Lack of argument waived appeal issue

Virginia Lawyers Weekly//January 8, 2021

Lack of argument waived appeal issue

Virginia Lawyers Weekly//January 8, 2021

Appellant has waived his assignment of error that there was insufficient evidence to convict him of driving on a revoked license because he has not explained how the two cited cases in his appellate brief support his argument.


Police came upon appellant McMillan in a hotel parking lot. He was alone in a vehicle, slumped over the console area between the front seats. His eyes were closed. The motor was running and the interior light was on. A police officer had to tap on the window and bang on the door for two or three minutes before McMillan responded.

He was charged with driving on a revoked license, third offense. One element of the offense is that the offender must have driven on a highway. In his motion to strike, McMillan, through counsel, “argued,  “looking at the body cam – again, I would say that Mr. McMillan never admitted – he never said that he drove the car from Mooretown Road. That he was over at Mooretown Road. We don’t know how the car got there.”

“In response, the court observed, ‘I can’t conceive of any hypothetical as to how he got here without being on a public road. He didn’t say how he got here without being on a public road. He didn’t say I was staying at the hotel and came out to the car because I had an argument in the room and I came out to sleep here or anything of that nature.

“‘ He did say he came from Mooretown Road. So even though it’s his testimony – and I understand you can’t be convicted on your testimony alone, but it’s also corroborated by the circumstances and the location.’ The court denied the motion to strike and found McMillan guilty of driving with a revoked license.”

Appeal issue waived

“McMillan argues that the evidence was insufficient to convict him of driving with a revoked license. … ‘Rule 5A:20(e) requires that an appellant’s opening brief contain “the principles of law, the argument, and the authorities relating to each question presented.” Unsupported assertions of error “do not merit appellate consideration.”’ …

“McMillan cites – without explanation or pinpoint cites – two cases in support of his sufficiency argument, but neither is persuasive. … McMillan has failed to demonstrate on appeal how these two cases support his argument.

“In fact, he offers no meaningful factual or legal support to explain why the trial court erred in failing to exclude his ‘reasonable hypothesis of innocence’ that he ‘could have been towed’ to the parking lot or dropped off by someone else. His lack of explanation and argument is fatal to his assignment of error. …

“[H]aving concluded that the appellant’s failure to comply with the Rules is significant, we will not address the merits of his sufficiency argument.”

Conviction affirmed.

McMillan v. Commonwealth, Record No. 0557-20-1, Dec. 22, 2020. CAV (Petty) from York County Cir. Ct. (Maxfield). Stephen K. Smith for appellant, Leah A. Darron for appellee. VLW 020-7-239, 5 pp. Unpublished.

VLW 020-7-239

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