                  COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Bumgardner and Frank
Argued at Richmond, Virginia


MICHAEL LEE GRAY, JR.
                                              MEMORANDUM OPINION * BY
v.   Record No. 2017-99-3                      JUDGE ROBERT P. FRANK
                                                   JULY 25, 2000
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF FRANKLIN COUNTY
                B. A. Davis, III, Judge Designate

          Raphael E. Ferris (Rider, Thomas, Cleaveland,
          Ferris & Eakin, P.C., on briefs), for
          appellant.

          Kathleen B. Martin, Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellee.


     Michael Lee Gray, Jr. (appellant) was convicted of two counts

of involuntary manslaughter in the operation of a motor vehicle in

violation of Code §§ 18.2-30 and 18.2-36.      On appeal, he contends

the evidence was insufficient to convict him of the offense.       We

disagree and affirm the judgment of the trial court.

                            I.   BACKGROUND

     Appellant was involved in an accident on Route 220 near the

border of Franklin and Henry Counties.    Appellant's truck struck

the rear of a vehicle that was stopped to wait for a school bus to



     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
unload children.    The two occupants of the vehicle that appellant

struck were killed.

        On Route 220, approaching the scene of the accident, there

are two "S" curves, one to the left and one to the right.    The

road crests to a knoll (the first knoll) as it leaves the "S"

curves.    A yellow diamond-shaped "School Bus Stop Ahead" sign is

on either side of the road at the end of the "S" curves.    After

the first knoll, the road flattens out.    The sight distance from

the top of the first knoll to the accident scene is four-tenths of

one mile.    The accident scene is visible from the first knoll.

        After the flattened, straight portion of Route 220, the road

goes over a second knoll.    After the second knoll, the road curves

to the right.    Thereafter is the accident scene.   Trooper Harris

of the Virginia State Police testified that the sight distance

from the top of the second knoll to the accident scene was 315

feet, but he stated that a more accurate distance would be 415

feet because the height of the school bus would make it visible at

an earlier point.

        Timothy Truman was driving south in the left lane of Route

220 on the day of the accident.    Appellant, who was driving a 1997

International rollback truck, passed Truman's vehicle in the right

lane.    Both vehicles were traveling between 55 and 60 miles per

hour.    Appellant approached some "relatively steep curves," he

"darted into . . . the left-hand lane and then went back across

into the right-hand lane," basically driving straight through the

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curves.   Appellant's right turn signal remained on.   Truman passed

appellant, deciding that he did not want to follow him because he

was uncertain of what appellant was going to do next.

       As Truman came out of the last "S" curve and drove over the

first knoll, he could "see a pretty good long distance," which was

later determined to be four-tenths of one mile.    Truman then

observed a standard-size yellow school bus ahead of him in the

straight portion of the road.   The bus "was moving pretty slow,"

and there were two cars directly behind the bus.   The bus was

almost over the top of the second knoll when Truman went into the

dip.   Truman looked into his rearview mirror and saw appellant

exit the last "S" curve at the top of the knoll.   Then, he saw

that the red and yellow lights on the back and top of the bus were

flashing.   Seeing that the bus was going to stop, Truman moved

from the right to the left lane, intending to pass the bus when it

began moving again.

       Truman "eased up" because the bus and the other two cars were

going slowly.   He then came to a complete stop, his front bumper

aligned with the back bumper of the car appellant struck, which

was stopped directly behind the school bus in the right lane.

Truman saw appellant "was coming on" in the right lane and knew

that a collision could not be avoided.

       Appellant's truck smashed into the car, killing the driver

and her eight-year-old granddaughter.    The crash propelled the car



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into the school bus and pushed the bus a short distance down the

road.

        Trooper Harris interviewed appellant at the scene.    Appellant

said that he had been looking up and down at his clipboard.      He

laid it down and when he looked up, the school bus was there.

        Harris again interviewed appellant the next day at

appellant's workplace.    Appellant stated that he saw the school

bus twice.    He first saw the school bus as he came out of the "S"

curves, at the top of the first knoll, but he did not slow down.

He next saw the school bus when it had stopped.

        According to appellant, "traffic was moving to [his] left

side.    [He] saw the school bus on up there, maintained [his] speed

at 55, noticed the bus was stopped, did not see the lights, cut to

the left to try to miss the white car, [and] hit the bus."

Appellant had not seen the posted signs for "School Bus Stop

Ahead."    Appellant had been driving his normal vehicle and said he

usually went through the area earlier in the day but had been

"running late because his truck had been broke down [and] had been

worked on."

        Harris demonstrated at trial how appellant said he had looked

at the clipboard, nodding his head up and down about four times

before laying the clipboard aside.       Appellant told Harris that he

had been looking at his clipboard, looked up at the road, looked

back down at the clipboard, looked up at the road, looked back at

the clipboard and placed it on the seat.       When he looked up again,

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he saw the school bus, and the collision occurred.   Appellant

further said he was looking at the clipboard through the "S"

curves that preceded the first knoll.

     Harris later observed traffic at the crash site.    He noted

that while cars went out of sight for two or three seconds as they

came through the dip and up the second knoll, both a

tractor-trailer and a school bus remained visible.

     The parties stipulated that the truck had no mechanical

defects on the day of the collision and that appellant was not

under the influence of alcohol or drugs at the time of the

collision.

     Appellant moved to strike the evidence contending that the

requisite criminal negligence had not been proved.   The court took

the motion under advisement.    Appellant renewed his motion at the

conclusion of his evidence.    The trial court denied the motion and

convicted appellant of two counts of involuntary manslaughter,

commenting that the appellant was guilty of gross inattention.

The trial court concluded that appellant saw or should have seen

the school bus and should have taken the steps necessary to avoid

an accident.

                          II.    ANALYSIS

     Under familiar principles of appellate review, we examine the

evidence in the light most favorable to the Commonwealth, granting

to it all reasonable inferences fairly deducible therefrom.    See

Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418

                                - 5 -
(1987).   The judgment of a trial court will be disturbed only if

plainly wrong or without evidence to support it.    See id.

(citations omitted).   The inferences to be drawn from proven facts

are matters for determination by the fact finder.   See Hancock v.

Commonwealth, 12 Va. App. 774, 782, 407 S.E.2d 301, 306 (1991)

(citing Johnson v. Commonwealth, 209 Va. 291, 295, 163 S.E.2d 570,

574 (1968)).

     "[I]nvoluntary manslaughter in the operation of a motor

vehicle [is defined] as an 'accidental killing which, although

unintended, is the proximate result of negligence so gross,

wanton, and culpable as to show a reckless disregard of human

life.'"   Greenway v. Commonwealth, 254 Va. 147, 154, 487 S.E.2d

224, 228 (1997) (quoting King v. Commonwealth, 217 Va. 601, 607,

231 S.E.2d 312, 316 (1977)).    Criminal negligence is the basis for

involuntary manslaughter and has been defined as "'acting

consciously in disregard of another person's rights or acting with

reckless indifference to the consequences, with the defendant

aware, from his knowledge of existing circumstances and

conditions, that his conduct probably would cause injury to

another.'"   Tubman v. Commonwealth, 3 Va. App. 267, 271, 348

S.E.2d 871, 873 (1986) (citation omitted).   Criminal negligence

may also exist where the accused knew or should have known the

probable results of his acts.    See Keech v. Commonwealth, 9 Va.

App. 272, 279, 386 S.E.2d 813, 817 (1989).



                                - 6 -
        The defendant must have "had prior knowledge of specific

conditions that would likely cause injury to others."    Clohessy v.

Weiler, 250 Va. 249, 253, 462 S.E.2d 94, 97 (1995).

        Appellant contends that he only took his eyes off the road

momentarily to look at the clipboard.    The record belies his

contention.    While we agree with appellant that a mere failure to

keep a proper look out is insufficient to support a conviction of

involuntary manslaughter, see Lewis v. Commonwealth, 211 Va. 684,

687, 179 S.E.2d 506, 509 (1971), the facts of this case are far

more egregious than mere inattention.

        The record shows that appellant drove a large, rollback

wrecker truck as part of his job responsibilities.    Appellant

stated that he was running late on the day of the collision.       An

eyewitness saw appellant driving in an unpredictable manner about

six miles from the crash site when appellant erratically switched

lanes while maneuvering through a series of curves in the road.

Appellant also had a turn signal activated, although he never made

a turn.    Appellant told Harris that he did not see the "School Bus

Stop Ahead" signs prior to the accident and that he looked at his

clipboard several times, taking his eyes off the curving, hilly

road.    Appellant also told Harris that when he did see the school

bus ahead in his travel lane, he did not decrease his speed but he

maintained a 55 mile per hour speed until slamming on the brakes

just prior to the collision.    Thus, appellant did not slow his

driving speed even when he saw the school bus, despite the fact

                                 - 7 -
that the time was approximately 3:30 p.m., which is a time when a

school bus is likely to make stops.     Appellant was familiar with

the road.    Two other drivers traveling on the same road just ahead

of appellant saw the school bus and stopped behind the bus.

     The trial court could reasonably conclude that appellant's

inattention began six miles prior to the crash site where he was

observed driving erratically.    His inattention continued through

the "S" curves where he did not observe the school bus signs.      At

the top of the first knoll he saw the school bus, but he did not

see the flashing lights and did not reduce his speed.    He

testified that he was looking up and down at his clipboard but did

not put it down until he was at the top of the second knoll.    He

then saw the stopped school bus, but it was too late to avoid the

collision.   The trial court could conclude that appellant's

attention was focused on the clipboard for nearly four-tenths of

one mile or longer.

     If appellant's attention were not diverted, he would have

seen the school bus signs.    He would have seen the school bus'

flashing lights before the bus got to the second knoll.    He was

familiar with the road, and, therefore, he should have known there

was a blind spot in the curve after the second knoll.    The other

motorists were able to safely stop after having observed what

appellant should have seen.

     The trial judge could conclude that appellant's conduct

showed a reckless disregard for human life.    Therefore, the

                                - 8 -
evidence was sufficient to prove beyond a reasonable doubt that

appellant committed the charged offenses.   We affirm the judgment

of the trial court.

                                                         Affirmed.




                              - 9 -
Benton, J., dissenting.

        "[I]nvoluntary manslaughter arising from the operation of a

motor vehicle should be predicated solely upon criminal

negligence proximately causing death."     King v. Commonwealth,

217 Va. 601, 607, 231 S.E.2d 312, 316 (1977).    "[C]riminal or

willful and wanton negligence 'involves a greater degree of

negligence than gross negligence, particularly in the sense that

in the former an actual or constructive consciousness of the

danger involved is an essential ingredient of the act or

omission.'"     Boward v. Leftwich, 197 Va. 227, 231, 89 S.E.2d 32,

35 (1955).    "While each case must be resolved on its own facts,

willful and wanton negligence generally involves some type of

egregious conduct -- conduct going beyond that which shocks

fair-minded people."     Harris v. Harman, 253 Va. 336, 341, 486

S.E.2d 99, 102 (1997).

        The evidence proved that Gray was momentarily inattentive

while driving on a highway having a speed limit of 55 miles per

hour.    Under the best of circumstances, however, the terrain of

the road limited the distance Gray could see.    After the school

bus passed over the second knoll in the road, it stopped.    The

limited sight distance that resulted from the terrain, the

location of the bus on the downside of the knoll, and Gray's

inattention, all contributed to the tragic accident.

        At best, this evidence proved Gray was grossly negligent.

Gross negligence, however, "is a manifestly smaller amount of

                                - 10 -
watchfulness and circumspection than the circumstances require

of a person of ordinary prudence. . . .   It falls short of being

such reckless disregard of probable consequence as is equivalent

to a willful and intentional wrong."    Newell v. Riggins, 197 Va.

490, 495, 90 S.E.2d 150, 153 (1955) (citation omitted).

     I respectfully dissent.




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