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COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Felton and Kelsey
Argued at Salem, Virginia
Record No. 0986-02-3
RODNEY O. ANTHONY
COMMONWEALTH OF VIRGINIA
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."For
the reasons that follow, we affirm the
judgment of the trial court.
Before reaching the merits of Anthony’s argument, we note that
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
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
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
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
felony stun gun either. I thought it was a very appropriate
Not that I would second-guess the jury. I think they hit it
the head and it was an escape.
Just for this record – I think Officer [Rodney] Thompson’s-
the jury’s found him [sic] – treated him fairly. I’m not
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." Accordingly, we
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). Finding no
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.
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
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
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
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.