Williams v. Com., 1218-86-2

• Decision Date: 17 May 1988
• Docket Number: No. 1218-86-2,1218-86-2
• Citation: 368 S.E.2d 293,6 Va.App. 412
• Parties: James Carlton WILLIAMS v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 293

368 S.E.2d 293

6 Va.App. 412

James Carlton WILLIAMS v. COMMONWEALTH of Virginia.

Record No. 1218-86-2.

Court of Appeals of Virginia.

May 17, 1988.

Jeffrey L. Everhart (Tuck and Everhart, Richmond, on brief), for appellant.

Virginia B. Theisen, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: BENTON, COLE and COLEMAN, JJ.

COLEMAN, Judge.

Williams seeks appellate review of the sufficiency of the evidence to sustain his conviction in a bench trial for possession of cocaine with the intent to distribute. The panel is unanimous in holding that in a bench trial a timely motion must be made challenging the sufficiency of the evidence in order to preserve the issue for appeal. See Rule 5A:18. The panel is not unanimous whether this appellant made a proper motion to the trial judge to challenge the sufficiency of the evidence; a majority concludes that appellant did not and that he is therefore precluded from raising the issue of sufficiency of the evidence for the first time on appeal. Because we observe a recurring failure to make the necessary motions to preserve a challenge to the sufficiency of the evidence, which indicates to us that some practitioners may think it unnecessary in a bench trial to move to strike the evidence or to set aside a finding of guilt, we publish this opinion to inform the bench and bar.

Williams did not move the trial court, hearing the case without a jury, to strike the evidence at the conclusion of the Commonwealth's case or to strike the evidence or set aside the verdict at the conclusion of the entire case. At the conclusion of the evidence the trial judge requested counsel to make closing argument. Following a statement by the Commonwealth's Attorney, defense counsel as part of his closing argument stated: "Judge, I submit this man did not have an intent to distribute."

The Commonwealth contends that Williams is barred by Rule 5A:18 from raising the sufficiency issue where it was not raised in the trial court. We agree and affirm the conviction. See McGee v. Commonwealth, 4 Va.App. 317, 320-21, 357 S.E.2d 738, 739-40 (1987); White v. Commonwealth, 3 Va.App. 231, 233, 348 S.E.2d 866, 867 (1986). We find that the comment during closing argument concerning intent to distribute was counsel's statement to the judge about how, as trier-of-fact, he should resolve conflicts in the evidence, what weight he should give the evidence, and what inferences he should draw. The argument was not a motion challenging the sufficiency of the evidence. It is true, as noted in the dissenting opinion, that the sole issue submitted to the trial judge was the sufficiency of the evidence. Such will be the case in most criminal proceedings. We do not agree, however, that preservation of the distinction between "argument" and "motions" serves no meaningful purpose. There are numerous reasons why, in a bench trial, a not guilty verdict could be returned for reasons other than insufficiency of the evidence. The defense may have established an affirmative defense, the statute of limitations may have run, or the conviction may be barred by double jeopardy guarantees, to name but a few. In a given case, these issues may be combined with the argument that, in the alternative, the evidence was insufficient. By preserving a requirement of a clear and specific motion to strike or motion to set aside the verdict, we ensure that the trial court's attention is focused on the sufficiency of the evidence to the exclusion of all other issues.

Before invoking the bar of Rule 5A:18 we necessarily must review the record to determine whether there exists a clear miscarriage of justice requiring that we disregard the procedural defect and consider the sufficiency of the evidence. Upon review of the record, we cannot say that the ends of justice or good cause requires us to disregard Rule 5A:18. See Mounce v. Commonwealth, 4 Va.App. 433, 436, 357 S.E.2d 742, 744 (1987). In response to a citizen's call, an officer went to 12th and Stockton Streets in Richmond where he arrested Williams after finding in his pocket a black film canister containing fourteen separate baggies of cocaine and moisture-absorbing rice. Williams told the officer that he had found the canister on a wall just prior to the arrival of the police and that he thought it contained a drug or even a "dummy." The quantity of the cocaine was .56 grams, a relatively small amount of the drug....