Redman v. Com.

• Decision Date: 15 July 1997
• Docket Number: No. 1316-96-3,1316-96-3
• Citation: 25 Va.App. 215,487 S.E.2d 269
• Parties: Ronald Eugene REDMAN v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 269

487 S.E.2d 269

25 Va.App. 215

Ronald Eugene REDMAN v. COMMONWEALTH of Virginia.

Record No. 1316-96-3.

Court of Appeals of Virginia Salem.

July 15, 1997.

Wayne D. Inge, Roanoke, for appellant.

John H. McLees, Jr., Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

Present: MOON, C.J., and COLEMAN and WILLIS, JJ.

COLEMAN, Judge.

Ronald Eugene Redman was convicted in a bench trial for being an accessory after the fact to breaking and entering and to felony property damage. He contends on appeal that the evidence was insufficient to prove two essential elements of the crime. Because Redman failed to move to strike the evidence or to set aside the verdict on this ground, Rule 5A:18 bars our consideration of his insufficient evidence claim. We also find no merit in Redman's claim that the trial court erred by considering his refusal to consent to a warrantless search of his home as proof that he was an accessory after the fact to a breaking and entering and felony property damage. Accordingly, we affirm the conviction.

The initial issue that we decide is the scope of the limitation upon the Court of Appeals to consider a trial court error to which no contemporaneous objection was made. Rule 5A:18 provides 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." The defendant contends that his general motion to strike the evidence for insufficiency was adequate to preserve the issue for appeal; however, he acknowledges that he did not specifically assign as the ground in support of his motion to strike that the evidence was insufficient to prove either of two essential elements of the offense. The defendant does not contend that good cause existed for his failing to timely object to the alleged error. Instead, he asks this Court to invoke the ends of justice exception and to consider the merits of his appeal.

In order to invoke the ends of justice exception, we must review the record to determine whether a miscarriage of justice has occurred. See Johnson v. Commonwealth, 5 Va.App. 529, 532, 365 S.E.2d 237, 239 (1988). The only witness, Officer Boucher of the Roanoke City Police Department, testified that he was assisting Officer Engel in searching for Charles Mason Dunlap, who was wanted on a burglary charge. After Officer Engel obtained burglary and felony property damage warrants for Dunlap's arrest, he and Officer Boucher, accompanied by four additional officers, went to the defendant's home in an effort to locate and arrest Dunlap. As they approached the door, Officer Boucher could see through a window and saw the defendant, Dunlap, and another man. When Boucher knocked on the door, Dunlap disappeared from sight and someone closed the curtains. When the defendant answered the door, Boucher told him they had two arrest warrants for Charles Dunlap and asked the defendant to send Dunlap out. The defendant responded that Dunlap was not present and refused to allow the officers to enter his home without a search warrant to search for Dunlap. Officer Boucher went to obtain a search warrant while the other officers kept watch at the defendant's home. Boucher returned with the warrant and again asked the defendant to send Dunlap out. The defendant again replied that Dunlap was not present. The officers searched the house and found Dunlap secreted in a heating duct in the floor. The defendant was charged with being an accessory after the fact to burglary and felony property damage.

The definition of an accessory after the fact is one of ancient origin. "To constitute one an accessory after the fact, three things are requisite: 1. The felony must be completed; 2. He must know that the felon is guilty; 3. He must receive, relieve, comfort or assist him. It is necessary that the accessory have notice, direct or implied, at the time he assists or comforts the felon, that he has committed a felony."

Manley v. Commonwealth, 222 Va. 642, 644-45, 283 S.E.2d 207, 208 (1981) (quoting Wren v. Commonwealth, 67 Va. (26 Gratt.) 952, 956 (1875)). By definition, a person cannot be an accessory without the existence of a principal offender. Although conviction of the principal is not a condition precedent to conviction of an accessory, Code § 18.2-21, conviction of an accessory requires proof that the crime has been committed by a principal. Snyder v. Commonwealth, 202 Va. 1009, 1017, 121 S.E.2d 452, 458 (1961).

At trial, the Commonwealth offered no evidence to prove that Dunlap had committed the felonies for which the officers had obtained arrest warrants. Also, the Commonwealth offered no direct evidence that the defendant knew Dunlap had committed the crimes. After the Commonwealth rested, the defense counsel made a general motion to strike the evidence, stating,

I believe what we have here is a case in which perhaps one or maybe two counts of giving false information to a police officer. I do not believe under the stated facts here that we have a situation where Mr. Redman is an accessory after the fact to the crime of breaking and entering and the felony property damage. I also would like to point out to the Court that Mr. Redman was fully within his rights to refuse to consent to search.

The trial court overruled the motion to strike. Thereafter, the defendant presented no evidence, renewed his motion to strike, and relied on counsel's prior argument in support of the motion. The trial court again denied the motion to strike and found the defendant guilty. No motion to set aside the verdict was filed.

The defendant's motion to strike did not specify in what respects the defendant considered the evidence to be insufficient to prove that the defendant was an accessory after the fact. Thus, the issue of whether the evidence was insufficient to prove a particular element of the offense was not properly preserved. Therefore, Rule 5A:18 bars review of the issue unless the ends of justice mandate our consideration of the issue.

Under Rule 5A:18, we do not consider trial court error as a basis for reversal where no timely objection was made except in extraordinary situations to attain the ends of justice.

The laudatory purpose behind Rule 5A:18 ... is to require that objections be promptly brought to the attention of the trial court with sufficient specificity that the alleged error can be dealt with and timely addressed and corrected when necessary. The rules promote orderly and efficient justice and are to be strictly enforced except where the error has resulted in manifest injustice.

Brown v. Commonwealth, 8 Va.App. 126, 131, 380 S.E.2d 8, 10 (1989). Because errors can usually be corrected in the trial court, "we will notice error for which there has been no timely objection only when necessary to satisfy the ends of justice." Id.

"[T]he ends of justice exception is narrow and is to be used sparingly...." Id. at 132, 380 S.E.2d at 10. "[I]t is a rare case in which, rather than invoke Rule [5A:18], we rely upon the exception and consider an assignment of error not preserved at trial...." Jimenez v. Commonwealth, 241 Va. 244, 249, 402 S.E.2d 678, 680 (1991). 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. Mounce v. Commonwealth, 4 Va.App. 433, 436, 357 S.E.2d 742, 744 (1987). The trial error must be "clear, substantial and material." Brown, 8 Va.App. at 132, 380 S.E.2d at 11.

In order...