                       COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Clements and Senior Judge Hodges
Argued at Richmond, Virginia


HERBERT H. COUSINS
                                            MEMORANDUM OPINION * BY
v.   Record No. 2140-02-2                   JUDGE WILLIAM H. HODGES
                                                 JUNE 24, 2003
COMMONWEALTH OF VIRGINIA


              FROM THE CIRCUIT COURT OF HENRICO COUNTY
                       George F. Tidey, Judge

            H. Pratt Cook, III (Robert Cabell &
            Associates, on brief), for appellant.

            H. Elizabeth Shaffer, Assistant Attorney
            General (Jerry W. Kilgore, Attorney General,
            on brief), for appellee.


     Herbert H. Cousins, appellant, appeals his conviction for

driving or operating a motor vehicle while under the influence of

alcohol, in violation of Code § 18.2-266.     On appeal, he contends

the evidence was insufficient to prove he committed the offense,

based on the reasonable hypothesis that his erratic driving was

caused by an anxiety attack.    We affirm the trial court's

decision.

                               BACKGROUND

     At 8:15 p.m. on December 15, 2001, Officer Johnakin observed

appellant driving a motor vehicle.     Johnakin saw the vehicle


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
make a wide right turn.    The vehicle traveled across the double

yellow divider lines in the center of a two-lane road and into

the oncoming travel lane.    Johnakin followed appellant's vehicle

for about one mile, and he saw it weave several times, crossing

the solid line on the right of its travel lane and crossing the

double yellow lines on the left of its travel lane.     Johnakin

stopped appellant and smelled an odor of alcohol about

appellant's person.    Appellant's eyes were red and glassy, and

his speech was slightly slurred.

        Appellant told Johnakin that he was diabetic, but he had

not taken any insulin.    Appellant also told Johnakin that he had

consumed three beers and he was taking the medication Diazapam.

Johnakin asked appellant if he had any physical handicaps that

would prevent him from performing field sobriety tests.

Appellant replied, "No."    Appellant then passed the alphabet

test.    However, appellant missed several steps on the heel to

toe test, stepped off the line several times, and raised his

arms during the test.    Johnakin testified that the lighting

conditions were good where the tests were conducted.

        Appellant told Johnakin he was "too nervous" to perform the

one legged stand test, and he claimed he was having an anxiety

attack.    Appellant said he was "fine to drive," and he told

Johnakin, "You have what you need."      Appellant then said he




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needed an ambulance, and a rescue squad transported appellant to

a hospital.

        Johnakin arrested appellant at 8:36 p.m.    At 9:03 p.m.,

Johnakin read appellant the implied consent law.      Appellant said

he was not going to take any test.       A nurse read the implied

consent to appellant again, and appellant refused to sign the

declaration of refusal.    Appellant also refused to take a blood

test.    Another officer again read the implied consent to

appellant in the presence of Officer Carle, who signed as a

witness on the refusal form.

        Dr. Arthur Ernst saw appellant in the emergency room on the

night of the incident.    Dr. Ernst testified that a person

driving a motor vehicle while having an anxiety attack could

drive erratically as if he was intoxicated.      Dr. Ernst had not

made a note in his record that appellant smelled of alcohol when

he saw him.    Dr. Ernst stated that, as a matter of course, he

notes whether a patient smells of alcohol, and that, therefore,

he had not smelled alcohol on appellant.      On cross-examination,

Dr. Ernst stated that alcohol diminishes from the body over

time.

        Appellant testified that he felt ill on the night of

December 15 and that, when he saw the officer following him, he

began to feel anxious.    He also stated that he told Johnakin he

was having a panic attack and he wanted to get medication from



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his glove compartment.   Appellant testified that no one

explained anything to him about signing a form and no one read

the refusal form to him.   He stated that he had consumed "about

two beers" prior to the stop and was taking Lorazepam for

anxiety attacks, which he had experienced in the past.

Appellant also testified that he asked Johnakin to call a rescue

squad, but Johnakin refused.

     On rebuttal, Officer Carle testified that she witnessed the

refusal form being read to appellant at the hospital.

     Appellant moved to strike the evidence on the ground that

the Commonwealth failed to exclude the reasonable hypothesis

that his erratic driving was caused by an anxiety attack.    The

trial court denied the motion and found appellant guilty of

driving under the influence of alcohol.

                               ANALYSIS

     "On appeal, 'we review the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom.'"   Archer v.

Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)

(citation omitted).

          [W]e review the jury's decision to see if
          reasonable jurors could have made the
          choices that the jury did make. We let the
          decision stand unless we conclude no
          rational juror could have reached that
          decision. "[I]f there is evidence to
          sustain the verdict, this Court should not



                                - 4 -
           overrule it and substitute its own judgment,
           even if its opinion might differ from that
           of the jury."

Pease v. Commonwealth, 39 Va. App. 342, 355, 573 S.E.2d 272, 278

(2002) (en banc) (citation omitted).    The same standard applies

when a trial judge sits as the fact finder because "the court's

judgment is accorded the same weight as a jury verdict."

Shackleford v. Commonwealth, 262 Va. 196, 209, 547 S.E.2d 899,

907 (2001).

     Although appellant testified that he began to have an

anxiety attack when he saw the police car behind him, the trial

court was not required to accept appellant's explanation for his

erratic driving.   "[T]he [fact finder] was not required to

believe the defendant's explanation, and if that explanation is

not believed, the [fact finder] may infer that the accused is

lying to conceal his guilt."    Black v. Commonwealth, 222 Va.

838, 842, 284 S.E.2d 608, 610 (1981).

     Furthermore, appellant testified that he had consumed

"about two beers" prior to driving, whereas he told Johnakin at

the scene that he drank three beers before driving.   Appellant

also testified that he requested an ambulance at the scene, but

Johnakin refused to call one.   However, the evidence showed that

a rescue squad transported appellant to the hospital.     In

addition, appellant testified that no one read the refusal form

to him.   However, several officers testified to the contrary.



                                - 5 -
     Although the doctor testified that a person driving a motor

vehicle while having an anxiety attack could drive erratically,

he did not testify that appellant had experienced an anxiety

attack on the night of the incident.   Moreover, Johnakin

testified that, at the scene of the stop, he smelled alcohol

about appellant's person, appellant's eyes were red and glassy,

and appellant's speech was slurred.    In addition, as discussed

above, appellant admitted that he had consumed alcohol prior to

driving.   Furthermore, although the doctor did not indicate in

his notes that he detected an odor of alcohol about appellant's

person, the doctor also stated that alcohol diminishes from the

body over time.

     "After determining credibility and assessing the weight of

the testimony, the [fact finder] must ascertain what reasonable

inferences arise from the facts [he] found proven by that

testimony."   Pease, 39 Va. App. at 354, 573 S.E.2d at 278.

           [T]he [fact finder] decides if the proven
           facts, and the reasonable inferences drawn
           from them, establish guilt beyond a
           reasonable doubt. If so, the [fact finder]
           . . . convicts. If the [fact finder]
           decides that a theory of innocence remains
           and the theory is reasonable, [the fact
           finder] . . . acquits. "Whether an
           alternative hypothesis of innocence is
           reasonable is a question of fact . . . ."

Id. at 355, 573 S.E.2d at 278 (citations omitted).




                               - 6 -
     The trial court "was entitled to evaluate [appellant's]

theory of innocence upon consideration of all the evidence and

the reasonable inferences that flow from that evidence.    It is

clear that the [trial court] rejected [appellant's] theory as

unreasonable."   Commonwealth v. Hudson, 265 Va. 505, 517, 578

S.E.2d 781, 787 (2003).   There is credible evidence to support

the Commonwealth's theory that appellant was intoxicated when he

operated the motor vehicle on the night of December 15, 2001.

Because we cannot say the trial court's decision was plainly

wrong, we affirm its finding.

                                                          Affirmed.




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