Latham v. Commonwealth

1

BREON LATHAM v. COMMONWEALTH OF VIRGINIA

No. 1088-23-1

Court of Appeals of Virginia

November 26, 2024

FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE Rufus A. Banks Jr., Judge

Eric Weathers, Assistant Public Defender (Catherine French Zagurskie, Chief Appellate Counsel; Virginia Indigent Defense Commission, on briefs), for appellant.

Linda R. Scott, Senior Assistant Attorney General (Jason S Miyares, Attorney General, on brief), for appellee.

Present: Judges Beales, Causey and Senior Judge Petty Argued by videoconference

MEMORANDUM OPINION ^[*]

WILLIAM G. PETTY JUDGE

Breon Latham appeals his conviction, following a bench trial, of driving under the influence of alcohol (DUI) as a third offense within ten years, in violation of Code §§ 18.2-266 and -270(C)(1). On appeal, Latham argues that the evidence was insufficient to prove that he drove while he was under the influence of alcohol. He further argues that this Court should modify, reverse, or overrule Gardner v. Commonwealth, 195 Va. 945 (1954), and its progeny. For the following reasons, we disagree, and affirm the conviction.

BACKGROUND

We recite the facts "in the 'light most favorable' to the Commonwealth, the prevailing party in the trial court." Hammer v. Commonwealth, 74 Va.App. 225, 231 (2022) (quoting Commonwealth v. Cady, 300 Va. 325, 329 (2021)). Doing so requires that we "discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom." Cady, 300 Va. at 329 (quoting Commonwealth v. Perkins, 295 Va. 323, 324 (2018)).

At 12:40 a.m. on October 30, 2020, Chesapeake Police Officer Kyshaun Merchant observed a vehicle driving 32 miles per hour in a 25 mile-per-hour zone. Officer Merchant executed a U-turn and followed the vehicle. When Officer Merchant caught up to the vehicle, he observed it make a left turn onto Berkley Avenue. The vehicle continued on Berkley Avenue and failed to stop completely at a stop sign at an intersection before turning right onto Wingfield Avenue. The vehicle continued along Wingfield Avenue "continuously applying and releasing the brakes, jerking the car forwards and backwards." Officer Merchant noted that the application of the brakes was more frequent than required by the dips and potholes in the road. Consequently, Officer Merchant activated his emergency lights and initiated a traffic stop.

After stopping, Latham, the sole occupant, got out of the car on his own accord and stumbled as he approached Officer Merchant's vehicle. The area of the stop was flat asphalt, and there was no debris or gravel in the roadway. While talking with Latham, Officer Merchant detected an odor of alcohol coming from Lantham's person and breath, noticed that Latham's speech was slurred, and saw that Latham's eyes were glassy, watery, and bloodshot.

Officer Merchant asked Latham to perform field sobriety tests to determine his level of impairment; Latham declined. Based on his observations, Officer Merchant placed Latham under arrest for DUI. Upon arrest, Latham denied drinking any alcoholic beverage for several days. Officer Merchant acknowledged that he did not provide Latham with a preliminary breath test because one was not available.

While searching Latham's vehicle, Officer Merchant noticed that a liquid appeared to have been spilled across the center console causing the center console, the driver's seat, and armrest to be damp. On the floor of the front passenger footwell, Officer Merchant found an empty Burger King cup that smelled of an alcoholic beverage. In the rear passenger's seat, he found a six pack of unopened beer that was cold-to-the-touch.

On cross-examination, Officer Merchant acknowledged that Latham maintained his lane of travel and did not rapidly accelerate or decelerate except for the excessive braking that occurred on Wingfield Avenue. Furthermore, except for Latham's stumbling upon exiting his vehicle, he maintained his balance during the 20-minute period of observation and was relatively cooperative. Officer Merchant also admitted that Latham accurately articulated the date and the time as well as where he was and where he was going. Officer Merchant noted, however, that each DUI is unique and that "each arrestee and each subject of a DUI investigation handles and processes the level of impairment differently than the others."

Latham then played a video he took of his route that evening for the trial court.^[1] Officer Merchant attested that the road condition depicted in the footage, which consisted of several dips, was consistent with the road's condition on the evening of the stop. The Commonwealth entered Latham's prior DUI convictions into evidence.

Latham testified on his own behalf^[2] He stated that on October 30, 2020, he was watching football when his friend, Eric Reed, called and asked for a ride home because Reed was too intoxicated to drive. Latham agreed. When Latham arrived at Reed's location, Reed placed a six-pack of beer in the car's rear passenger seat. After Latham dropped off Reed, the police stopped Latham as he drove home.

When asked about the Burger King cup, Latham denied that the cup was his and asserted that it belonged to Reed. Additionally, Latham could not remember if, when, or how the cup spilled that evening. Latham also denied drinking alcohol that evening, that his breath smelled like alcohol, that he stumbled when he exited his vehicle, or that his driver's seat was damp. When the trial court asked Latham why he had applied the brakes in the manner that he did, Latham stated that it was dark and he wished to drive safe and avoid the dips in the road. When asked if he knew that Officer Merchant was following him, Latham admitted he was aware of Officer Merchant's presence.

After argument from counsel, the trial court made several factual findings. The trial court found Latham's testimony to be incredible and Officer Merchant's testimony to be credible. The court opined that Latham likely exited the car to keep Officer Merchant from viewing the spilled liquid and the alcohol in the back seat. While talking with Officer Merchant, Latham's outward appearance indicated that he was intoxicated because he was slurring his words, smelled of alcohol, and had bloodshot, watery eyes.

The trial court then considered whether Latham's intoxication impaired his ability to safely operate his vehicle. The court noted that the only instance when Latham drove unusually was when he applied his brakes in short succession on Wingfield Avenue. Despite the court's inquiry as to why Latham drove in that manner, the court found that Latham failed to provide an adequate explanation. The court reasoned that Latham was braking in that manner to appear cautious and mindful to the officer who was following him. Rather than quell suspicion, the court found that this maneuver attracted attention and demonstrated that Latham was unable to control the slow braking and slow acceleration necessary to properly execute the maneuver. The trial court convicted Latham of DUI and sentenced him to 2 years of imprisonment, with 1 year and 9 months suspended, and a $1,050 fine. Latham appeals.

ANALYSIS

I.

Latham argues that the evidence was insufficient to support his conviction for driving while under the influence of alcohol. "On review of the sufficiency of the evidence, 'the judgment of the trial court is presumed correct and will not be disturbed unless it is plainly wrong or without evidence to support it.'" Ingram v. Commonwealth, 74 Va.App. 59, 76 (2021) (quoting Smith v Commonwealth, 296 Va. 450, 460 (2018)). "The question on appeal, is whether 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Id. (quoting Yoder v. Commonwealth, 298 Va. 180, 182 (2019)). "If there is evidentiary support for the conviction, 'the reviewing court is not permitted to substitute its own judgment, even if its opinion might differ from the conclusions reached by the finder of fact at the trial.'" Chavez v. Commonwealth, 69 Va.App. 149, 161 (2018) (quoting Banks v. Commonwealth, 67 Va.App. 273, 288 (2017)).

Latham concedes that the trial court applied the correct legal standard below but argues that the trial court "wrongly concluded that the evidence was sufficient to show that" alcohol impaired his ability to drive safely. Latham notes that he did not swerve or deviate from his lane of travel; he safely executed two turns; and, although he was traveling seven miles per hour over the speed limit, his speed was consistent. Further, despite stumbling while exiting his vehicle, he maintained his balance throughout his interaction with Officer Merchant.

"It shall be unlawful for any person to drive or operate any motor vehicle . . . while such person is under the influence of alcohol[.]" Code § 18.2-266(ii). "[T]he thrust of the statutory scheme is to prohibit drinking and driving where the driver's ability is impaired to operate safely a motor vehicle." Hogle v. Commonwealth, 75 Va.App. 743, 753 (2022) (alteration in original) (quoting Thurston v. City of Lynchburg, 15 Va.App. 475, 483 (1992)). The requisite "degree of intoxication, or being 'under the influence of alcohol,' is established when any person has consumed enough alcoholic beverages to 'so affect his manner, disposition, speech, muscular movement, general appearance or behavior, as to be apparent to observation.'" Id. at 753-54 (quoting Thurston, 15 Va.App. at 483). "In determining whether a defendant was under the influence, a factfinder considers 'all of the evidence of his condition at the time of the alleged offense.'" Id. at 754 (quoting Leake v....