Campbell v. Commonwealth, Record No. 1471-07-2 (Va. App. 7/15/2008)

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Unpublished Opinion

RICKY O'BRIAN CAMPBELL v. COMMONWEALTH OF VIRGINIA.

Record No. 1471-07-2.

Court of Appeals of Virginia, Richmond.

July 15, 2008.

Appeal from the Circuit Court of King George County, Horace A. Revercomb, III, Judge.

William M. Sokol (Sokol & Jones, on briefs), for appellant.

Virginia B. Theisen, Senior Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

Present: Judges Frank, McClanahan and Beales.

MEMORANDUM OPINION^*

JUDGE ROBERT P. FRANK.

Ricky O'Brian Campbell, appellant, was convicted, in a bench trial, of leaving the scene of an accident involving personal injury or death in violation of Code § 46.2-894. On appeal, he contends the trial court erred in finding that he was "involved" in an accident that fatally injured one individual and critically injured another. For the following reasons, we reverse appellant's conviction and remand for a new trial if the Commonwealth be so advised.

BACKGROUND

On May 7, 2006 appellant was visiting relatives at his cousin's home on Route 301 in King George County. He left the family gathering at approximately 1:00 a.m., traveling north on Route 301 on his motorcycle. Shortly after leaving his cousin's driveway, appellant lost control of the motorcycle and it spun to the ground. Corey Mickens witnessed the spill and told appellant's cousin, Kelvin, what had just happened. Kelvin ran up the hill from the residence to assist appellant in moving the motorcycle out of the roadway.

While appellant was in the process of moving his motorcycle to the side of the road, a pickup truck was traveling north in the left-hand lane heading toward appellant and Kelvin. The truck veered onto the median strip to avoid striking a man and a woman who were in the road jumping up and down and waving frantically. A Ford Freestyle was following the pickup in the right-hand lane of travel. Tragically, the Ford struck both individuals, fatally injuring the man and critically injuring the woman.

Appellant suffered only minor injuries from his fall. After restarting his motorcycle, appellant drove to another cousin's residence without reporting to law enforcement officials who later arrived to investigate the accident with the Ford Freestyle. The following day appellant was charged with leaving the scene of an accident involving injuries. The trial court, relying upon this Court's decision in Robinson v. Commonwealth, 48 Va. App. 623, 633 S.E.2d 737 (2006), determined that appellant was "involved" in the Ford Freestyle accident and found him guilty as charged.

This appeal follows.

ANALYSIS

Procedural Default

The Commonwealth first claims that appellant has not preserved his right to challenge the sufficiency of the evidence on appeal. The Commonwealth reasons that appellant is procedurally barred from arguing sufficiency because he failed to renew his motion to strike the evidence at the conclusion of the trial. Under the specific facts of this case, we disagree with the Commonwealth.

Prior to trial, appellant moved the court to dismiss, arguing that the evidence would not show that appellant was "involved" in the accident. After considering this Court's decision in Robinson, 48 Va. App. 623, 633 S.E.2d 737, the trial court overruled appellant's motion. At the close of the Commonwealth's case, appellant moved the trial court to strike the evidence in its entirety. The Commonwealth responded by arguing that Robinson controlled. The court stated "[t]his case turns . . . on the sole question of whether or not the defendant was involved in the accident." Again referencing Robinson, the trial court overruled appellant's motion to strike and found that the Commonwealth met its prima facie burden.

Appellant presented evidence, and, at the close of the case, the court asked for argument. Appellant's counsel responded, "I have nothing to say, Your Honor." The court stated:

As I indicated earlier, this case turns on the sole question from a legal perspective on what has been presented as to whether the accused was involved in the accident in order to meet the requirements of that statute.

In looking to Robinson v. Commonwealth, looking for guidance on the issue and looking at the facts of the case at bar, I am satisfied that the Commonwealth has met its burden. The evidence is sufficient and I, therefore, find him guilty.

It is well settled that when a defendant elects to present evidence on his behalf, he waives the right to stand on his motion to strike the evidence made at the conclusion of the Commonwealth's case. White v. Commonwealth, 3 Va. App. 231, 233, 348 S.E.2d 866, 868 (1986) (citing Spangler v. Commonwealth, 188 Va. 436, 50 S.E.2d 265 (1948)). This principle recognizes that when

[an] accused elects not to stand on his motion and presents evidence, he thereby creates a new context in which the court, if called upon to do so, must judge the sufficiency of the evidence. Thus, the original motion to strike is no longer applicable because it addresses a superseded context.

McQuinn v. Commonwealth, 20 Va. App. 753, 757, 460 S.E.2d 624, 626 (1995) (en banc). However, this principle must be reviewed in a Rule 5A:18 context. See Campbell v. Commonwealth, 12 Va. App. 476, 480, 405 S.E.2d 1, 3 (1991) (en banc) (finding that when there is no question that the trial court was adequately advised of the defendant's position, and the court had the opportunity to take corrective action, the purpose underlying the contemporaneous objection rule is fulfilled and defendant does not waive a sufficiency issue by failing to renew his motion to strike at the close of all the evidence).

Appellant maintains that he did not waive his right to stand on his original motion because the sole issue in the case, from the outset, was whether appellant was "involved" in the accident as contemplated by Robinson. Thus, argues appellant, the trial court throughout the trial was aware of the only issue in the case and the requirements of Rule 5A:18 were fulfilled. We agree with appellant.

The purpose of Rule 5A:18 was met, and the sufficiency issue was preserved for appeal. The record reveals that the sole issue before the trial court was whether appellant was "involved" in the accident. Appellant made his position clear to the court prior to trial and repeated his argument in his initial motion to strike. At the close of his evidence, the trial court addressed the sole issue before it, and even referred back to its prior ruling on appellant's motion to strike at the conclusion of the Commonwealth's case. Thus, we find the trial court was aware of appellant's position, was able to consider it intelligently and, if desired, to take corrective action. See Howard v. Commonwealth, 21 Va. App. 473, 479, 465 S.E.2d 142, 145 (1995).

Sufficiency of the Evidence¹

Appellant was convicted of violating the provisions of Code § 46.2-894, which state in relevant part:

The driver of any vehicle involved in an accident in which a person is killed or injured or in which an attended vehicle or other attended property is damaged shall immediately stop as close to the scene of the accident as possible without obstructing traffic, as provided in § 46.2-888, and report his name, address, driver's license number, and vehicle registration number forthwith to the State Police or local law-enforcement agency, to the person struck and injured if such person appears to be capable of understanding and retaining the information, or to the driver or some other occupant of the vehicle collided with or to the custodian of other damaged property. The driver shall also render reasonable assistance to any person injured in such accident, including taking such injured person to a physician, surgeon, or hospital if it is apparent that medical treatment is necessary or is requested by the injured person.

(Emphasis added).

"`It is the flight from the scene, and the failure to give the information required to the person in charge of the property damaged or succor to the injured which constitute the completed offense.'" O'Connell v. Commonwealth, 48 Va. App. 719, 733, 634 S.E.2d 379, 386 (2006) (citing Tooke v. Commonwealth, 47 Va. App. 759, 765-66, 627 S.E.2d 533, 536 (2006)). The duty imposed upon the driver of a vehicle involved in an accident requires positive, affirmative action, namely to stop and give assistance and the necessary information specified. Id.

In convicting appellant, the trial court relied upon this Court's holding in Robinson, 48 Va. App. 623, 633 S.E.2d 737. In that case, this Court was called upon to decide if the defendant was "involved" in an accident in which there was no physical contact between the defendant/driver and the injured parties. Guided by our decision, the trial court stated that nothing in Robinson required the accused to have "legally caused" the accident, only that he be "implicated in or connect[ed] with the accident in a substantial or logical manner."

On June 8, 2007, the Supreme Court decided Robinson v. Commonwealth, 274 Va. 45, 645 S.E.2d 470 (2007). There, the Supreme Court reversed this Court's affirmance of the conviction, stating "the numerous definitions of the word `involve' used by the Court of Appeals would permit a fact finder to find a driver guilty . . . even though that driver was . . . not a proximate cause of the accident." Id. at 53, 645 S.E.2d at 474. Thus, the Supreme Court redefined "involved" to mean proximate cause, thereby announcing a new standard to evaluate whether an accused violates Code § 46.2-894 when there is no physical contact between the injured party and the accused driver.

Specifically, the Supreme Court concluded that in order for a driver of a vehicle to be involved in an accident within the intendment of the statute, "there must be physical contact between the driver's vehicle and another vehicle, person, or object, or the driver of a motor vehicle must have been a proximate cause of an...