                    COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Annunziata and Humphreys
Argued at Alexandria, Virginia


KEVIN EUGENE CARTER
                                           MEMORANDUM OPINION * BY
v.   Record No. 2635-00-4         CHIEF JUDGE JOHANNA L. FITZPATRICK
                                               DECEMBER 27, 2001
COMMONWEALTH OF VIRGINIA


              FROM THE CIRCUIT COURT OF FAUQUIER COUNTY
                       Thomas D. Horne, Judge

          Cindy Leigh Decker, Assistant Public
          Defender, for appellant.

          Steven A. Witmer, Assistant Attorney General
          (Mark L. Earley, Attorney General, on
          brief), for appellee.


     Kevin Eugene Carter (appellant) was convicted in a jury

trial of unlawfully driving a motor vehicle on a highway while

under the influence of alcohol (DUI) in violation of Code

§ 18.2-266.   The sole issue on appeal is whether the evidence

was sufficient to support the jury's guilty verdict of driving

under the influence. 1   For the following reasons, we affirm the

judgment of the trial court.




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     1
      Appellant was also convicted of operating a motor vehicle
after having been declared an habitual offender, 2nd offense;
however, that conviction is not the subject of this appeal.
                            I.    BACKGROUND

     Under familiar principles of appellate review, we examine the

evidence in the light most favorable to the Commonwealth, the

prevailing party below, granting to it all reasonable inferences

fairly deducible therefrom.      See Juares v. Commonwealth, 26 Va.

App. 154, 156, 493 S.E.2d 677, 678 (1997).

     So viewed, the evidence established that on November 5,

1999, at approximately 8:40 p.m., Charles Robert Rogers (Rogers)

was driving south on Meetze Road in the direction of Route 28 in

Fauquier County.   When Rogers approached Beach Street, a dark

blue sedan drove through a stop sign and made a wide right-hand

turn onto Meetze Road.   The car veered into the wrong travel

lane before the driver corrected his course and traveled south

in the appropriate lane.    Approximately twenty seconds later,

the sedan turned onto Casanova Road.      Rogers also turned onto

Casanova Road and was travelling at fifty miles per hour.       The

blue car's speed kept increasing until Rogers lost sight of it.

Shortly thereafter, Rogers reached a turn in the road and saw

the blue sedan on the side of the road where it had struck a

detached garage.   Rogers stopped at the scene of the accident

and remained there for about twenty or twenty-five minutes.       At

trial, Rogers saw pictures of the crash site which he said were

a fair and accurate depiction of the scene.      Two of these

pictures show appellant to be trapped behind the wheel and the

sole occupant of the car.
                              - 2 -
     Trooper Bradley Morris (Trooper Morris) of the Virginia

State Police was dispatched to the accident at approximately

9:06 p.m. and arrived at the scene at 9:16 p.m. to find

appellant trapped in the car on the driver's side.   The Catlett

Fire Department and Rescue Squad arrived and had to cut off the

top of the vehicle to free appellant.   When appellant was placed

in the ambulance Trooper Morris observed his eyes to be

bloodshot and watery and he smelled of alcohol.   There were no

other occupants in or near the crash scene.

     The Commonwealth rested, and appellant made a motion to

strike contending that (1) no proof established that appellant

was operating the vehicle and (2) no evidence proved that

appellant was under the influence of drugs or alcohol at the

time he was operating the vehicle.   The trial court denied

appellant's motion and found sufficient circumstantial evidence

to support his being the operator of the vehicle.    It noted the

erratic driving and said that from appellant's position in the

car, "the Jury might fairly conclude [it] would have been

impossible for him to get into that position but for the fact

that he was operating this motor vehicle at the time of the

collision."   It denied the second ground and found that:

          [T]he Jury could conclude in this case that
          the Defendant, given his condition as
          evident from this photograph, had not had
          anything to drink after the accident. He
          smelled of alcohol, had red eyes; and then
          as the Commonwealth Attorney has said,
          operated –- they could infer that he
                           - 3 -
             operated the vehicle in the fashion which he
             did, that they could find him guilty under
             the circumstances.

     Appellant then testified that there were several people in

the car and that "William Brown" was the driver and he was a

passenger.    He acknowledged that the car belonged to his wife.

Appellant claimed that as a result of the accident he was

unconscious and as he was regaining his senses, Brown and the

other two passengers were trying to help him get out of the car.

However, while he was trying to get out, the roof of the garage

collapsed and the other three people left.         Neither Brown nor

the other two passengers appellant described testified at trial.

The jury found appellant guilty of DUI and imposed a sentence of

twelve months incarceration.      Appellant timely noted his appeal.

                        II.   STANDARD OF REVIEW

     "On review, this Court does not substitute its judgment for

that of the trier of fact.      Instead, the jury's verdict will not

be set aside unless it appears that it is plainly wrong or

without supporting evidence."      Canipe v. Commonwealth, 25 Va.

App. 629, 644, 491 S.E.2d 747, 754 (1997) (internal citations

omitted).

                      III.    OPERATION OF THE CAR

     Appellant first argues that the evidence was insufficient

to prove that he was the driver of the car because no one at

trial testified that he was the driver and he denied operating

the vehicle.    Although Trooper Morris found appellant behind the
                             - 4 -
wheel of the vehicle, he did not observe appellant manipulating

any of the mechanical or electrical equipment of the car.

Appellant thus contends that the evidence is insufficient to

support a conclusion that he drove the car.   This argument is

without merit.

     "'[C]ircumstantial 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.'"   Williams v. Commonwealth, 33 Va. App.

796, 807, 537 S.E.2d 21, 26 (2000) (quoting Coleman v.

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

"However, 'the Commonwealth need only exclude reasonable

hypotheses of innocence that flow from the evidence, not those

that spring from the imagination of the defendant.'"     Wilson v.

Commonwealth, 31 Va. App. 495, 509, 525 S.E.2d 1, 8 (2000)

(quoting Hamilton v. Commonwealth, 16 Va. App. 751, 755, 433

S.E.2d 27, 29 (1993)).

          The credibility of a witness and the
          inferences to be drawn from proven facts are
          matters solely for the fact finder's
          determination. See Long v. Commonwealth, 8
          Va. App. 194, 199, 379 S.E.2d 473, 476
          (1989). In its role of judging witness
          credibility, the fact finder is entitled to
          disbelieve the self-serving testimony of the
          accused and to conclude that the accused is
          lying to conceal his guilt. See Speight v.
          Commonwealth, 4 Va. App. 83, 88, 354 S.E.2d
          95, 98 (1987) (en banc).



                            - 5 -
Marable v. Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d

233, 235 (1998).

     Code § 46.2-100 defines an operator as one who "either (i)

drives or is in actual physical control of a motor vehicle on a

highway or (ii) is exercising control over or steering a vehicle

being towed by a motor vehicle."

     In Keesee v. Commonwealth, 32 Va. App. 263, 527 S.E.2d 473

(2000), we found the evidence sufficient to prove the appellant

was "operating" a motor vehicle on very similar facts.   In that

case, the police officer who arrived at the scene of an accident

found the appellant to be the only person in the car.    He was

trapped in the car with his legs pinned under the steering wheel

and dashboard, and he was unable to move.

     In the instant case, viewed in the light most favorable to

the Commonwealth, appellant was the sole occupant of the car at

the scene of the accident.   No one else was present at or near

the crash site, and the car belonged to his wife.   The jury was

not required to believe appellant, a convicted felon, but rather

could determine that he was being untruthful in his testimony

that other people were in the car.   Additionally, appellant was

immobilized behind the wheel and had to be cut out of the car.

The fact that he was trapped behind the wheel is evidence

tending to negate his explanation that he was sliding over to

get out of the car.   The jury was entitled to disbelieve

appellant's self-serving statements and conclude that he was the
                           - 6 -
operator of the vehicle.   Accordingly, we cannot say that the

judgment is plainly wrong or without evidence to support it.

          IV.   INTOXICATION AT THE TIME OF THE ACCIDENT

     Appellant next contends that, assuming he was the driver,

the Commonwealth failed to prove that he was intoxicated at the

time of the accident because no field sobriety tests, blood

tests, or breath tests were admitted into evidence to show his

level of intoxication.   He argues that the driving behavior

testified to by Rogers and the description by Trooper Morris of

appellant's eyes being bloodshot and his having the odor of

alcohol were insufficient to show intoxication.   Additionally,

appellant argues that no evidence established whether or not he

had consumed alcohol after the accident or whether there had

been alcohol in the car that had just spilled onto him.

     Code § 18.2-266, the statute under which appellant was

convicted, makes it unlawful for anyone "to drive or operate any

motor vehicle . . . while under the influence of alcohol." 2

     Further, "[t]he court or jury trying the case involving a

violation of clause (ii), (iii) or (iv) of § 18.2-266 or

§ 18.2-266.1 shall determine the innocence or guilt of the

defendant from all the evidence concerning his condition at the




     2
      Code § 4.1-100 defines "intoxicated" as "a condition in
which a person has drunk enough alcoholic beverages to
observably affect his manner, disposition, speech, muscular
movement, general appearance or behavior."
                           - 7 -
time of the alleged offense."    Code § 18.2-268.10 (emphasis

added).

     We also find no merit to appellant's argument that the

Commonwealth failed to meet its burden because they presented no

alcohol tests.   Code § 18.2-268.10 allows the trier of fact to

look at all the evidence regarding the condition of the

defendant at the time of the alleged offense.

          [T]he admission of the blood or breath test
          results shall not limit the introduction of
          any other relevant evidence bearing upon any
          question at issue before the court, and the
          court shall, regardless of the result of any
          blood or breath tests, consider other
          relevant admissible evidence on the
          condition of the accused.

Id. (emphasis added).

     In the instant case, properly viewed, the Commonwealth's

evidence proved that appellant drove his car erratically,

swerved across the center line and exceeded the speed limit.    A

short time later his car crashed with great force into a garage,

trapping appellant behind the wheel.    Further, when Trooper

Morris saw appellant, his eyes were bloodshot and watery and he

smelled of alcohol.     See Overbee v. Commonwealth, 227 Va. 238,

245, 315 S.E.2d 242, 245 (1984) ("The jury could conclude that

if Overbee smelled [of] alcohol and had red eyes, yet did not

drink after he stopped his truck, then he must have consumed

alcoholic beverages before or during his operation of the

vehicle.").   The fact finder could reasonably find that this

                              - 8 -
evidence established that appellant was intoxicated and the

alcohol had affected his "manner, disposition, speech, muscular

movement, general appearance or behavior."    Code § 4.1-100.

     Next, appellant contends that pursuant to Bland v. City of

Richmond, 190 Va. 42, 55 S.E.2d 289 (1949), and Coffey v.

Commonwealth, 202 Va. 185, 116 S.E.2d 257 (1960), this case must

be reversed because the Commonwealth failed to exclude the

hypothesis that appellant became intoxicated after the car

wreck.   This case is distinguishable from Bland and Coffey.

     In Bland, the Court held that the officer's testimony that

Bland was intoxicated and talked with a "thick tongue" supported

a reasonable inference of intoxication.   However, the Court held

that the vagueness in time between when the accident occurred

and when Bland returned to the scene did not exclude the

reasonable hypothesis that he drank alcohol between the time he

left his car and the time he was picked up.

     In Coffey, the defendant's conviction for drunk driving was

reversed because there was conflicting evidence regarding

whether or not Coffey had consumed alcohol following the

accident.   While there was sufficient evidence of intoxication,

Coffey's son testified that he had given his father a drink of

whiskey after the accident.   In the instant case, there is no

evidence of either opportunity or ability to consume alcohol

after the accident.   Rogers found appellant trapped in the car

immediately after the crash and unable to move.   Appellant did
                           - 9 -
not leave the scene of the accident, and there was no evidence

of alcohol at or near the car.    Additionally, appellant

testified that he was unconscious and unable to move.   This

evidence negates any "reasonable hypothesis of innocence" that

appellant drank alcohol after the accident.

     The circumstantial evidence was sufficient to prove that

appellant was intoxicated when he drove his wife's car, and no

evidence shows that he became intoxicated after the wreck.

Accordingly, we cannot say that the judgment is plainly wrong or

without evidence to support it.

                                                            Affirmed.




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