Jessie Lee Blackwell, etc. v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Coleman and Fitzpatrick
Argued at Richmond, Virginia
JESSIE LEE BLACKWELL, s/k/a
JESSE LEE BLACKWELL
v. Record No. 1992-94-2 MEMORANDUM OPINION *
BY JUDGE SAM W. COLEMAN III
COMMONWEALTH OF VIRGINIA JANUARY 23, 1996
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
William R. Shelton, Judge
A.R. Bowles, IV (Bowles and Bowles, on brief),
for appellant.
Steven A. Witmer, Assistant Attorney General
(James S. Gilmore, III, Attorney General;
Robert B. Condon, Assistant Attorney General,
on brief), for appellee.
Jessie Lee Blackwell was convicted in a bench trial of
statutory burglary. Blackwell contends that the evidence was
insufficient to sustain the conviction. Because the defendant
failed to preserve the sufficiency of the evidence issue for
appeal in accordance with Rule 5A:18, we do not address the
merits of the issue. Accordingly, we affirm the conviction.
At the close of the Commonwealth's case, counsel for the
codefendant moved to "strike all the evidence," and counsel for
the defendant adopted this motion on behalf of the defendant.
The trial court overruled the motion with respect to the breaking
and entering charge.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Each defendant testified on his own behalf, but neither
renewed the motion to strike at the conclusion of the case.
However, counsel for the codefendant, arguing that the evidence
did not show that the codefendant had any knowledge of the stolen
check, moved "the Court to set aside its decision and consider
the evidence as to [the codefendant]." Counsel for the defendant
did not adopt this motion or make a separate motion to set aside
the verdict.
"[W]hen 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."
McQuinn v. Commonwealth, 20 Va. App. 753, 755, 460 S.E.2d 624,
625 (1995) (en banc) (quoting White v. Commonwealth, 3 Va. App.
231, 233, 348 S.E.2d 866, 867 (1986)). Here, the defendant took
the stand on his own behalf. He did not move or renew the motion
to strike the evidence at the conclusion of the case or argue
that the evidence was insufficient as to the statutory burglary
charge, see Lewis v. Commonwealth, 8 Va. App. 574, 383 S.E.2d 736(1989), or join in or adopt the codefendant's motion to set aside
the verdict. Accordingly, the defendant failed to preserve the
sufficiency of the evidence question for appeal.
Rule 5A:18 shall not bar consideration of an issue on appeal
"for good cause shown or to enable [this Court] to attain the
ends of justice." Rule 5A:18. In the present case, no good
cause has been shown that prevented the defendant from moving to
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strike the evidence at the conclusion of his case, or from moving
to set aside the verdict. Moreover, we do not find it necessary
to consider the issue in order to attain the ends of justice.
See McQuinn, 20 Va. App. at 755, 460 S.E.2d at 625.
We affirm the defendant's conviction.
Affirmed.
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