Kanandez Epperson v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: September 15, 1998
• Docket: 1750972
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Coleman, Willis and Bumgardner Argued at Richmond, Virginia

KANANDEZ EPPERSON MEMORANDUM OPINION * BY v. Record No. 1750-97-2 JUDGE SAM W. COLEMAN III SEPTEMBER 15, 1998 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY Timothy J. Hauler, Judge (Sharon A. Fitzgerald; Eck, Collins & Marstiller, on brief), for appellant. Appellant submitting on brief.

Donald E. Jeffrey, III, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Kanandez Epperson appeals his bench trial conviction for

failing to return leased property in violation of Code

§ 18.2-118. He contends the evidence is insufficient to support

the conviction. At trial, Epperson failed to make a motion to

strike the evidence at the close of the Commonwealth's evidence

or at the conclusion of all the evidence. Epperson did not

present a closing argument. When the trial judge asked for

Epperson's comments at the close of the evidence, defense counsel

replied: "Judge, I'm going to submit it on the evidence."

Epperson did not make a motion to set aside the verdict.

Under Rule 5A:18, in order to preserve the question of the

sufficiency of the evidence, the defendant must, at a minimum, * Pursuant to Code § 17-116.010 this opinion is not designated for publication. make a timely motion to strike the evidence at the conclusion of

the defendant's evidence, or in a bench trial present an

appropriate argument in summation, or make a motion to set aside

the verdict. See Parnell v. Commonwealth, 15 Va. App. 342, 349,

423 S.E.2d 834, 838-39 (1992); Fortune v. Commonwealth, 14 Va.

App. 225, 228, 416 S.E.2d 25, 27 (1992); Campbell v.

Commonwealth, 12 Va. App. 476, 479-81, 405 S.E.2d 1, 1-3 (1991)

(en banc). Epperson did not make an objection to the sufficiency

of the evidence at any stage of the proceedings. He makes no

claim that good cause existed under Rule 5A:18 for his failure to

do so. Contrary to Epperson's contention, Rule 5A:18 makes no

exception for preserving the sufficiency question where the trial

court sits as the trier of fact in a bench trial. Accordingly,

Epperson did not preserve for appeal the question of whether the

evidence was sufficient to support the conviction. We consider whether we should invoke the ends of justice

exception in order to review whether the evidence was sufficient. See Jimenez v. Commonwealth, 241 Va. 244, 249-50, 402 S.E.2d

678, 680-81 (1991). Because the record does not reveal a reason

to invoke the ends of justice exception, Rule 5A:18 precludes our

review of whether the evidence was sufficient.

Accordingly, we affirm the conviction.

Affirmed.

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