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COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Felton, Judges Elder and Beales Argued at Chesapeake, Virginia

DAVID JASON O'CONNELL v. Record No. 1010-05-2 OPINION BY JUDGE RANDOLPH A. BEALES SEPTEMBER 12, 2006

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY Frederick G. Rockwell, III, Judge Michael Morchower (Sherry Netherland, on brief), for appellant. Virginia B. Theisen, Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

In a bench trial, David Jason O'Connell (appellant) was found guilty of two counts of involuntary manslaughter; one count of failing to stop, report information, and render assistance at the scene of a motor vehicle accident; and one count of driving under the influence (DUI). On appeal, appellant contends the evidence was insufficient to sustain his convictions of involuntary manslaughter and leaving the scene of an accident.1 Finding the evidence sufficient to support the convictions, we affirm. I. "On appeal, `we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom.'" Archer v. Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987)).

This Court denied the portion of appellant's petition for appeal relating to his DUI conviction.

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II. FACTS In the late afternoon hours of February 11, 2004, appellant, driving a red Corvette, engaged in a drag race on Robious Road in Chesterfield County with David Moore, who was driving a black Corvette. William Hogan was a passenger in Moore's vehicle. During the race, Moore's vehicle left the roadway and struck a tree. Both Moore and Hogan died from injuries they sustained in the accident. Appellant's vehicle struck a van at the entrance of a residential subdivision, but he and the occupants of the van were largely unharmed. In the hours preceding the incident, Moore and Hogan encountered appellant, whom they already knew, in a bar in Chesterfield County. The men were all Corvette enthusiasts, and Moore and appellant each owned a Corvette. During a discussion about racing their Corvettes, appellant said, "[W]e can go out and we can race now if you like." Moore declined, indicating he had had too much to drink. The group went outside to the parking lot, where they examined and compared Moore's and appellant's Corvettes. Appellant and Moore, with Hogan as Moore's passenger, then drove their vehicles to Robious Road, which, in that vicinity, was a four-lane road divided by a median. The road was dry, but snow and sand were present along the sides of the road. The posted speed limit in that area was forty-five miles per hour. While the Corvettes traveled beside each other at about five miles per hour, occupying both eastbound travel lanes, the occupants communicated for about twenty seconds. Appellant, the driver of the red vehicle, then gave a hand signal, and the vehicles "gunned it" and began to race. Evidence from eyewitnesses and a sensing diagnostic module in appellant's car indicated the vehicles traveled at speeds in excess of 100 miles per hour before losing control and crashing. It was unclear which driver lost control first and what effect the movements of each car had on the other, but the cars did not come in contact with one another. The black Corvette -2-

went into a spin and ran into the trees. Appellant's red Corvette spun around, hit the rear portion of a van that was leaving the Roxshire subdivision, and then hit a brick wall at the subdivision entrance. Trooper Mark Haygood of the Virginia State Police was operating the van hit by the red Corvette. Haygood was taking his wife, who was pregnant and in labor, from their home in Roxshire to the hospital. After determining that his wife had not been hurt, Haygood exited the van and approached appellant, who was sitting in the driver's seat of the red Corvette. Haygood identified himself as a police officer and used his cellular telephone to dial 911. Although Haygood told appellant to remain where he was, appellant exited the car and used a cellular telephone. Joe Cravens, a driver who had observed the accident from the westbound side of Robious Road, attempted to render assistance to Moore and Hogan, the occupants of the black Corvette. Moore had a pulse, but Hogan did not. Cravens then encountered Haygood, who gave Cravens his card and said he was taking his wife to the hospital. As Cravens was rechecking Moore's pulse, he saw appellant begin walking south on Old Gun Road in the direction of a subdivision. Appellant climbed over a fence into the backyard of a residence in the Roxshire subdivision. Appellant proceeded through the backyard of the next house, walked between two houses to Welrose Court, passed by the front of a third house, and walked into the intersection of Auger Lane and Welrose Court. A friend of appellant, Jarrett Turner, lived in one of the houses that he passed on Welrose Court.

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Cravens shouted for appellant to stop and ran to catch up with him. Appellant stopped and stared at Cravens for a few seconds. Cravens told appellant, "Don't do it." According to Cravens, appellant replied, "I'm going to make a telephone call."2 Cravens pulled out his telephone and offered it to appellant. Appellant accepted the phone and used it, although Cravens did not know whom appellant called. Appellant walked back with Cravens to the area where the red Corvette had collided with the van. When they got to the scene, police officers had arrived. When Officer Cleon Flowers of the Chesterfield County police reached the scene, he found appellant near his car. Appellant admitted he had been driving the car. Appellant commented, "I'm not going to lie, we were racing." Appellant said he had consumed four or five beers after work. A subsequent breath test indicated appellant's blood alcohol content (BAC) was .11. Appellant said that during the race, the black Corvette had "fishtailed" in front of him. He said that he engaged his brakes to avoid contact, and his car spun out of control. III. ANALYSIS A. INVOLUNTARY MANSLAUGHTER Appellant contends the evidence was insufficient to support his convictions of the involuntary manslaughter of Moore and Hogan. We disagree. When considering on appeal the sufficiency of the evidence presented below, we "presume the judgment of the trial court to be correct" and reverse only if the trial court's decision is "plainly wrong or without evidence to support it." Davis v. Commonwealth, 39 Va. App. 96, 99, 570 S.E.2d 875, 876-77 (2002); see also McGee v. Commonwealth, 25 Va. App. 193, 197-98, 487 S.E.2d 259, 261 (1997) (en banc). Thus, we do not "substitute our judgment for that of the trier of fact." Wactor v. Commonwealth, 38 Va. App. 375, 380, 564 S.E.2d 160, 162 (2002). "Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any The police later recovered a cell phone from beneath the driver's seat of appellant's Corvette. -42

rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979). "This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Id. Kelly v. Commonwealth, 41 Va. App. 250, 257-58, 584 S.E.2d 444, 447 (2003) (en banc). To sustain a conviction of involuntary manslaughter under Virginia law, the Commonwealth is required to prove that the defendant: committed "acts of commission or omission of a wanton or wilful 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." Bell v. Commonwealth, 170 Va. 597, 611-12, 195 S.E. 675, 681 (1938). The Commonwealth must also prove that [the defendant's] criminally negligent acts were a proximate cause of the victim's death. Cable v. Commonwealth, 243 Va. 236, 240, 415 S.E.2d 218, 220 (1992). Gallimore v. Commonwealth, 246 Va. 441, 445-46, 436 S.E.2d 421, 424 (1993). Thus, we must determine whether the evidence, viewed in the light most favorable to the Commonwealth, proved that appellant committed criminal negligence that was a proximate cause of the deaths of Moore and Hogan. 1. Criminal Negligence To establish criminal negligence in the context of involuntary manslaughter involving a motor vehicle, the Commonwealth must prove: that "the conduct of the driver constitutes a great departure from that of a reasonable person (gross, wanton or willful conduct) which creates a great risk of injury to others and where by the application of an objective standard the accused should have realized the risk created by his conduct." West v. Commonwealth, 43 Va. App. 327, 343, 597 S.E.2d 274, 281 (2004) (quoting Keech v. Commonwealth, 9 Va. App. 272, 280, 386 S.E.2d 813, 817 (1989)). -5-

Appellant admitted to the police that he and Moore had been racing. Any person who engages in a motor vehicle race on Virginia highways is guilty of reckless driving. See Code

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