evidence was sufficient for a rational trier of

fact to conclude that the essential elements of criminal negligence had been proven beyond a

reasonable doubt.

                                           III. CONCLUSION

        In summary, we find that a rational trier of fact could have found that appellant caused the

accident in this case. Likewise, we find that a rational trier of fact could have found that appellant’s

actions were criminally negligent. Therefore, we affirm appellant’s conviction for DUI maiming in

violation of Code § 18.2-51.4.

                                                                                              Affirmed.




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