Branch v. Commonwealth of Virginia, Record No. 2246-06-2 (Va. App. 12/27/2007), Record No. 2246-06-2.

CitationRecord No. 2246-06-2.
Case DateDecember 27, 2007
CourtCourt of Appeals of Virginia

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Unpublished Opinion

Record No. 2246-06-2.
Court of Appeals of Virginia, Richmond.
December 27, 2007.

Appeal from the from the Circuit Court of Powhatan County, Thomas V. Warren, Judge.

David P. Baugh for appellant.

Kathleen B. Martin, Senior Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

Present: Judges Frank, Clements and Senior Judge Coleman



Anthony Branch (appellant) was convicted on his conditional plea of guilty of grand larceny, in violation of Code § 18.2-95. On appeal, he contends the trial court erred in denying his motion to suppress the two stolen jet skis found on his property because the officer seized the jet skis without probable cause in violation of the Fourth Amendment. Finding appellant's claim of error procedurally barred, we affirm appellant's conviction.

As the parties are fully conversant with the record in this case, and because this memorandum opinion carries no precedential value, this opinion recites only those facts and incidents of the proceedings as are necessary to the parties' understanding of the disposition of this appeal.

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"Under familiar principles of appellate review, we view the evidence and all reasonable inferences fairly deducible from that evidence in the light most favorable to the Commonwealth, the party that prevailed below." Banks v. Commonwealth, 41 Va. App. 539, 543, 586 S.E.2d 876, 877 (2003). So viewed, the evidence established that, on July 17, 2005, Sergeant James H. Croft of the Virginia Department of Game and Inland Fisheries (Department) saw appellant racing Rico Taylor, another jet ski rider, on the James River. Croft had received a complaint that appellant had almost collided his jet ski with another boat. Croft followed both appellant and Taylor to the boat ramp. Upon closer observation of the jet skis, Croft observed that the Department had issued replacement numbers, designated only for homemade boats, in place of missing hull identification numbers (HINs) on the jet skis. Croft and another game warden approached appellant and Taylor and requested their boating registrations. Appellant produced registrations indicating both jet skis were registered to him.

Croft continued to question appellant as he exited the water and quickly loaded the skis onto a Triton trailer. Croft noticed grinding marks on the Triton trailer, and its numbers had been obliterated. Appellant claimed that he had purchased the jet skis on eBay, had driven to New Jersey to acquire them, stated originally that he paid by check and then said he paid by cash, but had no bill of sale. After loading the jet skis onto the trailer, appellant pulled away in his black Yukon Denali, leaving Taylor holding the "kill switch" to one of the jet skis. "Based on [his] training and experience," Croft "suspected the jet skis were stolen."

Continuing the investigation that evening, Croft drove to appellant's home, and from a distance, observed appellant's home for less than an hour. After he saw appellant arrive without the jet skis and trailer, Croft departed. Over the next two days as Croft tried to locate the jet skis, he conducted periodic checks at appellant's residence.

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On July 19, during one check at appellant's home, Croft identified the same two jet skis he had seen with appellant on July 17. The jet skis were loaded on the Triton trailer and backed into the driveway in front of appellant's house. Croft parked at the entrance of the cul-de-sac where appellant lived and observed appellant's wife leave the residence in the Yukon Denali without the trailer attached. A few minutes later, Croft saw appellant arrive in a Toyota 4-Runner with no front license plate. Appellant parked on the side of the road near his home. Croft, dressed in plain clothes and driving an unmarked vehicle, pulled his vehicle alongside appellant's car, rolled down his window, and engaged appellant in conversation.

Croft explained that he wanted to talk about the jet skis and informed appellant that as an officer, he had to inspect the vehicles. Appellant responded, by asking, "What's wrong with them?" Croft stated that the skis had no HINs and that the plate was missing. Appellant replied, "Show me what you're talking about." Croft parked his car on the road, exited his vehicle, and entered appellant's property where he showed appellant the location of the missing HINs. In place of the HINs on both jet skis, fiberglass had been positioned. The fiberglass was "still gummy left to the touch like it had just been installed or hadn't had time to set up." When Croft asked why fiberglass concealed the tags, appellant answered that he knew they were correctly marked.

Croft further questioned appellant, informing him that his previous story of acquiring the jet skis from a man in New Jersey conflicted with Croft's investigation revealing the jet skis came from CCS Racing in Oklahoma. Appellant explained that while they came from CCS Racing, they also "had to come up by way of New York to get down to [him]." Sometime during the exchange, appellant retrieved a box cutter from his car and used it to cut the license plate from the trailer. Croft told appellant to release the box cutter and leave the license plate as it was. Later that day, appellant was arrested on unrelated charges. Subsequently, Croft

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confiscated the two jet skis. Following his indictment for grand larceny, appellant moved to suppress the jet skis.

At the suppression hearing, Croft stated he never obtained a search warrant throughout his investigation of appellant. Croft testified that on July 19, he had not planned to search appellant's property and he explained that he did not need to search because the jet skis "were right in front of [him]." Croft stated that appellant invited and accompanied him onto his property. Croft also testified that he confiscated the jet skis because "[t]hey were part of a crime."

Croft further testified that, on the day he confiscated the jet skis, he searched but could not find the jet skis' HINs, which were also concealed inside the hull. After calling the jet ski manufacturer for the HIN location, he retrieved the numbers and confirmed the jet skis were stolen on July 20, 2005.

Appellant testified at the suppression hearing that he did not invite Croft onto his property, and never asked Croft to show him problems with decals, pin numbers or anything else regarding the jet skis.

The trial court denied appellant's motion to suppress the jet skis. In its findings, the trial court stated, as follows:

The stolen property was in plain view from the public street, the officer had probable cause to search, and in addition, had the defendant[']s permission to search.

The trial court then accepted appellant's conditional guilty plea of grand larceny, and this appeal followed.


On appeal, appellant contends that regardless of the propriety of the jet ski search on his property, Croft did not determine the jet skis were stolen until the day following their seizure

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when he located the concealed HINs. Thus, he concludes, because Croft could not observe the HINs when he confiscated them, Croft did not have probable cause to seize the jet skis. As the Commonwealth points out, however, appellant never raised this specific argument at the suppression hearing.

Rule 5A:18 provides, in pertinent part, that "[n]o ruling of the trial court . . . will be considered as a basis for reversal unless the objection was 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." Pursuant to Rule 5A:18, we "will not consider an argument on appeal [that] was not presented to the trial court." Ohree v. Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998). "Rule 5A:18 applies to bar even constitutional claims." Id.

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. A general argument or an abstract reference to the law is not sufficient to preserve an issue. Making one specific argument on an issue does not preserve a separate legal point on the same issue for review.

Edwards v. Commonwealth, 41 Va. App. 752, 760, 589 S.E.2d 444, 448 (2003) (en banc) (citations omitted). In short, we will not consider an argument on appeal that is different from the specific argument presented to the trial court, even if it relates to the same issue. See Buck v. Commonwealth, 247 Va. 449, 452-53, 443 S.E.2d 414, 416 (1994) (holding that appellant's failure to raise the same specific arguments "before the trial court precludes him from raising them for the first time on appeal"). The main purpose of this rule is to ensure that the trial court and opposing party are given the opportunity to intelligently address, examine, and resolve issues in the trial court, thus avoiding unnecessary appeals and reversals. Lee v. Lee, 12 Va. App. 512, 514, 404 S.E.2d 736, 737 (1991) (en banc).

At the suppression hearing, appellant argued that "the search wasn't consensual," that "Mr. Croft never got a search warrant," that the fiberglass concealing the jet skis' HINs was not

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in Croft's plain view from the street, and that "there were no exigent circumstances."1 Appellant asserted no other grounds for suppressing the jet skis and never claimed specifically that Croft lacked probable cause when he seized the jet skis because he located the HINs a day later, only then confirming the jet skis were stolen. While appellant's arguments address Croft's entry and search of appellant's property, they do not encompass Croft's authority to seize the jet skis without probable cause, having located the HINs a day later. It is...

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