                     COURT OF APPEALS OF VIRGINIA


Present: Judges Clements, Agee ∗ and Felton
Argued at Richmond, Virginia


MARK ANTHONY KIRBY
                                          MEMORANDUM OPINION ∗∗ BY
v.   Record No. 0494-02-2                  JUDGE G. STEVEN AGEE
                                               MARCH 25, 2003
COMMONWEALTH OF VIRGINIA


             FROM THE CIRCUIT COURT OF HALIFAX COUNTY
                     Leslie M. Osborn, Judge

          Buddy A. Ward, Public Defender (Office of the
          Public Defender, on brief), for appellant.

          Stephen R. McCullough, Assistant Attorney
          General (Jerry W. Kilgore, Attorney General,
          on brief), for appellee.


     Mark Anthony Kirby ("Kirby") was convicted in a bench trial

in the Circuit Court of Halifax County of violating Code

§ 46.2-817(B) which prohibits a driver from ignoring a police

officer's signal to stop and driving a motor vehicle in such a

willful and wanton manner that it endangers a person.     Kirby

asserts that he cannot be convicted under this statute if he is




     ∗
       Justice Agee participated in the hearing and decision of
this case prior to his investiture as a Justice of the Supreme
Court of Virginia.
     ∗∗
       Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
the only person endangered by his driving.    For the reasons that

follow, we affirm the decision of the circuit court.

                            I.   BACKGROUND

     On the morning of June 23, 2001, Officer Freeman

("Freeman") of the Halifax Police Department was operating

stationary radar when he observed Kirby drive past his radar

unit at 64 miles per hour (m.p.h.) in a 45 m.p.h. zone.    Freeman

activated his emergency lights, but not his siren, and pursued

Kirby's vehicle.   "Within a short distance, probably a couple

tenths of a mile," Freeman caught up with Kirby's vehicle.     At

that time Kirby rapidly pulled away.     Freeman reached speeds of

94 m.p.h. while chasing Kirby and experienced difficulty closing

the distance with Kirby's car.     They passed at least one vehicle

going in the opposite direction during the pursuit.    Kirby's car

then skidded through a stop sign, hit a fence post and came to

rest on an embankment.   When Freeman asked Kirby why he was

running from him, Kirby responded that he was only doing 55

m.p.h., did not see the emergency lights, and was not running

from the police officer.    Officer Freeman later determined that

Kirby was driving with a suspended operator's license.

     Kirby was convicted of eluding a police officer while

driving a motor vehicle in such willful and wanton disregard so

as to endanger a person in violation of Code § 46.2-817(B), a

felony.   He now appeals.


                                 - 2 -
                            II.   ANALYSIS

     Code § 46.2-817(B) provides that:

           Any person who, having received a visible or
           audible signal from any law-enforcement
           officer to bring his motor vehicle to a
           stop, drives such motor vehicle in a willful
           and wanton disregard of such signal so as to
           interfere with or endanger the operation of
           the law-enforcement vehicle or endanger a
           person is guilty of a Class 6 felony. It
           shall be an affirmative defense to a charge
           of a violation of this subsection if the
           defendant shows he reasonably believed he
           was being pursued by a person other than a
           law-enforcement officer.

(Emphasis added).

     Construing the meaning of "endanger a person" under the

statute, the trial court opined from the bench as to the intent

of the General Assembly, "that's fairly clear that they intended

that it be a person.   So it could be the individual in this

case."   On appeal Kirby contends his conviction under Code

§ 46.2-817(B) is in error because he alone was the person

endangered by his driving and that action is not proscribed by

the statute. 1

     Subsequent to the trial court's decision in this case, this

Court issued its opinion in Tucker v. Commonwealth, 38 Va. App.

343, 564 S.E.2d 144 (2002), which also involved a conviction

under Code § 46.2-817(B).   In Tucker we held:


     1
       Kirby does not challenge the trial court's finding that he
was "in willful and wanton disregard" of the officer's signal.

                                  - 3 -
             a manifest purpose of the statute is to
             protect the public against a driver eluding
             police "so as to . . . endanger a person."
             Hence, conduct that raises the specter of
             endangerment is the evil contemplated and
             proscribed by the statute. To require the
             threat to be imminent would engraft an
             element to the offense, thereby permitting
             the dangerous operation of motor vehicles
             until a person is actually imperiled, an
             absurd result that subverts the salutary
             purposes of the statute.

Id. at 347, 564 S.E.2d at 146 (quoting Code § 46.2-817(B))

(emphasis added).

     It is well settled that an appellate court may affirm a

trial court's judgment when it has reached the right result for

the wrong reason.     Driscoll v. Commonwealth, 14 Va. App. 449,

452, 417 S.E.2d 312, 312 (1992); see e.g. White v. Commonwealth,

37 Va. App. 658, 665, 561 S.E.2d 12, 16 (2002); McLellan v.

Commonwealth, 37 Va. App. 144, 154, 554 S.E.2d 699, 704 (2001).

This rule applies in criminal cases.     See Frye v. Commonwealth,

231 Va. 370, 389, 345 S.E.2d 267, 281 (1986).    However, this

rule is not applicable in "cases where, because the trial court

has rejected the right reason or confined its decision to a

specific ground, further factual resolution is needed before the

right reason may be assigned to support the trial court's

decision."     Driscoll, 14 Va. App. at 452, 417 S.E.2d at 312

(citing Sateren v. Montgomery Ward & Co., 234 Va. 303, 306, 362

S.E.2d 324, 326 (1987)).    Further, the rule does not apply "if



                                 - 4 -
the correct reason for affirming the trial court was not raised

in any manner at trial."   Id. (citing Eason v. Eason, 204 Va.

347, 352, 131 S.E.2d 280, 283 (1963)).

     The Commonwealth specifically argued to the trial court

that with Kirby's action of going through the stop sign and

hitting the embankment "there is very much the potential that

someone can be hurt."   The Commonwealth noted "[i]t is the

potential to cause serious harm" to other people on the road

that Code § 46.2-817(B) seeks to prevent.   Thus, the

Commonwealth clearly brought before the trial court the

proposition that Kirby's actions raised the "specter of

endangerment."   The Commonwealth then proved that Kirby caused

the "specter of endangerment" to persons who might have been and

were on the highway at the time of his reckless acts.   Those

acts included traveling at a very high rate of speed on a

curving rural road while fleeing the pursuing police vehicle,

meeting oncoming traffic and running through a posted stop sign

at an intersection before crashing into a fence.

     However, the trial court stated that "the legislature may

have intended it that we do not have to have an identifiable

person who was put in danger.   I don't think that's the case.    I

think we do have to have an identifiable person who is put in

danger."   Based on that assumption, the trial court concluded




                                - 5 -
that Kirby himself was "a person" as contemplated by the statute

and found him guilty.

     As Tucker has since clarified, the trial court wrongly

assumed that the endangered person had to be specifically

identified.   Nonetheless, the trial court also found that "a

person, some other person, could have been put at risk" by

Kirby's excessive speed, skidding through the stop sign and

hitting a fence post.   Such a finding is all Tucker requires for

conviction under Code § 46.2-817(B), because Kirby's actions

raised "the specter of endangerment."    The correct reason under

Tucker was raised in the trial court, and no further fact

determinations are required to sustain the trial court's

ultimate verdict.   While the trial court did not base its

decision on the "specter of endangerment," it did not reject

that basis and made a specific factual finding in support of it.

Accordingly, application of the standard set forth in Tucker to

the record in this case reflects sufficient evidence to sustain

the finding of guilty against Kirby. 2




     2
       As the application of the Tucker standard to the facts of
this case resolves the appeal, we do not address the statutory
question issue raised by Kirby as to whether he alone is a
"person" as contemplated by the endangerment provision of Code
§ 46.2-817(B).

                               - 6 -
                        III.   CONCLUSION

     In light of our holding in Tucker, the trial court reached

the right result for the wrong reason.   We therefore affirm the

conviction.

                                                         Affirmed.




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