                      COURT OF APPEALS OF VIRGINIA


Present: Judges Bumgardner, Humphreys and Clements
Argued at Salem, Virginia


THOMAS TYLER WRIGHT
                                                 OPINION BY
v.   Record No. 0889-02-3                JUDGE ROBERT J. HUMPHREYS
                                             FEBRUARY 11, 2003
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF BOTETOURT COUNTY
                   George E. Honts, III, Judge

          Randy V. Cargill (Magee, Foster, Goldstein &
          Sayers, P.C., on brief), for appellant.

          Paul C. Galanides, Assistant Attorney General
          (Jerry W. Kilgore, Attorney General, on
          brief), for appellee.


     Thomas Tyler Wright appeals his conviction, after a bench

trial, for maiming, in violation of Code § 18.2-51.4. 1   Wright

contends the trial court erred in finding the evidence sufficient

to establish that he drove in a manner so gross, wanton and

culpable as to show a reckless disregard for human life, as

required by the statute.    For the reasons that follow, we affirm

the judgment of the trial court.




     1
       Wright was also convicted, after his plea of no contest,
of driving while intoxicated. However, Wright raises no issue
as to this conviction on appeal.
                            I.   Background

        Virginia State Police Trooper Mike Bradley was dispatched to

the scene of a car accident at approximately 2:10 a.m. on June 3,

2001.    When he arrived, emergency personnel were already present

and treating two individuals on the ground.     Bradley observed

Wright standing nearby, in the company of two deputies.        Trooper

Bradley approached Wright and asked him what he knew about the

accident.    Wright stated, "I'm f---ing drunk, okay?   I was

driving.    Run off the f---ing road.    I'm f---ing drunk."   Bradley

asked Wright how much he had had to drink, and Wright responded "I

don't f---ing know.    A lot."   He then asked Wright how fast he had

been driving.    Wright stated, "Don't know.   Too f---ing fast."

        As emergency personnel attempted to treat Wright's injuries,

Trooper Bradley observed that Wright cursed and spat at them.

Wright's demeanor fluctuated from "one extreme to the other," as

he was calm one moment and then "yelling, cursing and screaming,"

the next.    Wright was eventually restrained by medical personnel

and transported to the hospital.    Trooper Bradley then obtained a

search warrant for a sample of Wright's blood.     The analysis

showed that Wright had a blood alcohol content of 0.09%.        Wright

was arrested on charges of driving while intoxicated, in violation

of Code § 18.2-266 and maiming, in violation of Code § 18.2-51.4.

        At trial, Trooper Bradley testified that, when he arrived at

the scene, he observed emergency personnel performing CPR on

Matthew Switzer, a passenger in Wright's car.     He further stated

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that, according to Wright, the accident occurred when he was

travelling south on Route 640 and approached a sharp right curve

in the road.   Instead of making the turn, Wright continued

straight and drove off the left side of the road, over an

embankment, crashing into a tree.    The "total distance off the

left side of the road to the impact was one hundred forty-seven

feet."   The skid marks measured sixty-four feet.    Trooper Bradley

testified that there was no posted speed limit on that road, so

the speed limit was "fifty-five" miles per hour.

     Switzer testified that he was a passenger in Wright's car

when the accident occurred.    Switzer stated that Wright picked him

up that evening at about 5:00 or 6:00 p.m. and that they went

riding around with another passenger named "Shaney."     Switzer

stated that at some point, they stopped and obtained over a dozen

Xanax pills.   He stated that everyone in the car took the pills.

He personally took three-and-a-half pills.     They later obtained

some beer and drank while they continued to drive around.     Switzer

did not recall the accident.

     The doctor who treated Switzer testified that Switzer

presented to the emergency room with "a lot of superficial

lacerations," and a severely fractured jaw.

     At the close of the evidence, Wright moved to strike,

contending that the Commonwealth had failed to establish that he

drove in a manner so gross, wanton and culpable as to show a

reckless disregard for human life.      The trial court denied the

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motion finding that although the evidence may not have proven that

Wright was driving "in excess of the speed limit," "his speed was

clearly too fast for the conditions and clearly too fast for him

to be able to maintain proper control."      The court then found

Wright guilty of the charge and sentenced him to five years in

prison, with four years suspended.

                         II.   Analysis

     On appeal, Wright contends the trial court erred in finding

the evidence sufficient, as a matter of law, to support his

conviction.   Specifically, Wright contends Code § 18.2-51.4

mandates "three elements of proof:      1)   The person must drive

while intoxicated; 2) The manner of driving while intoxicated must

be so 'gross, wanton and culpable as to show a reckless disregard

for human life'; and 3) The driving while intoxicated in the

requisite manner must cause serious injury resulting in permanent

physical impairment."   Thus, Wright argues the element of driving

while intoxicated is separate and distinct from the element of

driving in a "gross, wanton and culpable" manner and that driving

while intoxicated cannot serve as evidence to support the

requisite manner of driving.   We disagree.

     We first note that the standard for appellate review of

criminal convictions is well established.      "When a defendant

challenges the sufficiency of the evidence, we are required to

review the evidence 'in the light most favorable to the

Commonwealth and give it all reasonable inferences fairly

                                - 4 -
deducible therefrom.'"   Collins v. Commonwealth, 13 Va. App. 177,

179, 409 S.E.2d 175, 176 (1991) (quoting Higginbotham v.

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975)).    "The

conviction will not be reversed unless it is plainly wrong or

without evidence to support it."   Id.; see also Code § 8.01-680.

     Code § 18.2-51.4 provides that

          [a]ny person who, as a result of driving
          while intoxicated . . . 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.

While no Virginia appellate court has issued a decision

interpreting this particular statute, the common law definition of

criminal negligence, as stated in the statute, is well settled.

Indeed, in Bell v. Commonwealth, 170 Va. 597, 611, 195 S.E. 675,

681 (1938), the Supreme Court of Virginia

          defined criminal negligence in terms of
          "gross negligence," stating that conduct "is
          culpable or criminal when accompanied by
          acts of commission or omission of a wanton
          or wil[l]ful nature, showing a reckless or
          indifferent disregard of the rights of
          others, 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." 170 Va. at 611-12, 195
          S.E. at 681.

Ellis v. Commonwealth, 29 Va. App. 548, 557, 513 S.E.2d 453,

457-58 (1999).   Thus,

                               - 5 -
          [w]hile willful misconduct requires an
          intentional or purposeful act or failure to
          act, gross or criminal negligence involves
          [an act or] a failure to act under
          circumstances that indicate a passive and
          indifferent attitude toward the welfare of
          others. Moreover, the defendant must be
          proved indifferent in the face of knowledge
          that injury or illegality will be the
          probable result or, in the alternative, that
          circumstances exist under which the
          defendant may be chargeable with such
          knowledge.

Id. (citations omitted).

     The Supreme Court of Virginia has further held that in

determining the degree of a defendant's negligence, intoxication

is relevant as an aggravating factor, increasing with the level of

intoxication.    Essex v. Commonwealth, 228 Va. 273, 283, 322 S.E.2d

216, 221-22 (1984); see also Huffman v. Love, 245 Va. 311, 315,

427 S.E.2d 357, 360 (1993).   Nevertheless, although the Court

          has been consistent in stating that "'[o]ne
          who knowingly drives [an] automobile on the
          highway under the influence of intoxicants,
          in violation of statute, is, of course,
          negligent[,]'" [Essex, 228 Va. at 282, 322
          S.E.2d at 221] (quoting Baker v. Marcus, 201
          Va. 905, 910, 114 S.E.2d 617, 621 (1960))[,]
          [t]he Supreme Court [of Virginia] also has
          observed that "no case . . . holds that one
          driving under the influence of an intoxicant
          must necessarily be driving recklessly."
          Spickard v. City of Lynchburg, 174 Va. 502,
          505, 6 S.E.2d 610, 611 (1940). Thus, while
          evidence of intoxication is a factor that
          might bear upon proof of dangerous or
          reckless driving in a given case, it does
          not, of itself, prove reckless driving.

Bishop v. Commonwealth, 20 Va. App. 206, 210, 455 S.E.2d 765,

766-67 (1995).

                                - 6 -
     Here, Wright conceded to Trooper Bradley that he was driving

"too fast."    Wright's conduct of driving his car in a manner that

was too fast for him to control it properly, was necessarily

rendered more culpable because Wright was driving while his

intellectual and motor functions were substantially impaired by

his voluntary consumption of alcohol and drugs.   Indeed,

immediately after the accident, Wright admitted he was drunk and

despite only slight injury, was behaving in a considerably

irrational manner.   Accordingly, there was ample evidence on this

record to justify the trial court's determination that Wright was

guilty of such a callous indifference or disregard for "the rules

of law and safety, and of the rights of others, as was

incompatible with a proper regard for human life, and amounted to

gross, wanton and culpable misconduct."   Bell, 170 Va. at 613, 195

S.E. at 682.

     Furthermore, we reject Wright's argument that Jenkins v.

Commonwealth, 220 Va. 104, 255 S.E.2d 504 (1979), and Tubman v.

Commonwealth, 3 Va. App. 267, 348 S.E.2d 871 (1986), compel a

different result.    The facts presented in those cases are

distinguishable from those presented here.   In Jenkins, the Court

held that the evidence was insufficient to demonstrate

recklessness when it demonstrated merely that Jenkins struck a

pedestrian while driving "down the center of a narrow, unlighted,

unmarked, rural, secondary road in the early morning hours at a

time when he was unlikely to encounter other traffic or

                                - 7 -
pedestrians."   Jenkins, 220 Va. at 107, 225 S.E.2d at 506.

Indeed, the court noted that the evidence proved "Jenkins was

driving at a speed well within the posted speed limit," and had

not been drinking, or reckless in the operation of his truck.    Id.

In Tubman, there was also no evidence that the defendant had been

drinking, and we found that the evidence merely proved simple

negligence where Tubman failed to come to a "complete stop before

entering Route 3," causing him to fail to see a motorcycle, "which

was admittedly partially obstructed by [a] hedge."   Tubman, 3

Va. App. at 275, 348 S.E.2d at 875.

     Accordingly, because we find that the trial court's

determination that Wright's conduct amounted to criminal

negligence, as provided for in Code § 18.2-51.4, was not "plainly

wrong or without evidence to support it," we affirm the judgment

of the trial court.

                                                           Affirmed.




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