                    COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Coleman and Frank
Argued at Salem, Virginia


BARRY WILLIE McCAIN
                                     MEMORANDUM OPINION * BY
v.   Record No. 1789-99-3       CHIEF JUDGE JOHANNA L. FITZPATRICK
                                           MAY 9, 2000
COMMONWEALTH OF VIRGINIA
 AND CITY OF DANVILLE


          FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
                      James F. Ingram, Judge

          S. Jane Chittom, Appellate Counsel (Public
          Defender Commission, on briefs), for
          appellant.

          Amy L. Marshall, Assistant Attorney General
          (Mark L. Earley, Attorney General, on
          brief), for appellees.


     Barry Willie McCain (appellant) was convicted in a bench

trial of driving under the influence of alcohol, in violation of

Code § 18.2-266, and driving after having been declared an

habitual offender, second offense, in violation of Code

§ 46.2-357.    On appeal, he argues that:   (1) the evidence was

insufficient to prove that he was the operator of the car; and

(2) the trial court erred in limiting his cross-examination of

the officer.   For the following reasons, we affirm.




     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
                                I.

     When the sufficiency of the evidence is challenged on

appeal, we determine whether the evidence, viewed in the light

most favorable to the prevailing party, the Commonwealth, and

the reasonable inferences fairly deducible from that evidence

support each and every element of the charged offense.    See

Moore v. Commonwealth, 254 Va. 184, 186, 491 S.E.2d 739, 740

(1997); Derr v. Commonwealth, 242 Va. 413, 424, 410 S.E.2d 662,

668 (1991).   "In so doing, we must discard the evidence of the

accused in conflict with that of the Commonwealth, and regard as

true all the credible evidence favorable to the Commonwealth and

all fair inferences that may be drawn therefrom."    Watkins v.

Commonwealth, 26 Va. App. 335, 349, 494 S.E.2d 859, 866 (1998).

"We will not reverse the judgment of the trial court, sitting as

the finder of fact in a bench trial, unless it is plainly wrong

or without evidence to support it."    Reynolds v. Commonwealth,

30 Va. App. 153, 163, 515 S.E.2d 808, 813 (1999) (citing Martin

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

(1987)).

     Viewed in this light, the evidence established that on

February 11, 1999, Sundi Parrish (Parrish) was at home when she

heard a "squallin' of tires and a big boom."   She looked out the

front door and found a brown Camaro in the yard and the

appellant lying on the ground about ten feet from the "driver's

side" of the car.   Parrish also witnessed "another gentleman

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comin' from the passenger side, and gettin' out of the driver's

side of the car."    When Parrish asked appellant if she should

call 911, he said no and instead asked her not to call the

police.

        Prior to the accident, Jason Vaughn (Vaughn) was driving

his car when he heard tires squeal and observed a brown Camaro

swerve in the road, skid, and come to a stop in an adjacent

yard.    Vaughn proceeded down the street to a nearby market to

call the police.    When he returned to the scene of the accident,

he saw appellant "sittin' on the driver side of his car . . .

with his legs out, on the side."    Vaughn noticed that appellant

had "some lacerations, but appeared to be okay."    Although he

did not see "the face of the driver" when the accident occurred,

Vaughn identified appellant as the man sitting in the driver's

seat of the car when he returned from calling the police.

        Officer T.B. Scearce (Scearce) arrived at the scene

approximately fifteen minutes later.     He testified that the car

was damaged on the left side and that appellant had minor

injuries on the left side of his body.    Upon investigation,

Scearce learned that the vehicle was registered in the name of

appellant's father, Willie McCain.

        Appellant was charged with driving under the influence of

alcohol and driving after having been declared an habitual

offender, second offense.    During the Commonwealth's case,

appellant moved to dismiss the DUI charge, arguing that the

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officer did not have probable cause to arrest appellant as the

driver of the car.   The trial court denied appellant's motion,

stating the following:

          I think the evidence points to the defendant
          as the driver. Ms. Parrish came out of the
          house as soon as the collision or accident
          occurred, and she testified to what she saw.
          It had just happened. She saw the passenger
          crawl out of the car, as well as the
          defendant lying on the ground. Mr. Vaughn
          testified he observed the defendant as the
          driver of the car, and saw it go off the
          road and wreck. I think that . . . the
          testimony of those two people, as well as
          the other evidence adduced is sufficient.

At the conclusion of the Commonwealth's case, appellant moved to

strike the evidence, arguing that the Commonwealth failed to

prove that he was the "driver" of the car.   The trial court

denied the motion, and appellant did not present evidence.     The

trial court convicted appellant of the offenses charged.

                                II.

     Appellant contends that the evidence was insufficient to

convict him of both driving offenses because no witness directly

identified him as the driver of the car.   He argues that the

trial court mistakenly concluded that Vaughn observed him

driving the car.   Appellant concludes that the evidence was

entirely circumstantial and did not exclude every reasonable

hypothesis of innocence (i.e., that the other occupant was

driving the car at the time of the accident).




                               - 4 -
     "'Circumstantial evidence is as competent and is entitled

to as much weight as direct evidence, provided it is

sufficiently convincing to exclude every reasonable hypothesis

except that of guilt.'"    Byers v. Commonwealth, 23 Va. App. 146,

151, 474 S.E.2d 852, 855 (1996) (quoting Coleman v.

Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983)).

"[W]here the Commonwealth's evidence as to an element of an

offense is wholly circumstantial, 'all necessary circumstances

proved must be consistent with guilt and inconsistent with

innocence and exclude every reasonable hypothesis of

innocence.'"   Id. (quoting Moran v. Commonwealth, 4 Va. App.

310, 314, 357 S.E.2d 551, 553 (1987)).   However, the

Commonwealth "'is not required to disprove every remote

possibility of innocence, but is, instead, required only to

establish guilt of the accused to the exclusion of a reasonable

doubt.'"   Cantrell v. Commonwealth, 7 Va. App. 269, 289, 373

S.E.2d 328, 338 (1988) (quoting Bridgeman v. Commonwealth, 3 Va.

App. 523, 526-27, 351 S.E.2d 598, 600 (1986)).   "The hypotheses

which the prosecution must reasonably exclude are those 'which

flow from the evidence itself, and not from the imagination of

defendant's counsel.'"    Id. at 289-90, 373 S.E.2d at 338-39

(quoting Black v. Commonwealth, 222 Va. 838, 841, 284 S.E.2d

608, 609 (1981)).

     Viewed in the light most favorable to the Commonwealth, the

evidence, although circumstantial, was sufficient to prove that

                                - 5 -
appellant was the driver of the car.       Immediately after Parrish

heard the squealing of the tires and a loud boom, she observed

appellant lying on the ground on the driver's side of the car.

At that time, Parrish also observed the other occupant climb

"from the front passenger side of the vehicle" and "exit [from]

the driver's side door."      Additionally, when Vaughn, the second

witness, arrived at the scene appellant was sitting in the

driver's seat with his legs out the side door.      Moreover,

appellant sustained injuries to the left side of his body, which

were consistent with the damage to only the driver's side of the

car.       The other occupant did not sustain any injuries.   Finally,

the vehicle was registered in the name of appellant's father.

       The Commonwealth's evidence, including the testimony of the

two witnesses and the nature of appellant's injuries and damage

to the left side of the car, was competent, was not inherently

incredible and was sufficient to prove beyond a reasonable doubt

that appellant was the driver of the car. 1



       1
       In determining whether the evidence is sufficient to
support the conviction, we do not consider the trial court's
mischaracterization of Vaughn's testimony that "he observed the
defendant as the driver of the car." We consider only the
sufficiency of the circumstantial evidence supporting the court's
finding that appellant was the driver. Appellant's counsel did
not object to the mischaracterization, which would have given the
trial judge an opportunity to explain whether he misunderstood or
was drawing that conclusion from Vaughn's observations of the
vehicle and observing appellant seated in the driver's seat when
he returned. In any event, the issue of the judge's
mischaracterization is not before us on appeal. See Rule 5A:18.


                                   - 6 -
     Additionally, appellant's argument that the trial court

improperly limited his cross-examination of Officer Scearce is

procedurally barred.   "It is well settled that when a party's

evidence has been ruled inadmissible, the party must proffer or

avouch the evidence for the record in order to preserve the

ruling for appeal; otherwise, the appellate court has no basis

to decide whether the evidence was admissible."   Zelenak v.

Commonwealth, 25 Va. App. 295, 302, 487 S.E.2d 873, 876 (1997)

(en banc).   Because the record failed to contain the proffer, we

are unable to consider this question on appeal.   Accordingly,

appellant's convictions are affirmed.

                                                        Affirmed.




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