Melvin Ray Gill v. Commonwealth ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Coleman and Overton
Argued at Salem, Virginia
MELVIN RAY GILL
MEMORANDUM OPINION * BY
v. Record No. 0334-96-3 CHIEF JUDGE NORMAN K. MOON
FEBRUARY 25, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FRANKLIN COUNTY
B. A. Davis, III, Judge
Mary E. Harkins for appellant.
(James S. Gilmore, III, Attorney General;
Kimberley A. Whittle, Assistant Attorney
General, on brief), for appellee.
Melvin Ray Gill appeals his conviction for attempted
malicious wounding of a law enforcement officer in violation of
Code § 18.2-51.1. Gill argues the evidence was insufficient to
prove he had the intent to maliciously wound a law enforcement
officer. For the reasons that follow, we affirm.
On August 6, 1995, Officer F. W. Hodges of the Rocky Mount
Police Department observed a large crowd of people congregating
on a street. Suspecting criminal activity, Hodges followed the
group as it moved toward a nearby car wash. Hodges concealed
himself in woods near the car wash and watched as a second group
of people approached, and a dispute began between the two groups.
Hodges heard bottles being broken and gunshots, at which point
he ran into the crowd, identifying himself as a police officer.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Hodges was dressed in a "raid shirt," which had the letters
"POLICE" emblazoned on it in large letters.
Upon Hodges' arrival, the crowd scattered, and Hodges
observed an individual holding his hand under his shirt as he
ran. Believing that the person might have been responsible for
the gunshots, Hodges pursued him. As he did so he noticed Gill
running to his left. Hodges observed Gill turn and throw a
cinder block at Hodges, missing him by three feet. Hodges had a
clear view of Gill's face and made eye contact with him before he
hurled the cinder block.
Gill fled into a nearby house with three other people.
Additional police arrived, and Gill was arrested as he exited the
house. Gill apologized to Hodges for throwing the cinder block
and stated that he had not been aiming at Hodges.
At trial, Gill denied ever having held or thrown a cinder
block. His counsel moved to strike the evidence as being
insufficient to prove that Gill had thrown a cinder block at
Hodges and insufficient to prove that Gill would have been aware
that Hodges was a police officer or that Hodges was engaged in
the performance of his official duties.
On appeal, Gill does not argue these original objections,
but instead, for the first time, raises the argument that the
evidence was insufficient to prove he had the intent to
maliciously wound a law enforcement officer. Rule 5A:18 provides
that "[n]o ruling of the trial court . . . will be considered as
a basis for reversal unless the objection was stated together
- 2 -
with the grounds therefor at the time of the ruling . . . ."
McQuinn v. Commonwealth, 20 Va. App. 753, 755, 460 S.E.2d 624,
626 (1995) (en banc). Rule 5A:18 bars Gill from raising a new
argument on appeal except for good cause shown or to meet the
ends of justice.
The record establishes that when Hodges intervened during
the altercation, Hodges was wearing a "raid shirt" which was
emblazoned with large "POLICE" letters. Hodges also testified
that when he entered the foray, he announced that he was a police
officer. The record also contains evidence that Hodges had a
clear view of Gill's face and made eye contact with him prior to
Gill throwing the cinder block, which came within three feet of
striking Hodges. The record also indicates that Gill apologized
to Hodges for throwing the cinder block.
Because the record does not show any obvious miscarriage of
justice, neither the ends of justice nor good cause permit waiver
of the Rule 5A:18 bar. Commonwealth v. Mounce, 4 Va. App. 433,
436, 357 S.E.2d 742, 744 (1987). Accordingly, we do not reach
the only issue raised by Gill on brief and accordingly affirm.
Affirmed.
- 3 -