Claude Elmer Frazier, s/k/a v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: October 1, 2002
• Docket: 1082013
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Annunziata, Bumgardner and Frank Argued at Salem, Virginia

CLAUDE ELMER FRAZIER, S/K/A CLAUDE L. FRAZIER MEMORANDUM OPINION * BY v. Record No. 1082-01-3 JUDGE ROBERT P. FRANK OCTOBER 1, 2002 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF AMHERST COUNTY J. Michael Gamble, Judge

B. Leigh Drewry, Jr. (Richard P. Cunningham & Associates, on brief), for appellant.

Leah A. Darron, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

Claude Elmer Frazier (appellant) was convicted in a bench

trial of reckless driving, a misdemeanor, in violation of Code

§ 46.2-852. On appeal, he contends the trial court erred in

finding the evidence was sufficient to convict. For the reasons

stated, we affirm the conviction.

As the parties are familiar with these facts, we do not

repeat them in this opinion. We do note, however, at the close

of the Commonwealth's case, appellant moved to strike the

Commonwealth's evidence regarding whether Flood Road, the road on

which the reckless driving occurred, was a public or private road.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. The trial court denied this motion. At the close of all the

evidence, appellant renewed the motion to strike based upon the

discrepancy in the Commonwealth's proof that Flood Road was a

"highway." The parties then made their final arguments. The

agreed upon statement of facts indicated: 1

The Commonwealth then argued its case concerning the credibility of the witnesses and the legal definition of a highway. Counsel for Mr. Frazier likewise reiterated his arguments concerning the discrepancy in the Commonwealth's proof of whether or not this was a highway within the definition of Virginia Code Ann. § 46.2-100 and the credibility of the witnesses.

The trial court found appellant guilty of reckless driving.

ANALYSIS

Appellant contends on appeal that the evidence was not

sufficient to prove his driving endangered "the life, limb or

property of any person," in violation of Code § 46.2-852. The

Commonwealth argues this issue is procedurally defaulted under

Rule 5A:18 because the statement of facts fails to show he

raised this "ground" at trial. We agree with the Commonwealth.

On appeal, a ruling of a trial court will not be reversed

unless an objection is 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

1 A statement of facts was submitted pursuant to Rule 5A:8(c).

- 2 - justice." Rule 5A:18. A sufficiency argument is barred under

this rule if it is not specifically raised at trial. Floyd v.

Commonwealth, 219 Va. 575, 584-85, 249 S.E.2d 171, 176 (1978).

However, if "at the time the ruling or order of the court is

made or sought, [a party] makes known to the court the action

which he desires the court to take or his objection to the

actions of the court and his grounds therefor," then the issue

is preserved for appeal. Code § 8.01-384. The goal of the

contemporaneous objection rule is "to avoid unnecessary appeals,

reversals, and mistrials" by giving the trial judge an

opportunity to consider and rule on an issue and to take

corrective action. Head v. Commonwealth, 3 Va. App. 163, 167,

348 S.E.2d 423, 426 (1986), overturned in part, Cruz v.

Commonwealth, 24 Va. App. 454, 464, 482 S.E.2d 880, 885 (1997)

(en banc).

We have ruled that, if appellant's closing argument alerts

the trial court to the grounds on which he bases his argument,

Rule 5A:18 is satisfied.

[W]here an issue of sufficiency of evidence is presented to a trial court, sitting without a jury, in a motion to strike at the conclusion of the Commonwealth's evidence and, upon its denial and upon conclusion of the defendant's evidence, the same issue is presented in the defendant's final argument to the court, the defendant has preserved his right to appeal this issue, even though he did not make a motion to strike at the conclusion of his own evidence.

- 3 - Campbell v. Commonwealth, 12 Va. App. 476, 478, 405 S.E.2d 1, 1

(1991) (en banc). Therefore, we look to appellant's closing

argument to determine if he preserved the issue of sufficiency

of the evidence to prove recklessness.

The statement of facts indicates appellant argued in

closing that Flood Road was not a "highway . . . and the

credibility of the witnesses." We cannot say that simply

intoning the words "and the credibility of the witnesses" would

put a trial court on notice that appellant was challenging the

sufficiency of the evidence as to whether appellant was driving

in a reckless fashion.

The phrase, "credibility of the witnesses," does not

preserve the issue presented. Taken in the context of his

closing argument, appellant appeared to address the credibility

of the witnesses on the issue of whether Flood Road was a

"highway," not their credibility on other elements of the crime. 2

Appellant did not alert the trial court that he was arguing the

Commonwealth failed to prove the elements of the offense of

reckless driving.

2 At oral argument, appellant claims the credibility of the witnesses regarding whether the road was a highway was not in question. However, the officer was impeached with a letter that appeared to contradict his testimony. Additionally, during the trial, at the close of the Commonwealth's case, appellant argued the evidence was "hopelessly in conflict concerning whether Flood Road was a public or private road."

- 4 - We find the trial court was not adequately advised of

appellant's position. As appellant did not raise the issue of

recklessness, the trial court could not consider his specific

argument nor could the trial court take corrective action. See

id.

We find the sufficiency issue raised by appellant on appeal

is procedurally defaulted under Rule 5A:18. From the statement

of facts, we do not find the "good cause" or "ends of justice"

exceptions applicable. We affirm the judgment of the trial

court.

Affirmed.

- 5 -