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Opening statement did not preserve issue for appeal

Virginia Lawyers Weekly//September 30, 2022

Opening statement did not preserve issue for appeal

Virginia Lawyers Weekly//September 30, 2022//

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Appellant’s argument that there was insufficient evidence to convict him of aggravated involuntary manslaughter has not been preserved for review. His argument that his opening statement preserved the issue is not well taken.

Fatal accident

Appellant, who was 20 years old, did not have a driver’s license when he drove to a bar, drank to the point of intoxication, and was involved in a two-car accident, in which the driver of the other car was killed.

A blood test conducted about 90 minutes after the accident revealed that appellant’s blood alcohol level was .145.

“At the close of the Commonwealth’s evidence, appellant did not move to strike and presented no evidence. The Commonwealth waived its initial closing argument, choosing to respond. Appellant then ‘submit[ted]’ the case to the court without closing argument.

“After further inquiry from the court, appellant confirmed that he did not intend to present closing argument. The court found appellant guilty of aggravated involuntary manslaughter and continued the case for sentencing.”

At the sentencing hearing, the “court credited appellant’s remorse but found that his decisions evinced reckless disregard for human life and the consequence of those decisions was not an accident. Accordingly, the court sentenced appellant to twenty years of incarceration. This appeal follows.

Did not preserve

“To preserve an argument concerning the sufficiency of the evidence in a bench trial, a defendant ‘must make a motion to strike at the conclusion of all the evidence, present an appropriate argument in summation, or make a motion to set aside the verdict.’ …

“Appellant neither moved to strike the Commonwealth’s evidence nor presented any closing argument to the trial court. He also did not move to set aside the verdict or ask the court to reconsider its ruling. Accordingly, he failed to preserve the sufficiency challenge he now raises on appeal. …

“Nevertheless, appellant maintains that he preserved his sufficiency argument in his ‘opening statement,’ where he explained that the ‘gist’ of his defense was ‘in term[s] of the gross, wanton, or culpable with an intentional reckless disregard for human life.’ We disagree.

“The purpose of an opening statement ‘is merely to inform the [fact finder] of what counsel expects the evidence to be so that [it] may better understand the evidence.’ … It ‘does not involve the admission of evidence.’ … Nor does it ask the trial court to rule on the legal sufficiency of the evidence. …

“Accordingly, appellant did not preserve an objection to the sufficiency of the evidence with his opening statement.”

No exceptions

“[T]he good cause exception [to Rule 5A:18] is not applicable because there was ample opportunity for appellant to object to the sufficiency of the evidence. … The record demonstrates that appellant twice declined the opportunity to present closing argument at the conclusion of the evidence.

“Accordingly, the good cause exception is not applicable because there was ample opportunity for appellant to object to the sufficiency of the evidence.

“Whether to apply the ends of justice exception involves two questions: ‘(1) whether there is error as contended by the appellant; and (2) whether the failure to apply the ends of justice provision would result in a grave injustice.’ …

“Appellant contends that the evidence failed to prove that his conduct ‘was so gross, wanton, and culpable as to show a reckless disregard for human life.’ He argues that not all ‘drunk-driving’ related homicides are punishable as aggravated involuntary manslaughter and emphasizes that appellant’s blood alcohol concentration was not high enough to ‘elevate[] punishment for a first offense DUI.’

“Those arguments, however, are merely attempts to demonstrate that “the Commonwealth failed to prove an element … of the offense’ and are, therefore, legally insufficient to satisfy the ends of justice exception to a sufficiency argument that is raised for the first time on appeal. …

“Appellant points to nothing in the record affirmatively proving that an element of the offense did not occur or that appellant was convicted for non-criminal conduct.”


Appellant asserts his 20-year sentence was an abuse of discretion because it is twice as long as the high-end guidelines recommendation.

“[T]he record demonstrates that the trial court ‘reviewed and considered’ the mitigating evidence appellant cites on appeal and credited appellant’s statement in allocution that he was ‘sorry.’

“Balanced against that evidence, however, was the death of a blameless young man and the devastating, life-altering impact on his family. After considering all the circumstances, the trial court imposed the sentence that it deemed appropriate.”

The sentence does not exceed the statutory maximum for his offense. As a result, “our task is complete.”


Perez v. Commonwealth, Record No. 0835-21-2, July 19, 2022. CAV (Haley) From the Circuit Court of Chesterfield County (Johnson) Todd M. Ritter for appellant. Mason D. Williams, Jason S. Miyares for appellee. VLW 022-7-277, 10 pp. Unpublished opinion.

VLW 022-7-277

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