                   COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Annunziata and Senior Judge Cole
Argued at Richmond, Virginia


HOANG HUY NGUYEN
                                           MEMORANDUM OPINION * BY
v.        Record No. 0211-95-2              JUDGE MARVIN F. COLE
                                               APRIL 2, 1996
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF CAROLINE COUNTY
                     J. Peyton Farmer, Judge

          Michael HuYoung for appellant.

          H. Elizabeth Shaffer, Assistant Attorney
          General (James S. Gilmore, III, Attorney
          General, on brief), for appellee.



     In a bench trial, the appellant, Hoang Huy Nguyen, was

convicted on three counts of vehicular involuntary manslaughter

in violation of Code § 18.2-36.   On appeal, Nguyen contends that

the evidence was insufficient to support the convictions.      We

disagree and affirm.
               [W]e review the evidence in the light
          most favorable to the Commonwealth, granting
          to it all reasonable inferences fairly
          deducible therefrom. The judgment of a trial
          court sitting without a jury is entitled to
          the same weight as a jury verdict and will
          not be set aside unless it appears from the
          evidence that the judgment is plainly wrong
          or without evidence to support it.


Josephs v. Commonwealth, 10 Va. App. 87, 99, 390 S.E.2d 491, 497

(1990) (en banc) (citation omitted).
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
                                  I.

     On July 3, 1993, at about 3:30 p.m., a collision occurred on

Interstate 95 in Caroline County involving a 1992 white Plymouth

Laser driven by appellant and a 1993 Ford van operated by Steven

Rivers.   Three children, who were passengers in the van, died as

a result of the crash.   The accident occurred in the southbound

lanes of I-95 which contain three traffic lanes divided by broken

white lines.   The maximum speed limit on I-95 at the time of the

accident was sixty-five miles per hour.      The evidence did not

disclose any defects in the roadway or in either vehicle involved

in the accident.
     At trial, the first witness called by the Commonwealth was

Khan Ho, who was a passenger in appellant's vehicle.      After the

accident, Ho advised the investigating state trooper that he was

the driver of the 1992 white Laser.      He gave the officer a

statement that the accident was his fault.      He testified that he

initially told the officer he was the driver and took

responsibility for the accident because he did not appreciate the

seriousness of the accident and wanted to help appellant, who did

not have a good driving record.    Several days later, Nguyen

admitted that he was the driver.       All charges against Ho were

dismissed and instituted against Nguyen.

     When questioned about Nguyen's driving, Ho testified that

his speed was "about seventy -- seventy something."      When asked

"Who was drinking?" he responded, "[a]t that time, I drank two




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beers and Hoang [Nguyen] was drinking one."     There were twelve

beers in the car, and Ho testified that after the collision, he

threw them out of the car window.

        The 1993 Ford van, containing nine people, was driven by

Steven Rivers.    He testified on behalf of the Commonwealth and

stated that he was proceeding southward on I-95 in the middle

lane.    He did not recall his speed.   He stated that it was July 3

and "[t]raffic was very heavy."    In describing his recollection

of the accident, he said:
          There was another vehicle in the right lane
          that was ahead of me. We had been in that
          position for, I think, quite a while. I
          heard a loud noise. I thought that the axle
          or something had snapped on the vehicle and I
          couldn't control it anymore. And I lost
          control of the car.


        Liza Olavarria, a witness for the Commonwealth, testified

that at the same time and place, she was driving her car

southward on I-95 in the left lane.     Her speed was sixty-five to

seventy miles per hour.    She described her first observation of

appellant's Laser as follows: "Well, he was traveling very fast.

He 'whizzed' by me on my right."       She testified that the

appellant was in the middle lane and "going right by me" and was

"changing lanes."

        Ms. Olavarria testified that when appellant passed her in

the middle lane, the 1993 Ford van was in front of her and also

in the middle lane.    She placed another car in the right lane

behind the van.    I-95 was, therefore, obstructed by a van in the




                                   3
middle lane followed by the appellant, Ms. Olavarria in the left

lane and another vehicle in the right lane.

       Ms. Olavarria saw the Laser cut in front of the car in the

right lane.   She testified that after getting into the right

lane, "he" made a movement to the left and struck the van.      She

described what she observed as follows: "He made it into the

right lane and then, turned into the van and made the van go into

other lanes and then, the van went like this [witness indicating]

and then, toppled over the side."
       Ms. Olavarria's sister, Amy, was sleeping in the Olavarria

car.   She heard the brake noise and awoke in time to see

appellant's vehicle hit the van.       She testified that she saw the

van "flipping over" and glass and debris coming toward her.

       Trooper C. L. Richardson of the Virginia State Police

investigated the accident.   He testified concerning the physical

evidence found at the scene and took photographs.      Appellant's

vehicle left skidmarks measuring 184 feet beginning in the right

lane and continuing into the middle lane, where it collided with

the Ford van.   Trooper Richardson testified that he could

determine the point of impact from the physical evidence on the

roadway.   He placed the point of impact in the middle lane, close

to the right travel lane.

       Photographs introduced into evidence show appellant's

skidmarks commencing in the right lane and continuing almost out

of the lane to the right.    They then swing gradually back into




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the right lane.   They then proceed in the right lane to the point

of impact in the middle lane.   Trooper Richardson testified that

the point of impact on appellant's car was at the left rear tire.

     After impact at the right rear of the van, the van rotated

in the middle lane, crossed into the right lane onto the shoulder

of the road, and down a fifty foot embankment.   This, the officer

stated, was consistent with being struck on the right side.

According to the officer's measurements, the van traveled 255

feet from the point of impact prior to going over the road

guardrail.    After crossing the guardrail, the van went another

ninety-two feet before coming to rest at the bottom of the

embankment.   The van was damaged to such an extent the officer

could not determine from it the point of impact.
                                 II.

     The position of appellant is that the evidence may prove him

guilty of negligence, but it is insufficient to establish that he

is guilty of negligence so gross, wanton, and culpable as to show

a reckless disregard of human life.

     The Supreme Court has declared that involuntary manslaughter

in the operation of a motor vehicle in the Commonwealth "should

be predicated solely upon criminal negligence proximately causing

death."   King v. Commonwealth, 217 Va. 601, 607, 231 S.E.2d 312,

316 (1977).   It has defined involuntary manslaughter in the

operation of a motor vehicle as "the accidental killing which,

although unintended, is the proximate result of negligence so




                                  5
gross, wanton, and culpable as to show a reckless disregard of

human life."   Id.   See also Tubman v. Commonwealth, 3 Va. App.

267, 348 S.E.2d 871 (1986) (referencing most, if not all,

Virginia cases on vehicular involuntary manslaughter).

     In Keech v. Commonwealth, 9 Va. App. 272, 386 S.E.2d 813

(1989), this Court stated:
          In determining the degree of negligence
          sufficient to support a conviction of
          vehicular involuntary manslaughter, the
          accused's conscious awareness of the risk of
          injury created by his conduct is necessarily
          a significant factor. Obviously, when the
          driver proceeds in the face of a known risk,
          the degree of the negligence is increased,
          and may turn that which would have been
          ordinary negligence into gross, willful or
          wanton negligence.

Id. at 278, 386 S.E.2d at 816.

     In Keech, the Court further addressed the question whether

to apply an objective or subjective standard when determining

what is a "known risk."    This Court held that an objective

standard would apply and the degree of negligence would be

"determined by the great risk of injury together with the

knowledge [appellant] had or should have had of that risk."       Id.

at 282, 386 S.E.2d at 818.

     When appellant undertook to pass the Rivers' van, the law

imposed upon him certain duties.       He had the common law duties to

keep a proper lookout to see what could reasonably be seen, and

to keep his vehicle under proper control.      He had several

statutory obligations.    Whenever any roadway has been divided




                                   6
into clearly marked lanes for traffic, drivers shall drive their

vehicles as nearly as is practical entirely within a single lane

and shall not be moved from that lane until the driver has

ascertained that such movement can be made safely.   Code

§ 46.2-804(2).   "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."

Code § 46.2-852.   "A person shall be guilty of reckless driving

who drives a vehicle which is not under proper control . . . ."

Code § 46.2-853.   "A driver shall be guilty of reckless driving

who exceeds a reasonable speed under the circumstances and

traffic conditions existing at the time, regardless of any posted

speed limit."    Code § 46.2-861.
     When we consider the evidence in the most favorable light to

the Commonwealth, as we must, we have no doubt that the appellant

violated all of these duties.   The issue, however, is whether the

cumulative effect of his conduct constitutes "negligence so

gross, wanton, and culpable as to show a reckless disregard of

human life."

     In Keech, we said that one significant factor to be

considered was appellant's conscious awareness of the risk of

injury created by his conduct, using an objective standard.    In

this case, appellant knew, or should have known, that his conduct

created a great risk reasonably calculated to produce injury.    It




                                    7
was daylight and all the other vehicles were directly in front of

him.   Olavarria was in the left lane, Rivers was in the center

lane and another vehicle, whose identification is unknown, was in

the right lane.   Despite this situation, appellant chose to pass

all of them at an illegal rate of speed in excess of the maximum

allowed by law.   He chose a time to pass when his movement could

not be made in safety.   He "whizzed" past Olavarria and then cut

in front of the car in the right lane.   The skidmarks and the

testimony of the state trooper establish that when appellant

reached the right lane, his speed prevented him from entering

that lane in a normal manner, but he continued to the far side of

the right lane.   He did not run off onto the shoulder because he

cut back toward the center of the roadway and continued unabated

southward in the center lane until he entered the middle lane and

struck the Rivers' van, causing it to rotate in the roadway and

run down the embankment, causing the death of three children in

the van.   Appellant's car during this period obviously was out of

control.   All of this occurred at a time when traffic on the

highway was heavy.
       One witness, an occupant of appellant's vehicle, testified

that appellant, at the time of the accident, was drinking a beer.

The fact finder could conclude that appellant possessed the beer

while driving and that this would divert his attention from the

business of driving and lessen his ability to control the

vehicle.   An obvious risk is incurred by this conduct while




                                  8
driving under the circumstances that existed here.
                               III.

     We conclude from the undisputed evidence that appellant knew

all of the traffic conditions that existed at the time.      All of

the traffic involved in the accident was in clear view and

directly in front of the appellant in broad daylight.      He was

driving in excess of seventy miles per hour on a roadway with

heavy traffic.   He had a drink in his possession.     The vehicles

ahead of him were driving sixty-five to seventy miles per hour.
     Under these circumstances, appellant willfully chose to pass

all of the traffic ahead of him.       To do this he had to change

lanes, itself a dangerous maneuver, one in which the law places

upon him the duty to make such movement only when it can be made

in reasonable safety.   Appellant was driving in excess of seventy

miles per hour, violating the maximum speed limit on the roadway,

again a willful and deliberate act on his part.      The trial court

found that appellant's conduct constituted negligence "so gross,

wanton, and culpable as to show a reckless disregard of human

life" and convicted him on three counts of involuntary

manslaughter.

     We cannot say that its judgment was plainly wrong or without

credible evidence to support it.       The degree of appellant's

negligence, as determined by the great risk of injury together

with the knowledge he had or should have had of that risk, was

sufficient to support the convictions beyond a reasonable doubt.




                                   9
For the reasons stated, we affirm the convictions.

                                             Affirmed.




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