Moses Vernon Simpkins v. Commonwealth of Virginia ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bray and Frank
Argued at Chesapeake, Virginia
MOSES VERNON SIMPKINS
MEMORANDUM OPINION ∗ BY
v. Record No. 1086-00-1 JUDGE RICHARD S. BRAY
MARCH 13, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Junius P. Fulton, III, Judge
(Michael F. Fasanaro, Jr.; Abrons, Fasanaro &
Sceviour, P.L.L.C., on brief), for appellant.
Appellant submitting on brief.
Donald E. Jeffrey, III, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Moses Vernon Simpkins (defendant) was convicted in a bench
trial for possession of a concealed weapon in violation of Code
§ 18.2-308. On appeal, he complains the trial court erroneously
overruled his motion to strike the evidence at the conclusion of
the Commonwealth's case. However, because defendant failed to
renew the motion after testifying on his own behalf, we decline to
consider the merits of the appeal.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal.
∗
Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
I.
At trial, the Commonwealth presented the testimony of the
arresting officers, offered the offending weapon into evidence
and rested. Defendant then "move[d] to strike and ask[ed] the
[c]ourt to make a determination if the weapon [fell] within the
purview of the statute." Finding the weapon was "in fact, a
bowie knife," proscribed by Code § 18.2-308, the court overruled
the motion. Defendant then presented evidence in his defense
and rested, without renewing a motion to strike or thereafter
moving the court to set aside the judgment of guilty.
II.
"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). 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 Thus, the original motion to strike is no longer
applicable because it addresses a superseded context."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).
Accordingly, by presenting evidence following his initial
motion to strike, defendant clearly waived reliance upon such
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motion to challenge the sufficiency of the evidence, and we will
not address his related assignment of error, absent "good cause
shown to enable [us] to attain the ends of justice." Rule
5A:18. To invoke the ends of justice exception, defendant "must
demonstrate that he . . . was convicted for conduct that was not
a criminal offense or the record must affirmatively prove that
an element of the offense did not occur," circumstances neither
asserted by defendant nor present on the instant record. Redman
v. Commonwealth, 25 Va. App. 215, 221-22, 487 S.E.2d 269, 273
(1997).
Thus, we affirm the conviction.
Affirmed.
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