                    COURT OF APPEALS OF VIRGINIA


Present: Judges Bray, Overton and Bumgardner
Argued at Salem, Virginia


HENRY ADOLPHUS THOMPSON
                                               OPINION BY
v.         Record No. 1498-97-3          JUDGE RICHARD S. BRAY
                                              JULY 7, 1998
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
                     Mosby G. Perrow, III, Judge
           Margaret A. Nelson, Assistant Public
           Defender, for appellant.

           Donald E. Jeffrey, III, Assistant Attorney
           General (Mark L. Earley, Attorney General;
           Leah A. Darron, Assistant Attorney General,
           on brief), for appellee.



     Henry Adolphus Thompson (defendant) was convicted in a bench

trial for reckless driving and feloniously driving after having

been adjudicated an habitual offender, violations of Code

§§ 46.2-852 and 46.2-357(B)(2), respectively.      On appeal,

defendant complains that the evidence was insufficient to support

the convictions.   We agree and reverse and remand for further

proceedings consistent with this opinion.

     Under familiar principles, we view the evidence in the light

most favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom.     Higginbotham v.

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

     On January 1, 1997, Lynchburg Police Officer M.R. Gillispie

was dispatched to a single car accident at 12th and Federal

Streets.   Upon arrival, Gillispie found an automobile crashed
into a utility pole and medical personnel treating a passenger

for "severe head injuries."   Neither the driver nor other

occupants of the vehicle were at the scene, but Gillispie soon

learned that another officer had detained a suspect a "couple

blocks from the accident."    Gillispie proceeded immediately to

that location and encountered defendant, bleeding from a "visible

cut to his face and nose and . . . complaining of chest pain,"

injuries "consistent with the crushed steering wheel and the face

print on the driver's side windshield."   Gillispie also observed

that defendant's eyes were "glassy," he was "unsteady on his

feet," and emitted "a strong odor of alcohol."   When defendant

was unable to successfully perform a series of field sobriety

tests, Gillispie arrested him for driving under the influence of

alcohol. 1

     Subsequent to arrest, defendant stated he drove the vehicle

at the time of the accident, "because the others were too drunk,"

and "had been an habitual offender for about ten years."

Although he denied drinking alcohol after the accident, defendant

admitted consuming "about four beers and two shots of liquor"

sometime previously, at an unnamed location on Federal Street.

     At trial, the court, after accepting defendant's guilty plea

     1
      Defendant was found not guilty of driving under the
influence by the general district court. Although evidence of
intoxication was presented during the instant trial for reckless
driving, the record does not disclose defendant's blood alcohol
content, and the trial court did not find that he was intoxicated
either at the time of the accident or arrest.




                                - 2 -
to leaving the scene of the accident in violation of Code

§ 46.2-894, convicted him upon pleas of not guilty to reckless

driving and felonious endangerment by an habitual offender, the

instant offenses.    On appeal, defendant challenges the

sufficiency of the evidence to support the latter convictions.

                        I.   Reckless Driving

     Code § 46.2-852 provides, in pertinent part, that "any

person who drives a vehicle on any highway recklessly or at a

speed in a manner so as to endanger the life, limb, or property

of any person shall be guilty of reckless driving."      Code

§ 46.2-852.   "The word 'recklessly' as used in the statute

imparts a disregard by the driver of a motor vehicle for the

consequences of his act and an indifference to the safety of

life, limb or property."     Powers v. Commonwealth, 211 Va. 386,

388, 177 S.E.2d 628, 630 (1970).    "The essence of the offense

. . . lies not in the act of operating a vehicle, but in the

manner and circumstances of its operation."       Id.; Hall v.
Commonwealth, 25 Va. App. 352, 355, 488 S.E.2d 651, 653 (1997).

Thus, "[t]he mere happening of an accident does not give rise to

an inference of reckless driving."       Powers, 211 Va. at 388, 177

S.E.2d at 630.   To convict, the Commonwealth must "prove every

essential element of the offense beyond a reasonable doubt," with

evidence which excludes "every reasonable hypothesis of innocence

and . . . consistent only with . . . guilt . . . ."       Id. at 388,

177 S.E.2d at 629.



                                 - 3 -
     In Hall, we considered the import of intoxication evidence

in a prosecution for reckless driving.      Hall was discovered by

police "'passed out' behind the wheel" of an automobile stopped

in a heavily traveled roadway, with "ignition switch and

headlights . . . on and . . . indicator lights . . .

illuminated."    Hall smelled of alcohol, was confused, unsteady,

slurred in speech and admitted "driving" the vehicle.       However,

the record was silent with respect to the "manner and

circumstances" of Hall's driving.       Hall, 25 Va. App. at 355, 488

S.E.2d at 653.   Guided by Powers, we concluded that such

"circumstances . . . do not give rise to an inference that

[defendant] drove . . . in a reckless manner."       Id.   In reversing

the conviction, the panel noted that "'evidence of intoxication

is a factor that might bear upon proof of dangerousness or

reckless driving in a given case,'" but "'does not, of itself,

prove reckless driving.'   '"One may be both drunk and reckless

. . . [or] reckless though not drunk . . .[, or] under the

influence of intoxicants and yet drive carefully."'"        Id. at 355

n.3, 488 S.E.2d at 653 n.3 (quoting Bishop v. Commonwealth, 20

Va. App. 206, 210, 455 S.E.2d 765, 767 (1995)).

     Here, assuming, without deciding, that the evidence proved

defendant had been driving the car while intoxicated at the time

of the collision, it establishes little else.      The record does

not disclose the time of the accident, the manner in which

defendant drove the car, his blood alcohol level, the road




                                - 4 -
conditions, weather, traffic controls, or other circumstances

probative of a Code § 46.2-852 violation.    Reckless driving is

not a status offense, and defendant cannot be convicted upon

"speculation and conjecture as to what caused [him] to lose

control of the car."     Powers, 211 Va. at 389, 177 S.E.2d at 630.

 Thus, under the instant facts, we find the evidence insufficient

to support a conviction for reckless driving. 2

                 II.   Habitual Offender Endangerment
     Code § 46.2-357(B)(2) elevates driving by an habitual

offender from a misdemeanor to a felony when "such driving . . .

of itself endangers the life, limb, or property of another," Code

§ 46.2-357 (emphasis added), "language virtually identical to

that found in the statute defining reckless driving."     Bishop, 20

Va. App. at 211, 455 S.E.2d at 767; Code § 46.2-852.    Hence, we

also find the evidence insufficient to support a finding of

felonious habitual offender endangerment and reverse the

conviction.   However, because the record clearly establishes that

defendant violated Code § 46.2-357(B)(1), the misdemeanor

offense, we remand for further proceedings, if the Commonwealth

be so advised.    See Gorham v. Commonwealth, 15 Va. App. 673,
     2
      The Commonwealth mistakenly relies upon Kennedy v.
Commonwealth, 1 Va. App. 469, 339 S.E.2d 905 (1986), as support
for the inference that proof of defendant's intoxication
sufficiently explained the accident. In Kennedy, the evidence
clearly supported the inference that the accused "fell asleep at
the wheel," resulting in a collision. Id. at 472, 339 S.E.2d at
907. Manifestly, driving a vehicle while sleeping evinces the
disregard for the life, limb and property contemplated by Code
§ 46.2-852.



                                 - 5 -
678-79, 426 S.E.2d 493, 497 (1993).
                                      Reversed and remanded.




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