Lakiesha Enika Godbold v. Commonwealth ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Lemons
Argued at Richmond, Virginia
LAKIESHA ENIKA GODBOLD
MEMORANDUM OPINION * BY
v. Record No. 2829-97-2 JUDGE JAMES W. BENTON, JR.
FEBRUARY 23, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
James B. Wilkinson, Judge
Steven D. Benjamin (Betty Layne DesPortes;
Benjamin & DesPortes, on briefs), for
appellant.
Michael T. Judge, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Lakiesha Enika Godbold was indicted and tried on the charges
of attempted capital murder and felony obstruction of justice in
violation of Code § 18.2-460(C). The trial judge convicted
Godbold of the offense of attempted murder, a lesser offense of
attempted capital murder, and of felony obstruction of justice.
Prior to sentencing, the trial judge set aside the attempted
murder conviction and instead convicted Godbold of assault. On
appeal, Godbold contends that (1) her convictions for both crimes
constituted double jeopardy because assault is a lesser-included
offense of felony obstruction of justice and (2) the evidence was
insufficient to sustain the conviction for felony obstruction of
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
justice. Because neither issue was properly raised before the
trial judge, we affirm the convictions.
I.
Officer O'Conner testified that he and Officer Musslewhite
drove a marked police car into a parking lot at night and saw
Godbold and her brother standing by a telephone. As O'Conner
exited his vehicle and said "Hello," he observed Godbold "brush[]
against" her brother and hand the telephone to her brother. With
her left hand by her side in a fist, Godbold walked toward a car
that was facing a fence with its engine idling. O'Conner
testified that when Godbold sat in the driver's seat, she
appeared to move something from her left hand to her right hand
and place it on the console. He testified, however, that at no
time did he actually see anything in Godbold's hands.
As Musslewhite talked with Godbold's brother, O'Conner
approached the driver's side of the car and shined a flashlight
into the car. O'Conner informed Godbold that they had received a
complaint about drug activity in the area, and he asked Godbold
if guns or drugs were in the car. Godbold responded "no," and
refused O'Conner's request to search the car. O'Conner testified
that he pointed his flashlight toward the console and saw a tied
bag containing what appeared to be an ounce of cocaine. O'Conner
opened the car door and told Godbold to "step out."
Godbold placed the car in reverse and accelerated backward.
As the car made a sharp reverse U-turn, the door struck O'Conner,
lifted him off his feet, and carried him backward. O'Conner
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regained his footing, withdrew his gun, and pointed his gun at
Godbold. When Godbold accelerated the car forward and drove
away, O'Conner moved out of the car's path and unsuccessfully
attempted to give chase. The following day, the police found
Godbold and the car she was driving. No cocaine was recovered.
At the conclusion of the evidence, Godbold's trial counsel
moved to strike the evidence on the murder charge because the
evidence failed to prove intent to kill. He also moved to strike
the obstruction of justice charge because no evidence proved
cocaine was in the car. The trial judge denied the motions and
convicted Godbold of attempted murder and felony obstruction of
justice. Acting on trial counsel's written motion to set aside
the attempted murder conviction, the trial judge set aside the
attempted murder conviction and convicted Godbold of assault. He
sentenced Godbold to twelve months in jail for assault and five
years in prison for felony obstruction of justice, suspending two
years of that sentence.
II.
Godbold first contends that assault is a lesser-included
offense of felony obstruction of justice and that convictions for
both offenses violate the double jeopardy clause of the Fifth
Amendment. Godbold also contends that the evidence was
insufficient to support a conviction for felony obstruction of
justice. The Commonwealth counters that Godbold did not
adequately raise and preserve these issues before the trial judge
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and that Rule 5A:18 bars those issues. We agree with the
Commonwealth.
"No ruling of the trial court . . . will be considered as a
basis for reversal unless the objection was stated together with
the grounds therefor at the time of the ruling, except for good
cause shown or to enable the Court of Appeals to attain the ends
of justice." Rule 5A:18; see also Mounce v. Commonwealth, 4 Va.
App. 433, 434, 357 S.E.2d 742, 743 (1987).
The main purpose of requiring timely
specific objections is to afford the trial
court an opportunity to rule intelligently on
the issues presented, thus avoiding
unnecessary appeals and reversals. In
addition, a specific, contemporaneous
objection gives the opposing party the
opportunity to meet the objection at that
stage of the proceeding.
Weidman v. Babcock, 241 Va. 40, 44, 400 S.E.2d 164, 167 (1991)
(citation omitted).
The record fails to indicate that Godbold ever argued before
the trial judge the two issues she now raises on appeal. At the
close of evidence, Godbold moved to strike both charges. After a
lengthy discussion that focused almost exclusively on the
attempted capital murder charge, the following colloquy occurred:
[JUDGE]: On the evidence heard by the Court,
the Court will find [Godbold] not guilty of
attempted capital murder but guilty of
attempted murder, as charged in the
indictment.
[COMMONWEALTH'S ATTORNEY]: Judge, there is
also the felony obstruction while in the
course of engaging in a violation of 248,
which is the drug --
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[DEFENSE COUNSEL]: I would suggest that
would run together. I don't see how you can
obstruct and then -- the obstruction is --
[JUDGE]: I think it's entirely different.
Well, I am going to find her guilty of
obstructing on the felony. All right. You
want a presentence report?
Prior to sentencing, the trial judge set aside the attempted
murder conviction and convicted Godbold of the lesser offense of
assault. Thus, we need not decide whether the argument cited
above was sufficient to preserve the issue whether Godbold was
exposed to double jeopardy by being convicted of both attempted
murder and felony obstruction of justice. The trial judge's
action necessarily rendered Godbold's prior double jeopardy
argument moot because she no longer was convicted both of
attempted murder and felony obstruction of justice.
After the trial judge modified the conviction, Godbold's
trial counsel failed to raise any new double jeopardy claim
either at the hearing or within twenty-one days of her sentencing
pursuant to Rule 1:1. Therefore, Godbold failed to "call to the
attention of the trial judge the error complained of, the reason
therefor, and the relief sought." Robinson v. Commonwealth, 13
Va. App. 574, 576, 413 S.E.2d 885, 886 (1992).
We reach the same conclusion on the issue whether the
evidence was sufficient to support a conviction of felony
obstruction of justice. A person who "knowingly" obstructs a
police officer "lawfully engaged in his duties" commits a
misdemeanor and may be prosecuted under Code § 18.2-460(B).
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However, if a person "knowingly" obstructs a police officer
investigating drug trafficking, then he or she has committed a
felony and may be prosecuted under Code § 18.2-460(C). Godbold
argues on appeal that because no evidence proved she knew or
should have known that O'Conner was investigating drug
trafficking, she should not have been convicted of the felony.
This issue was never argued before the trial judge.
At the close of evidence, Godbold's trial counsel argued
that "there was no evidence there was any cocaine in the vehicle.
No cocaine was ever recovered. I would ask the Court to dismiss
[the felony obstruction of justice] charge, as well." This
statement speaks to a different issue than the one Godbold now
raises. Contending that the evidence did not prove the
"knowledge" element of the statute, Godbold seeks reversal of her
conviction. An accused's knowledge is an essential element of
all three subsections of the obstruction of justice statute. See
Code § 18.2-460. However, whether cocaine was in the vehicle,
the argument advanced at trial, is not a necessary element to
prove guilt under Code § 18.2-460(C). See Turner v.
Commonwealth, 20 Va. App. 713, 717, 460 S.E.2d 605, 607 (1995)
("hold[ing] that in order to convict an accused of obstructing
justice under Code § 18.2-460(C) the Commonwealth need not prove
the underlying offenses . . ."). Godbold, therefore, failed to
raise before the trial judge the issue that she now raises on
appeal.
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III.
Despite Godbold's failure to properly preserve these two
issues, we nevertheless will consider them if "good cause [is]
shown or to enable [us] to attain the ends of justice." Rule
5A:18. This exception "is a narrow one that allows consideration
when the record affirmatively shows that a miscarriage of justice
has occurred." Reed v. Commonwealth, 6 Va. App. 65, 70, 366
S.E.2d 274, 277 (1988). "[T]he appellant must demonstrate that
he or she 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." Redman v. Commonwealth, 25 Va. App.
215, 222, 487 S.E.2d 269, 273 (1997). In making this
determination, we must look to the entire record. Johnson v.
Commonwealth, 5 Va. App. 529, 532, 365 S.E.2d 237, 239 (1988).
It is a longstanding principle in Virginia that assault is
not a lesser-included offense of obstruction of justice. See
Love v. Commonwealth, 212 Va. 492, 494, 184 S.E.2d 769, 771
(1971); Polk v. Commonwealth, 4 Va. App. 590, 593-94, 358 S.E.2d
770, 772 (1987). In Polk, we specifically stated the following:
The plain language of [the statute] provides
that threats constitute a violation of the
statute when they are knowingly made in an
attempt to intimidate or impede law
enforcement officers who are performing their
duties. Thus, it is the threats made by the
offender, coupled with his intent, that
constitute the offense. The resulting effect
of the offender's threats, such as fear,
apprehension, or delay, is not an element of
the crime defined in Code § 18.2-460. By the
express terms of the statute, it is
immaterial whether the officer is placed in
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fear or apprehension. The offense is
complete when the attempt to intimidate is
made.
Id.
Similarly, Godbold's second claim that no evidence proved
she knew or should have known that O'Conner was investigating
drug trafficking is not persuasive. The record includes a taped
recording of the encounter between O'Conner and Godbold. The
tape indicates that O'Conner specifically asked Godbold whether
there were guns or drugs in the car. Furthermore, both the tape
and the testimony of O'Conner at trial proved that when O'Conner
first approached Godbold, he told her that he was investigating
complaints concerning drug activity in the area.
Because Godbold failed to properly preserve the issues of
double jeopardy and sufficiency of the evidence, and because no
exception to Rule 5A:18 is satisfied, we affirm the convictions.
Affirmed.
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