Lakiesha Enika Godbold v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: February 23, 1999
• Docket: 2829972
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Willis and Lemons Argued at Richmond, Virginia

LAKIESHA ENIKA GODBOLD MEMORANDUM OPINION * BY v. Record No. 2829-97-2 JUDGE JAMES W. BENTON, JR. FEBRUARY 23, 1999 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND James B. Wilkinson, Judge

Steven D. Benjamin (Betty Layne DesPortes; Benjamin & DesPortes, on briefs), for appellant.

Michael T. Judge, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Lakiesha Enika Godbold was indicted and tried on the charges

of attempted capital murder and felony obstruction of justice in

violation of Code § 18.2-460(C). The trial judge convicted

Godbold of the offense of attempted murder, a lesser offense of

attempted capital murder, and of felony obstruction of justice.

Prior to sentencing, the trial judge set aside the attempted

murder conviction and instead convicted Godbold of assault. On

appeal, Godbold contends that (1) her convictions for both crimes

constituted double jeopardy because assault is a lesser-included

offense of felony obstruction of justice and (2) the evidence was

insufficient to sustain the conviction for felony obstruction of

*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. justice. Because neither issue was properly raised before the

trial judge, we affirm the convictions.

I.

Officer O'Conner testified that he and Officer Musslewhite

drove a marked police car into a parking lot at night and saw

Godbold and her brother standing by a telephone. As O'Conner

exited his vehicle and said "Hello," he observed Godbold "brush[]

against" her brother and hand the telephone to her brother. With

her left hand by her side in a fist, Godbold walked toward a car

that was facing a fence with its engine idling. O'Conner

testified that when Godbold sat in the driver's seat, she

appeared to move something from her left hand to her right hand

and place it on the console. He testified, however, that at no

time did he actually see anything in Godbold's hands.

As Musslewhite talked with Godbold's brother, O'Conner

approached the driver's side of the car and shined a flashlight

into the car. O'Conner informed Godbold that they had received a

complaint about drug activity in the area, and he asked Godbold

if guns or drugs were in the car. Godbold responded "no," and

refused O'Conner's request to search the car. O'Conner testified

that he pointed his flashlight toward the console and saw a tied

bag containing what appeared to be an ounce of cocaine. O'Conner

opened the car door and told Godbold to "step out." Godbold placed the car in reverse and accelerated backward.

As the car made a sharp reverse U-turn, the door struck O'Conner,

lifted him off his feet, and carried him backward. O'Conner

- 2 - regained his footing, withdrew his gun, and pointed his gun at

Godbold. When Godbold accelerated the car forward and drove

away, O'Conner moved out of the car's path and unsuccessfully

attempted to give chase. The following day, the police found

Godbold and the car she was driving. No cocaine was recovered.

At the conclusion of the evidence, Godbold's trial counsel

moved to strike the evidence on the murder charge because the

evidence failed to prove intent to kill. He also moved to strike

the obstruction of justice charge because no evidence proved

cocaine was in the car. The trial judge denied the motions and

convicted Godbold of attempted murder and felony obstruction of

justice. Acting on trial counsel's written motion to set aside

the attempted murder conviction, the trial judge set aside the

attempted murder conviction and convicted Godbold of assault. He

sentenced Godbold to twelve months in jail for assault and five

years in prison for felony obstruction of justice, suspending two

years of that sentence.

II.

Godbold first contends that assault is a lesser-included

offense of felony obstruction of justice and that convictions for

both offenses violate the double jeopardy clause of the Fifth

Amendment. Godbold also contends that the evidence was

insufficient to support a conviction for felony obstruction of

justice. The Commonwealth counters that Godbold did not

adequately raise and preserve these issues before the trial judge

- 3 - and that Rule 5A:18 bars those issues. We agree with the

Commonwealth.

"No 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." Rule 5A:18; see also Mounce v. Commonwealth, 4 Va.

App. 433, 434, 357 S.E.2d 742, 743 (1987).

The main purpose of requiring timely specific objections is to afford the trial court an opportunity to rule intelligently on the issues presented, thus avoiding unnecessary appeals and reversals. In addition, a specific, contemporaneous objection gives the opposing party the opportunity to meet the objection at that stage of the proceeding.

Weidman v. Babcock, 241 Va. 40, 44, 400 S.E.2d 164, 167 (1991)

(citation omitted).

The record fails to indicate that Godbold ever argued before

the trial judge the two issues she now raises on appeal. At the

close of evidence, Godbold moved to strike both charges. After a

lengthy discussion that focused almost exclusively on the

attempted capital murder charge, the following colloquy occurred:

[JUDGE]: On the evidence heard by the Court, the Court will find [Godbold] not guilty of attempted capital murder but guilty of attempted murder, as charged in the indictment.

[COMMONWEALTH'S ATTORNEY]: Judge, there is also the felony obstruction while in the course of engaging in a violation of 248, which is the drug --

- 4 - [DEFENSE COUNSEL]: I would suggest that would run together. I don't see how you can obstruct and then -- the obstruction is --

[JUDGE]: I think it's entirely different. Well, I am going to find her guilty of obstructing on the felony. All right. You want a presentence report?

murder conviction and convicted Godbold of the lesser offense of

assault. Thus, we need not decide whether the argument cited

above was sufficient to preserve the issue whether Godbold was

exposed to double jeopardy by being convicted of both attempted

murder and felony obstruction of justice. The trial judge's

action necessarily rendered Godbold's prior double jeopardy

argument moot because she no longer was convicted both of

attempted murder and felony obstruction of justice.

After the trial judge modified the conviction, Godbold's

trial counsel failed to raise any new double jeopardy claim

either at the hearing or within twenty-one days of her sentencing

pursuant to Rule 1:1. Therefore, Godbold failed to "call to the

attention of the trial judge the error complained of, the reason

therefor, and the relief sought." Robinson v. Commonwealth, 13

Va. App. 574, 576, 413 S.E.2d 885, 886 (1992). We reach the same conclusion on the issue whether the

evidence was sufficient to support a conviction of felony

obstruction of justice. A person who "knowingly" obstructs a

police officer "lawfully engaged in his duties" commits a

misdemeanor and may be prosecuted under Code § 18.2-460(B).

- 5 - However, if a person "knowingly" obstructs a police officer

investigating drug trafficking, then he or she has committed a

felony and may be prosecuted under Code § 18.2-460(C). Godbold

argues on appeal that because no evidence proved she knew or

should have known that O'Conner was investigating drug

trafficking, she should not have been convicted of the felony.

This issue was never argued before the trial judge.

At the close of evidence, Godbold's trial counsel argued

that "there was no evidence there was any cocaine in the vehicle.

No cocaine was ever recovered. I would ask the Court to dismiss

[the felony obstruction of justice] charge, as well." This

statement speaks to a different issue than the one Godbold now

raises. Contending that the evidence did not prove the

"knowledge" element of the statute, Godbold seeks reversal of her

conviction. An accused's knowledge is an essential element of

all three subsections of the obstruction of justice statute. See

Code § 18.2-460. However, whether cocaine was in the vehicle,

the argument advanced at trial, is not a necessary element to

prove guilt under Code § 18.2-460(C). See Turner v. Commonwealth, 20 Va. App. 713, 717, 460 S.E.2d 605, 607 (1995)

("hold[ing] that in order to convict an accused of obstructing

justice under Code § 18.2-460(C) the Commonwealth need not prove

the underlying offenses . . ."). Godbold, therefore, failed to

raise before the trial judge the issue that she now raises on

appeal.

- 6 - III.

Despite Godbold's failure to properly preserve these two

issues, we nevertheless will consider them if "good cause [is]

shown or to enable [us] to attain the ends of justice." Rule

5A:18. This exception "is a narrow one that allows consideration

when the record affirmatively shows that a miscarriage of justice

has occurred." Reed v. Commonwealth, 6 Va. App. 65, 70, 366

S.E.2d 274, 277 (1988). "[T]he appellant must demonstrate that

he or she was convicted for conduct that was not a criminal

offense or the record must affirmatively prove that an element of

the offense did not occur." Redman v. Commonwealth, 25 Va. App.

215, 222, 487 S.E.2d 269, 273 (1997). In making this

determination, we must look to the entire record. Johnson v.

Commonwealth, 5 Va. App. 529, 532, 365 S.E.2d 237, 239 (1988).

It is a longstanding principle in Virginia that assault is

not a lesser-included offense of obstruction of justice. See

Love v. Commonwealth, 212 Va. 492, 494, 184 S.E.2d 769, 771

(1971); Polk v. Commonwealth, 4 Va. App. 590, 593-94, 358 S.E.2d

770, 772 (1987). In Polk, we specifically stated the following: The plain language of [the statute] provides that threats constitute a violation of the statute when they are knowingly made in an attempt to intimidate or impede law enforcement officers who are performing their duties. Thus, it is the threats made by the offender, coupled with his intent, that constitute the offense. The resulting effect of the offender's threats, such as fear, apprehension, or delay, is not an element of the crime defined in Code § 18.2-460. By the express terms of the statute, it is immaterial whether the officer is placed in

- 7 - fear or apprehension. The offense is complete when the attempt to intimidate is made.

Id.

Similarly, Godbold's second claim that no evidence proved

she knew or should have known that O'Conner was investigating

drug trafficking is not persuasive. The record includes a taped

recording of the encounter between O'Conner and Godbold. The

tape indicates that O'Conner specifically asked Godbold whether

there were guns or drugs in the car. Furthermore, both the tape

and the testimony of O'Conner at trial proved that when O'Conner

first approached Godbold, he told her that he was investigating

complaints concerning drug activity in the area.

Because Godbold failed to properly preserve the issues of

double jeopardy and sufficiency of the evidence, and because no

exception to Rule 5A:18 is satisfied, we affirm the convictions.

Affirmed.

- 8 -