                    COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Fitzpatrick and Overton
Argued at Salem, Virginia


TONY DOUGLAS HUFFMAN

v.       Record No. 1310-95-3             MEMORANDUM OPINION * BY
                                       JUDGE JOHANNA L. FITZPATRICK
COMMONWEALTH OF VIRGINIA                      APRIL 23, 1996


           FROM THE CIRCUIT COURT OF BOTETOURT COUNTY
                   George E. Honts, III, Judge
          Jonathan M. Apgar (Damico & Apgar, on brief),
          for appellant.

          H. Elizabeth Shaffer, Assistant Attorney
          General (James S. Gilmore, III, Attorney
          General, on brief), for appellee.


     Tony Douglas Huffman (appellant) was convicted in a bench

trial of driving after having been adjudicated an habitual

offender in violation of Code § 46.2-357.   On appeal, he argues

that the trial court erred in finding the evidence sufficient to

support a felony conviction under Code § 46.2-357(B)(2).    Finding

no error, we affirm the trial court.

     On November 26, 1994 at 12:40 a.m., Trooper S. T. Oliver

(Oliver) of the Virginia State Police was driving south in the

left-hand lane of Interstate 81, near the truck scales in

Botetourt County.   A vehicle travelling in the right-hand lane

"abruptly" swerved over into Oliver's lane to avoid hitting the

pickup truck driven by appellant.   The pickup truck had no tail

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
lights and, when the vehicles exited "the lighted area [near the

scales] going into the darkness, it was very difficult to see."

Oliver stopped the pickup truck and immediately noticed a strong

odor of alcohol on appellant.   Appellant told Oliver that he was

an habitual offender, that the pickup truck did not belong to

him, and that he did not know that the tail lights were out.

Oliver called the dispatcher to run a computer check and

confirmed that appellant had been adjudicated an habitual

offender in 1992.   Appellant failed all three field sobriety

tests administered by Oliver, and Oliver arrested appellant for

felony habitual offender and drunk driving.
     At trial, appellant moved to strike the Commonwealth's

evidence on the felony habitual offender charge, arguing that his

driving did not constitute specific endangerment of the life,

limb, or property of another.   The trial judge denied the motion

and stated as follows:
          [U]nder all the circumstances of the case
          operating a motor vehicle that you're not
          familiar with without checking as to its
          safety features including its lights and the
          way you operated there that the trooper
          observed causing the other car to swerve to
          avoid you plus the fact that you were under
          the influence of alcohol is sufficient to
          raise that to the felony level . . . .


Appellant was convicted of both the felony habitual offender and

drunk driving charges.

     When the sufficiency of the evidence is challenged on

appeal, we view the evidence "in the light most favorable to the




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Commonwealth, granting to it all reasonable inferences fairly

deducible therefrom."    Martin v. Commonwealth, 4 Va. App. 438,

443, 358 S.E.2d 415, 418 (1986).

     Code § 46.2-357(B) provides as follows:
               2. If such driving, of itself, does
          endanger the life, limb, or property of
          another, such person shall be guilty of a
          felony punishable by confinement in the state
          correctional facility for not less than one
          year nor more than five years or, in the
          discretion of the jury or the court trying
          the case without a jury, by confinement in
          jail for twelve months . . . .

(Emphasis added).   This Court recently held in Lawrence v.

Commonwealth, 20 Va. App. 653, 460 S.E.2d 259 (1995), that

evidence of intoxication, combined with evidence of negligent

driving behavior, is sufficient to support a felony habitual

offender conviction.    Id. at 657, 460 S.E.2d at 260-61.    See also

Travis v. Commonwealth, 20 Va. App. 410, 417, 457 S.E.2d 420, 423

(1995) (evidence of intoxication and weaving driving behavior

sufficient to support felony habitual offender conviction).     This

Court has held that driving while intoxicated, standing alone, is

not deserving of felony treatment under Code § 46.2-357.      Bishop

v. Commonwealth, 20 Va. App. 206, 210, 455 S.E.2d 765, 767

(1995).   However, a defendant's driving behavior need not

"actually harm another person or his property or . . . require

another person to take evasive action to avoid injury or damage

to his property for the felony section to apply."    Lawrence, 20

Va. App. at 657, 460 S.E.2d at 261.



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     In the instant case, the trial court did not err in finding

the evidence sufficient to support appellant's conviction for

felony habitual offender.   The record established that appellant

was intoxicated; that he was negligent in driving the pickup

truck without operating tail lights; and that his negligent

operation of the vehicle endangered the life of the driver who

was forced to swerve to avoid a collision with the truck.

Although Code § 46.2-357(B)(2) does not require evidence that a

defendant's driving behavior actually harm the life, limb, or

property of another, such evidence is present in this case.

Thus, appellant's intoxication, combined with his negligent

driving behavior, was sufficient to prove that appellant's

"driving, of itself, . . . endanger[ed] the life, limb, or

property of another."
     Accordingly, the decision of the trial court is affirmed.

                                                   Affirmed.




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