Edwards v. Com.

• Decision Date: 09 December 2003
• Docket Number: Record No. 2846-01-1.
• Citation: 41 Va. App. 752,589 S.E.2d 444
• Court: Virginia Court of Appeals
• Parties: Lolita EDWARDS v. COMMONWEALTH of Virginia.

589 S.E.2d 444

41 Va. App. 752

Lolita EDWARDS v. COMMONWEALTH of Virginia.

Record No. 2846-01-1.

Court of Appeals of Virginia, Richmond.

December 9, 2003.

Joseph R. Winston, Special Appellate Counsel (Public Defender Commission, on brief), for appellant.

Richard B. Smith, Senior Assistant Attorney General (Jerry W. Kilgore, Attorney General, on briefs), for appellee.

Present: FITZPATRICK, C.J., BENTON, ELDER, ANNUNZIATA, BUMGARDNER, FRANK, HUMPHREYS, CLEMENTS, FELTON and KELSEY, JJ.

UPON A REHEARING EN BANC

FRANK, Judge.

Lolita Edwards (appellant) was indicted for attempted capital murder of a law enforcement officer, in violation of Code §§ 18.2-25 and 18.2-31, eluding the police, in violation of Code § 46.2-817(B), and leaving the scene of an accident involving personal injury, in violation of Code § 46.2-894. In a bench trial, she was convicted of assault on a law enforcement officer, in violation of Code § 18.2-57, in addition to the indicted offenses of eluding and leaving the scene. A panel of this Court reversed the conviction of assault and affirmed the conviction of leaving the scene. Edwards v. Commonwealth, 41 Va. App. 99, 581 S.E.2d 910 (2003). Thereafter, we stayed the mandate of that decision and granted the Commonwealth's petition for a rehearing en banc.

Appellant contends she was improperly convicted of assault on a law enforcement officer because that offense is not a lesser-included offense of the indicted charge, attempted capital murder of a law enforcement officer. She also argues the evidence was insufficient to prove she left the scene of an accident. Upon rehearing en banc, we affirm the trial court on both offenses.

BACKGROUND

Around 8:00 p.m. on May 4, 2001, Portsmouth Police Officer S.D. White saw a burgundy Pontiac with "music . . . playing extremely loud," traveling without its headlights illuminated. Officer White activated his lights and siren, but the Pontiac did not stop. Officer White continued to follow the vehicle, with his "wigwag headlights" activated and his siren engaged, for approximately one mile. The Pontiac swerved from one lane to another. A passing car was forced off the road by the Pontiac. Eventually, the vehicle crossed the Churchland Bridge, "stopped suddenly," and "jumped the curb." The officer swerved his car slightly to avoid hitting the Pontiac and then stopped his police unit "slightly beside [appellant's] vehicle."

Officer White, who was in uniform with his badge displayed, exited his vehicle. He walked up to the Pontiac and found appellant in the driver's seat. The car was still running. Officer White reached through the driver's side window, telling appellant, "Turn off the car, turn off the car."

The officer described what happened next:

I reached in, there was some yelling or something from inside the car and the car drove off. When the car drove off, it pinned my arm back behind the headrest and drug me towards the front of my car at that point.

I was able to work myself free and I remember getting hit in the back with either a car or a mirror and the next thing I remember I was being loaded into an ambulance.

Officer Peter Sykes had arrived just before appellant stopped her car. He observed Officer White reach into appellant's car, grab her arm, and attempt to extract her from the Pontiac. According to Officer Sykes, the car then "began to proceed eastbound. . . leaving the curb, partially dragging Officer White towards his police vehicle. Officer White eventually let go of the driver's arm." Officer Sykes testified the Pontiac was "creeping off the curb" when appellant drove off with Officer White's arm in her car. He estimated the car traveled about five or six feet until Officer White "let go." After the officer "let go," the Pontiac struck White's vehicle and then another police car.

Officer Sykes followed the car approximately a hundred feet, during which time it jumped the curb, traveled across a lawn, and stopped. The officer placed appellant under arrest. Officer White was treated for his injuries.

At the conclusion of the Commonwealth's evidence, appellant moved to strike the evidence on the attempted capital murder count. After argument, the trial court sustained the motion. The Commonwealth then inquired if the court was "striking that down to possibly a lesser included offense?" The Commonwealth suggested assault on a law enforcement officer as a lesser-included offense. Appellant argued the latter offense was not a lesser-included offense. The following exchange occurred:

MR. MEDA [appellant's counsel]: Your Honor, I think under the Blockburger analysis for lesser included offenses, I don't think that meets the requirement. The attempted capital murder statute does not include the element of the defendant having reason to know the person was a law enforcement officer. Assault and battery on a police officer requires that —

* * * * * *

The elements of the statute of attempted capital murder do not include that as a requirement. The statute for assault and battery on a law enforcement officer requires the Commonwealth to prove as an element that the defendant had reason to know that the person assaulted is a law enforcement officer.

The Commonwealth's attorney responded, arguing that an attempted capital murder indictment also requires the Commonwealth prove a defendant should have known the victim was a law enforcement officer. The entire focus of the argument to the trial court was whether the Commonwealth must prove the offender had reason to know the person was a law enforcement officer in order to prove attempted capital murder. The trial court ruled on this issue when it found assault on a law enforcement officer was a lesser-included offense of attempted capital murder.

ANALYSIS

A. Lesser-Included Offense

On appeal, appellant contends assault and battery of a law enforcement officer is not a lesser-included offense of attempted capital murder because a battery is not an element of attempted capital murder.¹ Appellant also argues the definitions of "law enforcement officer" contained in Code § 18.2-57, the assault statute, and Code § 18.2-31(6), the murder statute, differ, which precludes a finding that assault of a law enforcement officer is a lesser-included offense of attempted capital murder of a law enforcement officer. The Commonwealth concedes this second argument. However, the Commonwealth contends any argument based on these different definitions is procedurally defaulted under Rule 5A:18.² We agree.

The argument at trial focused solely on whether both offenses require proof that the assailant knew her intended victim was a law enforcement officer. Appellant argued Code § 18.2-57 includes this element and attempted capital murder does not. However, on appeal, appellant attempts to distinguish the elements of these two offenses on a different basis, i.e., the statutory definition of a law enforcement officer, not the assailant's perception of the victim's status as a law enforcement officer. Appellant did not raise the point she now asserts before the trial court.

Nothing in appellant's argument before the trial court alerted the trial court to her argument before this Court. The trial court had no opportunity to consider the issue presented on appeal. See Neal v. Commonwealth, 15 Va.App. 416, 422, 425 S.E.2d 521, 525 (1992)

("This Court has said `the primary function of Rule 5A:18 is to alert the trial judge to possible error so that the judge may consider the issue intelligently and take any corrective actions necessary to avoid unnecessary appeals, reversals and mistrials.'" (quoting Martin v. Commonwealth, 13 Va. App. 524, 530, 414 S.E.2d 401, 404 (1992))).

Rule 5A:18 requires an "objection [be] 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." 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. See Mounce v. Commonwealth, 4 Va.App. 433, 435, 357 S.E.2d 742, 744 (1987)

. A general argument or an abstract reference to the law is not sufficient to preserve an issue. Buck v. Commonwealth, 247 Va. 449, 452-53, 443 S.E.2d 414, 416 (1994); Scott v. Commonwealth, 31 Va.App. 461, 464-65, 524 S.E.2d 162, 164 (2000). Making one specific argument on an issue does not preserve a separate legal point on the same issue for review. See Clark v. Commonwealth, 30 Va. App. 406, 411-12, 517 S.E.2d 260, 262 (1999) (preserving one argument on sufficiency of the evidence does not allow argument on appeal regarding other sufficiency questions).

Thus, we will not consider this issue for the first time on appeal. See Rule 5A:18; West Alexandria Prop., Inc. v. First Virginia Mortgage and Real Estate Inv. Trust, 221 Va. 134, 138, 267 S.E.2d 149, 151 (1980) ("On appeal, though taking the same general position as in the trial court, an appellant may not rely on reasons which could have been but were not raised for the benefit of the lower court."); Floyd v. Commonwealth, 219 Va. 575, 584, 249 S.E.2d 171, 176 (1978) (holding that appellate courts will not consider an argument that differs from the specific argument presented to the trial court, even if it relates to the same general issue).

Although Rule 5A:18 allows exceptions for good cause or to meet the ends of justice, appellant does not argue that we should invoke these exceptions. See e.g., Redman v. Commonwealth, 25 Va.App. 215, 221, 487 S.E.2d 269, 272 (1997)

("In order to avail oneself of the exception, a defendant must affirmatively show that a miscarriage of justice has occurred, not that a miscarriage might have occurred." (emphasis added)). We will not consider, sua sponte, a "miscarriage of justice" argument under Rule 5A:18. Further, we find nothing in the record to support such an argument.

Appellant relies on our decision in Lowe v....