                      COURT OF APPEALS OF VIRGINIA


Present: Judges Frank, Agee and Senior Judge Coleman
Argued at Salem, Virginia


STEVIE JOE YATES
                                            MEMORANDUM OPINION * BY
v.   Record No. 1171-00-3                  JUDGE SAM W. COLEMAN, III
                                                 JUNE 19, 2001
COMMONWEALTH OF VIRGINIA


              FROM THE CIRCUIT COURT OF BUCHANAN COUNTY
                      Keary R. Williams, Judge

          Terrence Shea Cook (Bolling, Hearl, Cook, on
          brief), for appellant.

          Amy L. Marshall, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellee.


     The sole question presented in this appeal is whether the

evidence is sufficient to support Stevie Joe Yates's conviction

for involuntary manslaughter.     Finding that the evidence is

insufficient, we reverse Yates's conviction and dismiss the

indictment.

                             I.    Facts

     Yates and his sons participated in a camping trip with the

Boy Scouts at Breaks Interstate Park, a location 31.4 miles from

their home in Buchanan County.    After arriving at the campsite,

Yates and his sons pitched their tents and participated in


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
organized events before going to bed around 11:00 p.m.    The next

morning, they awoke around 7:00 a.m., ate breakfast, and

participated in more organized activities before packing their

vehicle and driving home around 11:30 a.m.     Yates drove west on US

460, which is a curvy, steep mountain route.     After driving

thirteen miles toward home from the campsite, Yates's vehicle

crossed the double solid line and struck a vehicle driven by

Donald Jones.   This collision spun Yate's vehicle around so it hit

Matthew Keene's truck, pushing it off the highway.    Keene died as

a result of the injuries sustained in this accident.

     While at the hospital being treated for injuries, Yates told

Trooper P.A. Skeens that he did not know what caused the accident

and that he did not "remember anything about the accident."      Yates

told the trooper that he had not gotten much sleep lately and "was

sleepy, but not that sleepy."   Trooper Skeens testified that no

evidence indicated that Yates had been speeding, or that he had

been under the influence of alcohol or drugs.     At trial, Yates

acknowledged that he could have fallen asleep but testified "I

don't remember being real sleepy."      No evidence was introduced

that he had nodded off or fallen asleep or driven off the road

prior to the accident.   On the day of the accident, the weather

was sunny, and the roads were dry.

     In addition to evidence about how the collision occurred, the

Commonwealth presented evidence that at the campsite Lawrence

Blankenship's vehicle had been parked next to Yates's vehicle.

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Prior to camping, Blankenship's vehicle was free from damage or

scratches.   The day when Blankenship prepared to leave the

campsite, approximately four hours after Yates left, Blankenship

noticed a scratch on his vehicle's fiberglass bumper.      No one saw

how the damage was caused.    Hundreds of children and about fifty

adults, all with camping gear, attended the camp-out and parked in

the same area with the Yates and Blankenship vehicles.      About a

month after the accident, Blankenship was involved in an argument

with Yates regarding how Yates was coaching Blankenship's son on a

basketball team.   During the argument, Blankenship threatened to

"whip" Yates.   At trial, according to Blankenship, Yates then said

either "he was sorry about the scratch on [Blankenship's]

vehicle," or "sorry about scratching [Blankenship's] truck."     When

the defense asked Blankenship about the apparent inconsistency,

Blankenship testified that Yates made both statements.

     At trial, Yates denied scratching Blankenship's vehicle and

denied later making the statement to Blankenship.

                             II.    Analysis

    When considering the sufficiency of the evidence on appeal in

a criminal case, "'we review the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom.'"       Archer v.

Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)

(citation omitted).   "The credibility of the witnesses and the

weight accorded the evidence are matters solely for the fact

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finder who has the opportunity to see and hear that evidence as

it is presented."    Sandoval v. Commonwealth, 20 Va. App. 133,

138, 455 S.E.2d 730, 732 (1995).

    "[I]nvoluntary manslaughter in the operation of a motor

vehicle [is defined] as an 'accidental killing which, although

unintended, is the proximate result of negligence so gross,

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

life.'"   Conrad v. Commonwealth, 31 Va. App. 113, 120, 521

S.E.2d 321, 325 (1999) (citation omitted).   To sustain an

involuntary manslaughter conviction, criminal negligence must be

proved.   Criminal negligence results when a person "'act[s]

consciously in disregard of another person's rights or . . .

with reckless indifference to the consequences, with the

defendant aware, from his knowledge of existing circumstances

and conditions, that his conduct probably would cause injury to

another.'"    Tubman v. Commonwealth, 3 Va. App. 267, 271, 348

S.E.2d 871, 873 (1986) (quoting Griffin v. Shively, 227 Va. 317,

321, 315 S.E.2d 210, 213 (1984)).   Criminal negligence may be

found to exist where the offender either knew or should have

known the probable results of his acts.    See Keech v.

Commonwealth, 9 Va. App. 272, 279, 386 S.E.2d 813, 817 (1989).

    "'The law recognizes three degrees of negligence, (1)

ordinary and simple, (2) gross, and (3) willful, wanton, and

reckless.'"    Tubman, 3 Va. App. at 270, 348 S.E.2d at 873

(quoting Griffin, 227 Va. at 321, 315 S.E.2d at 212).     The third

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type, which forms the basis for criminal negligence, is greater

than ordinary or gross negligence.     Criminal negligence is

"'[m]arked by or manifesting arrogant recklessness of justice,

of the rights or feelings of others, . . . merciless;

inhumane.'"   Forbes v. Commonwealth, 27 Va. App. 304, 310, 498

S.E.2d 457, 459 (1998) (citation omitted).

    In Hargrove v. Commonwealth, 10 Va. App. 618, 394 S.E.2d

729 (1990), a tired driver dozed off while driving home after

working the midnight to 8:00 a.m. shift, and struck and killed a

pedestrian.   The evidence was insufficient to support an

involuntary manslaughter conviction because the evidence did not

exclude the reasonable hypothesis that Hargrove, who had not

previously dozed off while driving prior to the accident, could

reasonably have believed that he could drive himself home

without endangering human life.   Id. at 622, 394 S.E.2d at 732.

The evidence failed to show that Hargrove's falling asleep while

driving showed a willful, wanton, reckless disregard for human

life.   At most, the evidence showed that Hargrove was negligent.

    In contrast, the evidence in Conrad supported an

involuntary manslaughter conviction where Conrad had been awake

for twenty-two hours without sleep and chose to drive his

vehicle after dozing off several times, before he struck and

killed a jogger by driving off the road.     Conrad, 31 Va. App. at

124, 521 S.E.2d at 327.   Even though Conrad dozed off four or

five times but "snapped out of it," he continued driving knowing

                               - 5 -
that he had been falling asleep.     We upheld the trial court's

holding that Conrad should have known because he had dozed off

four or five times, that his driving abilities were affected

and, therefore, should have known of the risks to human life

that his driving created.   Id.    His decision to continue driving

in such a condition constituted "a callous act of indifference

to the safety of others."   Id.    We held that the evidence

supported a finding of criminal negligence and upheld Conrad's

involuntary manslaughter conviction.      Id.

     In the present case, the evidence does not show that Yates

had dozed off or was sleepy prior to the fatal accident.       The

evidence fails to show that at the time he was driving he

exhibited a callous disregard or indifference to the safety of

others.   The evidence does not exclude the reasonable hypothesis

that, even if Yates did not get much sleep at the camp-out the

previous night, Yates reasonably could have believed that he

could drive home without endangering human life.    No evidence

was presented to prove that Yates knew or should have known

prior to the accident that he was so sleepy that he was a danger

to others on the highway.

     The Commonwealth apparently relies on the fact that

Blankenship's fender was scratched as some evidence tending to

prove that Yates was on notice before he left the campsite that

he was sleepy and that his ability to operate his vehicle was

impaired.   However, that evidence viewed in the light most

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favorable to the Commonwealth does not tend to prove or support

the conclusion that Yates was sleepy and dozing off when he left

the campground.   First, the evidence is equivocal at best and

fails to prove that Yates, rather than someone else at the

camp-out, scratched Blankenship's truck fender.   The

Commonwealth relies on the fact that Yates's vehicle was parked

next to Blankenship's vehicle for some of the time at the

campground and on Blankenship's inconsistent testimony regarding

Yates's statement a month later to prove that Yates caused the

damage.   However, this vague and inconsistent circumstantial

evidence is not sufficiently credible to prove that Yates caused

the scratches to Blankenship's truck.

     But moreover, even if we accept that Yates's car did

scratch Blankenship's fender, that evidence does not prove that

Yates was sleepy or that his driving was impaired due to sleep

deprivation.   The fact that Yates may have scratched

Blankenship's truck as he exited the parking lot was irrelevant

and proves nothing as to Yates's state of alertness or his being

on notice that he was sleepy.   Danny Davis, who saw Yates leave

the campsite, said Yates appeared to be well rested and did not

appear to be tired or in any way impaired.   The evidence

indicated that Yates had no trouble driving the thirteen miles

prior to the accident.   The evidence does not prove that Yates

knew or should have known that driving home "probably would

cause injury to another."

                                - 7 -
     Yates's conduct may have constituted ordinary or even gross

negligence, but it did not, without more, support a finding of

criminal negligence.   Accordingly, the evidence was insufficient

to prove the criminal negligence necessary to support an

involuntary manslaughter conviction.

    For these reasons, we reverse Yates's conviction for

involuntary manslaughter and dismiss the indictment.

                                       Reversed and dismissed.




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