                   COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Bray and Senior Judge Overton
Argued at Norfolk, Virginia


WILLIAM BELL LILLIBRIDGE
                                         MEMORANDUM OPINION * BY
v.   Record No. 0895-98-1                JUDGE NELSON T. OVERTON
                                               JUNE 1, 1999
CITY OF NEWPORT NEWS


        FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
                      Robert W. Curran, Judge

          Charles E. Haden (Thomas L. Hunter, on
          brief), for appellant.

          No brief or argument for appellee.


     William Bell Lillibridge (appellant) was convicted in a bench

trial of a single misdemeanor count of following too closely in

violation of Newport News Municipal Code § 26-8, which

incorporated Code § 46.2-816.   He contends that the evidence was

insufficient to find that he was guilty of following more closely

than was reasonable and prudent under the circumstances.   For the

following reasons, we affirm the conviction.

     "Where the sufficiency of the evidence is challenged after

conviction, it is our duty to consider it in the light most

favorable to the Commonwealth and give it all reasonable




    *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
inferences fairly deducible therefrom."    Higginbotham v.

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).

       So viewed, the evidence proved that on December 10, 1997,

Michelle Beamon's car was stopped at a red light at an

intersection.   Beamon's car was fifteen cars behind the lead

car.   When the light turned green, Beamon took her foot off the

brake but, because of traffic, did not resume forward motion.

Looking into her rearview mirror, she saw appellant's Jeep

approaching at a speed of forty-five miles per hour.   Appellant

switched from the right hand travel lane to the left hand lane,

where Beamon was located.   Beamon testified that appellant

slammed on his brakes when he was one car length behind her.

Appellant was unable to stop in time, and, although he swerved

to the right, he hit Beamon's car in the right rear bumper.      The

force of the accident pushed Beamon's car up onto the median.

       The speed limit at the accident scene was forty-five miles

per hour.   It was drizzling that day, and the roads were wet.

       Appellant advised Officer Robinson that the wet road caused

him to slide into Beamon's car.   At trial, appellant introduced

an April 6, 1998 invoice from a brake repair shop indicating

that the rear brakes on appellant's car were "out of

adjustment."

       "The driver of a motor vehicle shall not follow another

motor vehicle . . . more closely than is reasonable and prudent,



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having due regard to the speed of both vehicles and the traffic

on, and the condition of, the highway at the time."    Code

§ 46.2-816.   "We have construed this statute as granting a

driver the right to follow another vehicle as closely as is

reasonable and prudent under the circumstances.    What

constitutes a reasonable distance must, in each instance, depend

upon the particular facts involved."     Clifton v. Gregory, 212

Va. 859, 862, 188 S.E.2d 203, 206 (1972).    "'[T]he driver of a

vehicle has a duty to use ordinary care to keep his vehicle

under proper control.'"   Kennedy v. Commonwealth, 1 Va. App.

469, 473, 339 S.E.2d 905, 908 (1986) (quoting Meeks v. Hodge,

226 Va. 106, 109, 306 S.E.2d 879, 881 (1983)).

     The Commonwealth's evidence proved that appellant was

following more closely than was reasonable and prudent under the

circumstances.   While he was travelling the speed limit, the

road was wet and he was approaching traffic that was stopped at

a traffic signal.   He did not begin braking his vehicle until he

was approximately one car length away from Beamon.    Appellant's

evidence that his brakes were out of adjustment in April 1998

revealed nothing about the brakes' condition in December 1997.

     The trial court accepted the Commonwealth's evidence and

rejected appellant's evidence.    "The weight which should be

given to evidence and whether the testimony of a witness is

credible are questions which the fact finder must decide."

Bridgeman v. Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598,

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601 (1986).   The Commonwealth's evidence was competent, was not

inherently incredible, and was sufficient to prove beyond a

reasonable doubt that appellant was guilty of following too

closely.   Accordingly, we affirm appellant's conviction.

                                                   Affirmed.




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Benton, J., dissenting.

     The evidence proved that the collision was caused by either

William Bell Lillibridge's failure to maintain a reasonably

constant lookout or diminished traction on a wet pavement.       No

evidence in this record proved that Lillibridge was following

the other vehicle on the roadway or was in such proximity to the

other vehicle that he could not have stopped in time if the

pavement was dry and Lillibridge had maintained a proper

lookout.   The driver of the other vehicle saw Lillibridge's

vehicle "approaching for some time in her rear view mirror" and

saw Lillibridge's vehicle switch from one driving lane to

another before it hit her vehicle.      She said Lillibridge's

vehicle was one car length behind when Lillibridge applied the

brakes.    Her vehicle was stopped on a downhill grade.   The

evidence also proved the roadway was wet.

     Code § 46.2-816 states that "[t]he driver of a motor

vehicle shall not follow another motor vehicle, . . . more

closely than is reasonable and prudent, having due regard to the

speed of both vehicles and the traffic on, and conditions of,

the highway at the time."   This statute is directed against the

dangerous practice of tailgating and is not applicable to the

factual circumstances of this case.      See e.g. Wrinn v. State,

646 A.2d 869, 872-74 (Conn. App. 1994), aff'd, 661 A.2d 1034,

1036-37 (Conn. 1995) (holding that a substantially identical

statute, which provides that "[n]o driver of a motor vehicle

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shall follow another vehicle more closely than is reasonable and

prudent, having regard for the speed of such vehicles, the

traffic upon and the condition of the highway and weather

conditions," only applies when two vehicles are simultaneously

in motion, one traveling closely behind the other); Milwaukee &

Suburban Transport Corp. v. Royal Transit Co., 139 N.W.2d 595,

600-01 (Wisc. 1966) (holding that "[t]he statute [, which

provides that '[t]he operator of a motor vehicle shall not

follow another vehicle more closely than is reasonable and

prudent, having due regard for the speed of such vehicle and the

traffic upon and the condition of the highway,'] is directed

against the dangerous and pernicious practice of 'tailgating'").

     The evidence may have been sufficient to establish that

Lillibridge committed other offenses, such as improper driving,

see Code § 46.2-869, or even driving at a speed unreasonable

under the conditions existing at the time, see Code § 46.2-861.

However, the evidence failed to prove Lillibridge "follow[ed]

another motor vehicle . . . more closely than [was] reasonable

and prudent."   Code § 46.2-816.   The statute simply does not

apply when the evidence proves that one motor vehicle, which is

a substantial distance from a stationary motor vehicle, closes

the distance between the two vehicles at a steady or




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accelerating pace and hits the stationary vehicle.   See Wrinn,

661 A.2d at 1036.

     For these reasons, I would reverse the conviction.




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