                                          COURT OF APPEALS OF VIRGINIA


            Present: Judges Beales, Decker and AtLee
PUBLISHED


            Argued by teleconference


            DEREK JUSTICE DOGGETT
                                                                                  OPINION BY
            v.     Record No. 0548-15-2                                    JUDGE RANDOLPH A. BEALES
                                                                                 APRIL 12, 2016
            COMMONWEALTH OF VIRGINIA


                             FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                                          Steven C. McCallum, Judge

                           Gregory R. Sheldon (Bain Sheldon, PLC, on brief), for appellant.

                           Eugene Murphy, Senior Assistant Attorney General (Mark R.
                           Herring, Attorney General, on brief), for appellee.


                   Derek Justice Doggett (appellant) was convicted in a bench trial in the Circuit Court of

            Chesterfield County of felony racing in violation of Code § 46.2-865.1. On appeal to this Court,

            appellant argues that the trial court “erred by finding that the Commonwealth had proven that a race

            occurred”; erred by finding that appellant’s “failure to allow the other vehicle to pass him

            constituted behavior so gross, wanton or culpable so as to show a disregard for human life”; and

            erred “by finding that [appellant] caused the accident.” Finding that the circuit court did not err, we

            affirm appellant’s conviction for felony racing.1

                                                     I. BACKGROUND

                   Applying the established standard of review on appeal, we consider the evidence at trial “in

            the light most favorable to the Commonwealth, as we must since it was the prevailing party” in the




                   1
                    On appeal, appellant does not challenge his misdemeanor convictions for driving on a
            suspended license and failure to appear in court.
trial court. Beasley v. Commonwealth, 60 Va. App. 381, 391, 728 S.E.2d 499, 504 (2012) (quoting

Riner v. Commonwealth, 268 Va. 296, 330, 601 S.E.2d 555, 574 (2004)).

        On the night of December 29, 2013, appellant, Rosalee Hill (Hill), Kristopher Holiday

(Holiday), and Johnny Sam (Sam) went bowling. They finished bowling around 10:45 p.m. as Hill

had a curfew at 11:00 p.m. Appellant, Holiday, and Hill got into appellant’s car, and Sam got into

another car. Holiday sat in appellant’s front passenger seat, and Hill sat in the back seat of

appellant’s vehicle. Holiday testified that there was no discussion of racing before they got in the

two cars. However, he stated that, once they were driving on the road, while both cars were stopped

side-by-side waiting at a stoplight, Holiday observed that Sam made a motion with his hand. When

the stoplight turned green, both cars “took off at the light” – each in their separate lanes. The road

then turned into one lane at some point on that road, and, at this point, Sam was ahead of appellant,

and they slowed to the speed limit.

        About a mile past the traffic light, appellant passed Sam’s vehicle by crossing over a

double-yellow line. Holiday testified that appellant did not have trouble passing Sam and that he

was unsure how fast appellant’s vehicle was driving at that time, but that he passed going very

quickly. Holiday testified that he was not afraid of appellant’s speed at that point. Next, however,

Sam attempted to pass appellant by going over a double-yellow line and into the other lane, and

both vehicles sped up. Holiday testified that he told appellant, “‘Hey, man. We’re going too fast.’

And then I looked back and seen Johnny’s lights and I heard like a screeching sound kind of, and I

seen Johnny’s lights coming towards our car, and then like two seconds after that, everything just

went black, kind of, until we started rolling.” Holiday testified that appellant was going between 55

and 60 miles per hour at the time of the crash but that, when he told appellant they were going too

fast, appellant took his foot off the accelerator and the crash then happened very soon thereafter.

While Holiday suffered only a broken hand, Hill was ejected from the car upon impact. She

                                                  -2-
suffered a traumatic brain injury, a fractured pelvis, a significant injury to her right eye, and a

broken jaw as a result of the accident, all of which required a six-month stay in the hospital.

        In the place that the accident occurred, the road was one lane going each way, and had a

speed limit of 35 miles per hour. The evidence at trial showed that appellant was travelling at 55 to

60 miles per hour – more than 20 miles per hour over the speed limit – and on roads that were

“heavily soaked.” Officer Wayne Brumbaugh, the police officer who responded to the scene,

testified that, based on his examination of the paint transfer on the vehicles, the two vehicles struck

each other twice. Officer Brumbaugh further concluded that the paint transfer suggested that Sam’s

car was in the wrong lane at the time the accident occurred. Appellant told Officer Brumbaugh that

he had been going approximately 35 to 40 miles per hour. He was driving on a suspended license at

the time.

        The trial court first determined that it was relying on the plain interpretation of the word

“race” as a contest of speed. The trial court said, “I agree it takes two or more people, as the statute

implies. . . . [W]hen you race, you try to be first.” The trial court found certain facts to be

significant: (1) the drivers knew each other; (2) when the two cars were stopped next to each other

at the stoplight, Sam made a “forward sort of shaking gesture” that the trial court said “could be

construed as a gesture meaning go or go forward”; (3) there was excessive speed around the time of

the accident (traveling at least 20 miles per hour over the speed limit); and (4) the two drivers

maneuvered their cars as they passed or tried to pass each other across a double-yellow line on the

road. The trial court focused on the vehicles’ maneuvers because it found that Sam was initially the

leading car, then appellant passed Sam over a double-yellow line, and finally, when Sam attempted

to pass appellant to regain the lead position on a dark, wet, one-lane road, appellant sped up to the

point that his passenger, Holiday, said that he felt they were going too fast. Furthermore, in addition

to appellant’s participation in the race and conduct in maneuvering, the trial court found that

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“contact is caused by the fact that the defendant hasn’t yielded, hasn’t fallen back to let the

overtaking vehicle get back in the safe lane of travel.” Ultimately, the court found that the evidence

was sufficient to prove that appellant was guilty of felony racing.

                                             II. ANALYSIS

                                         A. Standard of Review

          When reviewing issues of statutory interpretation on appeal, the appellate court reviews the

lower court’s interpretation de novo. Commonwealth v. Barker, 275 Va. 529, 535, 659 S.E.2d 502,

504 (2008). However, when reviewing the sufficiency of the evidence on appeal, “a reviewing

court does not ‘ask itself whether it believes that the evidence at the trial established guilt beyond a

reasonable doubt.’” Crowder v. Commonwealth, 41 Va. App. 658, 663, 588 S.E.2d 384, 387

(2003) (quoting Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). “Viewing the evidence in the

light most favorable to the Commonwealth, as we must since it was the prevailing party in the trial

court,” Riner v. Commonwealth, 268 Va. 296, 330, 601 S.E.2d 555, 574 (2004), “[w]e must instead

ask whether ‘any rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt,’” Crowder, 41 Va. App. at 663, 588 S.E.2d at 387 (quoting Kelly v.

Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) (en banc)); see also Maxwell v.

Commonwealth, 275 Va. 437, 442, 657 S.E.2d 499, 502 (2008). “This familiar standard gives full

play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the

evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Jackson, 443 U.S.

at 319.

                            B. Trial Court’s Finding That a Race Occurred

          When determining whether the evidence is sufficient to support the circuit court’s

conclusion that a “race” occurred under Code § 46.2-865.1, we must define “race” within the

meaning of the statute. Code § 46.2-865.1(A) states in relevant part:

                                                   -4-
                Any person who, while engaging in a race in violation of § 46.2-8652
                in a manner so gross, wanton and culpable as to show a reckless
                disregard for human life . . . [c]auses serious bodily injury to another
                person who is not involved in the violation of § 46.2-865 is guilty of
                a Class 6 felony.

(Footnote added). The trial court found that a “race” is a “contest of speed” – and also a

competition for first place. The statute does not define the term “race” – perhaps because the

General Assembly felt the public and the courts would give it its plain, common-sense meaning.

“We construe statutes to ‘ascertain and give effect to the intention of the General Assembly.

Because the General Assembly’s intent ‘is usually self-evident from the statutory language,’ we

apply the plain meaning of the words used in the statute.” Farhoumand v. Commonwealth, 288 Va.

338, 343, 764 S.E.2d 95, 98 (2014) (quoting Rutter v. Oakwood Living Ctrs. of Va., Inc., 282 Va. 4,

9, 710 S.E.2d 460, 462 (2011)). The American Heritage Dictionary defines “race” as “a

competition of speed, as in running or riding.” The American Heritage Dictionary 1020 (2d college

ed. 1991). Webster’s II New College Dictionary also defines “race” as a “competition of speed.”

Webster’s II New College Dictionary 933 (3d ed. 2005).

        Based on the plain meaning of a “race” being a contest of speed between two or more motor

vehicles, the trial court certainly did not abuse its discretion in determining that a race took place.

The trial court noted that the drivers knew each other, that Sam made a forward motion when their

two vehicles were stopped next to each other at the stoplight, that appellant’s vehicle was traveling

at a high rate of speed at the time of the accident, and that both vehicles “made maneuvers” in order

to get in front of the other car, even when the road narrowed down to one lane of traffic in their

direction and that lane was bounded by a double-yellow line. In short, there was plenty of evidence

to support the trial court’s conclusion that a “race” occurred.


        2
          Code § 46.2-865 states (in relevant part): “Any person who engages in a race between
two or more motor vehicles on the highways in the Commonwealth . . . shall be guilty of reckless
driving.”
                                                -5-
                 C. Appellant’s Failure to Allow Sam to Pass Appellant’s Vehicle

       Appellant argues on appeal that the trial court “erred by finding that Doggett’s failure to

allow the other vehicle to pass him constituted behavior so gross, wanton or culpable so as to show

a disregard for human life.” The Commonwealth must actually prove that a defendant acted in a

manner “so gross, wanton and culpable as to show a reckless disregard for human life.” Code

§ 46.2-865.1 (emphasis added). Virginia courts apply an objective test of awareness when

determining whether a defendant acted with such criminal negligence.3 See Keech v.

Commonwealth, 9 Va. App. 272, 281, 386 S.E.2d 813, 818 (1989). Therefore, appellant must have

had an actual or constructive consciousness of the danger involved in his act or omission. Id. at

280-81, 386 S.E.2d at 818.

       In this case, appellant knew (or certainly should have known) that the roads were wet, that

the speed limit was 35 miles per hour, that there was almost no shoulder on the road, that driving

fast by itself in those conditions would be quite dangerous, and that racing another vehicle would

create a dangerous situation that likely would lead to injury, especially when the drivers are

attempting to pass each other in the lane for oncoming traffic. Consequently, the trial court did not

err by finding that appellant’s failure to allow the other vehicle to pass him (and even speeding up

when Sam attempted to pass), while engaged in a race in violation of Code § 46.2-865, was

behavior so gross, wanton, and culpable so as to show a reckless disregard for human life.

              D. No Trial Court Error in Finding That Appellant Caused the Accident

       The trial court found that appellant caused the accident when he would not allow Sam to

pass him in the conditions under which this race occurred. Appellant argues that he did not cause

the accident because he did not leave his lane of travel or cause the contact with Sam’s vehicle –

       3
           While Virginia appellate courts have not yet considered the criminal negligence element in
this statute, we note that the same criminal negligence language has been interpreted in involuntary
manslaughter cases within the Commonwealth, and those cases provide a persuasive legal analysis
for this case. See, e.g., Keech v. Commonwealth, 9 Va. App. 272, 386 S.E.2d 813 (1989).
                                                  -6-
and that there is no evidence that, but for appellant’s actions of briefly speeding up, the accident

would not have occurred. He also claims that no evidence was presented to demonstrate why Sam

lost control of the vehicle and that, therefore, no rational trier of fact could conclude that, but for

appellant speeding up briefly, the accident would not have occurred. The Commonwealth counters

by arguing that appellant’s actions did proximately cause Hill’s serious bodily injury. The

Commonwealth also argues that the other driver’s concurrent negligence is not an intervening cause

under the facts of this case.

        The language of Code § 46.2-865.1 is consistent with the principle of proximate causation.

See Code § 46.2-865.1. In O’Connell v. Commonwealth, 48 Va. App. 719, 634 S.E.2d 379 (2006),

this Court concluded that negligence on the part of a co-participant in a drag race is not a complete

defense for the defendant if the defendant’s negligent conduct is a proximate cause of the victim’s

death. Id. at 729, 731-32, 634 S.E.2d at 384, 385. O’Connell was at a bar when he challenged

another man to a drag race with their vehicles. Id. at 723, 634 S.E.2d at 381. Despite the fact that

the other man initially declined, both men got into their vehicles (the other man also had a passenger

in his car), O’Connell gave the signal for the race to begin, and both vehicles reached speeds of over

100 miles per hour. Id. at 724, 634 S.E.2d at 381. Each driver lost control of his own vehicle

independently of the other, and both cars crashed without touching the other car. Id. The other

driver and the other driver’s passenger died. Id. at 723-24, 634 S.E.2d at 381. This Court found

that, despite the other driver’s negligence in racing as well and in losing control of his own car,

O’Connell’s criminal negligence was a proximate cause of the deaths of two individuals because:

                Given this evidence, an average person should or would have
                foreseen the inherent risk that a driver could lose control during the
                race, posing a danger of serious injury to himself and others.
                [O’Connell] set this course of events in motion and did nothing to
                prevent such a risk. Thus, any negligence [the other driver] may
                have committed was not an independent, intervening cause of the
                accident.

                                                   -7-
Id. at 732, 634 S.E.2d at 385. While the facts in this case are somewhat different (for example, Sam

gave the apparent signal to start the race), the main holding of O’Connell also applies here.

Appellant’s act of racing is a proximate cause of Hill’s severe injuries. Sam’s negligence in hitting

appellant’s car does not mean that Sam’s negligence was an intervening cause because appellant

was already engaged in racing, had passed Sam, and then sped up to prevent Sam from passing him

when Sam was in the lane of oncoming traffic maneuvering to pass appellant. Sam’s racing does

not absolve appellant from his own voluntary participation in the race and in extremely dangerous

behavior for appellant’s passengers and for other cars on the road as well. In O’Connell, this Court

found O’Connell to be guilty, even though O’Connell’s car did not touch the co-participant’s car.

While, unlike here, O’Connell was the one who set the chain of events in motion by asking to race,

the co-participant’s failure to maintain control under the facts of that case, like in this case, was a

completely foreseeable event.

        In this case, appellant’s acts of racing in a manner so gross, wanton, and culpable as to show

a reckless disregard for human life caused Hill’s injuries. A rational trier of fact surely could have

concluded that, if appellant had not raced and had not attempted to keep Sam from passing him, Hill

would not be injured. The fact that Sam was driving the car that ultimately hit appellant’s car

before both cars went off the road was not an intervening cause such that it would break the chain of

causal connection.

        Appellant also argues, “It cannot be said that but for Doggett speeding up briefly, the

accident would not have occurred.” However, this argument blithely ignores the fact that, before

that moment when appellant sped up, appellant and Sam were already engaged in a race. Because

both parties were already engaged in a race, both parties’ course of conduct (the cars passed one




                                                   -8-
another for the lead position) caused the accident. Consequently, the trial court did not abuse its

discretion when it determined that appellant was the cause of Hill’s foreseeable injuries.

          For all of these reasons, we will not disturb appellant’s conviction for felony racing.

                                           III. CONCLUSION

          In summary, we hold that, after applying the plain meaning of the word “race,” the evidence

was sufficient to support a finding that appellant was racing. Furthermore, the evidence was

sufficient for a rational factfinder to conclude that appellant acted in a manner so gross, wanton, and

culpable as to show a reckless disregard for human life – and that those actions caused serious

bodily injury to Hill. Consequently, we affirm the circuit court’s conviction of appellant for felony

racing.

                                                                                               Affirmed.




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