COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Frank and Senior Judge Hodges
Argued at Richmond, Virginia
LEON LORENZO HARRIS
MEMORANDUM OPINION * BY
JUDGE ROBERT P. FRANK
DECEMBER 21, 1999
Record No. 2078-98-2
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF NOTTOWAY COUNTY
Thomas V. Warren, Judge
Sally P. McConnaughey for appellant.
Eugene Murphy, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
Leon Lorenzo Harris (appellant) was convicted in a bench
trial for driving a motor vehicle after having been adjudged an
habitual offender, while such order was still in effect, in such a
manner as to endanger the life, limb, or property of another, a
violation of Code § 46.2-357(B)(2).
Appellant contends that the
evidence was insufficient to show that he drove in a manner which
endangered life, limb, or property, and that the trial court erred
in imposing a felony sentence.
We agree with appellant and
reverse the felony conviction under Code § 46.2-357(B)(2) and
remand for further proceedings consistent with this opinion.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
Under familiar principles, we view the evidence in the
light most favorable to the Commonwealth, the party prevailing
below, granting to it all reasonable inferences fairly deducible
See Clifton v. Commonwealth, 22 Va. App. 178, 180,
468 S.E.2d 155, 156 (1996).
We will not reverse the judgment of
the trial court unless it is plainly wrong or without evidence
to support it.
See Code § 8.01-680.
Code § 46.2-357(B)(2) states "any person found to be an
habitual offender under this article, who is thereafter
convicted of driving a motor vehicle . . . while the revocation
determination is in effect" shall be guilty of a felony
[i]f such driving of itself endangers the
life, limb, or property of another or takes
place while such person is in violation of
§ 18.2-266, irrespective of whether the
driving of itself endangers the life, limb
or property of another and one of the
offender's underlying convictions is for
§§ 18.2-36.1, 18.2-266 or a parallel local
In Bishop v. Commonwealth, 20 Va. App. 206, 208, 455 S.E.2d
765, 766 (1995), the defendant drove a vehicle to a toll booth
and inquired about turning around because he was lost.
officer approached the vehicle and smelled an odor of alcohol on
The defendant admitted to the officer
that he had been drinking.
Thereafter, the officer
administered field sobriety tests, learned the defendant was an
habitual offender, and arrested the defendant.
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officer testified that she never saw the defendant's vehicle
while it was moving.
See id. at 209, 455 S.E.2d at 766.
trial judge found that the defendant's driving endangered the
two passengers in the vehicle because the defendant operated the
vehicle while under the influence of alcohol.
defendant was convicted under Code § 46.2-357(B) and received
the felony sentence under Code § 46.2-357(B)(2).
We reversed the defendant's conviction and held that the
statutory phrase, "of itself," modified the word driving and,
therefore, required the fact finder to "find conduct, other than
the mere fact of operating the motor vehicle that imperiled or
threatened danger to the life, limb, or property of a person
other than the driver."
We rejected the Commonwealth's
argument that the defendant's intoxication constituted per se
proof that life, limb, or property was endangered.
210, 455 S.E.2d at 766.
See id. at
We stated that while the defendant's
conviction of driving under the influence pursuant to Code
§ 18.2-266 was proof of negligence, "no other facts or
circumstances prove[d] that his intoxication was such that it
elevated his 'conduct to the level of "negligence so gross,
wanton, and culpable as to show a reckless disregard of human
Id. at 211, 455 S.E.2d at 767 (citation omitted).
In Powers v. Commonwealth, 211 Va. 386, 388, 177 S.E.2d
628, 630 (1970), the Supreme Court of Virginia held that speed
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alone does not constitute reckless driving. 1
The Court wrote,
"The word 'recklessly' as used in the statute imparts a
disregard by the driver of a motor vehicle for the consequences
of his act and an indifference to the safety of life, limb or
We have employed the standard used under the reckless
driving statute in habitual offender endangerment cases.
Bishop, 20 Va. App. at 211, 455 S.E.2d at 767; Thompson v.
Commonwealth, 27 Va. App. 720, 725, 501 S.E.2d 438, 440 (1998).
The language in Code § 46.2-357(B)(2) requiring the "driving of
itself to endanger life, limb, or property" is "virtually
identical to that found in the statute defining reckless
Bishop, 20 Va. App. at 211, 455 S.E.2d at 767 (citing
Code § 46.2-852).
In Powers, there was no evidence as to the speed at which
the defendant operated the vehicle. See Powers, 211 Va. at 388,
177 S.E.2d at 630. In Code § 46.2-862, the legislature has
defined reckless driving to include operating a motor vehicle
(i) at a speed of twenty miles per hour or
more in excess of the applicable maximum
speed limit where the applicable speed limit
is thirty miles per hour or less, (ii) at a
speed of sixty miles per hour or more where
the applicable maximum speed limit is
thirty-five miles per hour, (iii) at a speed
of twenty miles per hour or more in excess
of the applicable maximum speed limits where
the applicable maximum speed limit is forty
miles per hour or more, or (iv) in excess of
eighty miles per hour regardless of the
applicable maximum speed limit.
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Therefore, we hold that since speed alone does not
constitute reckless driving under Powers, speed alone does not
of itself endanger life, limb, or property pursuant to Code
In this case, the trial judge stated that because appellant
was driving over the speed limit and because appellant had been
drinking, appellant endangered property and was, therefore,
convicted of a felony under Code § 46.2-357(B)(2).
We find the
evidence in the record insufficient to convict appellant of
habitual offender endangerment.
In this case, there was no evidence in the record as to
appellant's actual speed.
The officer did not use radar.
Instead, he merely testified that he observed appellant driving
at a high rate of speed.
The officer observed appellant shortly
There was no evidence as to the weather
conditions, other traffic on the roadways, the presence of
pedestrians, erratic driving by appellant, or other factors
which would be determinative of whether life, limb, or property
The officer testified that appellant smelled of alcohol,
walked slowly, and had blood-shot eyes.
to drinking prior to the stop.
evidence of intoxication.
Appellant also admitted
However, this was the only
There was no chemical report as to
appellant's blood alcohol content, and the officer did not
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perform the field sobriety tests.
Further, appellant did not
stumble or stagger as he walked and his speech was not slurred.
We hold this evidence insufficient to support appellant's
conviction for habitual offender endangerment.
There was no
evidence in the record to suggest that appellant's speed and
intoxication caused him to drive in a manner which of itself
endangered life, limb, or property of another person.
Therefore, we reverse appellant's conviction under Code
The evidence did establish that appellant was driving after
having been determined an habitual offender, a violation of Code
§ 46.2-357(B)(1), a misdemeanor.
We, therefore, remand for
further proceedings if the Commonwealth be so advised.
Reversed and remanded.
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