McDowell v. Commonwealth (ORDER)

• Court: Supreme Court of Virginia
• Decided: November 4, 2011
• Docket: 102478
• Status: Published

Opinion

VIRGINIA:

In the Supreme Court of Virginia held at the Supreme Court Building in the City of Richmond, on Friday, the 4th day of November, 2011.

Wayne R. McDowell, II, Appellant,

against Record No. 102478 Court of Appeals No. 0200-10-2

Commonwealth of Virginia, Appellee.

Upon an appeal from a judgment rendered by the Court of Appeals of Virginia

Upon consideration of the record, briefs, and argument of

counsel, the Court is of opinion that the issue presented by this

appeal has been waived by appellant.

In a bench trial conducted in the Circuit Court of the City of

Charlottesville, appellant was convicted of violating Code § 18.2-

118 for failing to return rental property. Appellant appealed his

conviction to the Court of Appeals of Virginia contending, inter

alia, that the circuit court erred in finding that the evidence was

sufficient to show that the notice requirement of Code § 18.2-

118(b) had been satisfied when the record showed that the lessor

had not sent the notice to appellant's address listed on the lease

agreement as prescribed by the statute. * The Court of Appeals held

that the addition of "more accurate information" to the address

provided in the lease agreement did not violate the notice

* The Court of Appeals found that additional arguments raised in the appeal were barred by Rules 5A:12(c) and 5A:18. Those matters are not before this Court in this appeal. requirement of the statute and affirmed the conviction. McDowell

v. Commonwealth, 57 Va. App. 308, 316, 319, 701 S.E.2d 820, 824,

826 (2010).

By an order dated April 15, 2011, we awarded appellant an

appeal limited to the consideration of his assignment of error No.

1 which reads as follows:

The trial court erred in holding that the Commonwealth's evidence established compliance with the notice requirement of Va. Code Ann. § 18.2-118(b), where the letter was not sent to the exact address on the rental contract, as required by statute.

At the close of the Commonwealth's case-in-chief, appellant's

trial counsel moved to strike the evidence. Counsel contended that

because sending the notice in the manner prescribed served as prima

facie evidence of the intent to defraud even without proof of

receipt of the notice, the notice requirement of Code § 18.2-118(b)

should be strictly construed as requiring the lessor to send the

notice to the address exactly as given in the lease agreement, even

if the address was obviously incomplete. Counsel contended that

because the lessor had added additional information to complete the

address, the Commonwealth could not rely upon the presumption

created by the statute to establish appellant's intent to defraud

the lessor and, thus, the evidence was not sufficient to prove the

offense. The circuit court overruled the motion to strike, noting

appellant's exception.

2 Appellant then elected to introduce evidence in his defense.

After concluding his case, appellant did not renew the motion to

strike and in his closing argument did not expressly address the

issue of whether the notice requirement of the statute had been

properly complied with in order to establish the intent to defraud

the lessor. Rather, appellant's counsel merely stated that "if the

Commonwealth accepts the statutory shortcut to establish prima

facie evidence [of intent to defraud] that's – that's one thing,"

and then proceeded to argue that the prima facie case had been

rebutted by evidence that appellant had made lease payments until

subsequently he was incarcerated on an unrelated charge.

" 'When a defendant in a civil or criminal case proceeds to

introduce evidence in his own behalf, after the trial court has

overruled his motion to strike, made at the conclusion of the

introduction of plaintiff's evidence in chief, he waives his right

to stand upon such motion.' " Murillo-Rodriguez v. Commonwealth,

279 Va. 64, 73, 688 S.E.2d 199, 204 (2010) (quoting Spangler v.

Commonwealth, 188 Va. 436, 438, 50 S.E.2d 265, 266 (1948).

Thereafter, the defendant must renew the motion to strike at the

conclusion of all the evidence, or in a bench trial, at the very

least, he must reassert the issues raised in his original motion to

strike in his closing argument in order to preserve the issues for

appeal. Id. at 75 n.4, 83-84, 688 S.E.2d at 205 n.4, 210.

3 The record plainly shows that appellant's counsel did not

renew the motion to strike at the conclusion of all the evidence.

Additionally, the record plainly shows that in his closing argument

appellant's trial counsel did not reassert the issue of whether the

Commonwealth could rely upon the notice sent pursuant to Code

§ 18.2-118(b) as prima facie evidence of appellant's intent to

defraud the lessor when the address on the notice did not exactly

match the address on the lease agreement without any addition or

alteration. To the contrary, counsel accepted that the

Commonwealth could rely on the statute for its prima facie case,

but contended that other evidence rebutted the presumption of

fraudulent intent. Accordingly, we hold that appellant waived his

challenge to whether the Commonwealth could rely upon the notice to

establish the appellant's fraudulent intent.

Because the issue on which this appeal was granted was waived

by appellant in the circuit court, it was not properly preserved

for appeal. We further hold that the ends of justice do not

require that the issue be reviewed despite this waiver. Id. at 84,

688 S.E.2d at 210. Thus, although the Court of Appeals addressed

this issue in its opinion, this issue also was not properly before

the Court of Appeals. Gibson v. Commonwealth, 276 Va. 176, 181,

662 S.E.2d 54, 57 (2008). For these reasons, we vacate the

judgment of the Court of Appeals addressing the merits of

appellant's challenge to the sufficiency of the Commonwealth's

4 evidence to prove fraudulent intent through the Code § 18.2-118(b)

notice, and dismiss the appeal.

This order shall be published in the Virginia Reports and

shall be certified to the Court of Appeals of Virginia and to the

Circuit Court of the City of Charlottesville.

Justices McClanahan and Powell took no part in the

consideration of this case.¶

A Copy,

Teste:

Patricia L. Harrington, Clerk