Herman William McCullough, Jr v. Commonwealth ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Kelsey and Senior Judge Willis
Argued at Chesapeake, Virginia
HERMAN WILLIAM McCULLOUGH, JR.
MEMORANDUM OPINION * BY
v. Record No. 1155-02-1 JUDGE ROBERT P. FRANK
MARCH 11, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
William H. Oast, Jr., Judge
Charles B. Lustig, Assistant Public Defender,
for appellant.
Michael T. Judge, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
Herman W. McCullough, Jr. (appellant) was convicted in a
bench trial of grand larceny, in violation of Code § 18.2-95. On
appeal, he contends the evidence was insufficient to prove grand
larceny since no evidence proved the money was taken without the
owner's consent and no evidence proved fraudulent intent. Because
this issue is procedurally defaulted under Rule 5A:18, we affirm
the conviction.
At trial, 1 after the Commonwealth rested, appellant argued
the prosecution had not proven the taking occurred without the
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
1
A statement of the facts related to the offense is not
necessary for this analysis.
owner's consent and had not proven fraudulent intent. Appellant
then testified. At the close of all the evidence, appellant's
counsel argued, "Judge, all this aside, he doesn't have a
license, there were some miscommunications, he didn't return the
money, I think this is all in the nature of a civil charge. I
don't think --" At this point, the trial court interrupted and
found appellant guilty. 2
In his brief, pursuant to Rule 5A:20(c), 3 appellant
designated the argument at the conclusion of the Commonwealth's
evidence and the above language as the places where the question
was preserved for appeal. Clearly, appellant did not raise the
"consent issue" or the "intent to defraud" issue after he
presented his evidence. Appellant did not make any additional
2
While the trial court interrupted appellant's counsel,
counsel had a duty to have the record reflect his entire motion.
The record does not indicate the trial court prevented
appellant's counsel from proffering his complete motion. See,
e.g., Knight v. Commonwealth, 18 Va. App. 207, 216, 443 S.E.2d
165, 170 (1994) ("We acknowledge the difficult situation that a
trial judge places counsel in by having to object to the judge's
comments upon the evidence. . . . Nevertheless, our case law is
clear that the responsibility for a timely objection or motion
lies with counsel."). While we do not condone a trial court's
interruption when counsel is making such a motion, counsel's
duty to preserve an issue for appeal is clear.
3
Rule 5A:20(c) requires an appellant's brief include "[a]
statement of the questions presented with a clear and exact
reference to the page(s) of the transcript, written statement,
record, or appendix where each question was preserved in the
trial court."
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closing argument to the trial court nor did he file a motion to
set aside the verdict.
Rule 5A:18 states:
No ruling of the trial court or the Virginia
Workers' Compensation Commission 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. A mere statement that the judgment
or award is contrary to the law and the
evidence is not sufficient to constitute a
question to be ruled upon on appeal.
In Campbell v. Commonwealth, we elaborated on this rule:
On appeal, a ruling of a trial court cannot
be a basis for reversal unless an objection
is 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 obtain the ends of justice."
Rule 5A:18. An appeal of an issue of
sufficiency of evidence is barred under this
rule if not raised at trial. See Floyd v.
Commonwealth, 219 Va. 575, 584, 249 S.E.2d
171, 176 (1978). It is sufficient, however,
if "at the time the ruling or order of the
court is made or sought, [a party] makes
known to the court the action which he
desires the court to take or his objections
to the actions of the court and his grounds
therefor." Code § 8.01-384. The goal of
the contemporaneous objection rule is to
avoid unnecessary appeals, reversals and
mistrials by allowing the trial judge to
intelligently consider an issue and, if
necessary, to take corrective action.
12 Va. App. 476, 480, 405 S.E.2d 1, 2 (1991) (en banc). In a
bench trial, to preserve a sufficiency argument after
presentation of evidence by the defense, "the defendant must
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make a motion to strike at the conclusion of all the evidence,
present an appropriate argument in summation, or make a motion
to set aside the verdict." Howard v. Commonwealth, 21 Va. App.
473, 478, 465 S.E.2d 142, 144 (1995).
Here, the argument at the conclusion of all the evidence
did not address appellant's position regarding the owner's
consent or fraudulent intent. Thus, he did not preserve these
sufficiency arguments for appeal. Although Rule 5A:18 allows
exceptions for good cause or to meet the ends of justice,
appellant does not argue on brief, in a reply brief, or in oral
argument that either of these exceptions applies. See, e.g.,
Redman v. Commonwealth, 25 Va. App. 215, 221, 487 S.E.2d 269,
272 (1997) ("In order to avail oneself of the exception, a
defendant must affirmatively show that a miscarriage of justice
has occurred, not that a miscarriage might have occurred."
(emphasis added)). Although the trial court interrupted
counsel's closing argument, we do not find the exceptions in
Rule 5A:18 apply to the facts of this case. See Faizi-Bilal
Int'l Corp. v. Burka, 248 Va. 219, 222-23, 445 S.E.2d 125,
126-27 (1994) (refusing to apply either exception as the
defendants "could have brought their objections to the trial
court's attention" where defendants were unaware of the entry of
the court's order until one day before the order became final).
Contrast Mason v. Commonwealth, 7 Va. App. 339, 345-46, 373
S.E.2d 603, 606 (1988) (finding counsel was "taken by surprise"
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which allowed him no "opportunity to object to the trial court's
ruling"). Appellant could have asked the judge to allow him to
continue his argument for the record or could have made the
argument in a motion to set aside the verdict. He had the
ability to present any additional argument to the trial court in
a timely manner, giving the court an opportunity to correct any
errors.
Rule 5A:18 bars our review of this case. Thus, we affirm
the trial court's finding.
Affirmed.
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