John Homer Oneal, IV v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Chief Judge Decker, Judges Malveaux and Athey
Argued by videoconference
JOHN HOMER ONEAL, IV
MEMORANDUM OPINION* BY
v. Record No. 1168-19-1 CHIEF JUDGE MARLA GRAFF DECKER
OCTOBER 13, 2020
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Michael A. Gaten, Judge
Charles E. Haden for appellant.
Timothy J. Huffstutter, Assistant Attorney General (Mark R.
Herring, Attorney General, on brief), for appellee.
John Homer Oneal, IV, appeals his conviction for voluntary manslaughter in violation of
Code § 18.2-35. He argues that the trial court erred by denying his motion to strike because the
Commonwealth failed to exclude the reasonable hypothesis of innocence that he acted in
self-defense. We hold that this assignment of error is procedurally barred under Rule 5A:18
because the appellant failed below to challenge the sufficiency of the Commonwealth’s evidence
to “exclude the reasonable hypothesis of innocence” that Oneal “acted in justifiable
self-defense.” Consequently, we affirm the conviction.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
I. BACKGROUND1
On July 5, 2013, John Brown made numerous phone calls to the appellant. According to
the appellant, Brown had threatened him “all night.” When Brown later arrived outside the
appellant’s home, the appellant shot and killed him.
The appellant was charged with murder and use of a firearm in commission of a felony,
in violation of Code §§ 18.2-32 and -53.1. The Commonwealth presented evidence that when
Brown arrived outside the appellant’s house, the appellant shot him three times as he stood
approximately twenty to twenty-five feet away, outside the appellant’s fence.
After the close of the Commonwealth’s case-in-chief and again at the conclusion of the
presentation of his own evidence, the appellant made motions to strike the evidence. In both
motions, the appellant argued that the evidence was insufficient to support the charge of
first-degree murder and “ask[ed] the Court not to allow the evidence to go forward.” The trial
court denied the motions.
The trial court instructed the jury on first-degree murder, second-degree murder,
voluntary manslaughter, and self-defense. The jury found the appellant guilty of voluntary
manslaughter. It also found him not guilty of the firearm charge. The trial court imposed the
jury’s sentence of eighteen months in prison.
1
In accordance with familiar principles of appellate review, we recite the facts in the
light most favorable to the Commonwealth, as the prevailing party at trial. Smith v.
Commonwealth, 296 Va. 450, 460 (2018).
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II. ANALYSIS
The appellant argues that the trial court erred in denying his motion to strike the charge of
voluntary manslaughter. He specifically suggests that “the Commonwealth’s evidence failed to
exclude the reasonable hypothesis of innocence that [he] possessed a reasonable apprehension of
imminent bodily harm or death and acted in justifiable self-defense.” The Commonwealth
contends that the appellant failed to preserve his assignment of error for appeal.
It is well established that “[n]o ruling of the trial court . . . will be considered as a basis
for reversal unless an objection was stated with reasonable certainty 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. In enforcing this rule, “the Supreme Court has held that a challenge to the
sufficiency of the Commonwealth’s evidence is waived if not raised with some specificity in the
trial court.” Mounce v. Commonwealth, 4 Va. App. 433, 435 (1987) (citing Floyd v.
Commonwealth, 219 Va. 575, 584 (1978)); see, e.g., Chatman v. Commonwealth, 61 Va. App.
618, 631 (2013) (en banc). A specific contemporaneous objection is required in order to give
both the trial judge and opposing counsel a fair opportunity to address the challenge or prevent
error. See Bethea v. Commonwealth, 297 Va. 730, 743-44 (2019); Scialdone v. Commonwealth,
279 Va. 422, 437 (2010). Consequently, in the trial court, “the objecting party . . . must present
the objection . . . with sufficient particularity to permit the judge, if he or she agrees, to take
necessary action.” Jones v. Commonwealth, 71 Va. App. 597, 607 (2020).
“[A] general argument or an abstract reference to the law is not sufficient to preserve an
issue.” Banks v. Commonwealth, 67 Va. App. 273, 285 (2017) (quoting Edwards v.
Commonwealth, 41 Va. App. 752, 760 (2003) (en banc), aff’d by unpub’d order, No. 040019
(Va. Oct. 15, 2004)). In addition, “[m]aking one specific argument on an issue does not preserve
a separate legal point on the same issue for review.” Id. (alteration in original) (quoting
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Edwards, 41 Va. App. at 760); see Copeland v. Commonwealth, 42 Va. App. 424, 441 (2004)
(holding that an objection to the sufficiency of the evidence to prove whether the defendant had
the intent to distribute cocaine on school property was not preserved by the argument that no
evidence proved that his actions occurred within a thousand feet of a school zone). “[N]either an
appellant nor an appellate court should ‘put a different twist on a question that is at odds with the
question presented to the trial court.’” Bethea, 297 Va. at 744 (quoting Commonwealth v.
Shifflett, 257 Va. 34, 44 (1999)).
In the instant case, in his two motions to strike in the trial court, the appellant did not
present the argument raised in his assignment of error before this Court. At the end of the
Commonwealth’s case, the appellant made a motion to strike the charges based on insufficient
evidence. His entire argument regarding the murder charge consisted of the following:
At a minimum I would further expand on my motion that at this
juncture I don’t think there is any evidence whatsoever to consider
raising the charge from second degree murder to first degree
murder. As they’re allowed, they charged a generic murder, if you
will, as allowed by the code. But this is the point in time when the
Court can. So an ancillary part of my motion is to restrict the
[C]ommonwealth from this point forward and only go forward on
second degree murder or less.
The Commonwealth responded that witness testimony had included sufficient evidence of
premeditation. The trial court agreed and denied the motion to strike.
After the appellant presented evidence, he renewed his motion to strike. At that time, the
appellant asked the trial court to “allow no more than . . . second degree murder to go to this
jury.” He argued that there was “no evidence of premeditation.” The appellant also stated that
“obviously, fundamentally, [he was] asking the [c]ourt not to allow the evidence to go forward.”
In response, the Commonwealth reiterated witness testimony that the appellant shot Brown
before he entered the yard. The trial court again denied the motion.
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The appellant did not argue in either of his motions to strike, as he does on appeal, that
the Commonwealth “failed to exclude the reasonable hypothesis of innocence that [he] possessed
a reasonable apprehension of imminent bodily harm or death and acted in justifiable
self-defense.”2 Consequently, the appellant’s motions to strike did not give the trial court an
opportunity to evaluate the current challenge relating to the Commonwealth’s alleged failure to
disprove self-defense. Nor did the motions provide the prosecution the opportunity to respond to
the current argument. At trial, defense counsel understandably focused on the reduction of the
first-degree murder charge to a lesser offense. Nevertheless, the appellant was required to argue
his theory regarding self-defense in the context of the sufficiency of the evidence to the trial
court in order to preserve the issue for appeal pursuant to Rule 5A:18.
Certainly, the appellant presented his theory that he acted in self-defense and made that
argument to the jury. However, arguments to the jury do not preserve a specific legal challenge
to the sufficiency of the evidence for appellate review because the issue must be presented to the
trial judge, not the jury. Rompalo v. Commonwealth, 72 Va. App. 147, 156 n.3 (2020).
Finally, the appellant could have cured this deficiency if he had raised the particular
sufficiency challenge in a motion to set aside the verdict, but he did not make one. See id. at 155
(noting that to “preserve for appeal a challenge to the sufficiency of the evidence,” a defendant
must do so in a motion to strike or a motion to set aside the verdict). Although trial counsel
2
The Commonwealth also argues that the appellant did not adequately preserve this issue
for appellate purposes because he did not renew his motion to strike after the Commonwealth’s
rebuttal witness testified. However, more fundamentally, the appellant clearly did not raise
self-defense in either of the motions to strike that he did make. Therefore, we do not reach the
issue of whether he was required to renew his motion again because it is not the best and
narrowest ground on which to resolve the appeal. See Dietz v. Commonwealth, 294 Va. 123,
134 (2017) (noting that an appellate court decides cases on “the best and narrowest grounds
available” (quoting Commonwealth v. White, 293 Va. 411, 419 (2017))).
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suggested that he was planning to file a motion for a judgment notwithstanding the verdict, no
such motion appears in the record.
For these reasons, the record demonstrates that the appellant failed to make his
self-defense sufficiency argument below in compliance with Rule 5A:18.
Rule 5A:18 contains two exceptions to the procedural bar, one for good cause and the
other to reach the ends of justice. However, this Court will not raise those exceptions sua sponte.
See Edwards, 41 Va. App. at 761, cited with approval in Jones v. Commonwealth, 293 Va. 29,
39 n.5 (2017). The appellant did not suggest that the ends-of-justice exception to Rule 5A:18
applies to his case until his rebuttal at oral argument.3 See generally Wandemberg v.
Commonwealth, 70 Va. App. 124, 137 (2019) (explaining that the ends-of-justice exception
applies only if “a miscarriage of justice has occurred” (quoting Holt v. Commonwealth, 66
Va. App. 199, 209 (2016) (en banc))). Raising the ends-of-justice exception in the first instance
at oral argument is untimely and insufficient for a litigant to invoke it. See Stokes v.
Commonwealth, 61 Va. App. 388, 397 (2013); see also Rule 5A:20(e) (providing that the
assignment of error “shall state why the good cause and/or ends of justice exceptions to Rule
5A:18 are applicable”). Accordingly, we do not address these exceptions.4
3
The appellant never asked this Court to apply the exception for good cause. See
generally Andrews v. Commonwealth, 37 Va. App. 479, 494 (2002) (explaining that the good
cause exception may apply when a litigant did not have the opportunity to raise the particular
claim below).
4
The Court has decided this case on the best and narrowest ground by applying a
procedural bar relating to failure to preserve the issue in the trial court. We note, however, that
the appellant’s assignment of error incorrectly attempts to assign the burden of proof to the
Commonwealth even though it was his burden to affirmatively prove self-defense. See Riley v.
Commonwealth, 277 Va. 467, 479 (2009) (explaining that as an affirmative defense, “the
burden” of proving self-defense “is on the defendant to present evidence establishing [it] to the
satisfaction of the fact finder”).
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III. CONCLUSION
We hold that this appeal is procedurally barred under Rule 5A:18. The appellant did not
challenge the sufficiency of the Commonwealth’s evidence to exclude his hypothesis of self-defense
during his motions to strike or make a motion to set aside the verdict. Further, we do not consider
the good cause or ends-of-justice exceptions to Rule 5A:18. We conclude that by failing to present
the specific issue to the trial court regarding the sufficiency of the Commonwealth’s evidence to
disprove self-defense, the appellant failed to preserve the alleged error for appellate review.
Therefore, we affirm the conviction.
Affirmed.
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