                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Humphreys, Huff and Malveaux
              Argued by teleconference
UNPUBLISHED




              SHANA CONTRELL CLEATON
                                                                            MEMORANDUM OPINION* BY
              v.     Record No. 0604-19-2                                  JUDGE ROBERT J. HUMPHREYS
                                                                                  MAY 26, 2020
              COMMONWEALTH OF VIRGINIA


                                  FROM THE CIRCUIT COURT OF BRUNSWICK COUNTY
                                               W. Edward Tomko, Judge

                               Tessie O. Barnes Bacon (Harris, Matthews & Crowder, P.C., on
                               brief), for appellant.

                               Kelsey M. Bulger, Assistant Attorney General (Mark R. Herring,
                               Attorney General, on brief), for appellee.


                     On May 25, 2017, a grand jury indicted appellant Shana Contrell Cleaton (“Cleaton”) in

              the Circuit Court for the County of Brunswick (“circuit court”) on, inter alia, one count of felony

              hit and run with $1,000 or more in property damage, in violation of Code § 46.2-894. At a bench

              trial, the Commonwealth did not present any evidence establishing the cost of the property

              damage it alleged Cleaton personally caused. Cleaton was convicted of felony hit and run and

              sentenced to five years’ imprisonment with five years suspended.

                     On appeal, Cleaton argues that the trial court erred in convicting her of felony hit and run

              because “there was no evidence of damage to the vehicle or personal injury, . . . Cleaton only

              drove less than a mile down the road, was extracting herself from a volatile situation, [and]

              stopped her vehicle and cooperated freely with the police officers that pulled in behind her.”




                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                                        I. BACKGROUND

       In the light most favorable to the Commonwealth as the party that prevailed below, the

evidence was as follows:

       On the afternoon of May 3, 2017, Cleaton and her sister Mortici Thomas (“Thomas”)

drove their cars to Pinecrest Apartments (“Pinecrest”) in Brunswick County. Their cousins

(collectively, “Stith sisters”), Sakena “Shae” Stith (“Sakena”), Kendra Stith (“Kendra”), and

Daneka “Cookie” Stith (“Daneka”) lived at Pinecrest. Cleaton and Thomas went to confront the

Stith sisters about a social media post regarding the Stith sisters’ mother.

       Cleaton and her three children were in her silver Mitsubishi sedan. Thomas drove her

blue Honda with her daughter in the backseat. Cleaton parked her car outside one of the

apartment buildings, next to Sakena’s white Nissan Maxima, and Thomas parked her car on the

other side of Cleaton. A two-year-old child, P.M. was in the backseat of Sakena’s car.

       Cleaton and Thomas got out of their cars and walked toward the Stith sisters, who were

standing near Sakena’s car. A “squabble” broke out amongst the two sets of sisters, and

everyone was “going crazy.” Sakena threw a shoe at Cleaton. At that point, Cleaton got in her

car and started to reverse. As Cleaton was reversing, she ran over Sakena’s toe. Sakena then

ripped the windshield wiper off of Cleaton’s car and smashed her hand down on Cleaton’s car

twice. At multiple points throughout the chaos, Kendra and another bystander tried to hold

Sakena back.

       Cleaton drove her car back and forth several times, in and out of the parking spot.

Cleaton then drove into Sakena’s car. As Cleaton reversed away from Sakena’s car, Sakena

opened Cleaton’s driver side door and ripped the door handle off, but Cleaton “grabbed her door

and closed it right back.” Cleaton backed up about the length of a parking spot, and then drove

forward again, nearly striking the Stith sisters. Cleaton reversed again, and Sakena ran over to

                                                -2-
the vehicle and opened the rear driver-side door of Cleaton’s car. A bookbag fell out of the back

seat, and one of Cleaton’s children reached out to grab the bookbag as Cleaton continued to

reverse her car. Sakena pulled on Cleaton’s side-view mirror but did not completely remove the

mirror. Cleaton backed into a parking spot on the other side of Thomas’s car and waited for a

couple of seconds while the Stith sisters walked back toward their apartment building.

       Cleaton then drove toward the Stith sisters, who were standing outside the apartment

building, nearly hitting them with her car. Several bystanders yelled to Cleaton that there was a

baby in Sakena’s car. Cleaton responded, “I don’t give a fuck [that] there was a baby in the car.”

Thomas also yelled, “F you and F the baby,” saying that “they would run over anybody that was

in the way.” A bystander pulled P.M. out of Sakena’s car. After that, Sakena pulled Cleaton’s

side-view mirror all the way off. One of the Stith sisters threw something at Cleaton’s car as

Cleaton inched her car back and forth, again nearly hitting the Stith sisters. Cleaton reversed the

length of a few parking spots and rammed her car into Sakena’s car. Sakena tried to open

Cleaton’s doors again and slammed her hand on Cleaton’s car twice. Cleaton drove her car in

reverse toward the exit of the apartment complex.

       As Cleaton reversed, Thomas drove her car back and forth several times in the parking

spots. Sakena ran toward Thomas’s car and threw Cleaton’s side-view mirror through Thomas’s

driver side window, creating a “big hole” in the window. Sakena got in her car and backed it out

of the parking spot as Thomas drove her car into the group of bystanders, hopping the curb and

stopping only after her car hit the apartment building. As a result, multiple bystanders were

injured and taken to the hospital, including one bystander who had to be “med-flighted” to a

hospital in Richmond. Thomas reversed, turned her car around, and drove toward the exit of

Pinecrest as Cleaton drove her car back toward Thomas. Cleaton and Thomas then drove slowly

out of the apartment complex, stopping briefly at the stop sign to check the damage to their cars.

                                               -3-
The two women drove to Industrial Park Drive, outside of Pinecrest Apartments, where they

waited for police to respond to the scene.

       On March 15, 2018, and July 13, 2018, the circuit court held a bench trial. Captain Gary

Peterson (“Captain Peterson”), of the Brunswick County Sheriff’s Office who responded to the

scene, testified that Industrial Park Drive was about seventy-five yards from the stop sign exiting

Pinecrest. Captain Peterson also testified that Cleaton and Thomas travelled approximately the

length of the courtroom down Industrial Park Drive, which the circuit court estimated to be “no

more than about 50 feet.” Lieutenant John Myrick (“Lieutenant Myrick”), who also responded

to the scene, testified that Industrial Park Drive was “one street away from Pinecrest.”

       When asked about what property damage he noticed at the scene, Captain Peterson

testified that one of the Pinecrest apartment buildings had “significant damage” and that there

was damage to all three cars involved. Specifically, Captain Peterson testified that there was

“significant damage on the rear-right quarter panel” of Sakena’s car. The site manager at

Pinecrest, Montinique Ruffin (“Ruffin”), testified that she could not recall exactly how much the

repairs to the building cost, but she remembered that the repairs cost more than $1,000.

       After the close of the Commonwealth’s evidence, Cleaton moved to strike the charges

against her. Specifically, she argued that “there was no evidence offered by the Commonwealth,

whatsoever, to establish any value” of the damage to Sakena’s car and “[t]here was no evidence

from which the Court could conclude that value of damage exceeded $1,000 without entirely

speculating or filling facts in that [do not] exist in the record.” Although the circuit court denied

the motion with respect to the hit and run charge, the circuit court did strike a separate

destruction of property charge from a felony to a misdemeanor. The circuit court stated, “With

regards to Shana Cleaton, the Court notes that that particular destruction of property dealt with

the vehicle of Sakena Stith. The Court does not recall any specific monetary values with regards

                                                -4-
to that, strikes that to a misdemeanor.” At the close of all the evidence, the circuit court found

Cleaton guilty of felony hit and run. This appeal follows.

                                          II. ANALYSIS

                                      A. Standard of Review

       “When reviewing the sufficiency of the evidence, ‘[t]he judgment of the [circuit] court is

presumed to be correct and will be reversed only upon a showing that it is “plainly wrong or

without evidence to support it.”’” Cocke v. Commonwealth, 68 Va. App. 11, 14 (2017) (quoting

Ervin v. Commonwealth, 57 Va. App. 495, 503 (2011)). While we apply a de novo standard of

review to the circuit court’s application of the law, “[w]e are bound by the [circuit] court’s

factual findings unless those findings are ‘plainly wrong or unsupported by the evidence.’”

Ward v. Commonwealth, 273 Va. 211, 218 (2007) (quoting Pyramid Dev., L.L.C. v. D&J

Assocs., 262 Va. 750, 753 (2001)). “We do not determine whether we would have convicted the

defendant, but whether ‘any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.’” Cocke, 68 Va. App. at 14 (quoting Crowder v.

Commonwealth, 41 Va. App. 658, 663 (2003)). “To the extent that we interpret the statute,

‘[t]he construction of a statute is a question of law that we review de novo upon appeal.’” Id.

(alteration in original) (quoting Belew v. Commonwealth, 62 Va. App. 55, 62 (2013)).

                              B. Hit and Run with Property Damage

       Cleaton challenges the sufficiency of the evidence to establish felony hit and run because

there was insufficient evidence to prove she caused $1,000 or more in property damage. The

indictment read,

               Hit and run-Driver fails to rpt. $1000+ damage to property
               (Direct Indictment)

               On or about May 3, 2017, in the County of Brunswick, as the
               driver of a motor vehicle involved in an accident in which an
               attended vehicle or other attended property sustained more than
                                                -5-
               $1,000.00 in damage, did fail to immediately stop as close to the
               scene of the accident as possible without obstructing traffic and
               provide the information required by law, in violation of §46.2-894
               of the Code of Virginia (1950) as amended.

       Generally, “an indictment citing a criminal statute incorporates its contents by reference.”

Purvy v. Commonwealth, 59 Va. App. 260, 268 (2011). However, “[w]here the indictment

includes, as here, specific, narrowing language ‘descriptive of the offense charged,’ we cannot

treat it as immaterial ‘surplusage.’” Id. at 269 (quoting Commonwealth v. Nuckles, 266 Va. 519,

523 (2003)). In crafting the indictment on more narrow grounds, the Commonwealth cannot rise

above the limiting language and must either prove the specific offense charged, or an offense that

is a lesser-included one of that charged. Fontaine v. Commonwealth, 25 Va. App. 156, 165

(1997) (quoting Harrell v. Commonwealth, 11 Va. App. 1, 6 (1990)), overruled on other grounds

by Edwards v. Commonwealth, 41 Va. App. 752, 765 (2003) (en banc) (overruling Fontaine “to

the extent that [it] conclude[s] a conviction of an offense that is not a lesser-included offense of

the indicted charge renders the judgment void, i.e., it can be raised at any time in any court”).

       Though there are two ways to establish culpability under Code § 46.2-894—by proving

personal injury or property damage—one is not a lesser-included offense of the other. Id. at

164-65. Because the indictment charged Cleaton with violating the hit and run statute based on

property damage, the Commonwealth may not rely on any injuries that may have occurred to

sustain the conviction. However, misdemeanor hit and run with property damage, which

requires no threshold damage value, is a lesser-included offense of felony hit and run with

property damage. See Kauffmann v. Commonwealth, 8 Va. App. 400, 409 (1989) (defining a

lesser-included offense as one “which is composed entirely of elements that are also elements of

the greater offense”).

       The Commonwealth argues that the circuit court could reasonably infer from the

circumstantial evidence of the “extensive damage to Cleaton’s car, and the Stith car with which
                                                -6-
she collided” that the total property damage exceeded $1,000. Assuming, without deciding, that

the Commonwealth could rely on property damage to Cleaton’s own car, the circuit court may

not speculate regarding the value of damage caused because it is an element of the offense that

must be proved beyond a reasonable doubt by the Commonwealth. Under the hit and run statute,

the $1,000 in property damage is measured, “[w]here a motor vehicle is capable of being

repaired . . . [by] the total reasonable cost of returning that vehicle to its pre-crash condition.”

Cocke, 68 Va. App. at 17. The record is completely devoid of any evidence regarding the cost of

repairing any of the vehicles involved. The record only contains evidence of the cost of

repairing the apartment building damaged by Thomas. The record thus does not support

Cleaton’s conviction for felony hit and run with property damage. However, the record does

support a finding that Cleaton caused some unspecified amount of property damage and would

therefore support a conviction for the lesser-included misdemeanor hit and run.

        Apparently cognizant of its failure to establish the value of any property damage it

alleged that Cleaton herself caused, the Commonwealth on appeal attempts to remedy that failure

by asserting for the first time that the circuit court could have relied on the damage to the

apartment building caused by Thomas. The Commonwealth contends that we should affirm

Cleaton’s felony conviction under the “right-result-different-reason doctrine” if we find that

Cleaton and her sister acted in concert. Specifically, the Commonwealth argues:

                the two sisters traveled to the Pinecrest apartments together to
                confront their cousins regarding a dispute about their mother. The
                two co-defendants engaged in violence, both using their cars as
                weapons. Although it was Thomas whose car collided with the
                apartment building, causing over $1,000.00 worth of damage,
                Cleaton participated in bringing about that act. She is responsible
                as a co-actor in the crime for the damage to the building.

This argument is fatally flawed for two reasons.




                                                 -7-
       First, the indictment did not allege that Cleaton committed felony hit and run as a

principal in the second degree, nor did the Commonwealth otherwise place Cleaton on notice

before via the indictment or otherwise that it was proceeding on the legal theory that she was a

principal in the second degree to the offenses committed by Thomas. The Due Process Clauses

of the Constitution of the United States and the Constitution of Virginia mandate that an accused

be given proper notice of the charges against her. U.S. Const. amend. XIV; Va. Const. art. 1,

§ 8. Code § 19.2-220 provides that an indictment “shall be a plain, concise and definite written

statement, (1) naming the accused, (2) describing the offense charged, (3) identifying the county,

city or town in which the accused committed the offense, and (4) reciting that the accused

committed the offense on or about a certain date.” To be legally sufficient, an indictment or

other pleading must give the accused notice of the nature and character of the charged offense so

she can defend against the allegations. Satcher v. Commonwealth, 244 Va. 220, 231 (1992).

       Cleaton’s indictment alleged that she committed felony hit and run with property damage

as the driver of a vehicle. The indictment did not allege that Cleaton committed felony hit and

run as a principal in the second degree by aiding and abetting Thomas, and no other pleading

such as a bill of particulars was filed that would have done so.

       Second, to establish that Cleaton acted as a principal in the second degree, the

Commonwealth would have to prove that she was present and aided and abetted Thomas in

committing the elements of felony hit and run with respect to the damage caused by Thomas to

the building. However, the plain language of the statute and the specific language of the

indictment require that Cleaton have acted as a driver. Code § 46.2-894, titled “Duty of driver

to stop, etc., in event of accident involving injury or death or damage to attended property,”

provides in relevant part:

               The driver of any vehicle involved in an accident in which a
               person is killed or injured or in which an attended vehicle or other
                                                -8-
               attended property is damaged shall immediately stop as close to the
               scene of the accident as possible without obstructing traffic, as
               provided in § 46.2-888, and report his name, address, driver’s
               license number, and vehicle registration number forthwith to the
               State Police or local law-enforcement agency, to the person struck
               and injured if such person appears to be capable of understanding
               and retaining the information, or to the driver or some other
               occupant of the vehicle collided with or to the custodian of other
               damaged property.

(Emphasis added). In the context of the hit and run statute, we have defined “driver” as “the

person in actual, physical control of a vehicle.” Kil v. Commonwealth, 12 Va. App. 802, 809

(1991) (quoting Webster’s Third New International Dictionary 692 (3d ed. 1986)).

       “A fundamental rule of statutory construction is that a penal statute ‘must be strictly

construed against the State and limited in application to cases falling clearly within the language

of the statute.’” Smith v. Commonwealth, 8 Va. App. 109, 113 (1989) (quoting Crews v.

Commonwealth, 3 Va. App. 531, 536 (1987)). “The purpose of [the hit and run statute] is to

prevent motorists involved in accidents from evading civil or criminal liability by leaving the

scene of an accident and to require drivers involved in an accident to provide identification

information and render assistance to injured parties.” Id. at 115. Under the plain language of the

statute and the specific language of the indictment, the Commonwealth was required to establish

that Cleaton committed the offense “as the driver of a motor vehicle.” See Allen v.

Commonwealth, 211 Va. 805, 808 (1971) (reversing the conviction where the evidence was

insufficient to establish beyond a reasonable doubt that the defendant was the driver of the “hit

and run vehicle”); Caldwell v. Commonwealth, 198 Va. 454, 460 (1956) (holding portion of the

hit and run statute imposing reporting duties on a vehicle occupant or witness of an accident

unconstitutionally vague); but cf. James v. Commonwealth, 178 Va. 28, 34-36 (1941) (holding

that the owner of a car aided and abetted in a hit and run when he allowed an intoxicated

individual to drive his car and leave the scene of an accident while he rode in the passenger seat).


                                               -9-
       At oral argument, the Commonwealth asserted that because Cleaton was a driver

involved in an accident at the same scene as one caused by Thomas, the plain language of the

statute could support an aiding and abetting theory. However, “[t]he law is settled that mere

presence is not sufficient to establish that one is a principal in the second degree, an aider and

abettor to the commission of a crime.” Hall v. Commonwealth, 225 Va. 533, 536 (1983). “The

prosecution must prove that the accused did or said something showing his consent to the

felonious purpose and his contribution to its execution.” Id. (quoting Jones v. Commonwealth,

208 Va. 370, 373 (1967)). Thus, “to establish the defendant as an aider and abettor, he must be

present and shown to have procured, encouraged, countenanced or approved commission of the

crime; he must share the criminal intent of the actual perpetrator or be guilty of some overt act.”

Id. To be “involved” in an accident within the meaning of the hit and run statute, “there must be

physical contact between the driver’s vehicle and another vehicle, person, or object, or the driver

of a motor vehicle must have been a proximate cause of an accident.” Robinson v.

Commonwealth, 274 Va. 45, 53 (2007).

       Here, however, the Commonwealth has not identified specific facts, beyond mere

presence, to establish that Cleaton was aiding and abetting Thomas when Thomas drove into the

apartment building. There is no evidence that Cleaton encouraged, countenanced, or otherwise

approved of the commission of that crime. There is no evidence that Cleaton somehow

proximately caused Thomas to drive into the building. While it is possible for one to be a

principal in the second degree to a hit and run offense as was the case in James, unlike in James,

Cleaton was not present in Thomas’ vehicle nor is there any evidence in the record that Cleaton

assisted Thomas in either damaging the building or in leaving the scene or encouraged her to do

so.




                                                - 10 -
        Accordingly, the evidence is insufficient to establish that Cleaton caused property

damage in excess of $1,000.

                                   C. Failure to Stop Immediately

        Cleaton argues that the evidence was insufficient to prove that she did not stop as close as

possible to the scene of the accident because she only travelled seventy-five yards from the

accident and “was removing herself from a volatile situation at Pinecrest where people had

destroyed her vehicle.” The hit and run statute requires that a driver involved in certain

accidents “shall immediately stop as close to the scene of the accident as possible without

obstructing traffic, as provided in § 46.2-888.” Code § 46.2-894. Code § 46.2-888 essentially

requires that a vehicle impeding or rendering the roadway dangerous be moved unless it is an

emergency, or the vehicle is inoperable. Neither the hit and run statute nor Code § 46.2-888

provide the exception Cleaton asks this Court to infer.

        Moreover, “[t]he hit-and-run statute clearly requires drivers to stop as close to the

accident, or point of impact, as safety will permit.” Edwards, 41 Va. App. at 770. Whether or

not a defendant stopped immediately as close to the scene of the accident as possible without

obstructing traffic is a factual finding that will only be disturbed on appeal if it is plainly wrong

or not supported by the evidence. The circuit court’s implicit finding that Cleaton did not stop

immediately as required by the statute is supported by the record. Cleaton exited Pinecrest

apartments and traveled to Industrial Park Drive before stopping. The responding officers

testified that Industrial Park Drive is about seventy-five yards from the exit of the apartment

complex and that Cleaton traveled about fifty feet down Industrial Park Drive. Nothing in the

record suggests that stopping on Industrial Park Drive was an immediate stop after the accident

or that it was the first safe place to park the car. See id. (finding that the appellant did not stop

immediately when she drove fifty to one-hundred feet from the accident and had an opportunity

                                                 - 11 -
to stop sooner). Furthermore, Cleaton briefly stopped at the stop sign exiting Pinecrest to check

the damage to her car before travelling to Industrial Park Drive. Clearly, Industrial Park Drive

was not the first safe place to park her car. The circuit court’s factual finding is thus supported

by evidence in the record.

       “When an appellant successfully challenges the sufficiency of the evidence on some (but

not all) aspects of his conviction, we must determine if the proven elements of the original

charge qualify as a lesser-included offense.” Crowder, 41 Va. App. at 666. Where the evidence

establishes a lesser-included offense, and the appellant does not consent to simply be resentenced

on the lesser-included offense, the appropriate remedy is to remand to the circuit court for a new

trial on the lesser-included offense. Frango v. Commonwealth, 66 Va. App. 34, 46 (2016).

Cleaton has not consented to resentencing, so we remand to the circuit court for a new trial on

the lesser-included offense of misdemeanor hit and run in violation of Code § 46.2-894 if the

Commonwealth be so advised.

                                        III. CONCLUSION

       Finding the evidence insufficient to establish the statutory $1,000 threshold for damage to

property, we reverse Cleaton’s conviction for felony hit and run under Code § 46.2-894.

Because the evidence sufficiently establishes every element of the lesser-included offense of

misdemeanor hit and run under Code § 46.2-894, we remand this matter for retrial on that charge

if the Commonwealth be so advised.

                                                                            Reversed and remanded.




                                                - 12 -
