Don't Miss
Home / Fulltext Opinions / Virginia Court of Appeals / EDWARDS v. COMMONWEALTH

EDWARDS v. COMMONWEALTH


VA Court of Appeals
EDWARDS v. COMMONWEALTH
Dec 9, 2003




NOTICE: The opinions posted here are subject to formal
revision. If you find a typographical error or other formal error, please notify
the Virginia Court of Appeals.


EDWARDS

v.

COMMONWEALTH


COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Benton, Elder,
Annunziata, Bumgardner, Frank,

Humphreys, Clements, Felton and Kelsey

Argued at Richmond, Virginia

Record No. 2846-01-1

LOLITA EDWARDS

v.

COMMONWEALTH OF VIRGINIA

 

OPINION BY JUDGE ROBERT P. FRANK

DECEMBER 9, 2003

UPON A REHEARING EN BANC

FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH

Von L. Piersall, Jr., Judge

Joseph R. Winston, Special Appellate Counsel (Public Defender

Commission, on brief), for appellant.

Richard B. Smith, Senior Assistant Attorney General (Jerry W.

Kilgore, Attorney General, on briefs), for appellee.

Lolita Edwards (appellant) was indicted for attempted capital
murder of a law enforcement

officer, in violation of Code ?? 18.2-25 and 18.2-31, eluding
the police, in violation of Code

? 46.2-817(B), and leaving the scene of an accident involving
personal injury, in violation of Code

? 46.2-894. In a bench trial, she was convicted of assault on a
law enforcement officer, in violation

of Code ? 18.2-57, in addition to the indicted offenses of
eluding and leaving the scene. A panel of

this Court reversed the conviction of assault and affirmed the
conviction of leaving the scene.

Edwards v. Commonwealth, 41 Va. App. 99, 581 S.E.2d 910 (2003).
Thereafter, we stayed the

mandate of that decision and granted the Commonwealth’s
petition for a rehearing en banc.

Appellant contends she was improperly convicted of assault on a
law enforcement officer

because that offense is not a lesser-included offense of the
indicted charge, attempted capital murder

of a law enforcement officer. She also argues the evidence was
insufficient to prove she left the

scene of an accident. Upon rehearing en banc, we affirm
the trial court on both offenses.

BACKGROUND

Around 8:00 p.m. on May 4, 2001, Portsmouth Police Officer S.D.
White saw a burgundy

Pontiac with "music . . . playing extremely loud,"
traveling without its headlights illuminated.

Officer White activated his lights and siren, but the Pontiac
did not stop. Officer White continued to

follow the vehicle, with his "wigwag headlights"
activated and his siren engaged, for approximately

one mile. The Pontiac swerved from one lane to another. A
passing car was forced off the road by

the Pontiac. Eventually, the vehicle crossed the Churchland
Bridge, "stopped suddenly," and

"jumped the curb." The officer swerved his car
slightly to avoid hitting the Pontiac and then

stopped his police unit "slightly beside [appellant’s] vehicle."

Officer White, who was in uniform with his badge displayed,
exited his vehicle. He walked

up to the Pontiac and found appellant in the driver’s seat.
The car was still running. Officer White

reached through the driver’s side window, telling appellant,
"Turn off the car, turn off the car."

The officer described what happened next:

I reached in, there was some yelling or something from inside
the

car and the car drove off. When the car drove off, it pinned my

arm back behind the headrest and drug me towards the front of my

car at that point.

I was able to work myself free and I remember getting hit in the

back with either a car or a mirror and the next thing I remember
I

was being loaded into an ambulance.

Officer Peter Sykes had arrived just before appellant stopped
her car. He observed

Officer White reach into appellant’s car, grab her arm, and
attempt to extract her from the

Pontiac. According to Officer Sykes, the car then "began to
proceed eastbound . . . leaving the

curb, partially dragging Officer White towards his police
vehicle. Officer White eventually let

go of the driver’s arm." Officer Sykes testified the
Pontiac was "creeping off the curb" when

appellant drove off with Officer White’s arm in her car. He
estimated the car traveled about five

or six feet until Officer White "let go." After the
officer "let go," the Pontiac struck White’s

vehicle and then another police car.

Officer Sykes followed the car approximately a hundred feet,
during which time it

jumped the curb, traveled across a lawn, and stopped. The
officer placed appellant under arrest.

Officer White was treated for his injuries.

At the conclusion of the Commonwealth’s evidence, appellant
moved to strike the

evidence on the attempted capital murder count. After argument,
the trial court sustained the

motion. The Commonwealth then inquired if the court was
"striking that down to possibly a

lesser included offense?" The Commonwealth suggested
assault on a law enforcement officer as

a lesser-included offense. Appellant argued the latter offense
was not a lesser-included offense.

The following exchange occurred:

MR. MEDA [appellant’s counsel]: Your Honor, I think under the

Blockburger analysis for lesser included offenses, I don’t
think that

meets the requirement. The attempted capital murder statute does

not include the element of the defendant having reason to know
the

person was a law enforcement officer. Assault and battery on a

police officer requires that –

* * * * * * *

The elements of the statute of attempted capital murder do not

include that as a requirement. The statute for assault and
battery

on a law enforcement officer requires the Commonwealth to prove

as an element that the defendant had reason to know that the

person assaulted is a law enforcement officer.

The Commonwealth’s attorney responded, arguing that an
attempted capital murder

indictment also requires the Commonwealth prove a defendant
should have known the victim

was a law enforcement officer. The entire focus of the argument
to the trial court was whether

the Commonwealth must prove the offender had reason to know the
person was a law

enforcement officer in order to prove attempted capital murder.
The trial court ruled on this

issue when it found assault on a law enforcement officer was a
lesser-included offense of

attempted capital murder.

ANALYSIS

A. Lesser-Included Offense

On appeal, appellant contends assault and battery of a law
enforcement officer is not a

lesser-included offense of attempted capital murder because a
battery is not an element of

attempted capital murder.[1]
Appellant also argues the definitions of "law enforcement officer"

contained in Code ? 18.2-57, the assault statute, and Code ?
18.2-31(6), the murder statute,

differ, which precludes a finding that assault of a law
enforcement officer is a lesser-included

offense of attempted capital murder of a law enforcement
officer. The Commonwealth concedes

this second argument. However, the Commonwealth contends any
argument based on these

different definitions is procedurally defaulted under Rule
5A:18.[2] We agree.

The argument at trial focused solely on whether both offenses
require proof that the

assailant knew her intended victim was a law enforcement
officer. Appellant argued Code

? 18.2-57 includes this element and attempted capital murder
does not. However, on appeal,

appellant attempts to distinguish the elements of these two
offenses on a different basis, i.e., the

statutory definition of a law enforcement officer, not the assailant’s
perception
of the victim’s

status as a law enforcement officer. Appellant did not raise the
point she now asserts before the

trial court.

Nothing in appellant’s argument before the trial court alerted
the trial court to her

argument before this Court. The trial court had no opportunity
to consider the issue presented on

appeal. See Neal v. Commonwealth, 15 Va. App. 416, 422, 425
S.E.2d 521, 525 (1992) ("This

Court has said ‘the primary function of Rule 5A:18 is to alert
the trial judge to possible error so

that the judge may consider the issue intelligently and take any
corrective actions necessary to

avoid unnecessary appeals, reversals and mistrials.’"
(quoting Martin v. Commonwealth, 13 Va.

App. 524, 530, 414 S.E.2d 401, 404 (1992))).

Rule 5A:18 requires an "objection [be] 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." Under this rule, a specific argument must
be made to the trial court at the

appropriate time, or the allegation of error will not be
considered on appeal. See Mounce v.

Commonwealth, 4 Va. App. 433, 435, 357 S.E.2d 742, 744 (1987). A
general argument or an

abstract reference to the law is not sufficient to preserve an
issue. Buck v. Commonwealth, 247

Va. 449, 452-53, 443 S.E.2d 414, 416 (1994); Scott v.
Commonwealth, 31 Va. App. 461,

464-65, 524 S.E.2d 162, 164 (2000). Making one specific argument
on an issue does not

preserve a separate legal point on the same issue for review.
See Clark v. Commonwealth, 30

Va. App. 406, 411-12, 517 S.E.2d 260, 262 (1999) (preserving one
argument on sufficiency of

the evidence does not allow argument on appeal regarding other
sufficiency questions).

Thus, we will not consider this issue for the first time on
appeal. See Rule 5A:18; West

Alexandria Prop., Inc. v. First Virginia Mortgage and Real
Estate Inv. Trust, 221 Va. 134, 138,

267 S.E.2d 149, 151 (1980) ("On appeal, though taking the
same general position as in the trial

court, an appellant may not rely on reasons which could have
been but were not raised for the

benefit of the lower court."); Floyd v. Commonwealth, 219
Va. 575, 584, 249 S.E.2d 171, 176

(1978) (holding that appellate courts will not consider an
argument that differs from the specific

argument presented to the trial court, even if it relates to the
same general issue).

Although Rule 5A:18 allows exceptions for good cause or to meet
the ends of justice,

appellant does not argue that we should invoke these exceptions.
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)).
We will not consider, sua sponte, a

"miscarriage of justice" argument under Rule 5A:18.
Further, we find nothing in the record to

support such an argument.

Appellant relies on our decision in Lowe v. Commonwealth, 33 Va.
App. 583, 535

S.E.2d 689 (2000), to contend that her assignment of error can
be raised at any time. In Lowe, a

defendant was indicted for statutory burglary, but convicted of
trespass, without an amendment

of the indictment. The conviction was reversed because trespass
under Code ? 18.2-219 is not a

lesser-included offense of statutory burglary. At trial, Lowe
did not object to the conviction of

the reduced charge. The Commonwealth, as it did here, contended
Rule 5A:18 barred Lowe

from raising the issue on appeal. This Court noted:

"[T]he fact that the defendant did not object to . . . the
conviction

on the ground that he was convicted for an offense with which he

was not charged is of no moment. Unless an indictment is

amended to conform to the proof or an accused acquiesces in
being

found guilty of an offense other than the one charged, a trial
court

lacks the authority to find an accused guilty of an offense
other

than the one charged or a lesser included offense. . . . The
lack of

authority of the trial Court to render the judgment that it did
may

be raised at any time and by this court on its own motion."

Fontaine v. Commonwealth, 25 Va. App. 156, 165, 487 S.E.2d

241, 244 (1997) (citations omitted).

Id. at 588, 535 S.E.2d at 691-92. This Court then held:

Acquiescence requires something more than a mere failure to

object. See [Fontaine, 25 Va. App. at 165, 487 S.E.2d at 244]

(holding that failing to object, coupled with statement to judge

clarifying that conviction was for misdemeanor rather than
felony,

did not constitute acquiescence).

Id. at 588, 535 S.E.2d at 692. This Court found the issue was
not defaulted and proceeded to

consider the merits of the appeal. Id.

In Fontaine, 25 Va. App. 156, 487 S.E.2d 241, a defendant was
indicted for leaving the

scene of an accident in which a person was injured, a felony
under Code ? 46.2-900. However,

he was convicted, without an amendment of the indictment, of
leaving the scene of an accident

involving property damage, a misdemeanor under Code ? 46.2-900.
Id. at 159, 487 S.E.2d at

242-43. Fontaine did not object to the conviction of the reduced
charge. Id. at 162, 487 S.E.2d

at 244. In the context of a sufficiency issue, the Commonwealth
argued that Fontaine had

"concurred" in the misdemeanor conviction by asking
the trial court for clarification. Id. at 163,

487 S.E.2d at 244. This Court held Fontaine did not
"acquiesce" in the trial court’s decision. Id.

The Commonwealth also argued the evidence was sufficient to
convict Fontaine of the

misdemeanor because it was a lesser-included offense of the
felony, and the evidence was

sufficient to convict him of the felony. Id. at 163, 487 S.E.2d
at 244-45.

This Court noted, "[N]ot only is [the lesser-included
issue] crucial to the

Commonwealth’s sufficiency argument, but, more importantly it
is critical to the determination

of whether the trial court had jurisdiction to find the
defendant guilty of an offense not directly

charged in the indictment." Id. at 163-64, 487 S.E.2d at
245. This Court, after finding "hit and

run property damage" is not a lesser-included offense of
"hit and run personal injury," explained:

By convicting the defendant of an offense that was not lesser

included and that was not charged, the trial court exceeded its

authority. The indictment did not charge the defendant generally

with hit and run in violation of Code ? 46.2-894. Instead, it

specifically charged hit and run personal injury. Thus, the

Commonwealth charged the defendant with one offense and found

him guilty of another. "The state may not accuse a person
of one

crime and convict him by proving another unless the offense is a

lesser included one of that charged." Harrell v.
Commonwealth,

11 Va. App. 1, 6, 396 S.E.2d 680, 682 (1990). The fact that the

defendant did not object to or appeal the conviction on the
ground

that he was convicted for an offense with which he was not

charged is of no moment.

Id. at 164-65, 487 S.E.2d at 245.

The Commonwealth asks this Court to overturn Lowe and reject the
analysis in Fontaine.

The Commonwealth argues that conviction of an offense which is
not a lesser-included offense

cannot create a jurisdictional issue and contends appellant’s
arguments are subject to the usual

procedural requirements for consideration on appeal.

The Commonwealth notes both Lowe, 33 Va. App. at 589, 535 S.E.2d
at 692, and

Fontaine, 25 Va. App. at 165, 487 S.E.2d at 245, allow waiver of
this issue if a defendant

acquiesces in the trial court’s decision. However, the
Commonwealth correctly explains,

jurisdictional issues by definition cannot be waived, even with
acquiescence. Nelson v. Warden

of the Keen Mountain Corr. Ctr., 262 Va. 276, 281, 552 S.E.2d
73, 75 (2001) (noting

jurisdictional issues cannot be waived). Given this
contradiction between the definition of

jurisdictional issues and the principles expressed in Lowe and
Fontaine, we must reconsider

these two cases.

Fontaine, as embraced in Lowe, underscores the concept that a
trial court "lack[s]

authority" to convict a person of an offense which is not a
lesser-included offense. We do not

disagree with this statement of the law. However, the Fontaine
and Lowe decisions presume

enthymematically that, when courts "lack authority,"
they necessarily also lack essential

jurisdiction over the matter in controversy. The decisions also
conclude that this lack of

authority allows the issue to be raised at any time, whether
preserved under Rule 5A:18 or not, a

prospect reserved only for void judgments. Lowe, 33 Va. App. at
588-89, 535 S.E.2d at 691-92;

Fontaine, 25 Va. App. at 165, 487 S.E.2d at 245. Essentially,
Fontaine and Lowe equate the

"lack of authority" to exercise jurisdiction with a
jurisdictional defect. This notion was clearly

rejected in Nelson, 262 Va. at 281-84, 552 S.E.2d at 75-77.

Referring to its earlier decision in David Moore v.
Commonwealth, 259 Va. 431, 527

S.E.2d 406 (2000), the Supreme Court explained in Nelson,

[W]e made a point in David Moore of "emphasizing the
necessary

distinction to be drawn . . . between the power of a court to

adjudicate a specified class of cases, commonly known as ‘subject

matter jurisdiction,’ and the authority of a court to exercise
that

power in a particular case." Id. at 437, 527 S.E.2d at 409.

We said that "[s]ubject matter jurisdiction is granted by

constitution or statute," that "[i]t cannot be
waived," that "any

judgment rendered without it is void ab initio," and
that "lack of

subject matter jurisdiction ‘may be raised at any time in any

manner, before any court, or by the court itself.’" Id.
(quoting

Humphreys v. Commonwealth, 186 Va. 765, 772, 43 S.E.2d 890,

893 (1947)).

* * * * * * *

After noting the Court’s emphasis on the distinction between

subject matter jurisdiction and the authority to exercise that

jurisdiction, the Court’s next step should have been to
demonstrate

the difference resulting from the distinction. Yet, we made a

distinction without a difference for, with our very next step,
we

elevated the failure of a court to comply with the requirements
for

exercising its authority to the same level of gravity as a lack
of

subject matter jurisdiction.

262 Va. at 281, 552 S.E.2d at 75. The Supreme Court reversed the
reasoning in David Moore

and found the failure to notify Nelson’s father of the charges
against his son did not result in a

void judgment.

Nelson did not preserve the error in the juvenile court’s
failure to

give his father notice and did not raise the issue until he
filed his

petition for a writ of habeas corpus in this Court. Because

Nelson’s convictions were merely voidable, his failure to
raise the

issue in a timely manner constitutes a waiver of the error and

results in the dismissal of his petition.

Id. at 285, 552 S.E.2d at 78.

Lowe and Fontaine follow the erroneous logic of David Moore by
equating the authority

to exercise jurisdiction with basic jurisdictional requirements.
These decisions cannot be

reconciled with Nelson. Therefore, we are required to overrule
those decisions to the extent that

they conclude a conviction of an offense that is not a
lesser-included offense of the indicted

charge renders the judgment void, i.e., it can be raised at any
time in any court.

In reaching this conclusion, we remain aware of the doctrine of stare
decisis
. As the

Supreme Court said in Selected Risks Ins. Co. v. Dean:

In Virginia, the doctrine of stare decisis is more than a mere
clich?.

That doctrine plays a significant role in the orderly
administration

of justice by assuring consistent, predictable, and balanced

application of legal principles. And when a court of last resort
has

established a precedent, after full deliberation upon the issue
by the

court, the precedent will not be treated lightly or ignored, in
the

absence of flagrant error or mistake.

233 Va. 260, 265, 355 S.E.2d 579, 581 (1987) (citation omitted).
"Our strong adherence to the

doctrine of stare decisis does not, however, compel us to
perpetuate what we believe to be an

incorrect application of the law . . . ." Nunnally v.
Artis, 254 Va. 247, 253, 492 S.E.2d 126, 129

(1997). See Code ? 17.1-402(D) ("The court [of appeals] sitting en banc shall consider and

decide the case and may overrule any previous decision by any
panel or of the full court.");

Nelson, 262 Va. at 280-81, 552 S.E.2d at 75 (quoting Nunnally).
We may exercise the authority

to overrule previous decisions where a "detailed
inquiry" demonstrates "‘a mistake exists in our

prior decisions."’ Armstrong v. Commonwealth, 36 Va. App.
312, 321, 549 S.E.2d 641, 645

(2001) (en banc).

Further, precedent from the Supreme Court supports the
distinction we now make

between a void and a voidable judgment in the context of
differences between the indictment and

the final conviction. In Cunningham v. Hayes, 204 Va. 851, 134
S.E.2d 271 (1964), Hayes was

indicted for manslaughter, yet convicted of first-degree murder.
In his petition for a writ of

habeas corpus, Cunningham asserted his conviction was
illegal because he was indicted for one

offense and convicted of another. Id. at 858, 134 S.E.2d at 276.
In dismissing the petition, the

Court held the judgment was voidable, not void.

"This court has repeatedly held that a writ of habeas
corpus
does

not lie where the judgment of conviction is merely voidable by

reasons of error of law or fact, omissions, or other
irregularities, no

matter how numerous or flagrant they may be. The remedy in such

cases is by appeal or writ of error. The underlying question in
such

[habeas corpus] proceedings is that of jurisdiction –
that is,

whether the court had jurisdiction of the person and the subject

matter and the power to render the particular judgment. If the

court had jurisdiction of the person and of the subject matter
of the

prosecution, and if the punishment imposed is of the character

prescribed by law, a writ of habeas corpus does not lie
to release

the prisoner from custody merely because of irregularities or

defects in the sentence." (Citing cases). Royster v. Smith,
195 Va.

228, 232-[3]3, 77 S.E.2d 855 [(1953)]. See also Ex parte Belt,
159

U.S. 95, 15 S. Ct. 987, 988, 40 L. Ed. 88, 90 [(1895)].

In Virginia there is no constitutional requirement that
prosecutions

for felonies be by indictment. The requirement is merely
statutory

and may be waived by the accused. ? 19.1-162, Code of 1950, as

amended.

* * * * * * *

Since a person charged with a felony may waive indictment and be

tried on a warrant or information[,] the requirement of an

indictment is not jurisdictional.

Id. at 854-55, 134 S.E.2d at 274.

Here, the trial court clearly had subject matter jurisdiction
over the case, which involved

a criminal matter. See Code ? 17.1-513 (giving circuit courts
jurisdiction over criminal cases).

Appellant does not contend the offense occurred outside the
Commonwealth of Virginia or that

the court lacked jurisdiction over her person. Thus, no
jurisdictional defect renders her

conviction of assault on a police officer void. Since Rule 5A:18
bars consideration of this issue,

we affirm the conviction of assault on a police officer.

B. Sufficiency of the Evidence

Appellant argues the evidence does not support the conviction
for leaving the scene of an

accident involving personal injury. She contends she did not
deliberately drive away from the

scene and, alternatively, she did not leave the scene.

When considering sufficiency issues, "we review the
evidence in the light most favorable to

the Commonwealth, granting to it all reasonable inferences
fairly deducible therefrom." Martin v.

Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).
When the sufficiency of the

evidence is challenged on appeal, "it is our duty to look
to that evidence which tends to support the

verdict and to permit the verdict to stand unless plainly
wrong." Snyder v. Commonwealth, 202 Va.

1009, 1016, 121 S.E.2d 452, 457 (1961). "The judgment of a
trial court sitting without a jury is

entitled to the same weight as a jury verdict and will not be
set aside unless it appears from the

evidence that the judgment is plainly wrong or without evidence
to support it." Martin, 4 Va. App.

at 443, 358 S.E.2d at 418.

Code ? 46.2-894 criminalizes leaving the scene of an accident:

The driver of any vehicle involved in an accident in which a
person

is killed or injured or in which an attended vehicle or other

attended property is damaged shall immediately stop as close to
the

scene of the accident as possible without obstructing traffic,
as

provided in ? 46.2-888, and report his name, address, driver’s

license number, and vehicle registration number forthwith to the

State Police or local law-enforcement agency, to the person
struck

and injured if such person appears to be capable of
understanding

and retaining the information, or to the driver or some other

occupant of the vehicle collided with or to the custodian of
other

damaged property.

Appellant claims this statute requires the Commonwealth prove an
accused deliberately drove

away from the scene of an accident, citing Herchenbach v.
Commonwealth, 185 Va. 217, 38

S.E.2d 328 (1946), to support this interpretation of the
statute. She then argues the evidence

does not support an inference that she deliberately continued
driving after she injured the officer.

Appellant’s reliance on Herchenbach is misplaced. Herchenbach
held the

Commonwealth must prove an accused knew an accident had
occurred, which is not appellant’s

argument. Id. at 220, 38 S.E.2d at 329. See Cottee v.
Commonwealth, 31 Va. App. 546, 558,

525 S.E.2d 25, 31 (2000). Herchenbach did note, however,
"The duty imposed upon the driver

of a vehicle involved in an accident is not passive. It requires
positive, affirmative action; — that

is, to stop and give the aid and information specified."
185 Va. at 220, 38 S.E.2d at 329.

Code ? 46.2-894 requires a driver "immediately stop"
at an accident scene. This

language plainly does not allow a person to continue driving
until circumstances stop the vehicle.

See Rasmussen v. Commonwealth, 31 Va. App. 233, 238, 522 S.E.2d
401, 403 (1999) (statutory

language should be given its plain meaning). Even if, as
appellant contends, she initially could

not stop the vehicle because she was "yanked . . . off
those brakes" by Officer White, she could

have applied the brakes to stop the car once the officer had
released her. She did not do this, but

instead continued to drive the car until it hit two police
vehicles and almost hit a house. This

evidence is sufficient to prove appellant did not immediately
stop as required by the statute.

Appellant also contends she did not leave the scene, contending
the movement of her car

did not take her away from the scene. She relies on Smith v.
Commonwealth, 32 Va. App. 228,

527 S.E.2d 456 (2000), to support this analysis. Again, her
reliance is misplaced.

Smith addressed the meaning of "scene of the accident"
in the context of Code ? 19.2-81,

the statute allowing an arrest without a warrant. Id. at 231,
527 S.E.2d at 458. Appellant is

correct that this Court held Smith was at "the scene of any
accident" when she was arrested, even

though she stopped her car 100 yards away from the road sign she
had struck. Id. However, in a

footnote, this Court foresaw appellant’s argument here:

Appellant contends that the phrase, "the scene of any
accident," in

Code ? 19.2-81 should be construed as co-extensive with the

phrase, "the scene of the accident," in Code ?
46.2-894, Virginia’s

"hit-and-run" statute. Because appellant’s
hit-and-run charge was

disposed of by nolle prosequi and never considered by the
court,

we see no reason to analyze the meaning of the challenged phrase

in the hit-and-run statute. We note, however, that the
hit-and-run

statute contains language significantly different from the
statute

under which appellant was convicted. Code ? 46.2-894 requires a

driver involved in an accident to "stop as close to the
scene of the

accident as possible without obstructing traffic," and the
purpose

of the statute is to "facilitate accident investigation and
to preserve

public order." Johnson v. Commonwealth, 14 Va. App. 769,
771,

418 S.E.2d 729, 731 (1992). Code ? 19.2-81, by contrast,
permits

an officer to make a warrantless arrest of a motor vehicle
driver,

under certain conditions, "at the scene of any
accident."

Id. at 234 n.2, 527 S.E.2d at 460 n.2.

We agree with the analysis in Smith’s footnote. By requiring a
driver to stop

immediately and as close to the "scene" as possible,
Code ? 46.2-894 distinguishes and limits the

area labeled "the scene" in a manner that Code ?
19.2-81 does not. The hit-and-run statute

clearly requires drivers to stop as close to the accident, or
point of impact, as safety will permit.

Any other interpretation of the statute would make the word
"immediately" meaningless and foil

the intent of the statute. See Gray v. Graves Mountain Lodge,
Inc., 26 Va. App. 350, 355-56,

494 S.E.2d 866, 869 (1998) (explaining that courts should avoid
interpretations that make words

within a statute meaningless and ignore legislative intent).

The trial court found appellant "drove fifty to a hundred
feet away" after injuring Officer

White. The evidence supports that finding. After Officer White
fell from her car, appellant hit

two police cars and eventually stopped in the lawn of a private
residence. Nothing in the record

suggests that stopping in the lawn was an immediate stop or that
the lawn was the first safe place

to park the car.

CONCLUSION

We find appellant was properly convicted of assault on a law
enforcement officer and

that the evidence was sufficient to convict appellant of leaving
the scene of an accident involving

personal injury. Thus, we affirm both convictions.

Affirmed.

Benton J., dissenting.

I.

The Commonwealth concedes that assault on a law enforcement
officer as proscribed by

Code ? 18.2-57, which is the offense of which Lolita Edwards
was convicted, is not a

lesser-included offense of attempted capital murder of a law
enforcement officer as proscribed

by Code ? 18.2-31(6), which was the offense charged in the
indictment.

The Due Process Clauses of the Constitution of the United

States and the Constitution of Virginia mandate that an accused
be

given proper notification of the charges against him. U.S.
Const.

amend. XIV; Va. Const. art. 1, ? 8. Code ? 19.2-220 provides,
in

pertinent part, that an indictment shall be "a plain,
concise and

definite written statement, (1) naming the accused, (2)
describing

the offense charged, (3) identifying the county, city or town in

which the accused committed the offense, and (4) reciting that
the

accused committed the offense on or about a certain date."
An

indictment, to be sufficient, must give an accused notice of the

nature and character of the charged offense so the accused can

make his defense. Satcher v. Commonwealth, 244 Va. 220, 231,

421 S.E.2d 821, 828 (1992), cert. denied, 507 U.S. 933 (1993).

It is firmly established, therefore, that an accused cannot be

convicted of a crime that has not been charged, unless the crime
is

a lesser-included offense of the crime charged.

Commonwealth v. Dalton, 259 Va. 249, 253, 524 S.E.2d 860, 862
(2000).

The record establishes that, after the trial judge granted the
motion to strike the charge of

attempted capital murder, the prosecutor inquired about whether
the judge was inclined to

convict Edwards of a lesser-included offense. The following
colloquy ensued:

[Prosecutor]: Your Honor, with that, will you be striking that

down to possibly a lesser included offense under that, Your

Honor?

[Judge]: Well, I haven’t heard any argument about that.

[Prosecutor]: I didn’t know if that’s possible –

[Judge]: What lesser included offense would you suggest?

[Prosecutor]: Your Honor, the Commonwealth would argue that

under any of the homicide statutes or attempted homicide
statutes,

Your Honor, that any of the assault and battery offenses would
be

lesser included which would include malicious wounding,

unlawful wounding, assault and battery on a law enforcement

officer –

[Judge]: So you don’t have an argument then for that, just

anything I want to do is okay with you?

[Prosecutor]: Well, Your Honor, just articulating what the
lesser

included offenses would be.

[Judge]: I know what all I can do. I just wanted to know if you

had a position on it.

[Prosecutor]: Your Honor, the Commonwealth would argue that

here, clearly, an assault on a law enforcement officer did take

place . . . .

* * * * * * *

[Judge]: You think assault on a police officer is a lesser
included

offense?

[Prosecutor]: In this particular case, Your Honor, given the

elements –

[Judge]: Not in this particular case, in any case is assault on
a

police officer a lesser included offense of attempted capital

murder?

[Prosecutor]: Under the enumerated section that makes this

attempted capital murder because it was on a law enforcement

officer, Your Honor, it’s the Commonwealth’s position that
yes, it

is.

The record indicates that Edwards’s attorney objected. In
pertinent part, he gave the

following reasons:

Your Honor, I think under the Blockburger analysis for

lesser included offenses, I don’t think that meets the
requirement.

The attempted capital murder statute does not include the
element

of the defendant having reason to know the person was a law

enforcement officer. Assault and battery on a police officer

requires that –

* * * * * * *

The elements of the statute of attempted capital murder do

not include that as a requirement. The statute for assault and

battery on a law enforcement officer requires the Commonwealth

to prove as an element that the defendant had reason to know
that

the person assaulted is a law enforcement officer.

Just as to the argument as to whether or not the Court could

find for a lesser included offense, I don’t think assault and
battery

on a police officer is a lesser included offense of attempted –

* * * * * * *

As I stated, the element in assault and battery on a police

officer requires the Commonwealth to prove that the defendant
had

reason to know that the person assaulted was a law enforcement

officer.

* * * * * * *

Yes, sir, judge, but there’s no element in the attempted

capital murder statute that requires the Commonwealth to prove

that the defendant had reason to know that the person was a law

enforcement officer.

The context in which the lesser offense was suggested by the
prosecutor is important

because these discussions indicate the prosecutor was unsure
that a lesser-included offense was

"possible" and then suggested with some uncertainty
various alternatives that the judge might

consider. Only after the judge pressed for her
"position" did the prosecutor settle upon assault

on a law enforcement officer as a lesser-included offense. Then,
however, the prosecutor argued

that the facts "[i]n this particular case" suggested
that the offense of assault was a lesser-included

offense. See Ragsdale v. Commonwealth, 38 Va. App. 421, 427-28,
565 S.E.2d 331, 334-35

(2002) (noting that the Blockburger test suggests the "two
offenses ‘are to be examined in the

abstract, rather than with reference to the facts of a
particular case under review’"). Responding

to those arguments, Edwards’s attorney said, "Your Honor,
I think under the Blockburger

analysis for lesser included offenses I don’t think that meets
the requirement." Although

Edwards’s attorney advanced at trial a Blockburger analysis
different than the one now urged on

appeal, I would hold that the uncertainty that prevailed at the
trial on this issue provides a "good

cause" basis to consider this issue on appeal. See Jones v.
Commonwealth, 194 Va. 273, 280, 72

S.E.2d 693, 697 (1952) (holding that "formal
objection" would be excused when the attorneys

were "taken by surprise" by the judge’s actions and
the attorneys "were rather depending on the

court in a situation new to them"); Campbell v.
Commonwealth, 14 Va. App. 988, 996, 421

S.E.2d 652, 656 (1992) (Barrow, J., concurring) (noting that
"‘[g]ood cause’ relates to the reason

why an objection was not stated at the time of the
ruling").

Because Edwards’s trial attorney’s objection invoked the
correct legal principle, i.e.,

Blockburger, I would hold that her argument, which focused on
only one of several possible

analyses, does not bar our review of the appeal under the good
cause prong of Rule 5A:18.

Accordingly, I would reverse the conviction for assault and
remand this issue to the trial court.

II.

In addition to convicting Edwards of assaulting a law
enforcement officer, the trial judge

convicted her of eluding a law enforcement officer after
receiving a signal to bring her vehicle to

a stop, see Code ? 46.2-817, driving under the influence of
alcohol, see Code ? 18.2-266, driving

on a suspended license, see Code ? 46.2-301, and failing to
stop at the scene of an accident to

give information and render assistance, see Code ? 46.2-894.
Edwards contends the evidence

was insufficient to prove a violation of Code ? 46.2-894.

The evidence proved Edwards was driving erratically, although
not exceeding the speed

limit, and while intoxicated. Officer White, who followed
Edwards with his siren activated,

testified that Edwards’s "music was playing extremely
loud." When Edwards stopped her

vehicle at the end of a bridge, Officer White stopped his
vehicle "slightly beside [Edwards’s]

vehicle" and to the left of it. Officer White testified
that he "exited [his] vehicle and attempted

to extract [Edwards,] the driver" when the following events
occurred:

Q: Now, you said you reached in the driver’s side and put your

hands on the defendant to try to get that person out of the
vehicle?

A: That’s correct.

Q: Put both hands on the individual?

A: No, my right hand.

Q: The window, was it — It was already down, correct?

A: Yes.

* * * * * * *

Q: Now, was the defendant’s vehicle still running at that
time?

A: Yes.

Q: Did you make any attempts to or commands for the defendant

to get out of the vehicle before you put your hands into the
vehicle

trying to get her out?

A: I was saying, "Turn off the car, turn off the car,"
which is what

I normally do, but there were sirens –

Q: Did you attempt to open — You didn’t attempt to open the
door

before you put your hands in?

A: I couldn’t. There wasn’t enough room between the cars.

As Officer White pulled at Edwards through the window to
"extract" her from the

vehicle, Edwards’s vehicle moved forward. Officer Sykes, who
had stopped his vehicle behind

Edwards, testified that Edwards’s vehicle began to move after
Officer White "grabbed

[Edwards’s] arm and attempted to pull [Edwards] from the
vehicle." He described the

movement of Edwards’s vehicle as follows:

Q: And was that — That was at a speed of about five to ten
miles,

is that correct?

A: If that. She kind of like was creeping off the curb. It wasn’t
a

fast acceleration.

Edwards’s vehicle hit Officer White’s vehicle, hit another
officer’s vehicle, which was

parked ahead of Officer White’s vehicle, and then jumped the
curb onto a lawn. Officer Sykes

testified that he drove around the two damaged vehicles and
"positioned [his] vehicle alongside

[Edwards’s] vehicle, kind of following [Edwards’s] vehicle." He said Edwards’s "vehicle was

headed toward the house but stopped before striking the
house." Edwards’s vehicle had traveled

fifty to one hundred feet from the place where Officer White had
attempted to pull Edwards from

her vehicle.

In pertinent part, Code ? 46.2-894 provides that "[t]he
driver of any vehicle involved in

an accident in which a person is . . . injured or in which an
attended vehicle . . . is damaged shall

immediately stop as close to the scene of the accident as
possible without obstructing traffic . . .

and report [identifying information]." Applying a
substantially similar predecessor statute, the

Supreme Court held as follows:

[I]n order to be guilty of violating the statute, the driver must
be

aware that harm has been done; it must be present in his mind
that

there has been an injury; and then, with that in his mind, he must

deliberately go away without making himself known.

Herchenbach v. Commonwealth, 185 Va. 217, 220, 38 S.E.2d 328,
329 (1946) (citations and

internal quotations omitted) (emphasis added).

The evidence failed to prove that Edwards intentionally,
consciously, or deliberately

drove her vehicle as Officer White attempted to pull her from
the vehicle while the vehicle’s

engine was engaged. Indeed, the evidence fails to negate the
hypothesis that the officer’s actions

dislodged Edwards’s foot from the brake pedal, as she
testified, and, thus, caused the vehicle to

move without any control being exercised by Edwards. Officer
Sykes’s testimony that the

vehicle slowly moved away and came to a halt fifty to one
hundred feet away on a lawn before

striking a house supports the hypothesis that Edwards
momentarily lost control as a result of

Officer White’s attempt to pull her from the vehicle through
the window.

It has long been the rule that "[t]he gravamen of the
charge under consideration is the

flight from the scene and failure to give succor or aid to the
injured party." Blankenship v.

Commonwealth, 184 Va. 495, 500, 35 S.E.2d 760, 762 (1945). See
also James v.

Commonwealth, 178 Va. 28, 37, 16 S.E.2d 296, 300 (1941).
Evidence that established only that

the vehicle moved fifty to one hundred feet after the operator
momentarily was deprived of

control of the vehicle is insufficient to prove beyond a
reasonable doubt the element of flight or

deliberately driving away as required to prove a violation of
Code ? 46.2-894.

For these reasons, I would reverse that conviction.

A Copy,

Teste:

Cynthia L. McCoy, Clerk

By:

Deputy Clerk

Tuesday 9th

December, 2003.

Lolita Edwards, Appellant,

against Record No. 2846-01-1

Circuit Court Nos. CR01-1568, CR01-1569 and

CR01-1640-01 through CR01-1640-03

Commonwealth of Virginia, Appellee.

Upon a Rehearing En Banc

Before Chief Judge Fitzpatrick, Judges Benton, Elder,
Annunziata, Bumgardner, Frank,

Humphreys, Clements, Felton and Kelsey

For reasons stated in writing and filed with the record, the
Court is of opinion that Rule

5A:18 bars consideration of appellant’s argument pertaining to
the conviction of assault on a law

enforcement officer. Accordingly, that part of the Court’s May
13, 2003 opinion which reversed

and dismissed that conviction is withdrawn, the part of the
mandate with regard thereto is

vacated, and that conviction (CR01-1640-01) is affirmed. The
stay of the May 13, 2003

mandate with regard to appellant’s conviction of leaving the
scene of an accident (CR01-1640-

03) is lifted.

Appellant did not challenge on appeal appellant’s convictions
of elude the police

(CR01-1640-02), driving under the influence (CR01-1568) and
driving on a suspended license

(CR01-1569).

The Commonwealth shall recover of the appellant the costs in
this Court, which costs

shall include a total fee of $925 for services rendered by the
Public Defender on this appeal, in

addition to counsel’s necessary direct out-of-pocket expenses,
and the costs in the trial court.

This order shall be certified to the trial court.

Costs due the Commonwealth by

appellant in Court of Appeals of Virginia:

Public Defender $925.00 plus costs and expenses

A Copy,

Teste:

Cynthia L. McCoy, Clerk

By:

Deputy Clerk

COURT OF APPEALS OF VIRGINIA

Present: Judges Frank, Kelsey and Senior Judge Willis

Argued at Chesapeake, Virginia

LOLITA EDWARDS

OPINION BY

v. Record No. 2846-01-1 JUDGE ROBERT P. FRANK

MAY 13, 2003

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH

Von L. Piersall, Jr., Judge

Joseph R. Winston, Special Appellate Counsel (Public Defender

Commission, on briefs), for appellant.

Richard B. Smith, Senior Assistant Attorney General (Jerry W.

Kilgore, Attorney General, on brief), for appellee.

Lolita Edwards (appellant) was indicted for attempted capital
murder of a law enforcement

officer, in violation of Code ?? 18.2-25 and 18.2-31, eluding
the police, in violation of Code

? 46.2-817(B), and leaving the scene of an accident involving
personal injury, in violation of Code

? 46.2-894. In a bench trial, she was convicted of assault on a
law enforcement officer, in violation

of Code ? 18.2-57, and the eluding and leaving the scene
offenses. On appeal, she contends she was

improperly convicted of assault on a law enforcement officer
because that offense is not a lesserincluded

offense of attempted capital murder of a law enforcement
officer. She also argues the

evidence was insufficient to prove she left the scene of an
accident. For the reasons stated, we

reverse and dismiss the assault conviction and affirm the
leaving the scene conviction.

BACKGROUND

Around 8:00 p.m. on May 4, 2001, Portsmouth Police Officer S.D.
White saw a burgundy

Pontiac, with "music . . . playing extremely loud,"
traveling without its headlights illuminated.

Officer White activated his lights and siren, but the Pontiac
did not stop.

Officer White continued to follow the vehicle, with his
"wigwag headlights" activated and

his siren going, for approximately one mile. The Pontiac was
swerving from one lane to another. A

passing car was forced off the road by the Pontiac. Eventually,
the vehicle crossed the Churchland

Bridge, "stopped suddenly," and "jumped the
curb." The officer swerved slightly to avoid hitting

the car and stopped his police unit "slightly beside
[appellant's] vehicle."

Officer White, in uniform with his badge displayed, exited his
vehicle. He walked up to the

car, where appellant was seated in the driver’s seat. Officer
White reached through the driver’s side

window, telling appellant, "Turn off the car, turn off the
car." The car was still running.

The officer described what happened next:

I reached in, there was some yelling or something from inside
the

car and the car drove off. When the car drove off, it pinned my

arm back behind the headrest and drug me towards the front of my

car at that point.

I was able to work myself free and I remember getting hit in the

back with either a car or a mirror and the next thing I remember
I

was being loaded into an ambulance.

Officer Peter Sykes had arrived just before appellant stopped
her car. He observed

Officer White reach into appellant’s vehicle, grab her arm, and
attempt to extract her from the

Pontiac. According to Officer Sykes, the vehicle then
"began to proceed eastbound . . . leaving

the curb, partially dragging Officer White towards his police
vehicle. Officer White eventually

let go of the driver’s arm." Officer Sykes testified the
Pontiac was "creeping off the curb" when

appellant drove off with Officer White’s arm in her car,
traveling about five or six feet until

Officer White "let go." The Pontiac then struck
White’s vehicle and another police car.

Officer Sykes followed the car approximately a hundred feet,
where it jumped the curb,

traveled across a lawn, and stopped. The officer placed
appellant under arrest. Officer White

was treated for his injuries.

At the conclusion of the Commonwealth’s evidence, appellant
moved to strike the

evidence on the attempted capital murder count. After argument,
the trial court sustained the

motion. The Commonwealth then inquired if the court was
"striking that down to possibly a

lesser included offense?" The Commonwealth suggested
assault on a law enforcement officer as

a lesser-included offense. Appellant argued the latter offense
was not a lesser-included

offense. The following exchange occurred:

MR. MEDA [appellant's counsel]: Your Honor, I think under the

Blockburger analysis for lesser included offenses, I don’t think
that

meets the requirement. The attempted capital murder statute does

not include the element of the defendant having reason to know
the

person was a law enforcement officer. Assault and battery on a

police officer requires that –

* * * * * * *

The elements of the statute of attempted capital murder do not

include that as a requirement. The statute for assaul

Scroll To Top