                                          COURT OF APPEALS OF VIRGINIA


            Present: Judges Petty, Chafin and Senior Judge Annunziata
PUBLISHED


            Argued at Alexandria, Virginia


            CARLOS ABRAHAM MARTINELLY MONTANO, S/K/A
             CARLOS MARTINELLY-MONTANO
                                                                                  OPINION BY
            v.      Record No. 0286-12-4                                 JUDGE ROSEMARIE ANNUNZIATA
                                                                                MARCH 26, 2013
            COMMONWEALTH OF VIRGINIA


                            FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
                                             Lon E. Farris, Judge

                            Dimitri L. Willis (Michael S. Arif; Arif & Associates, P.C., on brief),
                            for appellant.

                            Donald E. Jeffrey, III, Senior Assistant Attorney General (Kenneth T.
                            Cuccinelli, II, Attorney General, on brief), for appellee.


                    Carlos Abraham Martinelly Montano (appellant) entered guilty pleas to the charges of third

            offense driving while intoxicated, involuntary manslaughter, driving with a suspended license, and

            two counts of maiming resulting from driving while intoxicated. Following a bench trial, he was

            also convicted of felony murder predicated on the felony driving while intoxicated offense. On

            appeal, appellant argues the trial court erred by 1) “imputing malice to [his] action of drunk

            driving,” 2) “holding that the homicide was within the res gestae of the felonious undertaking,”

            3) “finding that [he] caused the death in an effort to further the underlying felony,” and 4) “violating

            the principles of double jeopardy by imposing punishments for involuntary manslaughter and felony

            murder for the death of one person.”1 We disagree and affirm the judgment of the trial court.



                    1
                     At oral argument before this Court, appellant expressly waived consideration of this
            issue on appeal. Accordingly, we do not address this assignment of error.
                                           BACKGROUND

        “Under familiar principles of appellate review, we view the evidence and all reasonable

inferences fairly deducible from that evidence in the light most favorable to the Commonwealth,

the party that prevailed below.” Banks v. Commonwealth, 41 Va. App. 539, 543, 586 S.E.2d

876, 877 (2003).

        So viewed, the evidence proved that on the morning of August 1, 2010, Steven Lester was

driving in a 45-mile-per-hour zone when he saw appellant’s vehicle rapidly approaching him from

behind. Lester explained appellant’s vehicle appeared to hit the wall of a bridge and then bounce

towards the wall on the opposite side of the road. Appellant’s car struck a vehicle in which three

women were riding. One of the women died as a result of injuries sustained in the collision, and the

other two suffered serious injuries.

        Appellant was transported to a hospital after emergency assistance arrived at the scene of the

crash. Appellant’s blood was tested at the hospital, and his blood alcohol content was .20% by

weight by volume at the time the test was administered. The police found nearly twenty beer

containers in appellant’s vehicle. One of the open cans still contained beer and had condensation on

it, suggesting appellant had been drinking it while driving, although appellant initially claimed he

had stopped drinking the previous night.

        Dr. Carol O’Neal testified as an expert in the field of forensic toxicology. She explained

alcohol consumption “slow[s] down certain processes of the body both physical and mental.” A

blood alcohol concentration above .08% by weight by volume results in increased reaction time,

decreased vision, decreased decision-making ability, and a general loss of coordination making it

more difficult for a person to respond quickly to an emergency. Above .12% a person experiences

tunnel vision and cannot see objects in the periphery. O’Neal stated that at or above .20% a driver

is “fifty times more likely to be involved in an accident . . . .” Alcohol consumption impairs

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reaction time such that an impaired driver takes longer to recognize an emergency and to take

evasive action. She also emphasized that “as the concentration increases, the effects become more

intense.”

       Following argument, the trial court concluded that third offense driving under the influence

at appellant’s level of impairment was an inherently dangerous activity, that malice was imputed to

appellant’s actions, and that the death occurred within the res gestae of the underlying felony.

                                            ANALYSIS

                                                  I.

       Appellant asserts the trial court erred “by imputing malice to [his] action of drunk

driving.”

       Code § 18.2-33 states:

               The killing of one accidentally, contrary to the intention of the
               parties, while in the prosecution of some felonious act other than
               those specified in §§ 18.2-31 and 18.2-32, is murder of the second
               degree and is punishable by confinement in a state correctional
               facility for not less than five years nor more than forty years.

       Thus, Code § 18.2-33 provides that an accidental killing accompanied by some felonious

act, other than those specified in Code §§ 18.2-31 and 18.2-32, will support a second-degree

murder conviction. In such case, malice is imputed and raises an accidental homicide to the level

of second-degree murder. See Heacock v. Commonwealth, 228 Va. 397, 403-04, 323 S.E.2d 90,

94 (1984). “The statute ‘encompasses all felonious acts’ not expressly excluded and is not

limited to those felonies from which death is a foreseeable consequence.” Hylton v.

Commonwealth, 60 Va. App. 50, 52-53, 723 S.E.2d 628, 629 (2012) (quoting Heacock, 228 Va.

at 404, 323 S.E.2d at 94).

                       While § 18.2-32 [first-degree felony murder] contemplates
               a “killing with malice”, the malice intrinsic in the commission of
               one of the predicate felonies “provides the malice prerequisite to a
               finding that the homicide was murder.” Wooden v.
                                                 -3-
               Commonwealth, 222 Va. 758, 762, 284 S.E.2d 811, 814 (1981).
               The same imputation of malice is implicit in § 18.2-33 which
               contemplates an accidental killing; the commission of any
               felonious act (other than those expressly excepted) during the
               prosecution of which a death occurs supplies the malice which
               raises the incidental homicide to the level of second-degree
               murder. This statute codifies ancient common law. See Whiteford
               v. Commonwealth, 27 Va. (6 Rand.) 721 (1828).

Heacock, 228 Va. at 403, 323 S.E.2d at 93.

                       “The [felony-murder] doctrine was developed to elevate to
               murder a homicide committed during the course of a felony by
               imputing malice to the killing. The justification for imputing
               malice was the theory that the increased risk of death or serious
               harm occasioned by the commission of a felony demonstrated the
               felon’s lack of concern for human life. . . . The purpose of the
               doctrine was to deter inherently dangerous felonies by holding the
               felons responsible for the consequences of the felony, whether
               intended or not.”

Barnes v. Commonwealth, 33 Va. App. 619, 630-31, 535 S.E.2d 706, 712 (2000) (quoting King

v. Commonwealth, 6 Va. App. 351, 354, 368 S.E.2d 704, 705-06 (1988) (citations omitted)).

The holdings in Heacock and Hylton that Code § 18.2-33 “‘encompasses all felonious acts’ not

expressly excluded,” Hylton, 60 Va. App. at 52, 723 S.E.2d at 629 (quoting Heacock, 228 Va. at

404, 323 S.E.2d at 94), necessitate the conclusion that the statute included appellant’s felonious

driving while intoxicated. Furthermore, driving while intoxicated or recklessly is a felony

considered to be “inherently dangerous.” Davis v. Commonwealth, 12 Va. App. 408, 413, 404

S.E.2d 377, 380 (1991). By implication, it presents a substantial risk to life. See for example,

Snow v. Commonwealth, 33 Va. App. 766, 774-75, 537 S.E.2d 6, 10-11 (2000), noting reckless

driving is dangerous and demonstrates a reckless disregard for human life in the context of Code

§ 18.2-371.1. “‘[T]he increased risk of death or serious harm occasioned by the commission of’”

appellant’s felony of driving while intoxicated demonstrated appellant’s “‘lack of concern for

human life’” and constitutes the justification for imputing malice. Spain v. Commonwealth, 7



                                               -4-
Va. App. 385, 393-94, 373 S.E.2d 728, 732-33 (1988) (quoting King, 6 Va. App. at 354, 368

S.E.2d at 705-06).

                                                 II.

       Appellant also challenges the finding of causation in this case, asserting the trial court

erred “by holding that the homicide was within the res gestae of the felonious undertaking.”

Specifically, he argues “[t]he unintended death that occurred as a result of the accident was not

in furtherance of either driving under the influence or driving with a suspended license,” and,

therefore, “should not be considered within the res gestae of the felonies.” 2

       The Virginia Supreme Court defined the term, res gestae, in the context of felony-murder

prosecutions in Heacock, concluding that, when the predicate or underlying felony and the

homicide “‘were parts of one continuous transaction, and were closely related in point of time,

place and causal connection,’” a felony murder is established. Heacock, 228 Va. at 405, 323

S.E.2d at 94-95 (quoting Haskell v. Commonwealth, 218 Va. 1033, 1041, 243 S.E.2d 477, 482

(1978)). See also Griffin v. Commonwealth, 33 Va. App. 413, 425, 533 S.E.2d 653, 659 (2000)

(holding that “Code § 18.2-33 applies where the initial felony and the accidental killing are parts

of one continuous transaction and are closely related in point of time, place and causal

connection”). 3 When the homicide “resulted from an act which was an integral part of the felony

or an act in direct furtherance of or necessitated by the felony,” felony murder is established. Id.


       2
          It appears from the record that the trial court relied only upon the driving under the
influence felony offense as the underlying felony for the felony-murder conviction.
Accordingly, we do not address whether the driving with a suspended license conviction can
serve as the predicate felony under Code § 18.2-33.
       3
          “[T]he required elements of the rule, i.e., time, place, and causal connection, are stated
in the conjunctive. Therefore, all three elements must be established for the felony-murder
statute to apply.” Commonwealth v. Montague, 260 Va. 697, 702, 536 S.E.2d 910, 913 (2000).
See also, Woodard v. Commonwealth, ___ Va. App. ___, ___ S.E.2d ___ (Mar. 26, 2013),
(finding the underlying felony of the sale of ecstasy did not support a conviction for felony

                                                -5-
       In this case, the elements of res gestae, were proved. The expert testimony made clear

that the car accident which killed the victim occurred because appellant was highly intoxicated

while he was driving. Appellant’s vision, motor skills, and reaction time were all adversely

affected by his intoxication, and nothing in the record suggests that the accident likely would

have occurred had appellant not been under the influence of alcohol. Cf. King, 6 Va. App. at

358, 368 S.E.2d at 708. 4 On the contrary, the evidence established that the underlying felony of

driving while intoxicated caused the collision and resulted in an accidental death. See Davis, 12

Va. App. at 413, 404 S.E.2d at 380 (in applying the res gestae theory, we affirmed the

appellant’s conviction because the habitual offender was committing, or “furthering,” the

underlying offense while attempting to escape detection when the accident occurred (citing King,

6 Va. App. at 358, 368 S.E.2d at 708)).

       Appellant’s intoxicated operation of his vehicle was, thus, inextricably linked and

integral to the victim’s death. See Griffin, 33 Va. App. at 425, 533 S.E.2d at 659 (quoting 40

Am. Jur. 2d Homicide § 70 (1999)). Accordingly, we find no error with the trial court’s

conclusions. 5



murder under Code § 18.2-33 because the killing occurred after the drug sale was completed and
in a location different from that of the drug sale and was thus separated from the alleged felony
murder by both time and place).
       4
          In King, the defendant was convicted of felony murder after the plane in which he and
his co-felon were transporting marijuana crashed, killing King’s companion. King’s conviction
of felony murder based on the felony of possession of marijuana with intent to distribute was
reversed on the ground that the crash would have occurred even if the defendant had been
transporting legal cargo. “The accident stemmed not from the possession or distribution of
drugs, but from fog, low cloud cover, pilot error, and inexperience.” 6 Va. App. at 358, 368
S.E.2d at 708.
       5
         Appellant’s reliance on Essex v. Commonwealth, 228 Va. 273, 322 S.E.2d 216 (1984),
and his contention that the Commonwealth was required to prove he acted maliciously are
misplaced. In Essex the defendant was convicted of three counts of second-degree murder
stemming from an accident caused while he was driving while intoxicated. In that case, the

                                               -6-
                                                III.

       In his third assignment of error, appellant repeats the arguments he made to support his

first two assignments of error, emphasizing that “[t]he accident was not in furtherance of the

underlying felonies nor was it the result of any malice on [his] part[.]” He asserts he “did not

crash his vehicle in an attempt to further either felony, nor was the car crash necessitated by the

felony.” “The resulting death,” he argues, “was plain happenstance, and not in furtherance of the

felony.” As these arguments are fully addressed above, we need not separately address this

assignment of error.

       For the reasons stated, we affirm the trial court’s decision and appellant’s felony-murder

conviction.

                                                                                          Affirmed.




defendant’s act of driving under the influence was a misdemeanor offense and he was not
charged with felony murder under Code § 18.2-33.

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