                                             COURT OF APPEALS OF VIRGINIA
UNPUBLISHED


              Present: Judges Humphreys, Malveaux and Senior Judge Frank
              Argued at Newport News, Virginia


              JUSTIN DEAN HEDGPETH
                                                                            MEMORANDUM OPINION* BY
              v.     Record No. 0107-17-1                                  JUDGE ROBERT J. HUMPHREYS
                                                                               DECEMBER 27, 2017
              COMMONWEALTH OF VIRGINIA


                          FROM THE CIRCUIT COURT OF THE CITY OF WILLIAMSBURG AND
                                           COUNTY OF JAMES CITY
                                        Randolph T. West, Judge Designate

                               Michael A. Hyman (Collins & Hyman PLC, on brief), for appellant.

                               David M. Uberman, Assistant Attorney General (Mark R. Herring,
                               Attorney General, on brief), for appellee.


                     On September 7, 2016, in the Circuit Court for the City of Williamsburg and the County

              of James City (the “circuit court”), Justin Dean Hedgpeth (“Hedgpeth”) was convicted of two

              counts of misdemeanor eluding police, in violation of Code § 46.2-817, driving while intoxicated

              (third or subsequent in ten years), in violation of Code § 18.2-266, and two counts of driving on

              a revoked license, in violation of Code § 46.2-391(D)(2). Hedgpeth was also convicted of petit

              larceny, second offense, in violation of Code § 18.2-96.1 On appeal, Hedgpeth alleges two



                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                     1
                        On March 17, 2016, Hedgpeth became the subject of an investigation for petit larceny
              that occurred at a Martin’s store. At the trial on September 7, 2016, Hedgpeth stipulated that he
              took beer from Martin’s without paying and without permission and that he was thereafter sought
              by police while operating a motor vehicle on March 17, 2016. After being stopped by a police
              officer, Hedgpeth fled the scene. Here, however, Hedgpeth challenges only his conviction for
              driving while intoxicated and one of his convictions for driving on a revoked license, which stem
              from a separate incident on March 12, 2016. The March 12, 2016 incident is the subject matter
              of this appeal.
assignments of error: (1) that the facts are insufficient to convict him of driving while

intoxicated, third or subsequent within ten years, and (2) that the facts are insufficient to convict

him of driving on a revoked license.

       “When reviewing a defendant’s challenge to the sufficiency of the evidence to sustain a

conviction, this Court reviews the evidence in the light most favorable to the Commonwealth, as

the prevailing party at trial, and considers all inferences fairly deducible from that evidence.”

Allen v. Commonwealth, 287 Va. 68, 72, 752 S.E.2d 856, 858-59 (2014). An appellate court

may reverse the judgment of the trial court “if the judgment ‘is plainly wrong or without

evidence to support it.’” Crawford v. Commonwealth, 281 Va. 84, 112, 704 S.E.2d 107, 123

(2011) (quoting Code § 8.01-680). “If there is evidence to support the convictions, the reviewing

court is not permitted to substitute its own judgment, even if its opinion might differ from the

conclusions reached by the finder of fact at the trial.” Id. (quoting Commonwealth v. Jenkins,

255 Va. 516, 520, 499 S.E.2d 263, 265 (1998)). The issue on appeal is “whether, after viewing

the evidence in the light most favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.” McMillan v.

Commonwealth, 277 Va. 11, 19, 671 S.E.2d 396, 399 (2009) (quoting Maxwell v.

Commonwealth, 275 Va. 437, 442, 657 S.E.2d 499, 502 (2008)).

       Accordingly, the evidence is that on March 12, 2016, Williamsburg Police Officer D.

Mizelle (“Officer Mizelle”) witnessed Hedgpeth make an illegal right turn. Two clearly visible

traffic signs prohibiting right turns were posted at the intersection. Officer Mizelle initiated a

traffic stop on Hedgpeth’s vehicle after Hedgpeth maneuvered his vehicle through a narrow

alleyway and parked in a parking lot. When Hedgpeth gave Officer Mizelle his driver’s license,

Officer Mizelle “could smell a strong odor of an alcoholic beverage coming from the vehicle.”




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       Officer Mizelle asked Hedgpeth to step out of his vehicle to complete a field sobriety test.

Hedgpeth exited his vehicle but refused to take a field sobriety test. Instead, Hedgpeth attempted

to light a cigarette. When Officer Mizelle asked Hedgpeth not to do so, Hedgpeth replied “[i]f

you’re going to take me to jail for whatever, go ahead and take me to jail.” Officer Mizelle

asked Hedgpeth to perform a field sobriety test a second time, but Hedgpeth again refused.

Officer Mizelle noticed a strong odor of alcohol emanating from Hedgpeth’s person and that

Hedgpeth’s speech was slurred. Hedgpeth attempted to light another cigarette but then ran from

the scene. Hedgpeth’s flight from Officer Mizelle took him through the parking lot, down an

embankment, and into a wooded area.

       Remaining with a passenger in Hedgpeth’s vehicle, Officer Mizelle observed an open

bottle of whiskey and an open two-liter bottle of soda in the backseat. Hedgpeth’s vehicle

contained two cups in the center console that “were filled with a brown liquid that . . . smelled of

an alcoholic beverage.” Officer Mizelle also noticed that the key to Hedgpeth’s vehicle

was removed from the ignition and dropped behind the front passenger seat.

       Hedgpeth was subsequently apprehended. On September 7, 2016, Hedgpeth pleaded not

guilty to all charges against him—two counts of misdemeanor eluding, driving while intoxicated,

two counts of driving on a revoked license, and one count of petit larceny. Hedgpeth stipulated

that he fled from Officer Mizelle. Hedgpeth also stipulated that his license was revoked at the

time. Finally, Hedgpeth conceded that he had two prior convictions for driving while intoxicated

in the ten years prior to his arrest and that he was the driver of the vehicle during the incident

upon which this appeal is based.

       Following a bench trial where only Officer Mizelle testified, the circuit court convicted

Hedgpeth of all charges. Explaining its decision, the circuit court noted that the case was a

“close call as far as the DUI is concerned.” The circuit court then convicted Hedgpeth and

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specifically noted the fact that Hedgpeth refused to take a field sobriety test and subsequently

fled the scene. Additionally, the circuit court observed that there was a “strong odor of alcohol

coming from [Hedgpeth’s] car” as well as an “odor of alcohol” on Hedgpeth’s breath. This

appeal follows.

       Code § 18.2-266 prohibits a person from operating a motor vehicle “while such person is

under the influence of alcohol . . . .” In the absence of forensic testing demonstrating blood

alcohol content in excess of the proscribed limit, the degree of intoxication, or being under the

influence of alcohol, “is established when any person has consumed enough alcoholic beverages

to ‘so affect his manner, disposition, speech, muscular movement, general appearance or

behavior, as to be apparent to observation.’” Thurston v. Lynchburg, 15 Va. App. 475, 483, 424

S.E.2d 701, 705 (1992) (quoting Gardner v. Commonwealth, 195 Va. 945, 954, 81 S.E.2d 614,

619 (1954)). In determining whether a defendant was intoxicated, a factfinder considers “all of

the evidence of his condition at the time of the alleged offense.” Leake v. Commonwealth, 27

Va. App. 101, 109, 497 S.E.2d 522, 526 (1998) (quoting Brooks v. City of Newport News, 224

Va. 311, 315, 295 S.E.2d 801, 804 (1982)).

       Hedgpeth supports his first assignment of error by offering alternative explanations for

each piece of circumstantial evidence that the circuit court relied upon to convict Hedgpeth of

driving while intoxicated. Attempting to explain the odor of alcohol emanating from his vehicle

and person, Hedgpeth argues that, since he fled the scene shortly after Office Mizelle approached

him, Officer Mizelle only had a limited interaction with him and, consequently, Officer Mizelle

could not conclusively establish that he was intoxicated. Hedgpeth also insinuates that the

passenger in his vehicle was responsible for the odor of alcohol and the open containers.

Attempting to explain his attempts to light a cigarette against the wishes of Officer Mizelle,

Hedgpeth posits that “his decision to light a cigarette against the direction of Officer Mizelle is

                                                -4-
immaterial to the issue of intoxication.” Finally, Hedgpeth argues that, “[d]espite the

Commonwealth’s efforts, the evidence demonstrates reasonable doubt as to whether [Hedgpeth]

was intoxicated.” In support of this last argument, Hedgpeth asserts that since he maneuvered

his vehicle through a difficult turn, down a narrow alleyway, successfully parked in a tight

parking space, and had no difficulty in running “down a pathway through a wooded area and

down an embankment” in his successful attempt to elude Officer Mizelle, he could not have been

impaired to the point of intoxication. According to Hedgpeth, these facts demonstrate “that his

ability to drive at the time [was] exceptional.”

        Hedgpeth also argues that, other than slurred speech, Officer Mizelle’s testimony did not

present any other indicia of intoxication typically found in a driving while intoxicated case.

Hedgpeth notes that the evidence did not show that he had a flushed face, bloodshot eyes, or

otherwise intoxicated disposition. Further, Hedgpeth attempts to justify his flight from Officer

Mizelle by relying on Jones v. Commonwealth, 279 Va. 52, 688 S.E.2d 269 (2010). Hedgpeth

argues that, under Jones, “[a] refusal to submit to field sobriety tests . . . can often be explained

in terms of innocent human behavior.” Id. at 58, 688 S.E.2d at 272.

        Hedgpeth’s reliance on Jones, however, is misplaced. Hedgpeth is correct that the refusal

to submit to a field sobriety test alone is insufficient to infer consciousness of guilt. Hedgpeth,

however, chooses to ignore the very next sentence in Jones, which states “[u]nlike instances of

flight . . . or other acts of deception, a driver refusing to submit to a field sobriety test has not

undertaken affirmative action to deceive or to evade the police.” Id. (emphasis added). While

our Supreme Court set forth several examples of innocent human behavior justifying a field

sobriety test refusal—including tiredness, a lack of physical dexterity, a limited ability to speak

the English language, or a reluctance to submit to subjective assessments by a police officer—

those justifications do not apply here. Further, Jones stands for the proposition that the refusal to

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perform a field sobriety test, without more, is insufficient to demonstrate a defendant’s

consciousness of guilt. See id. at 60, 688 S.E.2d at 273. In this case there was more than his

mere refusal to perform a field sobriety test. Moreover, it is clear that “the refusal to submit to

field sobriety tests is evidence of a defendant’s consciousness of guilt.” See id. Because the

record does not support any reasonable inference of any innocent explanation for Hedgpeth’s

actions, Jones lends no support to Hedgpeth’s argument.

       Here, the circuit court properly weighed all of the evidence, including Hedgpeth’s novel

speculations suggesting alternate conclusions from those facts, before finding Hedgpeth guilty of

driving while intoxicated. In doing so, the circuit court explicitly relied on the totality of the

evidence that, taken together, present compelling circumstantial evidence that Hedgpeth was

driving while intoxicated. “While no single piece of evidence may be sufficient, the combined

force of many concurrent and related circumstances, each insufficient in itself, may lead a

reasonable mind irresistibly to a conclusion.” Emerson v. Commonwealth, 43 Va. App. 263,

277, 597 S.E.2d 242, 249 (2002) (quoting Derr v. Commonwealth, 242 Va. 413, 425, 410 S.E.2d

662, 669 (1991)) (internal quotation marks omitted). Specifically, the evidence supporting the

circuit court’s conclusion that Hedgpeth was intoxicated in the light most favorable to the

Commonwealth as the prevailing party below is that while Hedgpeth was driving, Hedgpeth and

his companion were both drinking alcoholic beverages. Hedgpeth either failed to notice or

deliberately disregarded two posted and clearly visible traffic signs at an intersection where he

made an illegal right turn. A strong odor of alcohol emanated from Hedgpeth’s person, and

Hedgpeth’s speech was slurred. Hedgpeth was uncooperative with Officer Mizelle’s attempts to

conduct a field sobriety test and fled from Officer Mizelle immediately after Mizelle’s second

request that Hedgpeth do so. Based on this evidence, we cannot say that no rational factfinder

could reach the same conclusion as the circuit court did in this matter.

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       Hedgpeth, in his second assignment of error, argues that the evidence was insufficient to

support his conviction for driving on a revoked license, in violation of Code § 46.2-391(D)(2).

       Code § 46.2-391(D)(2) provides, in relevant part, that any person who is convicted of

violating Code § 18.2-266, after previously having had his or her driver’s license revoked, is

guilty of a felony. See Code § 46.2-391(D)(2). Hedgpeth does not challenge the statute’s

validity. Rather, Hedgpeth indicates that Code § 46.2-391(D)(1) states “[i]f such driving does

not of itself endanger the life, limb, or property of another, such person shall be guilty of a Class

1 misdemeanor.” Code § 46.2-391(D)(1). And, because Hedgpeth argues that the evidence was

insufficient for the circuit court to find that he was driving while intoxicated he claims that the

circuit court erred in failing to reduce the driving revoked charge to a misdemeanor. Stated

another way, Hedgpeth argues that his driving while revoked charge “should have been reduced

to a misdemeanor, as there is insufficient evidence to prove the enhancements necessary for a

felony charge.”

       Despite Hedgpeth’s assertions that his conduct did not endanger life, limb, or property of

another, the law recognizes that “the act of driving while intoxicated . . . is inherently

dangerous.” Davis v. Commonwealth, 12 Va. App. 408, 413, 404 S.E.2d 377, 380 (1991). “A

drunken driver has dulled his perceptions, blunted his skill, and slowed his reflexes in advance.”

Wyatt v. Commonwealth, 47 Va. App. 411, 418, 624 S.E.2d 118, 122 (2006) (quoting Essex v.

Commonwealth, 228 Va. 273, 283, 322 S.E.2d 216, 221 (1984)). Further, the predominant

purpose of any drunk driving statute is to protect innocent people from the devastating harm so

easily caused by an intoxicated driver.2 See, e.g, Gallagher v. Commonwealth, 205 Va. 666, 139

S.E.2d 37 (1964).


       2
        Hedgpeth also posed a danger to other drivers because his driver’s license was revoked.
As previously noted by this Court, “the purpose of revoking a driver’s license is not to punish the

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       At trial, Hedgpeth stipulated to the authenticity of his Department of Motor Vehicles

(“DMV”) transcript showing that his driver’s license was revoked as a result of a second offense

for driving while intoxicated. Hedgpeth did not object to the admission of his DMV transcript or

prior conviction orders. Further, Hedgpeth stipulated that he was driving when Officer Mizelle

initiated the traffic stop on March 12, 2016. Therefore, the only factual issue left for the circuit

court’s determination was whether Hedgpeth drove while intoxicated, in violation of Code

§ 18.2-266.

       For the reasons stated above, the circuit court did not err in finding that Hedgpeth was

guilty of driving while intoxicated, in violation of Code § 18.2-266. It follows that the elements

of Code § 46.2-391(D)(2) were satisfied, and the circuit court did not err in concluding that the

evidence was sufficient to prove that Hedgpeth was guilty of felony driving on a revoked license.

       For the foregoing reasons, the judgment of the circuit court is affirmed.

                                                                                           Affirmed.




offender but to remove from the highways an operator who is a potential danger to other users.”
Ingram v. Commonwealth, 29 Va. App. 759, 763, 514 S.E.2d 792, 794 (1999).
                                             -8-
