Hershel Frank Sullivan, Jr. v Commonwealth of VA

COURT OF APPEALS OF VIRGINIA
Present: 	Chief Judge Fitzpatrick, Judges Willis and Bumgardner
Argued by teleconference
HERSHEL FRANK SULLIVAN, JR.
MEMORANDUM OPINION∗ BY
v. 	Record No. 1038-98-3 	JUDGE JERE M. H. WILLIS, JR.
APRIL 6, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF LEE COUNTY
William C. Fugate, Judge Designate
Anthony E. Collins (Collins & Collins, on
brief), for appellant.
Kathleen B. Martin, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
On appeal from his convictions of involuntary manslaughter,
in violation of Code § 18.2-36, Hershel Frank Sullivan, Jr.,
contends (1) that the trial court erred in ruling that the road
upon which he was driving was not a "highway" as defined by Code
§ 46.2-100, and (2) that the evidence is insufficient to sustain
his conviction. 	Because Sullivan's conduct did not rise to the
level of willful or wanton negligence, evidencing a reckless
disregard for human life, we reverse his convictions and dismiss
the charges.1
∗Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication
1Because the evidence is insufficient to sustain the
convictions whether or not "new" Route 58 was a highway, we do not
address whether the trial court erred in ruling that it was a

On appeal, we 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.
Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418
(1987).
On August 4, 1995, Paula Rouse and her young daughter were
killed in a collision at the intersection of Route 724 and a new
segment of Route 58, which was still under construction. 	At the
time of the collision, the two eastbound lanes of "new" Route 58
were partially paved. 	The two westbound lanes were surfaced
with gravel. 	The new Route 58 was not officially open to the
general public, but it was in use by local traffic. 	No traffic
controls or barriers were located at the intersection, but
barriers were in place approximately two miles east and two
miles west of the intersection.
Sullivan was delivering asphalt in a dump truck to a paving
site on "new" Route 58. 	He had been instructed to use the
partially constructed new road and had done so several times
that day. 	He was making his last delivery of the day when the
accident occurred.
private road.
- 2 -

Ms. Rouse was proceeding south on Route 724. 	A witness,
who lived about four hundred feet from the intersection,
testified that he saw her pass his home and estimated her speed
at twenty-five miles per hour. 	However, the same witness
testified that about three or four seconds later, he heard the
sound of the collision. 	Expert witnesses calculated that Ms.
Rouse would have been driving about sixty-five miles per hour in
order to travel approximately four hundred feet in three to four
seconds.
The accident occurred when Sullivan's truck, proceeding
east on new Route 58, struck the right side of Ms. Rouse's car,
which was southbound on Route 724, crossing the eastbound lanes
of new Route 58. 	Sullivan testified that he had been driving
between forty-five and fifty miles per hour, the speed being
driven by other similar vehicles over that stretch of the new
construction and that he had slowed down as he approached the
intersection, but seeing no other traffic, had just begun
accelerating when he felt the impact. 	He did not see the Rouse
car before the accident. 	Sullivan was the only surviving
witness to the accident.
For purposes of our analysis, we assume, without deciding,
that new Route 58 was not a public highway. 	In that event, no
speed limit would have applied to new Route 58. 	Route 724 would
have had the right of way over traffic proceeding along the new
- 3 -

construction. 	Thus, it was Sullivan's duty to operate his truck
at a reasonable and safe speed, under the circumstances, to keep
it under proper control, to maintain a proper lookout for
vehicles crossing the new construction on Route 724, and to
yield the right of way to any such vehicles. 	His failure to
exercise reasonable care to perform those duties would
constitute negligence. 	However, our inquiry is not whether
Sullivan was guilty of negligence, but whether he was guilty of
conduct that supports his convictions of involuntary
manslaughter.
While involuntary manslaughter is a Class 5 felony, it is
not statutorily defined. 	See Code § 18.2-36. 	"Involuntary
manslaughter is
the accidental killing of a person, contrary
to the intentions of the parties, during the
prosecution of an unlawful, but not
felonious act, or during the improper
performance of some lawful act. 	The
'improper' performance of the lawful act, to
constitute involuntary manslaughter, must
amount to an unlawful commission of such
lawful act, not merely a negligent
performance. 	The negligence must be
criminal negligence. 	The accidental killing
must be the proximate result of a lawful act
performed in a manner 'so gross, wanton, and
culpable as to show a reckless disregard of
human life.'"
Cable v. Commonwealth, 12 Va. App. 565, 567-68, 405 S.E.2d 444,
445 (1991) (citation omitted), aff'd, 243 Va. 236, 415 S.E.2d
- 4 -

218 (1992). 	A finding of criminally culpable negligence
requires that the defendant have
act[ed] consciously in disregard of another
person's rights or act[ed] 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. . . . Willful or wanton negligence
involves a greater degree of negligence than
gross negligence, particularly in the sense
that in the former an actual or constructive
consciousness of the danger involved is an
essential ingredient of the act or omission.
Griffin v. Shively, 227 Va. 317, 321-22, 315 S.E.2d 210, 213
(1984) (citations omitted).
In Tubman v. Commonwealth, 3 Va. App. 267, 348 S.E.2d 871
(1986), the defendant entered a dual highway from the side,
crossing the westbound lanes and then the median, and entered
the eastbound lanes, striking a motorcycle that he had failed to
see approaching. 	Noting the defendant's duty, before entering a
public highway, to stop, to maintain a lookout for vehicles on
the highway, and to yield the right of way to vehicles
approaching on the highway, we held:
Tubman's negligence is not so gross, wanton,
and culpable as to show reckless disregard
of human life. 	We do not find that Tubman
acted "consciously in disregard of another
person's rights," nor do we find that he was
driving with reckless indifference to the
consequences of his actions.
Id. at 275, 348 S.E.2d at 875.
- 5 -

Sullivan possessed a valid commercial operator's license.
He drove his truck on new Route 58 at a speed that was lawful,
not inherently dangerous, and consistent with the speed of other
similar vehicles on the same stretch of road. 	He had his truck
under control. 	The most that can be said against him is that he
failed to maintain a proper lookout. 	No evidence establishes
that he did so willfully, deliberately, recklessly, or with an
intentional disregard of the safety of others. 	The evidence
fails to prove that he was guilty of an utter or reckless
disregard for human life and fails to prove involuntary
manslaughter.
The judgment of the trial court is reversed, and the
charges are ordered dismissed.
Reversed and dismissed.
- 6 -