Present: Hassell, C.J., Lacy, Keenan, Koontz, Kinser, and
Lemons, JJ., and Compton,* S.J.

MARGUERITE SPENCER

v.   Record No. 051044    OPINION BY JUSTICE ELIZABETH B. LACY
                                      April 21, 2006
CITY OF NORFOLK

              FROM THE COURT OF APPEALS OF VIRGINIA

      In this appeal we are asked to consider whether the

evidence is sufficient to sustain a conviction for a violation

of the reckless driving provision of the Norfolk City Code.

We also must determine as a threshold matter whether this case

is within this Court's subject matter jurisdiction.

                              FACTS

      We recite the facts along with all reasonable inferences

fairly deducible therefrom in the light most favorable to the

prevailing party in the proceedings below.   Coles v.

Commonwealth, 270 Va. 585, 587, 621 S.E.2d 109, 110 (2005).

      On November 19, 2003, Mary Parsons was babysitting

twelve-year-old Kelyn Cusson when Parsons' dog jumped the

fence, and Parsons asked Cusson to retrieve the dog.    Cusson

followed the dog into a neighbor's yard.   When she attempted

to put a leash on the dog, she heard a loud, long horn coming

from a car parked in the driveway of a house diagonally across


      *
       Senior Justice Compton participated in the hearing and
decision of this case before his death on April 9, 2006.
the street.   Marguerite Spencer was in the car.   The dog ran

into the street, and Cusson followed.   Spencer drove the car

out of her driveway and in the direction of Parsons' house.

Cusson "walked quickly" towards a van parked in front of

Parsons' home.   As Spencer passed Cusson at a "fast" rate of

speed, Cusson "felt the wind coming off the car" that "blew

her and caused her to step back."   Cusson estimated Spencer's

car passed her at a distance of "about 3 feet."    Cusson then

joined Parsons on Parsons' porch.   Parsons called after

Spencer but although Spencer had stopped the car, she pulled

away and did not talk with Parsons.   Spencer circled the block

twice before parking again in her driveway.

     Spencer was charged with and convicted of reckless

driving in violation of Norfolk City Code § 25-217.   The trial

court sentenced Spencer to 10 days imprisonment in the Norfolk

City Jail but suspended the sentence conditioned on Spencer's

good behavior for a period of two years and having no contact

with Cusson or her mother.   The trial court also imposed a

fine of $250.00.   The Court of Appeals denied Spencer's

petition for appeal by order, Spencer v. City of Norfolk,

Record No. 1312-04-1 (May 2, 2005).   We awarded Spencer an

appeal.

     As a threshold matter, we must determine whether this

appeal is within the category of cases that this Court may


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consider; that is to say, does this Court have subject matter

jurisdiction?   Morrison v. Bestler, 239 Va. 166, 170, 387

S.E.2d 753, 755 (1990) ("a court always has jurisdiction to

determine whether it has subject matter jurisdiction").       Code

§ 17.1-411 provides that this Court may hear an appeal of any

case in which a party is aggrieved by a final decision of the

Court of Appeals except in those cases in which the decision

of the Court of Appeals is made final by Code §§ 17.1-410 or

19.2-408.   A judgment of the Court of Appeals is final under

Code § 17.1-410 in traffic infraction and misdemeanor cases

"where no incarceration is imposed."       Code § 17.1-410(A)(1).

     The City argues that this Court does not have subject

matter jurisdiction to consider this appeal because the trial

court suspended Spencer's jail sentence and therefore imposed

no incarceration.   We disagree.       The finality provisions of

Code § 17.1-410(A)(1) do not require physical confinement,

only the imposition of incarceration.       In this case, the trial

court imposed a 10-day period of incarceration.       The

subsequent suspension of the sentence does not eliminate the

imposition of the jail sentence and place this case in a

category of cases in which no incarceration is imposed.

Accordingly, we conclude that this appeal is within the class

of cases that we may consider.     We now turn to the merits of

Spencer's appeal.


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       Spencer was convicted of violating Norfolk City Code

§ 25-217, which substantially mirrors Code § 46.2-852 in

defining "reckless driving:"

       Irrespective of the maximum speeds provided in
       this article, any person who drives a vehicle
       on any street or highway recklessly or at a
       speed or in a manner so as to endanger the
       life, limb, or property of any person shall be
       guilty of reckless driving.

In Powers v. Commonwealth, 211 Va. 386, 388, 177 S.E.2d 628,

630 (1970), this Court held that " 'recklessly' . . . imparts

a disregard by the driver . . . for the consequences of his

act and an indifference to the safety of life, limb or

property" and that speed alone does not constitute

recklessness unless it endangers life, limb, or property.     In

applying these principles and determining whether the evidence

was sufficient to support the conviction, our rules of

appellate review require that we must affirm the conviction

unless it is plainly wrong or without evidence to support it.

Commonwealth v. Presley, 256 Va. 465, 466, 507 S.E.2d 72, 72

(1998).

       In this case, Cusson and Spencer were the only

eyewitnesses to the facts surrounding the driving at issue.

Their testimony does not demonstrate that Spencer was driving

erratically, nor does it indicate she lacked control of the

car.   Cf. Miles v. Commonwealth, 205 Va. 462, 468, 138 S.E.2d



                                 4
22, 27 (1964) (finding recklessness where driver drove

diagonally across road in front of police officer, forcing

officer to brake "violently" in order to avoid collision);

Sheckler v. Anderson, 182 Va. 701, 705-66, 29 S.E.2d 867, 868-

69 (1944) (finding recklessness where driver in residential

neighborhood maintained speed too fast to allow him to stop to

avoid emergency).

     Spencer drove out of her driveway and proceeded up the

street.   Cusson was aware of Spencer's car before it left the

driveway because she heard the horn blowing.    According to

Cusson's testimony, she followed the dog into the street, the

dog ran back to Parsons' house, and then Cusson walked to the

van parked in front of Parsons' house.   Thus, at the time the

"wind blew her," Cusson was standing in the street near the

van parked in the street, and when Spencer passed Cusson, her

car was not near the curb but had to be in the travel lane of

the street, three feet beyond the parked van.   Though Cusson

testified she had to "step back," she claimed she did so

because of the wind, not because she feared injury or impact

with Spencer's car.   "Fast" driving alone, without the element

of endangering life, limb, or property, is not sufficient to

support a conviction for reckless driving.   Powers, 211 Va. at

388, 177 S.E.2d at 630.




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        This record does not support a conclusion that Spencer

had a disregard for the consequences of her act, was

indifferent to the safety of others, or that her rate of speed

endangered Cusson.    Therefore, we will reverse the judgment of

the Court of Appeals, vacate the conviction, and dismiss the

case.

                                      Reversed and final judgment.




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