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ANTHONY v. COMMONWEALTH




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ANTHONY

v.

COMMONWEALTH


COURT OF APPEALS OF VIRGINIA

Present: Judges Humphreys, Felton and Kelsey

Argued at Salem, Virginia

Record No. 0986-02-3

RODNEY O. ANTHONY

v.

COMMONWEALTH OF VIRGINIA

 

MEMORANDUM OPINION[1]
BY JUDGE ROBERT J. HUMPHREYS

DECEMBER 16, 2003

FROM THE CIRCUIT COURT OF CAMPBELL COUNTY

J. Samuel Johnston, Jr., Judge

William F. Quillian, III, for appellant.

Paul C. Galanides, Assistant Attorney General (Jerry W. Kilgore,

Attorney General; John H. McLees, Senior Assistant Attorney

General, on brief), for appellee.

Rodney O. Anthony appeals his conviction, after a jury trial,
for felony escape from

custody, in violation of Code ? 18.2-478. Anthony contends that
the trial court erred in finding

the evidence sufficient to support the conviction because
"the only violation for which he [was]

being apprehended [was] a traffic violation."[2]For
the reasons that follow, we affirm the

judgment of the trial court.

Before reaching the merits of Anthony’s argument, we note that
the Commonwealth

contends Anthony failed to preserve the issue because he failed
to renew his motion to strike at

the close of the evidence and because his motion to set aside
the verdict was too narrow to

encompass the issue. We agree that we are precluded from
considering Anthony’s argument on

appeal for three reasons.

First, although Anthony made a motion to strike at the close of
the Commonwealth’s

evidence, when the trial court overruled the motion, Anthony
proceeded to put on his own

evidence. At the conclusion of his evidence, Anthony did not
renew his motion to strike. "It is

well settled . . . that when a defendant elects to present
evidence on his behalf, he waives the

right to stand on his motion to strike the evidence made at the
conclusion of the

Commonwealth’s case." White v. Commonwealth, 3 Va. App.
231, 233, 348 S.E.2d 866, 867

(1986).

Second, although Anthony renewed the arguments he had made in
support of his motion

to strike in closing argument before the jury, we have long
recognized that "in a jury trial, the

closing argument is addressed to the jury, not the trial judge,
and does not require the trial judge

to rule on the evidence as a matter of law." Campbell v.
Commonwealth, 12 Va. App. 476, 481,

405 S.E.2d 1, 3 (1991). Thus, because "[t]he 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," id. at 480, 405 S.E.2d at 2, we

have recognized that renewing arguments in support of a motion
to strike in this manner does not

preserve a sufficiency issue for purposes of appeal.

Finally, while the record reflects that Anthony made a motion to
set aside the verdict

before the court sentenced him, we have held that only "[a] proper motion to set aside a verdict

will preserve for appeal a sufficiency of the evidence
question." Brown v. Commonwealth, 8

Va. App. 474, 480, 382 S.E.2d 296, 300 (1989) (citing McGee v.
Commonwealth, 4 Va. App.

317, 321, 357 S.E.2d 738, 739-40 (1987) (holding that a motion
to set aside a guilty verdict is

adequate to challenge the sufficiency of the evidence))
(emphasis added); see also White v.

Commonwealth, 21 Va. App. 710, 720, 467 S.E.2d 297, 302 (1996)
(holding, in the context of a

motion to set aside the verdict, that "[a] general
objection that the verdict is contrary to the law

and the evidence fails to identify with specificity in what
respect the defendant considers the

evidence to be deficient").

In his motion to set aside the verdict Anthony "renew[ed] [his] motions made previously

on the . . . charge of escape," stating:

Ah – in effect, basically, indicating that at the very most
all we had

before the Court is a misdemeanor escape and ask the Court to
set

aside the felony verdict.

In response, the trial court ruled as follows:

Now, I couldn’t agree more. I wouldn’t have convicted him of
the

felony stun gun either. I thought it was a very appropriate
verdict.

Not that I would second-guess the jury. I think they hit it
right on

the head and it was an escape.

Just for this record – I think Officer [Rodney] Thompson’s-
I think

the jury’s found him [sic] – treated him fairly. I’m not
going to

alter the verdict.

It is clear from this colloquy that Anthony did not challenge
the sufficiency of the

evidence as to the felony escape charge on the grounds of
whether or not he was in custody for a

"criminal offense," nor did the trial court understand
him to be making such an argument.

Instead, Anthony apparently abandoned that argument and
contended only that the evidence was

merely sufficient to support a conviction of "misdemeanor
escape."[3] Accordingly, we
find that

Anthony failed to specify, in his motion to set aside the
verdict, the grounds upon which he now

relies for purposes of appeal. We thus hold that we are
precluded from considering Anthony’s

arguments in this regard. See Rule 5A:18; see also Day v.
Commonwealth, 12 Va. App. 1078,

1080, 407 S.E.2d 52, 54 (1991) (noting that a motion to set
aside the verdict must state the

question with sufficient particularity to submit the issue to
the trial court).[4] Finding no
reason on

this record to consider Anthony’s argument pursuant to one of
the available exceptions to Rule

5A:18, we affirm the judgment of the circuit court.

Affirmed.

 

FOOTNOTES:

[1]Pursuant to
Code ? 17.1-413, this opinion is not designated for publication. Further,

because this opinion has no precedential value, we recite only
those facts essential to our

holding.

 

[2]Anthony was
also charged with attempting to deprive a deputy of his stun gun (in

violation of Code ? 18.2-57.02), obstruction of justice (in
violation of Code ? 18.2-460), driving

on a suspended license (in violation of Code ? 46.2-301), and
failure to display headlights (in

violation of Code ? 46.2-1030). The jury found Anthony not
guilty of the charge related to the

stun gun. The circuit court remanded the misdemeanor charges of
obstruction of justice, driving

on a suspended license, and failure to display headlights to the
general district court. Those

charges were later reinstated on the circuit court’s docket
for final disposition. The circuit court

ultimately dismissed the obstruction of justice charge and
imposed sentence for the remaining

charges.

 

[3]Indeed, the
statutes proscribing felony and misdemeanor escape each contain elements

requiring that a defendant be lawfully in custody for some type
of criminal offense – be it a

misdemeanor or a felony offense. See Code ?? 18.2-478 and
18.2-479.

 

[4]We also
decline to consider the issue Anthony raised during oral argument, concerning

whether or not Anthony was in "custody" at the time of
the escape. In his petition for appeal to

this Court, Anthony did not seek review on this ground. Indeed,
Anthony’s only Question

Presented in his petition for appeal was "[w]hether a
person can be convicted of committing an

escape as proscribed by Virginia Code Sections 18.2-478 or
18.2-479 when the only violation for

which he is being apprehended is a traffic infraction[.]"
Consequently, we limit our attention to

this issue. See Rule 5A:12.


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