COURT OF APPEALS OF VIRGINIA
Present: Judges Chaney, Callins and Senior Judge Petty UNPUBLISHED
Argued at Lexington, Virginia
EVA LAVONNE STEPHENSON
v. Record No. 0972-21-3
COMMONWEALTH OF VIRGINIA MEMORANDUM OPINION* BY EVA LAVONNE STEPHENSON JUDGE WILLIAM G. PETTY AUGUST 23, 2022 v. Record No. 0974-21-3
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF AUGUSTA COUNTY W. Chapman Goodwin, Judge
H. Eugene Oliver, III (Evans Oliver PLC, on briefs), for appellant.
Stephen J. Sovinsky, Assistant Attorney General (Jason S. Miyares, Attorney General, on briefs), for appellee.
A jury convicted Eva Lavonne Stephenson of two counts of misdemeanor assault and
sentenced her to two days in jail and a $1000 fine.1 On appeal, Stephenson argues that the
convictions violated her statutory and constitutional speedy trial rights. She contends that the
Supreme Court of Virginia’s judicial emergency orders issued in response to the COVID-19
pandemic could not justify the delays in her trial because they violated the Virginia Constitution’s
separation of powers provisions. Stephenson also challenges the trial court’s exclusion of certain
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 1 The Commonwealth originally charged Stephenson with two counts of felony assault on a firefighter in violation of Code § 18.2-57(C). On each indictment, the jury convicted her of the lesser-included offense of misdemeanor assault. medical records from the evidence and the sufficiency of the evidence to prove she intended to
commit an assault. Finally, Stephenson argues that the trial court erred by revoking a
previously-suspended sentence based on the allegedly “improper” assault convictions. For the
following reasons, we affirm the trial court’s judgments.
BACKGROUND2
A. Procedural History
On August 17, 2019, Stephenson was arrested on two felony charges of assaulting a
firefighter and denied bail. On January 9, 2020, the general district court found probable cause
to certify the assault charges to the grand jury and, on January 27, 2020, the grand jury indicted
her on two counts of assaulting a firefighter. Stephenson demanded a jury trial, which was
initially set for April 27, 2020.
On March 16, 2020, the Supreme Court of Virginia declared a judicial emergency in
response to the COVID-19 pandemic and restricted all trials and non-emergency proceedings.
See In re: Order Declaring a Judicial Emergency in Response to COVID-19 Emergency 1-2 (Va.
Mar. 16, 2020).3 The order also tolled and extended all deadlines pursuant to Code
§ 17.1-330(D). Id. at 1 ¶ 4. Effective every twenty-one days thereafter, the Supreme Court
2 On appeal, we review the evidence “in the ‘light most favorable’ to the Commonwealth, the prevailing party in the trial court.” Hammer v. Commonwealth, 74 Va. App. 225, 231 (2022) (quoting Commonwealth v. Cady, 300 Va. 325, 329 (2021)). Doing so requires us to “discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom.” Cady, 300 Va. at 329 (quoting Commonwealth v. Perkins, 295 Va. 323, 324 (2018)). 3 Additional references in this opinion to the Supreme Court’s first order and subsequent related orders are to “emergency order” or “EDO of [date].” See EDO of Apr. 22, 2020, at 1 (referring to the Supreme Court’s first three orders “collectively . . . as the ‘Emergency Declaration Orders’”). -2- entered emergency orders unanimously extending the period of judicial emergency.4 The order
of May 1, 2020 specifically tolled the running of the speedy trial deadlines set out in Code
§ 19.2-243. See EDO of May 1, 2020, at 2 ¶ 3. Subsequent orders continued the tolling of
Virginia’s statutory speedy trial deadlines. Taken together, the Supreme Court’s emergency
orders suspended jury trials entirely during a roughly eight-week period. See EDO of May 6,
2020, at 5 ¶ 12; EDO of June 22, 2020 (6th Order), at 5 ¶¶ 15-16; EDO of July 8, 2020, at 1 ¶ 2.
The Supreme Court then authorized jury trials to resume in each judicial circuit, subject to the
Court’s approval of a written plan detailing how that circuit would conduct such trials safely
during the pandemic. See EDO of June 22, 2020 (6th Order), at 5-6 ¶¶ 15-16; EDO of July 8,
2020, at 1 ¶ 2. Nevertheless, it continued the tolling of deadlines imposed by the Speedy Trial
Act, Code § 19.2-243. See EDO of Sept. 11, 2020, at 1-2. These deadlines remained suspended
throughout the period before Stephenson’s jury trial.
In this case, because of the ongoing judicial emergency and “risk of COVID-19
exposure,” the trial court sua sponte continued Stephenson’s jury trial date three times over her
objection. On February 5, 2021, the Supreme Court approved the trial court’s plan to resume
jury trials. The trial court then set Stephenson’s jury trial for August 11 and 12, 2021.
B. Motion to Dismiss
On February 24, 2021, Stephenson moved to dismiss the indictments on statutory and
constitutional speedy trial grounds. In her written motion, Stephenson argued that the trial
court’s “rescheduling” of trial “beyond the five-month” time period specified in Code § 19.2-243
violated her right to a speedy trial. At a hearing on March 30, 2021, Stephenson reiterated her
4 As relevant here, the Supreme Court extended the period of judicial emergency through August 11 and 12, 2021, the dates of Stephenson’s jury trial. See EDOs of Mar. 27, Apr. 22, May 1, May 6, June 1, June 8, June 22, July 8, July 29, Aug. 7, Aug. 20, Sept. 4, Sept. 28, Oct. 19, Nov. 9, Dec. 3, Dec. 18, 2020; see also EDOs of Jan. 19, Feb. 8, Mar. 2, Mar. 15, Apr. 12, May 3, May 17, May 26, June 15, June 29, July 7, and Aug. 4, 2021. -3- statutory speedy trial argument. In addition, Stephenson argued that the Commonwealth was
“using COVID-19 as an excuse” to coerce inmates to accept plea bargains by deliberately
protracting their pretrial detention, “rather than provid[e] the constitutional rights to . . . a speedy
trial.” The trial court held that the COVID-19 pandemic and the Supreme Court’s emergency
orders justified the delay. Accordingly, the trial court denied the motion to dismiss.
C. Trial
The Commonwealth’s evidence established that at 3:30 a.m. on August 13, 2019,
Craigsville Volunteer Fire Department Chief Tracy Martin and Lieutenant David Stokes arrived
at Stephenson’s residence in response to a reported fire. In a field behind the property, Stokes
found Stephenson leaning on a shovel as she watched flames spread from her mobile home to an
abandoned house. When Martin and Stokes encouraged her to move to a safer location,
Stephenson appeared “confused” and “began saying a lot of stuff that didn’t make any sense.”
Stephenson became upset and swung the shovel at the firefighters “like a baseball bat.” Dodging
the attack, Martin and Stokes had police transport Stephenson to a hospital.
Testifying for the defense, Dr. George Lindbeck, an emergency room physician,
explained that Stephenson “exhibited delusional thinking” when she was admitted to the
emergency room. He testified that Stephenson’s account that she had just survived a fire “didn’t
seem to fit” because she “had no burn injuries.” Consequently, Dr. Lindbeck concluded that
Stephenson’s “concept of the fire and the resulting burns was delusional.” He grew “[c]oncerned
about [Stephenson’s] ability to take care of herself” and had considered obtaining a temporary
detention order. Ultimately, however, he did not seek such an order because he determined that
“effects of multiple medications” likely caused Stephenson’s delusions, rather than a mental
condition.
-4- During Dr. Lindbeck’s testimony, Stephenson sought to admit an emergency department
report that contained a summary of her psychiatric history. Specifically, the report stated that
she had “a history of T2DM, depression, anxiety, PTSD, HCV, fibromyalgia, and MVC in
March 2017.” The Commonwealth objected that the psychiatric history was inadmissible under
Code § 19.2-271.6 because the statute required Stephenson to establish that she had a mental
condition that “existed at the time of the offense.” The Commonwealth conceded that
Dr. Lindbeck could testify regarding his personal observations but maintained that Stephenson’s
prior psychiatric diagnoses were admissible solely as “mitigation evidence for sentencing.”
Stephenson countered that the statute “entitled” the jury to receive such evidence because it was
probative of her intent at the time of the offense.
During voir dire outside the jury’s presence, Dr. Lindbeck testified that Stephenson’s
“delusional thinking” was likely “medication-related” rather than “psychiatric” because her
mental state improved during treatment. He acknowledged, however, that he was not a
psychiatrist and could not definitively diagnose Stephenson with a mental illness at the time of
the offense.
Following additional argument, the trial court found that Code § 19.2-271.6 required
Stephenson to present “evidence of her [mental] condition at the time of the incident” and the
evidence did not establish that she had a mental condition at the time the assaults occurred.
Accordingly, the trial court ruled that the report was inadmissible but allowed Dr. Lindbeck to
testify regarding his personal observations and “whether he believe[d], based on the records [he
reviewed], that this is a mental illness and not a medication-related issue.”5
5 Stephenson proffered that the report would have proved that “she ha[d] mental health diagnoses that meet the DSM.” “DSM” appears to reference “the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association.” Code § 19.2-271.6(B). -5- At the conclusion of the Commonwealth’s case-in-chief, Stephenson did not move to
strike the evidence. After presenting evidence in her defense, she “renew[ed]” her motion to
strike without making any specific argument. The trial court denied the motion, finding that
Stephenson “attempted to swing a shovel at [the firefighters] and put them in fear.” After further
argument by counsel, the jury convicted Stephenson on both charges of the lesser-included
offense of misdemeanor assault. Stephenson appeals.
ANALYSIS
I. Speedy Trial
Stephenson argues that the trial court erred in denying her motion to dismiss because the
trial court violated her right to a speedy trial under both Code § 19.2-243 and the United States
and Virginia Constitutions. We disagree.
A. Statutory Speedy Trial Claim
Stephenson argues that the trial court violated her statutory right to a speedy trial by
ordering “more than three” continuances of her trial date beyond Code § 19.2-243’s five-month
limitation. “[A] statutory speedy trial challenge presents a mixed question of law and fact.”
Young v. Commonwealth, 297 Va. 443, 450 (2019). This Court “gives deference to the trial
court’s factual findings but reviews legal issues de novo,” including questions involving statutory
interpretation. Ali v. Commonwealth, 75 Va. App. 16, ___ (2022) (citing Young, 297 Va. at 450).
If an adult defendant “is held continuously in custody” following a district court’s finding
of “probable cause to believe that [she] has committed a felony, the accused . . . shall be forever
discharged from prosecution for such offense if no trial is commenced in the circuit court within
five months from the date” of that finding. Code § 19.2-243. That five-month limitation,
however, is “not absolute.” Young, 297 Va. at 451. Code § 19.2-243 enumerates several
exceptions to the time requirement for circumstances “beyond the control of a trial judge and the
-6- parties.” Schwartz v. Commonwealth, 45 Va. App. 407, 426 (2005) (quoting Baity v.
Commonwealth, 16 Va. App. 497, 502 (1993)). One such exception is when “failure to try the
accused was caused . . . [b]y a natural disaster.” Code § 19.2-243(7); see EDO of May 1, 2020,
at 1.
In Ali, this Court recently considered Code § 19.2-243’s “natural disaster” provision in
the context of the COVID-19 pandemic. 74 Va. App. at ___. Ali argued that the trial court
violated his statutory and constitutional speedy trial rights by delaying trial approximately
thirteen months under the Supreme Court’s COVID-19 emergency orders. Id. at ___. We
rejected that argument, holding that the pandemic qualified as a “natural disaster” and the
emergency orders validly tolled statutory speedy trial deadlines through Ali’s trial date. Id. at
___.
We find that Ali is dispositive of Stephenson’s argument. The Supreme Court declared a
judicial emergency on March 16, 2020, only sixty-seven days after the district court found
probable cause on January 9, 2020. See EDO of Mar. 16, 2020. The Supreme Court then
extended the period of judicial emergency through the dates of Stephenson’s jury trial on August
11 and 12, 2021. During that time, the Supreme Court’s emergency orders tolled the running of
any statutory speedy trial period. Ali, 74 Va. App. at ___; see also EDO of Aug. 4, 2021
(ordering continued tolling of “speedy trial act deadlines”). Accordingly, the trial court did not
err in denying Stephenson’s motion to dismiss on statutory speedy trial grounds.
B. Constitutional Speedy Trial Claim
Stephenson also argues that the trial court violated her rights to a speedy trial under the
federal and Virginia Constitutions. Relying on the United States Supreme Court’s decision in
Barker v. Wingo, 407 U.S. 514 (1972), she argues that the trial court made “insufficient findings
-7- to justify” its approximately two-year delay of trial. We decline to consider this argument, as
Stephenson raises it for the first time on appeal.
“No ruling of the trial court . . . will be considered as a basis for reversal unless an
objection was stated with reasonable certainty at the time of the ruling, except for good cause
shown or to enable this Court to attain the ends of justice.” Rule 5A:18. Accordingly, “this
Court ‘will not consider an argument on appeal [that] was not presented to the trial court.’”
Farnsworth v. Commonwealth, 43 Va. App. 490, 500 (2004) (quoting Ohree v. Commonwealth,
26 Va. App. 299, 308 (1998)). “Specificity and timeliness undergird the
contemporaneous-objection rule [and] animate its highly practical purpose.” Bethea v.
Commonwealth, 297 Va. 730, 743 (2019). “Not just any objection will do. It must be both
specific and timely—so that the trial judge would know the particular point being made in time to
do something about it.” Id. (quoting Dickerson v. Commonwealth, 58 Va. App. 351, 356
(2011)). Thus, 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.” Edwards v.
Commonwealth, 41 Va. App. 752, 761 (2003) (en banc) (citing Floyd v. Commonwealth, 219 Va.
575, 584 (1978)). “Rule 5A:18 applies to bar even constitutional claims.” Farnsworth, 43
Va. App. at 500 (quoting Ohree, 26 Va. App. at 308).
Stephenson waived the constitutional speedy trial claim she now argues for the first time
on appeal. In her written motion to dismiss filed in the trial court, Stephenson invoked her
speedy trial rights under the Sixth Amendment of the United States Constitution and the
“Virginia Constitutional Bill of Rights.” Both in her motion and during argument, however,
Stephenson did not offer any theory on how those constitutional provisions applied to the facts of
this case. Instead, she argued that the Commonwealth was “using COVID-19 as an excuse” to
extort inmates by prolonging their pretrial incarceration. Thus, Stephenson failed to present her
-8- constitutional speedy trial claim to the trial court, despite the opportunity to do so. Accordingly,
the issue is waived. Cf. Howard v. Commonwealth, 55 Va. App. 417, 426 (2009), aff’d, 281 Va.
455 (2011) (holding Rule 5A:18 barred review of defendant’s constitutional speedy trial
argument raised for first time on appeal). Although there are exceptions to Rule 5A:18,
Stephenson does not invoke them, and we will not do so sua sponte. Edwards, 41 Va. App. at
761.6
II. Stephenson’s Psychiatric History Evidence
Stephenson contends that the trial court abused its discretion by excluding the emergency
department report summarizing her psychiatric history as inadmissible under Code § 19.2-271.6.
She alleges that the trial court misconstrued that statute as barring evidence of prior psychiatric
diagnoses to prove a defendant’s mental condition at the time of the offense. Because prior
diagnoses may be probative of “symptoms or behaviors in the moment,” Stephenson argues that
such evidence is admissible. She argues further that any “concerns” regarding “the use of
historical [diagnostic] information and its connection to the present” pertained to the weight of
the evidence, rather than its admissibility. Therefore, Stephenson contends that the “only
reason” to exclude such evidence is “if there is a prohibition by either statute or case law to its
admission.” We disagree.
It is well-settled that “[d]ecisions regarding the admissibility of evidence ‘lie within the
trial court’s sound discretion and will not be disturbed on appeal absent an abuse of discretion.’”
6 For the first time on appeal, Stephenson also contends that the Supreme Court of Virginia’s judicial emergency orders could not justify the pretrial delay because they violated the Virginia Constitution’s separation of powers provisions. Stephenson had ample opportunity to raise this argument in the trial court, but did not. Accordingly, Rule 5A:18 bars our review. Howard, 55 Va. App. at 426. We note, however, that Code § 17.1-330(D) specifically authorizes the Supreme Court to suspend statutory deadlines. “Notwithstanding any other provision of law, such order may suspend, toll, extend, or otherwise grant relief from deadlines, time schedules, or filing requirements imposed by otherwise applicable statutes . . . .” Code § 17.1-330(D). -9- Blankenship v. Commonwealth, 69 Va. App. 692, 697 (2019) (quoting Michels v.
Commonwealth, 47 Va. App. 461, 465 (2006)). “Only when reasonable jurists could not differ
can we say an abuse of discretion has occurred.” Grattan v. Commonwealth, 278 Va. 602, 620
(2009) (quoting Thomas v. Commonwealth, 44 Va. App. 741, 753, adopted upon reh’g en banc,
45 Va. App. 811 (2005)). Nevertheless, a trial court “by definition abuses its discretion when it
makes an error of law.” Robinson v. Commonwealth, 68 Va. App. 602, 606 (2018) (quoting
Dean v. Commonwealth, 61 Va. App. 209, 213 (2012)). To the extent that the admissibility
determination involves a question of law—including “the interpretation of a statute”—this Court
reviews that issue de novo. Beckham v. Commonwealth, 67 Va. App. 654, 658 (2017). “The
primary purpose of statutory interpretation ‘is to ascertain and give effect to legislative intent.’”
Holloway v. Commonwealth, 72 Va. App. 370, 375 (2020) (quoting Botkin v. Commonwealth,
296 Va. 309, 314 (2018)). This Court “determines legislative intent from the words employed in
the statute,” Botkin, 296 Va. at 314 (quoting Alger v. Commonwealth, 267 Va. 255, 259 (2004)),
and “[w]hen the language of a statute is unambiguous, we are bound by the plain meaning of the
words used,” Antisdel v. Ashby, 279 Va. 42, 48 (2010) (citing Smit v. Shippers’ Choice of
Virginia, Inc., 277 Va. 593, 597 (2009)).
Finally, the proponent of evidence has the burden of establishing its admissibility by a
“preponderance of the evidence.” Campos v. Commonwealth, 67 Va. App. 690, 702 (2017)
(quoting Witt v. Commonwealth, 215 Va. 670, 674 (1975)). A trial court resolves factual
questions underlying admissibility, Bloom v. Commonwealth, 262 Va. 814, 821 (2001) (quoting
Witt, 215 Va. at 674), and such findings are binding on appeal “unless ‘plainly wrong’ or without
evidence to support them,” Campos, 67 Va. App. at 702 (quoting McGee v. Commonwealth, 25
Va. App. 193, 198 (1997) (en banc)). An appellant bears the burden of providing the appellate
- 10 - court with authority and argument in support of her request for reversal. Bartley v.
Commonwealth, 67 Va. App. 740, 744-45 (2017).
Evidence “offered by [a criminal] defendant” regarding her “mental condition” at the
time of the alleged offense, “including expert testimony,” is “relevant, is not evidence
concerning an ultimate issue of fact, and shall be admitted if” it “tends to show the defendant did
not have the intent required for the offense charged and . . . is otherwise admissible pursuant to
the general rules of evidence.” Code § 19.2-271.6(B); see 2021 Va. Acts Sp. Sess. I, chs. 523,
540. Further, “to establish the underlying mental condition,” the defendant “must show” that the
condition “existed at the time of the offense and that the condition satisfies the diagnostic criteria
for (i) a mental illness, (ii) a developmental disability or intellectual disability, or (iii) autism
spectrum disorder as defined in the most recent edition of the [DSM].” Code § 19.2-271.6 (B).
“Mental illness” is “a disorder of thought, mood, perception, or orientation that significantly
impairs judgment or capacity to recognize reality.” Code §19.2-271.6 (A).
Here, the trial court did not abuse its discretion by excluding the proffered report because
Stephenson failed to establish that she suffered from a “mental condition” as defined in Code
§ 19.2-271.6, or that any such mental condition existed at the time of her offenses. At trial,
Stephenson argued that the proffered report would have proved “she ha[d] mental health
diagnoses that meet the DSM.” The report, however, did not indicate whether any of her prior
diagnoses constituted “a disorder of thought, mood, perception, or orientation that significantly
impair[ed] [her] judgment or capacity to recognize reality.” See id. (defining “Mental illness”).
In addition, although Dr. Lindbeck testified that Stephenson manifested “delusional thinking”
when she arrived at the emergency room, he acknowledged that he was not qualified to diagnose
Stephenson with a mental illness that existed when the assault occurred. Moreover, he
- 11 - concluded that the “effects of multiple medications”—not a mental illness—likely caused her
delusions.
In sum, Stephenson failed to establish the requisite “underlying mental condition” to
admit the report under Code § 19.2-271.6. Accordingly, the trial court’s ruling excluding the
report was a proper exercise of judicial discretion.7
III. Sufficiency
Stephenson argues that the trial court erred in concluding that the evidence proved she
intended to harm Chief Martin and Lieutenant Stokes. She contends that her attack “was a
manifestation of confusion and delusion” rather than “an intent to inflict harm.” We do not
consider this argument because Stephenson failed to preserve it for appellate review under Rule
5A:18.
To preserve the question of the sufficiency of the evidence in a jury trial, the defendant
must move to strike at the conclusion of all the evidence or move to set aside the verdict.
Commonwealth v. Bass, 292 Va. 19, 33 (2016). Moreover, although a defendant may fulfill the
requirements of Rule 5A:18 through a motion to strike the evidence, failure to specifically argue
that the evidence is insufficient as a matter of law will result in default. See, e.g., Bowling v.
Commonwealth, 51 Va. App. 102, 106 (2007) (holding defendant’s failure to challenge the
sufficiency of evidence supporting a specific element of the offense at the motion to strike failed
to preserve the issue on appeal).
7 The trial court also expressed reservations regarding whether the proffered report was otherwise admissible because it contained potential hearsay. The trial court, however, did not rule that the report was inadmissible on that basis. “[T]he doctrine of judicial restraint dictates that we decide cases ‘on the best and narrowest grounds available.’” Butcher v. Commonwealth, 298 Va. 392, 396 (2020) (quoting Commonwealth v. White, 293 Va. 411, 419 (2017)). Thus, “a degree of judicial caution should accompany any holding that reaches out beyond the limits of the particular case to address unnecessary and novel issues.” Id. at 397. It is unnecessary to decide whether the proffered report was otherwise admissible. Accordingly, we do not address the issue. - 12 - Stephenson did not move to strike the evidence at the conclusion of the evidence or move
to set aside the jury’s verdict. Although she made a “renewed” motion to strike at the close of all
the evidence, nothing in the record demonstrates that she ever made any previous motion to
strike. Further, during the “renewed” motion to strike, Stephenson did not make any specific
arguments challenging whether the evidence was sufficient to prove intent. Thus, Stephenson
never presented to the trial court the sufficiency argument she now argues on appeal, and her
argument is waived. Id.
IV. Revocation
On August 10, 2018, the trial court convicted Stephenson of malicious wounding and
sentenced her to ten years of incarceration with seven years suspended, conditioned on three
years of supervised probation. Considering the convictions for misdemeanor assault addressed
above, the trial court revoked Stephenson’s previously-suspended sentence for malicious
wounding.
On appeal, Stephenson argues that the trial court erred by revoking her
previously-suspended sentence based on the allegedly “improper” assault convictions. She
concedes, however, that her argument is meritless and “moot” if this Court affirms her
convictions. Stephenson’s concession is correct. “Where the criminal conviction underlying the
revocation is affirmed on appeal, the appeal [of a resulting revocation] is considered without
merit; or is considered moot[.]” Patterson v. Commonwealth, 12 Va. App. 1046, 1049 (1991).
As we affirm Stephenson’s convictions, her challenge of the revocation is without merit. Id.
CONCLUSION
For the foregoing reasons, we affirm the trial court’s judgments.
Affirmed.
- 13 -