Thomas Tyler Wright v Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Bumgardner, Humphreys and Clements
Argued at Salem, Virginia
THOMAS TYLER WRIGHT
OPINION BY
v. 	Record No. 0889-02-3 	JUDGE ROBERT J. HUMPHREYS
FEBRUARY 11, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF BOTETOURT COUNTY
George E. Honts, III, Judge
Randy V. Cargill (Magee, Foster, Goldstein &
Sayers, P.C., on brief), for appellant.
Paul C. Galanides, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
Thomas Tyler Wright appeals his conviction, after a bench
trial, for maiming, in violation of Code § 18.2-51.4.1 Wright
contends the trial court erred in finding the evidence sufficient
to establish that he drove in a manner so gross, wanton and
culpable as to show a reckless disregard for human life, as
required by the statute. 	For the reasons that follow, we affirm
the judgment of the trial court.
1 Wright was also convicted, after his plea of no contest,
of driving while intoxicated. 	However, Wright raises no issue
as to this conviction on appeal.

I. 	Background
Virginia State Police Trooper Mike Bradley was dispatched to
the scene of a car accident at approximately 2:10 a.m. on June 3,
2001. 	When he arrived, emergency personnel were already present
and treating two individuals on the ground. 	Bradley observed
Wright standing nearby, in the company of two deputies. 	Trooper
Bradley approached Wright and asked him what he knew about the
accident. 	Wright stated, "I'm f---ing drunk, okay? 	I was
driving. 	Run off the f---ing road. 	I'm f---ing drunk." 	Bradley
asked Wright how much he had had to drink, and Wright responded "I
don't f---ing know. 	A lot." 	He then asked Wright how fast he had
been driving. 	Wright stated, "Don't know. 	Too f---ing fast."
As emergency personnel attempted to treat Wright's injuries,
Trooper Bradley observed that Wright cursed and spat at them.
Wright's demeanor fluctuated from "one extreme to the other," as
he was calm one moment and then "yelling, cursing and screaming,"
the next. 	Wright was eventually restrained by medical personnel
and transported to the hospital. 	Trooper Bradley then obtained a
search warrant for a sample of Wright's blood. 	The analysis
showed that Wright had a blood alcohol content of 0.09%. 	Wright
was arrested on charges of driving while intoxicated, in violation
of Code § 18.2-266 and maiming, in violation of Code § 18.2-51.4.
At trial, Trooper Bradley testified that, when he arrived at
the scene, he observed emergency personnel performing CPR on
Matthew Switzer, a passenger in Wright's car. 	He further stated
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that, according to Wright, the accident occurred when he was
travelling south on Route 640 and approached a sharp right curve
in the road. 	Instead of making the turn, Wright continued
straight and drove off the left side of the road, over an
embankment, crashing into a tree. 	The "total distance off the
left side of the road to the impact was one hundred forty-seven
feet." 	The skid marks measured sixty-four feet. 	Trooper Bradley
testified that there was no posted speed limit on that road, so
the speed limit was "fifty-five" miles per hour.
Switzer testified that he was a passenger in Wright's car
when the accident occurred. 	Switzer stated that Wright picked him
up that evening at about 5:00 or 6:00 p.m. and that they went
riding around with another passenger named "Shaney." 	Switzer
stated that at some point, they stopped and obtained over a dozen
Xanax pills. 	He stated that everyone in the car took the pills.
He personally took three-and-a-half pills. 	They later obtained
some beer and drank while they continued to drive around. 	Switzer
did not recall the accident.
The doctor who treated Switzer testified that Switzer
presented to the emergency room with "a lot of superficial
lacerations," and a severely fractured jaw.
At the close of the evidence, Wright moved to strike,
contending that the Commonwealth had failed to establish that he
drove in a manner so gross, wanton and culpable as to show a
reckless disregard for human life. 	The trial court denied the
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motion finding that although the evidence may not have proven that
Wright was driving "in excess of the speed limit," "his speed was
clearly too fast for the conditions and clearly too fast for him
to be able to maintain proper control." 	The court then found
Wright guilty of the charge and sentenced him to five years in
prison, with four years suspended.
II. 	Analysis
On appeal, Wright contends the trial court erred in finding
the evidence sufficient, as a matter of law, to support his
conviction. 	Specifically, Wright contends Code § 18.2-51.4
mandates "three elements of proof: 	1) 	The person must drive
while intoxicated; 2) The manner of driving while intoxicated must
be so 'gross, wanton and culpable as to show a reckless disregard
for human life'; and 3) The driving while intoxicated in the
requisite manner must cause serious injury resulting in permanent
physical impairment." 	Thus, Wright argues the element of driving
while intoxicated is separate and distinct from the element of
driving in a "gross, wanton and culpable" manner and that driving
while intoxicated cannot serve as evidence to support the
requisite manner of driving. 	We disagree.
We first note that the standard for appellate review of
criminal convictions is well established. 	"When a defendant
challenges the sufficiency of the evidence, we are required to
review the evidence 'in the light most favorable to the
Commonwealth and give it all reasonable inferences fairly
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deducible therefrom.'" 	Collins v. Commonwealth, 13 Va. App. 177,
179, 409 S.E.2d 175, 176 (1991) (quoting Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975)). 	"The
conviction will not be reversed unless it is plainly wrong or
without evidence to support it." 	Id.; see also Code § 8.01-680.
Code § 18.2-51.4 provides that
[a]ny person who, as a result of driving
while intoxicated . . . in a manner so
gross, wanton and culpable as to show a
reckless disregard for human life,
unintentionally causes the serious bodily
injury of another person resulting in
permanent and significant physical
impairment shall be guilty of a Class 6
felony.
While no Virginia appellate court has issued a decision
interpreting this particular statute, the common law definition of
criminal negligence, as stated in the statute, is well settled.
Indeed, in Bell v. Commonwealth, 170 Va. 597, 611, 195 S.E. 675,
681 (1938), the Supreme Court of Virginia
defined criminal negligence in terms of
"gross negligence," stating that conduct "is
culpable or criminal when accompanied by
acts of commission or omission of a wanton
or wil[l]ful nature, showing a reckless or
indifferent disregard of the rights of
others, under circumstances reasonably
calculated to produce injury, or which make
it not improbable that injury will be
occasioned, and the offender knows, or is
charged with the knowledge of, the probable
result of his acts." 	170 Va. at 611-12, 195
S.E. at 681.
Ellis v. Commonwealth, 29 Va. App. 548, 557, 513 S.E.2d 453,
457-58 (1999). 	Thus,
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[w]hile willful misconduct requires an
intentional or purposeful act or failure to
act, gross or criminal negligence involves
[an act or] a failure to act under
circumstances that indicate a passive and
indifferent attitude toward the welfare of
others. 	Moreover, the defendant must be
proved indifferent in the face of knowledge
that injury or illegality will be the
probable result or, in the alternative, that
circumstances exist under which the
defendant may be chargeable with such
knowledge.
Id. (citations omitted).
The Supreme Court of Virginia has further held that in
determining the degree of a defendant's negligence, intoxication
is relevant as an aggravating factor, increasing with the level of
intoxication. 	Essex v. Commonwealth, 228 Va. 273, 283, 322 S.E.2d
216, 221-22 (1984); see also Huffman v. Love, 245 Va. 311, 315,
427 S.E.2d 357, 360 (1993). 	Nevertheless, although the Court
has been consistent in stating that "'[o]ne
who knowingly drives [an] automobile on the
highway under the influence of intoxicants,
in violation of statute, is, of course,
negligent[,]'" [Essex, 228 Va. at 282, 322
S.E.2d at 221] (quoting Baker v. Marcus, 201
Va. 905, 910, 114 S.E.2d 617, 621 (1960))[,]
[t]he Supreme Court [of Virginia] also has
observed that "no case . . . holds that one
driving under the influence of an intoxicant
must necessarily be driving recklessly."
Spickard v. City of Lynchburg, 174 Va. 502,
505, 6 S.E.2d 610, 611 (1940). 	Thus, while
evidence of intoxication is a factor that
might bear upon proof of dangerous or
reckless driving in a given case, it does
not, of itself, prove reckless driving.
Bishop v. Commonwealth, 20 Va. App. 206, 210, 455 S.E.2d 765,
766-67 (1995).
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Here, Wright conceded to Trooper Bradley that he was driving
"too fast." 	Wright's conduct of driving his car in a manner that
was too fast for him to control it properly, was necessarily
rendered more culpable because Wright was driving while his
intellectual and motor functions were substantially impaired by
his voluntary consumption of alcohol and drugs. 	Indeed,
immediately after the accident, Wright admitted he was drunk and
despite only slight injury, was behaving in a considerably
irrational manner. 	Accordingly, there was ample evidence on this
record to justify the trial court's determination that Wright was
guilty of such a callous indifference or disregard for "the rules
of law and safety, and of the rights of others, as was
incompatible with a proper regard for human life, and amounted to
gross, wanton and culpable misconduct." 	Bell, 170 Va. at 613, 195
S.E. at 682.
Furthermore, we reject Wright's argument that Jenkins v.
Commonwealth, 220 Va. 104, 255 S.E.2d 504 (1979), and Tubman v.
Commonwealth, 3 Va. App. 267, 348 S.E.2d 871 (1986), compel a
different result. 	The facts presented in those cases are
distinguishable from those presented here. 	In Jenkins, the Court
held that the evidence was insufficient to demonstrate
recklessness when it demonstrated merely that Jenkins struck a
pedestrian while driving "down the center of a narrow, unlighted,
unmarked, rural, secondary road in the early morning hours at a
time when he was unlikely to encounter other traffic or
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pedestrians." 	Jenkins, 220 Va. at 107, 225 S.E.2d at 506.
Indeed, the court noted that the evidence proved "Jenkins was
driving at a speed well within the posted speed limit," and had
not been drinking, or reckless in the operation of his truck. 	Id.
In Tubman, there was also no evidence that the defendant had been
drinking, and we found that the evidence merely proved simple
negligence where Tubman failed to come to a "complete stop before
entering Route 3," causing him to fail to see a motorcycle, "which
was admittedly partially obstructed by [a] hedge." 	Tubman, 3
Va. App. at 275, 348 S.E.2d at 875.
Accordingly, because we find that the trial court's
determination that Wright's conduct amounted to criminal
negligence, as provided for in Code § 18.2-51.4, was not "plainly
wrong or without evidence to support it," we affirm the judgment
of the trial court.
Affirmed.
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