Teresa Rena McClung v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bumgardner and Clements
Argued at Richmond, Virginia
TERESA RENA MCCLUNG
MEMORANDUM OPINION * BY
v. Record No. 0641-01-2 JUDGE LARRY G. ELDER
JULY 16, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
Paul M. Peatross, Jr., Judge
Dana M. Slater for appellant.
Stephen R. McCullough, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
Teresa Rena McClung (appellant) challenges, on sufficiency
grounds, her bench trial convictions for two counts of assault
and battery of a firefighter in violation of Code § 18.2-57(C). 1
We hold that Rule 5A:18 bars appellant's challenge to the
sufficiency of the evidence on appeal, and we affirm.
Code § 18.2-57(A) proscribes the offense of simple assault
and battery as a Class 1 misdemeanor, but subsection (C)
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
1
Appellant also was convicted for assault and battery of a
law enforcement officer, a felony, and the misdemeanor offenses
of obstructing a rescue squad member and driving under the
influence, her second or subsequent such offense. She does not
challenge these convictions on appeal.
provides heightened penalties for the offense if committed
against certain categories of people:
[I]f any person commits an assault or an
assault and battery against another knowing
or having reason to know that such other
person is . . . a firefighter as defined in
§ 65.2-102, engaged in the performance of
his public duties as such, such person shall
be guilty of a Class 6 felony . . . .
Code § 65.2-102(B) defines "Firefighter" to include
volunteer firefighters and lifesaving or
rescue squad members, if the governing body
of the political subdivision in which the
principal office of such volunteer fire
company or volunteer lifesaving or rescue
squad is located has adopted a resolution
acknowledging such volunteer fire company or
volunteer lifesaving and rescue squad as
employees for purposes of this title.
Appellant contends the evidence was insufficient to support
her convictions for felonies under subsection (C) rather than
misdemeanors under subsection (A) because it failed to prove the
volunteer firefighters she assaulted and battered were
"firefighter[s] as defined in [Code] § 65.2-102." She concedes
that she failed to articulate this objection at trial and that
the record contains no "definitive evidence" to prove that
volunteer firefighters in Albemarle County are not firefighters
as defined in Code § 65.2-102. However, she contends the
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ends of justice exception to Rule 5A:18 requires reversal of her
convictions. 2
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 with 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." Under this rule, a
motion to strike the evidence offered to prove one element of an
offense is insufficient to preserve for appeal a challenge to
another element of that same offense. Redman v. Commonwealth,
25 Va. App. 215, 220, 487 S.E.2d 269, 272 (1997). Here,
appellant's motion to strike and closing argument covered only
the sufficiency of the evidence to prove appellant's intent in
striking volunteer firefighters Zelton Smith and Michael Walton.
Appellant never challenged the sufficiency of the evidence to
prove their status as "firefighter[s] as defined in Code
§ 65.2-102."
Nor does the ends of justice exception support our
consideration of this issue on appeal.
2
The Commonwealth contends that Code § 18.2-57(C) applies
to all volunteer firefighters, regardless of whether the
governing body of the relevant political subdivision has
recognized such volunteers as employees for purposes of the
Workers' Compensation Act, Title 65.2. We need not reach the
merits of the Commonwealth's argument because we hold that
appellant failed to preserve her contention for appeal.
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To invoke the ends of justice exception when
sufficiency of the evidence has been raised
for the first time on appeal, an appellant
must do more than show that the Commonwealth
has failed to prove an element or elements
of the offense. Otherwise, we would be
required under the ends of justice exception
to address the merits of every case where a
defendant has failed to move to strike the
Commonwealth's evidence as being
insufficient to prove an element of the
offense.
Redman, 25 Va. App. at 221, 487 S.E.2d at 272. Thus, in order
to invoke the ends of justice exception, "the 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." Id. at 221-22,
487 S.E.2d at 272-73.
Here, the evidence does not disprove the challenged element
of the offense -- the status of Smith and Walton as
"firefighter[s] as defined in § 65.2-102." As Code § 65.2-102
provides, volunteer firefighters are firefighters covered by
Code § 18.2-57(C) "if the governing body of the political
subdivision in which the principal office of such volunteer
[company or squad] is located has adopted a resolution
acknowledging such volunteer [personnel] as employees" for
purposes of workers' compensation. As appellant concedes on
brief, "the record is barren of any evidence" regarding whether
Albemarle County has adopted such a resolution. Although
appellant moved this Court to "expand the record" to admit
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evidence on this issue, an appellate court may not accept
evidence and must rely on the evidence admitted in the trial.
Because the evidence properly before us on appeal fails to
establish that Smith and Walton were not "firefighter[s] as
defined in § 65.2-102," the ends of justice exception does not
support our consideration of this claimed error on appeal.
Appellant's claim that application of Rule 5A:18 somehow
violates her right to due process also fails; Rule 5A:18
provides "no exception . . . to 'due process' claims." Connelly
v. Commonwealth, 14 Va. App. 888, 891, 420 S.E.2d 244, 246
(1992).
For these reasons, we hold appellant failed to preserve her
assignment of error for appeal, and we affirm the challenged
convictions.
Affirmed.
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