FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY. Steven C. McCallum, Judge.
Gregory R. Sheldon (Bain Sheldon, PLC, on brief), for appellant.
Eugene Murphy, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Present: Judges Beales, Decker and AtLee.
[66 Va.App. 221] RANDOLPH A. BEALES,
Derek Justice Doggett (appellant) was convicted in a bench trial in the Circuit Court of Chesterfield County of felony racing in violation of Code § 46.2-865.1. On appeal to this [66 Va.App. 222] Court, appellant argues that the trial court " erred by finding that the Commonwealth had proven that a race occurred" ; erred by finding that appellant's " failure to allow the other vehicle to pass him constituted behavior so gross, wanton or culpable so as to show a disregard for human life" ; and erred " by finding that [appellant] caused the accident." Finding that the circuit court did not err, we affirm appellant's conviction for felony racing.
Applying the established standard of review on appeal, we consider the evidence at trial " in the light most favorable to the Commonwealth, as we must since it was the prevailing party" in the trial court. Beasley v. Commonwealth, 60 Va.App. 381, 391, 728 S.E.2d 499, 504 (2012) (quoting Riner v. Commonwealth, 268 Va. 296, 330, 601 S.E.2d 555, 574 (2004)).
On the night of December 29, 2013, appellant, Rosalee Hill (Hill), Kristopher Holiday (Holiday), and Johnny Sam (Sam) went bowling. They finished bowling around 10:45 p.m. as Hill had a curfew at 11:00 p.m. Appellant, Holiday, and Hill got into appellant's car, and Sam got into another car. Holiday sat in appellant's front passenger seat, and Hill sat in the back seat of appellant's vehicle. Holiday testified that there was no discussion of racing before they got in the two cars. However, he stated that, once they were driving on the road, while both cars were stopped side-by-side waiting at a stoplight, Holiday observed that Sam made a motion with his hand. When the stoplight turned green, both cars " took off at the light" -- each in their separate lanes. The road then turned into one lane at some point on that road, and, at this point, Sam was ahead of appellant, and they slowed to the speed limit.
About a mile past the traffic light, appellant passed Sam's vehicle by crossing over a double-yellow line. Holiday testified [66 Va.App. 223] that appellant did not have trouble passing Sam and that he was unsure how fast appellant's vehicle was driving at that time, but that he passed going very quickly. Holiday testified that he was not afraid of appellant's speed at that point. Next, however, Sam attempted to pass appellant by going over a double-yellow line and into the other lane, and both vehicles sped up. Holiday testified that he told appellant, " 'Hey, man. We're going too fast.' And then I looked back and seen Johnny's lights and I heard like a screeching sound kind of, and I seen Johnny's lights coming towards our car, and then like two seconds after that, everything just went black, kind of, until we started rolling." Holiday testified that appellant was going between 55 and 60 miles per hour at the time of the crash but that, when he told appellant they were going too fast, appellant took his foot off the accelerator and the crash then happened very soon thereafter. While Holiday suffered only a broken hand, Hill was ejected from the car upon impact. She suffered a traumatic brain injury, a fractured pelvis, a significant injury to her right eye, and a broken jaw as a result of the accident, all of which required a six-month stay in the hospital.
In the place that the accident occurred, the road was one lane going each way, and had a speed limit of 35 miles per hour. The evidence at trial showed that appellant was travelling at 55 to 60 miles per hour -- more than 20 miles per hour over the speed limit -- and on roads that were " heavily soaked." Officer Wayne Brumbaugh, the police officer who responded to the scene, testified that, based on his examination of the paint transfer on the vehicles, the two vehicles struck each other twice. Officer Brumbaugh further concluded that the paint transfer suggested that Sam's car was in the wrong lane at the time the accident occurred. Appellant told Officer Brumbaugh that he had been going approximately 35 to 40 miles per hour. He was driving on a suspended license at the time.
The trial court first determined that it was relying on the plain interpretation of the word " race" as a contest of speed. The trial court said, " I agree it takes two or more people, as [66 Va.App. 224] the statute implies. . . . [W]hen you race, you try to be first." The trial court found certain facts to be significant: (1) the drivers knew each other; (2) when the two cars were stopped next to each other at the stoplight, Sam made a " forward sort of shaking gesture" that the trial court said " could be construed as a gesture meaning go or go forward" ; (3) there was excessive speed around the time of the accident (traveling at least 20 miles per hour over the speed limit); and (4) the two drivers maneuvered their cars as they passed or tried to pass each other across a double-yellow line on the road. The trial court focused on the vehicles' maneuvers because it found that Sam was initially the leading car, then appellant passed Sam over a double-yellow line, and finally, when Sam attempted to pass appellant to regain the lead position on a dark, wet, one-lane road, appellant sped up to the point that his passenger, Holiday, said that he felt they were going too fast. Furthermore, in addition to appellant's participation in the race and conduct in maneuvering, the trial court found that " contact is caused by the fact that the defendant hasn't yielded, hasn't fallen back to let the overtaking vehicle get back in the safe lane of travel." Ultimately, the court found that the evidence was sufficient to prove that appellant was guilty of felony racing.
Standard of Review