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COURT OF APPEALS OF VIRGINIA

Present:

Chief Judge Fitzpatrick, Judges Benton, Coleman, Willis, Elder, Bray, Annunziata, Bumgardner, Lemons and Frank Argued at Richmond, Virginia

CHRISTOPHER SCOTT CONRAD v. Record No. 0321-98-2 OPINION BY CHIEF JUDGE JOHANNA L. FITZPATRICK NOVEMBER 30, 1999

COMMONWEALTH OF VIRGINIA

UPON A REHEARING EN BANC FROM THE CIRCUIT COURT OF HENRICO COUNTY L. A. Harris, Jr., Judge Lee W. Kilduff (Morchower, Luxton & Whaley, on brief), for appellant. Leah A. Darron, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Christopher Scott Conrad (appellant) appealed the trial court's conviction for involuntary manslaughter. Appellant

argued that the evidence was insufficient to prove he acted in a criminally negligent manner. reversed his conviction. A panel of this Court agreed and

See Conrad v. Commonwealth, 29 Va. We granted the Commonwealth's

App. 661, 514 S.E.2d 364 (1999).

request for rehearing en banc, and upon rehearing, we affirm appellant's conviction. I. Under familiar principles of appellate review, we examine the evidence in the light most favorable to the Commonwealth,

the prevailing party below, granting to it all reasonable inferences fairly deducible therefrom. See Juares v.

Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997). 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 it is plainly wrong or without evidence to support it. See Stevens v.

Commonwealth, 14 Va. App. 238, 240, 415 S.E.2d 881, 882-83 (1992). So viewed, the evidence established that on May 11, 1997, at about 9:00 a.m., on Gayton Road in Henrico County, appellant fell asleep at the wheel of his automobile and drove off the road, striking and killing Judy Dahlkemper, who was jogging on the side of the road. the scene. Officer R.J. Smith (Smith) responded to

Shortly after 11:00 a.m., after examining the Smith

physical evidence, Smith took appellant's statement.

described appellant as "extremely tired" with bloodshot eyes and a faint odor of alcohol about his person. Appellant told Smith that he had last slept on May 10, the day before the accident, arising at 11:00 a.m. after six hours of sleep. It was not unusual for appellant to stay up for long

periods of time because he had been working an irregular schedule at a retail store and playing in a band. On May 10,

appellant worked a shift at the retail store, ran errands, practiced with his band and went to the home of a friend in - 2 -

Richmond.

While at his friend's home, between about 11:00 p.m.

and 1:30 a.m., appellant consumed about fifty ounces of beer. 1 He remained at his friend's home, awake and watching television, until about 8:45 a.m. on May 11, at which time he left to drive home. Appellant testified that he was not sleepy before he left

for home and that it had not occurred to him that he might fall asleep on the drive home. Appellant traveled about twenty minutes on Interstate 64 to Gaskins Road. As appellant exited Interstate 64, "he really got Because he was only

tired and felt himself going to sleep."

about five minutes or four-and-one-half miles from home, "he did not really want to stop." He reported to Officer Smith that "he

ran off the road only after dozing off for a half second, caught himself drifting four or five times, still nodding, but said he would catch himself and said [he] would snap out of it." On

Gayton Road, a little over one-half mile from his home, he fell asleep and heard a loud noise. He initially thought someone had

hit his car with a bottle, but then he saw the body and stopped his vehicle.

When Officer Smith first asked appellant whether he had consumed any alcohol, appellant said he had not. However, when Smith asked appellant for consent to test his blood for alcohol, appellant admitted his alcohol consumption. A blood test performed "a little after noon" on May 11 was negative for drugs or alcohol. During argument, the trial court commented, "[T]here's no evidence that his drinking . . . was the cause of [the accident]," and the court made no mention of appellant's drinking in finding him guilty.

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Another driver on the road, Mary Elizabeth Harris (Harris), testified that she had been driving behind appellant, who was traveling at the forty-five mile-per-hour speed limit. Appellant traveled approximately two-tenths of a mile before Harris saw his car veer right into a turn lane and strike the jogger, Ms. Dahlkemper, who had been running, facing traffic, on the edge of the turn lane near the adjacent grass. Appellant's

vehicle displayed no turn indicator and did not brake prior to impact. Officer Smith determined that Ms. Dahlkemper had been

jogging eighteen inches from the edge of the pavement when she was struck, and he confirmed that appellant had not applied his brakes prior to impact. At trial, appellant testified to substantially the same version of events that he had given to Officer Smith at the scene. Appellant stated that when he turned onto Gayton Road,

he began to yawn, was "incredibly close to dozing off," and "was starting to kind of drift . . . in the road." However, he "[did

not] recall" telling Officer Smith that he had caught himself about to doze off on four to five occasions prior to the accident and said he believed that he told Officer Smith he had done so only one or two times. He also said he had not gone off

the road prior to the accident but had "com[e] [within] about . . . an inch [of] the line." At the conclusion of the presentation of evidence by both parties, the trial court found that appellant's actions - 4 -

constituted a gross, wanton disregard for human life, stating the following: What I feel I have to do is look at the evidence under the law and see if . . . the conduct rises to the level of reckless driving or involuntary manslaughter. And I think the situation is this: * * * * * * *

You've got the fact that Mr. Conrad had been up for 22 hours. He chose to drive the car some distance, . . . a fairly long distance, and did okay, under the evidence, until he got off of [Interstate] 64. But I think that's where the problem comes. He got off of 64, and at that point, as described both to Officer Smith, as well as his own testimony today, . . . he felt himself just about going to sleep. And to an extent, as he very well described, his car just drifted over to the right, but he was able to catch it on four or five different occasions, as he told Officer Smith, and that he was, in fact, nodding in and out. . . . And under those circumstances, he's driving after he's been up for 22 hours, after he knows that he is about to fall asleep to an extent that it's affecting his operation of the motor vehicle. He chose to continue to drive for 45 miles an hour in the residential area, not that that's exceeding the speed limit, because it is not, but driving at that speed to try to get home. And I think from the evidence that, at that time, that he was operating that motor vehicle in a state that he knew very well or should have known very well that he may, in fact, fall asleep. . . . (Emphasis added). The trial court concluded that appellant's

conduct was "gross, wanton, and culpable, [and] showed a - 5 -

disregard for human life."

Accordingly, the trial court

convicted appellant of involuntary manslaughter, in violation of Code

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