                                              COURT OF APPEALS OF VIRGINIA


              Present: Chief Judge Huff, Judge Decker and Senior Judge Clements
UNPUBLISHED


              Argued at Richmond, Virginia


              JOSHUA MICAH LILLARD
                                                                            MEMORANDUM OPINION* BY
              v.      Record No. 1063-14-2                                JUDGE JEAN HARRISON CLEMENTS
                                                                                   JULY 14, 2015
              COMMONWEALTH OF VIRGINIA


                                 FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY
                                           J. Howe Brown, Jr., Judge Designate

                                Joseph E. Hicks (Jarrell, Hicks & Waldman, P.C., on brief), for
                                appellant.

                                Susan Mozley Harris, Assistant Attorney General (Mark R. Herring,
                                Attorney General, on brief), for appellee.


                      Appellant appeals his conviction of reckless driving. Appellant contends he was wrongly

              convicted because the trial court erred in finding he “should have known” he was involved in an

              accident, even though the trial court acquitted him of felony hit and run and found him to be a

              credible witness. Finding the record supports the trial court’s rulings, we affirm the conviction.

                                                            Background

                      Appellant was driving his tractor trailer southbound on Interstate 95. Susan and David

              Fanfarillo were in their Volvo, also travelling on Interstate 95. The Fanfarillos testified Susan was

              driving in the center lane when they heard and felt a “big bang” at the rear end of the driver’s side of

              the car. They stated the car turned perpendicular to the highway and was being pushed by a tractor

              trailer truck. Their car separated from the truck and began to spin across the left lane. Their vehicle

              hit another car, driven by Terry Rosvall, and their car continued to spin until it came to rest on the

                      *
                          Pursuant to Code § 17.1-413, this opinion is not designated for publication.
left-hand shoulder. David surmised appellant was in the left lane and clipped the rear driver’s side

quarter of their car as appellant was maneuvering into the center lane.

        Rosvall testified he was travelling in the left lane when he heard what sounded like a

collision behind him. He looked to the rear right to see what happened. He saw the Fanfarillos’ car

spinning toward his vehicle. Their car hit his vehicle in the left lane, and his car spun across the

three lanes of traffic until it came to rest on the right shoulder of the highway. Rosvall stated the

Fanfarillos’ car was in the “middle lane.”

        The witnesses stated the truck continued travelling south on the highway without stopping

or braking. Trooper Robert Hindenlang testified he investigated the accident and spoke with

appellant at a nearby truck stop. Hindenlang pointed out damage to the truck, which included green

paint consistent with the Fanfarillos’ car and tire smears. Appellant stated that he was unaware he

had been in an accident, but conceded that the damage to his truck had not been there when he

started his trip that morning and that he must have had some kind of accident. After speaking with

the witnesses and assessing the damage to the vehicles, the trooper concluded appellant was

travelling in the left lane and hit the Fanfarillos’ car as he was moving into the center lane.

Hindenlang introduced photographs of appellant’s truck, one of which closely depicted damage to

the truck’s front right bumper and headlight, as well as paint transfer, consistent with contact with

the Fanfarillos’ vehicle.

        Appellant testified he had been travelling southbound and stopped at the truck stop for his

mandatory break. Appellant stated that he would not be in the left lane because he knows trucks are

prohibited in the left lane and that he would get a ticket. Appellant explained, and admitted

photographs that showed, the blind spots on his truck are such that he would not see a car in the

areas the Fanfarillos’ car would have been. Appellant claimed if he had known about the accident,

he would have stopped.

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        The trial court found that there was not sufficient evidence to prove appellant knew that the

accident occurred to support the felony hit and run charge. Therefore, the trial court found appellant

not guilty of the felony. However, the trial court also concluded

                the accident happened exactly as the Commonwealth’s witnesses
                said it did . . ., but I cannot find beyond a reasonable doubt that he
                did know and ran from the scene. His actions after that are not really
                consistent with one running from the scene. . . . The reckless driving
                is another question. Driving down the road oblivious to these kinds
                of things that are happening to you in a huge tractor trailer truck is
                endangering the public and he is guilty of reckless driving.

The trial court convicted appellant of reckless driving.

                                                Analysis

                         In this Court’s review of the sufficiency of the evidence we
                must uphold the conviction unless it was plainly wrong or lacked
                evidence to support it. See, e.g., Hamilton v. Commonwealth,
                279 Va. 94, 103, 688 S.E.2d 168, 173 (2010). Additionally, on
                appellate review, this Court “examine[s] the evidence in the light
                most favorable to the Commonwealth, granting to it all reasonable
                inferences fairly deducible” from that evidence. Crest v.
                Commonwealth, 40 Va. App. 165, 168, 578 S.E.2d 88, 89 (2003).
                To do so, we “‘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.’” Id. at 168, 578 S.E.2d at 89 (quoting
                Watkins v. Commonwealth, 26 Va. App. 335, 348, 494 S.E.2d 859,
                866 (1998)).

Blevins v. Commonwealth, 63 Va. App. 628, 634, 762 S.E.2d 396, 398-99 (2014) (citations

omitted).

        Code § 46.2-852 states: “Irrespective of the maximum speeds permitted by law, any person

who drives a vehicle on any 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.”

                The term “‘recklessly . . . imparts a disregard by the driver . . . for the
                consequences of his act and an indifference to the safety of life, limb,
                or property.’” Spencer [v. City of Norfolk, 271 Va. 460, 463,
                628 S.E.2d 356, 358 (2006)] (alterations in original) (quoting Powers
                v. Commonwealth, 211 Va. 386, 388, 177 S.E.2d 628, 630 (1970)).
                                                   -3-
                “The essence of the offence of reckless driving lies not in the act of
                operating a vehicle, but in the manner and circumstances of its
                operation.” Powers, 211 Va. at 388, 177 S.E.2d at 630. Factors
                tending to show recklessness include . . . “the likelihood of injury to
                other users of the highways,” lack of control of the vehicle, . . .
                “dangerous driving behavior,” . . . and noncompliance with traffic
                markers.

Id. at 635, 762 S.E.2d at 399 (citations omitted).

        Appellant conceded he was involved in the accident, though he was unaware that it

occurred. The trial court determined the evidence did not prove beyond reasonable doubt that

appellant knew the accident occurred. However, the trial court could further consider whether the

manner and circumstances of appellant’s driving were reckless. In making that determination, the

trial court clearly rejected appellant’s claim that he was not driving in the left lane. This Court will

not disturb that finding. The trier of fact is not required to accept a party’s evidence in its entirety,

Barrett v. Commonwealth, 231 Va. 102, 107, 341 S.E.2d 190, 193 (1986), but is free to believe and

disbelieve in part or in whole the testimony of any witness, Rollston v. Commonwealth, 11

Va. App. 535, 547, 399 S.E.2d 823, 830 (1991).

        The trial court determined that the accident happened in the way the Commonwealth’s

witnesses testified. The trooper’s photographs demonstrated that the truck hit the Fanfarillos’

vehicle at the front right of the truck. Despite appellant’s claim to the contrary, and consistent with

the Fanfarillos’ testimony, the evidence showed appellant was travelling in the left lane, in violation

of Code § 46.2-803.1. The trial court reasonably concluded that appellant was driving in a

prohibited lane of travel. Further, appellant acknowledged that the Fanfarillos’ car had to be in his

blind spot. Failing to keep watch of surrounding vehicles moving into a tractor trailer’s blind spots

endangers the lives of others. By not ensuring a clear pathway to change lanes, while travelling at

sixty-five miles-per-hour in a tractor trailer, appellant drove his truck in a dangerous manner that




                                                   -4-
was likely to cause injury to others. Therefore, the manner and circumstances of appellant’s

operation of the tractor trailer proved he was driving recklessly.

        Accordingly, the evidence supported the trial court’s findings and the conviction for reckless

driving is affirmed.

                                                                                           Affirmed.




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