[Copyrighted Material Omitted]
Alex N. Levay, for appellant.
Susan M. Harris, Assistant Attorney General, (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.
Present: KELSEY, ALSTON and DECKER, JJ.
ALSTON, Jr., Judge.
[63 Va.App. 19] Raymond Charles Case (appellant) appeals his conviction of driving while intoxicated in violation of Code § 18.2-266. On appeal, appellant alleges that the trial court (i) " erred in ruling that the Commonwealth proved each and every element of the offense charged beyond a reasonable doubt, and specifically that the trial court rejected any requirement on the part of the Commonwealth to prove that the appellant possessed the requisite mens rea to justify a conviction of the offense of Driving Under the Influence of Alcohol," (ii) " erred in ruling [63 Va.App. 20] that the Commonwealth's evidence excluded each and every reasonable hypothesis consistent with the innocence of the appellant and was consistent only with his guilt," and (iii) " erred in ruling
that the evidence supported the proposition that the appellant consciously moved from the passenger seat to the driver's seat and rested his foot on the brake after Ms. Wessels left and prior to Mr. Heaney's arrival thereby exposing appellant to a charge of DUI." Finding no error, we affirm.
On November 5, 2011, appellant and his friend, Deborah Wessels, attended a meeting at the Brunswick Eagles in Maryland. At some point in the evening, Ms. Wessels went out into the parking lot and observed appellant asleep in his pickup truck. Ms. Wessels was " a little worried" about appellant and tried to wake him. When Ms. Wessels was unable to awaken appellant, she decided to drive him home herself with another friend following behind so as to drive her back to the meeting afterwards.
After crossing into Virginia, Ms. Wessels testified that appellant began " slumping" and " leaning over" on her from the passenger side. According to Ms. Wessels, it became " really difficult for [her] to drive" and she could not stop appellant from leaning over on to her through the console between the two. Ms. Wessels testified that eventually she became " upset" and " disgusted" with appellant's behavior and she " panicked." Ms. Wessels pulled over to the side of the road, got out of the truck, and returned with her friend to the meeting. Ms. Wessels testified that she left the motor of appellant's truck running.
Sometime thereafter, around 9:30 p.m., Mark Edward Heaney looked out his window on Dutchman Creek Road in Loudoun County and observed appellant's pickup truck in [63 Va.App. 21] front of a neighbor's house stopped on an incline, facing downhill, with its brake lights illuminated. Mr. Heaney drove his car up to appellant's truck and looked through the window of the passenger's side. Mr. Heaney observed appellant sitting in the driver's seat, slumped over the steering wheel, with his chin on his chest and his eyes closed. Noticing that the driver's side window was rolled down, Mr. Heaney walked around to the driver's side and observed the truck was in gear and appellant's foot was on the brake. Mr. Heaney could not see whether appellant was breathing, and he called 911. He then reached into the vehicle, put the truck in park, and turned on the hazard lights.
Sergeant Williams was dispatched to the scene and upon arrival, observed appellant in the driver's seat of the pickup truck with the motor running. When Sergeant Williams asked appellant for his driver's license, he fumbled around looking for it. During the encounter Sergeant Williams smelled " a very strong odor of an alcoholic beverage about [appellant's] person." Additionally, appellant was " somewhat unsteady on his feet," his eyes were bloodshot, and his face was " very flushed." Appellant admitted to Sergeant Williams that he had been drinking and submitted to a preliminary breath test. After the preliminary breath test, Sergeant Williams arrested appellant for driving under the influence and transported appellant to the detention center where appellant submitted to a chemical test of his breath alcohol content. The results showed appellant's blood alcohol content was 0.14% grams per 210 liters of breath.
A bench trial commenced on November 1, 2012. At the conclusion of the trial, the trial court found appellant guilty of driving under the influence. That same day, the trial court sentenced appellant to twelve months in jail with twelve months suspended, a fine of $250, suspended appellant's driver's license for twelve months, and placed him on probation for twelve months. The trial court also required appellant to enroll in the Virginia Alcohol Safety Action Program. This appeal followed.
[63 Va.App. 22] II. Analysis
On appeal, appellant asserts three assignments of error. First, appellant argues that the trial court erred in determining that the Commonwealth's evidence excluded each reasonable hypothesis of appellant's innocence. Second, appellant contends that the trial court erred in rejecting appellant's argument that the Commonwealth was required to prove that appellant possessed the ...