Opinion
Record No. 1584-92-1
February 8, 1994
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS ROBERT W. CURRAN, JUDGE.
Stephen K. Smith (James, Richardson, Griffin Blanchard, on brief), for appellant.
Charles E. Powell, Assistant Commonwealth's Attorney (Howard E. Gwynn, Commonwealth's Attorney for the City of Newport News, on brief), for appellee.
Present: Judges Baker, Barrow and Bray.
Argued at Norfolk, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Edward Taylor Merritt (defendant) was convicted in a bench trial of "driving under the influence" of alcohol in violation of Code § 18.2-266. He complains on appeal that the evidence was insufficient to support the conviction. We disagree and affirm the judgment of the trial court.
The parties are fully conversant with the record, and this memorandum opinion recites only those facts necessary to a disposition of the issue on appeal.
Under familiar principles of appellate review, we examine the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). The judgment of a trial court, sitting without a jury, is entitled to the same weight as a jury verdict and will be disturbed only if plainly wrong or without evidence to support it. Id. The credibility of a witness, the weight accorded the testimony, and the inferences to be drawn from proven facts are matters solely for the fact finder's determination. Long v. Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473, 476 (1989).
The evidence disclosed that at approximately 11:00 p.m. on December 12, 1991, Officer H.T. Truong observed defendant "stumbling on the grassy area well off the shoulder" of Jefferson Avenue in Newport News, attempting to lift a "motor scooter." Truong testified that defendant positioned the scooter "in proximity" to the highway, "mounted" it and, with its "engine . . . running" and headlight "burning," proceeded in the direction of the police vehicle parked along the roadway. Truong then confronted defendant, administered several field sobriety tests and arrested him for DUI. A subsequent "breath test" measured defendant's blood alcohol content at .15%.
Code § 18.2-266 provides that "[i]t shall be unlawful for any person to drive or operate any motor vehicle . . . (ii) while such person is under the influence of alcohol." By statute, a "motor vehicle" includes "every vehicle . . . which is self-propelled or designed for self-propulsion." Code § 46.2-100. Clearly, the evidence sufficiently established that defendant operated a defined vehicle in violation of Code § 18.2-266.
Although the warrant alleged that defendant's conduct occurred on "a public highway," this is an element of the offense only if a "moped" is the vehicle in issue. Nothing in the record suggests that defendant's scooter was a moped as defined by Code § 46.2-100; therefore, the situs of the offense was of no significance to the instant prosecution and conviction.
Accordingly, we affirm the decision of the trial court.
Affirmed.