                    COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Fitzpatrick and Overton
Argued at Salem, Virginia


ROGER DALE SNODY

v.          Record No. 1104-95-3        MEMORANDUM OPINION * BY
                                     JUDGE JERE M. H. WILLIS, JR.
COMMONWEALTH OF VIRGINIA                    APRIL 23, 1996


         FROM THE CIRCUIT COURT OF THE CITY OF MARTINSVILLE
                      David V. Williams, Judge
            Wayne T. Baucino (Office of the Public
            Defender, on brief), for appellant.

            Monica S. McElyea, Assistant Attorney General
            (James S. Gilmore, III, Attorney General;
            Thomas C. Daniel, Assistant Attorney General,
            on brief), for appellee.



     On appeal from a felony conviction for driving after having

been declared an habitual offender in violation of Code

§ 46.2-357(B)(2), Roger Dale Snody contends that the evidence

supports only a conviction for a misdemeanor under Code

§ 46.2-357(B)(1).   We agree and reverse the felony sentence and

remand the case for a misdemeanor conviction and resentencing.

     On October 8, 1994, Officer Ross "heard a car with its

engine racing and then heard tires break traction for several

seconds."   At the time, Ross was outside his car.   He walked

around his car for a better view and "saw a cloud of tire smoke"

and a Monte Carlo with its brake lights on at the intersection of

Moss and Market Streets.
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
     Officer Ross pursued the car and pulled it over.    Snody was

driving and a passenger occupied the front seat.   Ross discovered

that Snody had been adjudicated an habitual offender.   Ross

testified that Snody told him that he had spun his tires to get

away from some trouble on Moss Street.    Ross testified that he

saw no other vehicles on the street, that Snody did not deviate

from his lane of traffic, and that he did not come close to

hitting any other car, or property, or person.
     At trial, Snody moved to reduce the charge to a misdemeanor

on the ground that his driving did not endanger the life, limb,

or property of another.   The trial court denied this motion and

found that Snody's driving endangered his passenger.    The trial

court convicted Snody of violating Code § 46.2-357(B)(2) and

imposed a felony sentence.

     "The distinction between negligent driving and reckless

driving is the critical element in determining punishment under

Code § 46.2-357."   Bishop v. Commonwealth, 20 Va. App. 206,

210-11, 455 S.E.2d 765, 767 (1995).    Code § 46.2-357(B)(2) states

in pertinent part:
          If such driving, of itself, does endanger the
          life, limb, or property of another, such
          person shall be guilty of a felony . . . .


     The evidence fails to prove that Snody's driving endangered

the life, limb, or property of another.   Mere rapid acceleration,

with a spinning of wheels, over a short course that involved no

other vehicle or property and proposed no hazard of accident, did



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not actually create such a danger.     Thus, the evidence does not

support the imposition of a felony sentence.    The evidence does,

however, prove beyond a reasonable doubt the elements of Code

§ 46.2-357(B)(1).   We remand this case to the trial court for

conviction of a misdemeanor and appropriate sentencing.

                                           Reversed and remanded.




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