                               COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Felton, Judge McClanahan and Senior Judge Coleman
Argued at Salem, Virginia


SAMUEL GOCHEZ
                                                            MEMORANDUM OPINION * BY
v.     Record No. 1178-07-3                              JUDGE ELIZABETH A. McCLANAHAN
                                                                  OCTOBER 7, 2008
COMMONWEALTH OF VIRGINIA


                      FROM THE CIRCUIT COURT OF PATRICK COUNTY
                                 Martin F. Clark, Jr., Judge

                 James R. McGarry (Young, Haskins, Mann, Gregory, McGarry &
                 Wall, P.C., on brief), for appellant.

                 Virginia B. Theisen, Senior Assistant Attorney General (Robert F.
                 McDonnell, Attorney General, on brief), for appellee.


       Samuel Gochez appeals his conviction of involuntary manslaughter. He argues the

evidence was insufficient to support his conviction. We affirm the trial court.

                                            I. BACKGROUND

       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) (citation omitted).

That principle 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 that may be drawn therefrom.’” Kelly v. Commonwealth, 41 Va. App. 250,

254, 584 S.E.2d 444, 446 (2003) (en banc) (quoting Watkins v. Commonwealth, 26 Va. App.

335, 348, 494 S.E.2d 859, 866 (1998)). See also Bolden v. Commonwealth, 275 Va. 144,

147-48, 654 S.E.2d 584, 586 (2008); Molina v. Commonwealth, 272 Va. 666, 671, 636 S.E.2d

       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
470, 473 (2006); Viney v. Commonwealth, 269 Va. 296, 299, 609 S.E.2d 26, 28 (2005); Walton

v. Commonwealth, 255 Va. 422, 425-26, 497 S.E.2d 869, 871 (1998). 1

       Gochez drove his car to Ashley Martin’s home and picked up Martin and Billy Jo Angel

to take them to a friend’s house to retrieve personal items Martin and Angel left there the

previous night. After they left the Martin house, Gochez ran out of gas. Martin’s mother drove

by, picked them up, and took them back to the Martin house. Angel described Gochez as being

in a “really ill mood” and “really aggravated” at that time. Martin’s mother gave Gochez a jug

of gas, and Gochez, Martin, and Angel returned to the Gochez vehicle where Gochez put the gas

in his tank. Gochez, along with Martin and Angel, drove to a convenience store/gas station

where Gochez purchased additional gas that he put in his car. Gochez left the convenience store

spinning his tires loudly enough for a store employee inside to hear the squealing. Angel told

Gochez to take them back to Martin’s house because “he was in just such an ill mood [she]

didn’t even want to go get [their] stuff.” According to Angel, they “left the store and [Gochez]

was mad.” As they headed south back to the Martin house, Gochez was driving seventy to

seventy-five miles per hour on the winding two-lane road with a posted speed limit of fifty-five

miles per hour. Along that route, a sign was posted showing a maximum safe speed of

thirty-five miles per hour indicating several curves ahead in the road. There were additional

“chevron” signs posted along the route indicating the road made a significant right hand turn.

       As Gochez was driving south to Martin’s home, Anthony Trent was driving a rescue

squad vehicle in the northbound lane. Trent and his passenger, Lester Harrell, had just come

through a curve in the road and crossed a bridge as they topped a knoll where Gochez drove


       1
         Gochez contended at oral argument the trial court’s “personal experience [with the
road] colored his hearing of the evidence.” Gochez did not make this argument in his brief and
did not object to the trial court’s questioning of the witnesses regarding the location in the road
where the accident occurred. Therefore we do not consider this argument on appeal. See Rules
5A:20(e) and 5A:18.
                                                 -2-
across the center line about two feet and ran them off the road. Gochez then “jerked” his vehicle

back into his own lane. Kenneth Charles Marshall was also driving his vehicle in the northbound

lane and met Gochez as Gochez was coming around a curve after having run the rescue squad

vehicle off the road. Gochez began to slide sideways causing Marshall to hit his brakes as

Gochez slid toward Marshall. Gochez then ran off the road to the right, attempted to “jerk it

back on the road,” ran up onto a bank on the right, flipped several times over and down the

embankment, finally hitting and knocking off a portion of a bridge.

       The accident took place approximately one-half mile from the convenience store. No one

in the Gochez vehicle was wearing a seat belt at the time of the accident, and all three occupants

were ejected from the vehicle. Gochez and Angel suffered serious injuries, and Martin was

killed. The trial court convicted Gochez of involuntary manslaughter and reckless driving. 2

                                             II. ANALYSIS

       On appeal, Gochez contends the evidence was insufficient to support his conviction

because his conduct did not exhibit a conscious disregard of human life.

       In reviewing the sufficiency of the evidence, “the judgment of the trial court sitting

without a jury is entitled to the same weight as a jury verdict.” Saunders v. Commonwealth, 242

Va. 107, 113, 406 S.E.2d 39, 42 (1991). “The trial court’s judgment will not be set aside unless

plainly wrong or without evidence to support it.” Hunley v. Commonwealth, 30 Va. App. 556,

559, 518 S.E.2d 347, 349 (1999). “The credibility of a witness and the inferences to be drawn

from proven facts are matters solely for the fact finder’s determination.” Marable v.

Commonwealth, 27 Va. App. 505, 509, 500 S.E.2d 233, 235 (1998). “This Court does not

substitute its judgment for that of the trier of fact.” Hunley v. Commonwealth, 30 Va. App. at

559, 518 S.E.2d at 349 (citing Cable v. Commonwealth, 243 Va. 236, 239, 415 S.E.2d 218, 220


       2
           Gochez only challenges the manslaughter conviction.
                                              -3-
(1992)). The only relevant inquiry is “whether . . . any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307,

319 (1979) (emphasis in original); see also Haskins v. Commonwealth, 44 Va. App. 1, 7, 602

S.E.2d 402, 405 (2004) (citation and footnote omitted); Kelly v. Commonwealth, 41 Va. App.

250, 257, 584 S.E.2d 444, 447 (2003) (en banc).

       Involuntary manslaughter in the operation of a motor vehicle is an “‘accidental killing

which, although unintended, is the proximate result of negligence so gross, wanton, and culpable

as to show a reckless disregard of human life.’” Greenway v. Commonwealth, 254 Va. 147, 154,

487 S.E.2d 224, 228 (1997) (quoting King v. Commonwealth, 217 Va. 601, 607, 231 S.E.2d 312,

316 (1977)). A “violation of the statutes defining reckless driving and prescribing motor vehicle

traffic regulations is insufficient” to constitute manslaughter “unless it is so flagrant, culpable,

and wanton as to show utter disregard of the safety of others under circumstances likely to cause

injury.” King, 217 Va. at 605-06, 231 S.E.2d at 316.

               What distinguishes a speeding violation from the misdemeanor of
               reckless driving, and the misdemeanor from the felony of
               involuntary manslaughter, is the likelihood of injury to other users
               of the highways. 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). In analyzing the level

of disregard to others, we must consider the cumulative effect of the defendant’s negligent acts.

                       In determining whether or not one is guilty of gross and
               culpable negligence, it is important to consider the cumulative
               effect of a series of connected, or independent negligent acts, out
               of which arise the injuries, as showing the attitude of the offender.
               All of the immediate acts and actions of the offender presenting a
               causal relation to the injury and a part of the res gestae are
               pertinent to the inquiry. A disregard of all, or of several simple
               and primary rules of conduct prescribed by law for the benefit of
               society becomes the more aggravated as the disregard increases in
               extent.

Bell v. Commonwealth, 170 Va. 597, 609, 195 S.E. 675, 680 (1938).
                                                 -4-
       The record supports the trial court’s judgment. Gochez left the convenience store

spinning his tires in an angry state of mind as evidenced by witness testimony. His ill mood

influenced his conduct as he drove fifteen to twenty miles per hour over the speed limit and

thirty-five to forty miles per hour over the posted maximum safe speed on a narrow and curvy

two-lane road in the face of warning signs indicating the approaching turns. Gochez continued

driving in this reckless manner despite the posted warning signs and even after running another

vehicle off the road – hardly “keeping a proper lookout” as he contends in his “question

presented.” 3 Instead of heeding these warnings, Gochez continued on in this manner without

decreasing his speed, thus increasing the likelihood of injury to others using the roadway and his

own passengers. 4 All of these actions caused Gochez to lose control of his vehicle resulting in

the accident and death of Martin. 5 Viewed in the context of these circumstances, the evidence


       3
           The “question presented” states:

                Did the Trial Court err in not granting the Appellant’s Motion to
                Strike and in finding the Appellant guilty of Involuntary
                Manslaughter when the Commonwealth’s evidence showed that
                the Appellant, although exceeding the speed limit, was keeping a
                proper lookout, corrected his steering when faced with an
                oncoming hazard, and actively tried to avoid the crash that killed
                the decedent, so that the cumulative effect of his actions did not
                amount to a conscious disregard for human life?
       4
           Though Gochez contends he was “actively trying to avoid the crash” in bringing his
vehicle back into his lane after running the rescue squad vehicle off of the road, this argument
ignores his own culpability in bringing about the chain of events that resulted in the accident. As
the trial court aptly noted, after losing control of a vehicle, there is probably not a “single case
where people just throw up their hands and say, ‘I’m just gonna let it go,’” without trying to gain
back control of the vehicle.
       5
          Gochez claims the trial court did not correctly recollect the evidence when it stated the
“chevron” signs were posted at a location after the point at which Gochez ran the rescue vehicle
off of the road. The location of the signs – whether before or after the near miss with the rescue
vehicle – does not affect our analysis. Gochez also contends the trial court did not correctly
recollect the evidence when it found the near miss with the rescue squad vehicle occurred in a
“straight stretch” rather than a curve. Harrell testified Gochez ran him and Trent off the road as
they topped a knoll in the road at which point there is a straight stretch before entering the curve
                                                 -5-
supports the conclusion that Gochez “showed a reckless disregard for human life constituting

criminal negligence sufficient to support the conviction[] for involuntary manslaughter.”

Greenway, 254 Va. at 155, 487 S.E.2d at 229. 6

       For the foregoing reasons, we affirm the judgment of the trial court.

                                                                                    Affirmed.




at the bridge. Thus, the trial court’s finding in this regard is supported by witness testimony.
Nevertheless, the contour of the road at this precise location also has no bearing on our analysis.
       6
         Gochez argues his conduct does not constitute a “persistent” course of conduct
necessary to show the level of criminal negligence needed to support an involuntary
manslaughter conviction because the accident occurred only one-half mile from the convenience
store. But the Supreme Court of Virginia has not limited criminal negligence to cases involving
conduct taking place over a specified period of time or distance. To the contrary, the Court has
found the existence of criminal negligence when a defendant has engaged in a single negligent
act showing a reckless disregard of life. See, e.g., Cable v. Commonwealth, 243 Va. 236, 415
S.E.2d 218 (1992); Fadely v. Commonwealth, 208 Va. 198, 156 S.E.2d 773 (1967); Richardson
v. Commonwealth, 192 Va. 55, 63 S.E.2d 731 (1951).

                                               -6-
