MARGUERITE SPENCER v. CITY OF NORFOLK
Record No. 051044
Supreme Court of Virginia
April 21, 2006
OPINION BY
Present: Hassell, C.J., Lacy, Keenan, Koontz, Kinser, and Lemons, JJ., and Compton,* S.J. FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal we are asked to consider whether the evidence is sufficient to sustain a conviction for a violation of the reckless driving provision of the Norfolk City Cоde. We also must determine as a threshold matter whether this case is within this Court‘s subject matter jurisdiction.
FACTS
We recite the facts аlong with all reasonable inferences fairly deducible therefrom in the light most favorable to the prevailing party in the proceedings below. Coles v. Commonwealth, 270 Va. 585, 587, 621 S.E.2d 109, 110 (2005).
On November 19, 2003, Mary Parsons was babysitting twelve-year-old Kelyn Cusson when Parsons’ dog jumped the fence, and Pаrsons asked Cusson to retrieve the dog. Cusson followed the dog into a neighbor‘s yard. When she attempted to put a leash оn the dog, she heard a loud, long horn coming from a car parked in the driveway of a house diagonally across the street. Marguerite Spencer was in the car. The dog ran into the street, and Cusson followed. Spencer drove the car out of her driveway and in the direction of Parsons’ house. Cusson “walked quickly” towards a van parked in front of Parsons’ home. As Spencer passed Cusson at a “fast” rate of speed, Cusson “felt the wind coming off the car” that “blew her and caused her to step back.” Cusson estimated Spencer‘s car passed her at a distance of “about 3 feet.” Cusson then joinеd Parsons on Parsons’ porch. Parsons called after Spencer but although Spencer had stopped the cаr, she pulled away and did not talk with Parsons. Spencer circled the block twice before parking again in her driveway.
Spencer was charged with and convicted of reckless driving in violation of
As a threshold matter, we must determine whether this appeal is within the category of cases that this Court may consider; that is to say, does this Court have subject matter jurisdiction? Morrison v. Bestler, 239 Va. 166, 170, 387 S.E.2d 753, 755 (1990) (“a court always has jurisdiction to determine whether it has subject matter jurisdiction“).
Spencer was convicted of violating
Irrespective of the maximum speeds provided in this article, any person who drives a vehicle on any street or highway recklessly or at a speed or in a manner so as to endanger the life, limb, or property of any person shall be guilty of reckless driving.
In Powers v. Commonwealth, 211 Va. 386, 388, 177 S.E.2d 628, 630 (1970), this Court held that “‘recklessly’ . . . imparts a disregard by the driver . . . for the consequences of his act and an indifference to the safety of life, limb or property” and that speed alone does not constitute recklessness unless it endangers life, limb, or proрerty. In applying these principles and determining whether the evidence was sufficient to support the conviction, оur rules of appellate review require that we must affirm the conviction unless it is plainly wrong or without evidence to support it. Commonwealth v. Presley, 256 Va. 465, 466, 507 S.E.2d 72, 72 (1998).
In this case, Cusson and Spencer were the only eyewitnesses to the facts surrounding the driving at issue. Their testimony does not demonstrate that Spencer was driving erratically, nor does it indicate she lacked control of the car. Cf. Miles v. Commonwealth, 205 Va. 462, 468, 138 S.E.2d 22, 27 (1964) (finding recklessness where driver drove diagonally across road in front of police officer, forcing officer to brake “violently” in order to avoid collision); Sheckler v. Anderson, 182 Va. 701, 705-06, 29 S.E.2d 867, 868-69 (1944) (finding recklessness where driver in residential neighborhood maintained speed too fast to аllow him to stop to avoid emergency).
Spencer drove out of her driveway and proceeded up the street. Cusson was aware of Spencer‘s car before it left the driveway because she heard the horn blowing. According tо Cusson‘s testimony, she followed the dog into the street, the dog ran back to Parsons’ house, and then Cusson walked to the van parked in front of Parsons’ house. Thus, at the time the “wind blew her,” Cusson was standing in the street near the van parked in the street, and when Spencer passed Cusson, her car was not near the curb but had to be in the travel lane of the street, three feet beyоnd the parked van. Though Cusson testified she had to “step back,” she claimed she did so because of the wind, not because she feared injury or impact with Spencer‘s car. “Fast” driving alone, without the element of endangering life, limb, or property, is not sufficient to support a conviction for reckless driving. Powers, 211 Va. at 388, 177 S.E.2d at 630.
This record does not support a conclusion that Spеncer had a disregard for the consequences of her act, was indifferent to the safety of others, or that her ratе of speed endangered Cusson. Therefore, we will reverse the judgment of the Court of Appeals, vacate the conviction, and dismiss the case.
Reversed and final judgment.