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Synan v. Commonwealth

Court of Appeals of Virginia

January 24, 2017



          Julia B. Dillon for appellant.

          Virginia B. Theisen, Senior Assistant Attorney General (Mark R. Herring, Attorney General; Kathleen B. Martin, [*] Senior Assistant Attorney General, on brief), for appellee.

          Present: Judges Beales, Alston and Senior Judge Haley Argued at Richmond, Virginia



         Thomas James Synan, II appeals the decision of the trial court finding appellant guilty of malicious wounding, driving under the influence ("DUI"), and assault of two individuals, Teresa Hiddleston and Dawn Napper.[1] Appellant argues that the trial court erred in admitting certain statements that were self-serving hearsay lacking any reliability. Appellant also argues that the trial court erred in finding the evidence sufficient to convict appellant of malicious wounding, assault and battery, and DUI. We disagree with appellant. As such, we affirm the decision of the trial court.


         On December 1, 2012, appellant and his wife, Ruth Synan, were involved in an accident resulting in their van crashing into an embankment after crossing through oncoming traffic. At appellant's February 3, 2015 bench trial, [2] several witnesses testified as to the events surrounding the accident.

         Teresa Hiddleston testified that on December 1, 2012, the day of the accident, she was transporting a high school band, from a parade at the Spotsylvania Courthouse back to Massaponax High School, in a school bus. While driving, Hiddleston saw a van turning in front of the bus and had to swerve over the yellow line to avoid hitting the van. She stated that the van turned at a very sharp and abrupt ninety-degree angle. Hiddleston testified that she came "real close" to hitting the van, estimating that it was "[p]robably not even a half a car length[]" away. At the time, Hiddleston was driving approximately forty-five miles per hour but she did not speculate as to how fast appellant's van was going, although she did indicate that "[it] was moving very fast" and it did not slow down. Hiddleston testified that when she swerved over the yellow line, the children on the bus were "out of their seat[s], " but noted that everyone was okay. After the van passed in front of her bus, Hiddleston saw it "hit the embankment and then it kind of bounced back and rolled over to its side." At that point, Hiddleston pulled the bus over. She remained on the bus while chaperones and some of the students went to help. Hiddleston testified that she did not see the occupants of the van nor did she know who was driving at the time of the incident.

         Dawn Napper, a chaperone for the marching band, testified that she was riding in Hiddleston's bus at the time of the incident. Napper saw the van in the other lane heading toward the bus and testified that it "started swerving and all of a sudden [it] just cut right in front of [the] bus." She too described the turn as very sharp and abrupt. Napper further testified that the van came "within inches" of the bus and would have hit the bus absent Hiddleston's maneuvers to avoid it. Napper estimated that the bus was going about forty-five miles per hour.

         After watching the van crash, Napper called 911, exited the bus, and walked over to the man who was inside the van. Napper testified that appellant directed his attention to the other person in the van and kept saying: "I'm sorry, baby. I didn't mean to hurt you. I didn't mean to hurt you." Napper also heard appellant say he would have to "get back in there. There's money I've got to get out of there. I've got to get back in there." Napper described appellant as "very panicky" and noted that appellant smelled of alcohol and was unintelligible at times. Napper did not see any alcohol in or near the van, but she indicated that the smell was "overwhelming" and it seemed to be coming from appellant and not the van itself.

         James Jackson, who was riding in another bus that was taking band members back from the parade, also saw the van coming down the other lane. Jackson did not know how fast the van was traveling but noticed it "because of its sporadic nature on the road. It was weaving back and forth." Jackson characterized the van's turn as a "hard left" and noticed that the other bus moved to the left. Jackson stated that the van "came up on the buses' right side and eventually made another hard left turn over the side of the road and then up the embankment." He said that the van hit the embankment with "a pretty good rate of speed. You could tell that whoever was driving lost control."

         Jackson testified that he saw appellant exit from the top of the van, jump off, and collapse, stating that he was in pain. Jackson described appellant's demeanor as angry and further elaborated that appellant was saying things like: "he was getting the 'F' out of the way, " "[h]e was leaving the scene, " and asking others "to leave him alone." Jackson testified that he went over to the van to try to help the female who was still inside calling for help. Inside the van he saw "an extremely large quantity of beer cans, " both opened and unopened. Jackson described the female occupant of the vehicle as "crying, hysterical, [and] shaken."

         While assisting the female occupant of the van, Jackson heard appellant saying, "baby, I didn't mean this. I didn't want to hurt you. I wasn't trying to hurt us. Please forgive me, " and other words indicating that appellant was generally apologetic for the accident. Jackson continued trying to calm the female occupant down but indicated that "[s]he didn't calm down for a while." Jackson stated that she was "rambling, " telling him things voluntarily and that it got to the point "where she wanted [him] to know that [appellant] jerked the steering wheel. She wanted [him] to know that [appellant] tried to kill them both by hitting the van, that he was yelling at her, [and] that they were fighting." Jackson estimated that it was no more than two minutes from the time of the accident to the time when he was at the vehicle with the female inside the van.

         At the conclusion of Jackson's testimony, appellant objected to the statements made by Ruth Synan at the scene, arguing that they were self-serving hearsay. The Commonwealth argued that the statements fell within the excited utterance exception to the hearsay rule and that the statements were not elicited in response to a line of questioning but rather came as a response to one question: "What happened?" Further, the Commonwealth argued that Jackson did not offer any suggestions as to what occurred. The trial court overruled appellant's objection.

         Stephannie Hartwig, a chaperone on Jackson's bus, testified that Jackson brought her attention to the van driving erratically, and she turned and saw the van go up the embankment and roll back down. After the accident, Hartwig sat with appellant on the embankment, trying to assist him while they waited for rescue personnel to arrive. Hartwig testified that appellant was very agitated, insisting on wanting to talk to the female in the vehicle. Hartwig noted that appellant was concerned about money in the van, insistent that Hartwig call his daughter, and adamant about having to leave before the authorities arrived.

         Hartwig stated that when she briefly spoke to the female in the van to get appellant's daughter's phone number, the female in the van was in shock and had a "very jittery voice, [and was] very . . . upset." Hartwig estimated that the rescue squad arrived in less than ten minutes and that the conversations with appellant and the female in the van all occurred within that timeframe. The female in the van kept saying "I can't believe he did this. I don't know why he did this, you know, he did this." Hartwig testified that appellant repeatedly apologized, saying: "I'm sorry, Susie. I didn't mean to do it Susie."

         Prior to resting its case, the Commonwealth mentioned the following stipulations: (1) Ruth Synan was appellant's wife and (2) at the time of the accident, appellant's BAC was above .08. At the conclusion of the Commonwealth's case, appellant moved to strike the evidence. Appellant argued that there was no evidence that either Napper or Hiddleston felt threatened by appellant and that no one saw who was in control of the vehicle when it swerved into oncoming traffic. Appellant also argued that there was no evidence showing that he acted with malice and the intent to maim, disfigure or kill. Appellant maintained that he was in the vehicle at the time of the accident, so he would have wanted to hurt himself if he grabbed the wheel. Further, appellant argued that there was no space in the car for him to gain control over the vehicle by jerking ...

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