Opinion
Record No. 2154-92-3
January 11, 1994
FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY KENNETH I. DEVORE, JUDGE.
Charles R. Beller III, for appellant.
Robert Q. Harris, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Present: Chief Judge Moon, Judges Coleman and Willis.
Argued at Salem, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
We hold that the defendant's stopping on the highway to avoid striking an animal under the circumstances of the case established, as a matter of law, an affirmative defense to the violation of Code § 46.2-888, "stop[ping] a vehicle in such [a] manner as to impede or render dangerous the use of the highway by others, except in the case of an emergency." When the undisputed evidence establishes an affirmative defense as a matter of law, the evidence is insufficient to sustain a conviction. Reed v. Commonwealth, 6 Va. App. 65, 72, 366 S.E.2d 274, 277 (1988).
Accordingly, the judgment appealed from is reversed.
Reversed and final judgment.