COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Bumgardner and Clements Argued at Salem, Virginia
RICHARD CRAIG YOUNG MEMORANDUM OPINION* BY v. Record No. 0007-03-3 JUDGE JEAN HARRISON CLEMENTS JULY 13, 2004 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PATRICK COUNTY Charles M. Stone, Judge
S. Jane Chittom, Appellate Defender (Public Defender Commission, on briefs), for appellant.
John H. McLees, Senior Assistant Attorney General (Jerry W. Kilgore, Attorney General; Virginia B. Theisen, Assistant Attorney General, on brief), for appellee.
Richard Craig Young was convicted in a bench trial of breaking and entering, in violation of
Code § 18.2-91.1 On appeal, Young contends the evidence was insufficient, as a matter of law, to
sustain his conviction because the Commonwealth failed to prove that a “breaking” occurred or,
alternatively, that the entry occurred in the nighttime. For the reasons that follow, we affirm the
conviction.
As the parties are fully conversant with the record in this case and because this
memorandum opinion carries no precedential value, this opinion recites only those facts and
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 1 Young was also convicted in the same proceeding of three additional counts of breaking and entering, nine counts of grand larceny, and one count of entering property with the intent to damage, a misdemeanor. By orders dated June 16, 2003 and December 10, 2003, we refused Young’s petition for appeal as to those convictions. incidents of the proceedings as are necessary to the parties’ understanding of the disposition of this
appeal.
I. BACKGROUND
“Under familiar principles of appellate review, we view the evidence and all reasonable
inferences fairly deducible from that evidence in the light most favorable to the Commonwealth,
the party that prevailed below.” Banks v. Commonwealth, 41 Va. App. 539, 543, 586 S.E.2d
876, 877 (2003). So viewed, the evidence presented to the trial court established that, on June
29, 2001, at 7:00 a.m., Greg Radford discovered that a leaf blower and his son’s motorcycle were
missing from a utility room inside the garage attached to his house. Radford, who was “in the
middle of working on” the garage, had installed the doorframes for the utility room and the garage
but had not installed any of the doors yet. Thus, someone could “walk into [the] garage and utility
room without opening any doors or windows.”
After reporting the theft to the police, Radford moved his other son’s motorcycle behind a
“four-wheeler” vehicle in the garage. At 11:00 a.m., he went to the store to get “some cables to lock
everything else up.” When he returned home that afternoon at 1:00 p.m., he discovered that the
other motorcycle had been taken while he was gone.
Young was subsequently indicted by the grand jury for, inter alia, breaking and entering
into Radford’s house with the intent to commit larceny, on or about June 28, 2001, in violation of
Code § 18.2-91.
At trial, Charles Burchette, III, a witness for the Commonwealth, testified that he and Young
committed numerous burglaries and larcenies in Patrick County, taking motorcycles, power tools,
generators, and “things of that general nature.” He testified that, at the time, his father worked at
Sara Lee from 7:00 p.m. to 7:00 a.m. He further testified that he and Young “were stealing in
-2- Virginia” while his father was working. Burchette stated that he could not recall the specific dates
on which the various offenses were committed.
Shown a photograph of Radford’s property, Burchette testified that he and Young went to
Radford’s garage “on two different occasions between two different days.” He testified that, the
first time they went there, they stole “a small dirt bike,” and “the next day,” they “went back” and
stole a “bigger bike.”
At the conclusion of the Commonwealth’s evidence, Young moved to strike the evidence on
the ground that the structure from which the items were stolen was not a “dwelling house.” Young
further “generally” moved to strike the evidence on the ground that the Commonwealth’s evidence
did “not rise to the level of a conviction at this point.” In response, the Commonwealth argued that,
as shown by its photographic exhibit depicting Radford’s property, Radford’s garage was attached
to and, thus, a part of his house. The Commonwealth further argued that its evidence was sufficient
to establish a prima facie case. The trial court denied Young’s motion to strike.
At the conclusion of the defense’s evidence, Young again moved to strike the
Commonwealth’s evidence, arguing solely that the trial court should not credit Burchette’s
inconsistent, confused, and biased testimony. The trial court again denied Young’s motion to strike.
During its closing argument, the Commonwealth argued that the trial court could conclude
from Burchette’s testimony that the first of the two thefts from Radford’s garage “occurred in the
evening hours or nighttime hours.” Young lodged no objection to the Commonwealth’s argument
and made no counter argument in response.
The trial court subsequently convicted Young of, inter alia, breaking and entering, in
violation of Code § 18.2-91, and this appeal followed.
-3- II. ANALYSIS
On appeal, Young contends the trial court erred in denying his motions to strike the
evidence because the Commonwealth failed to prove that he either broke into the victim’s garage or
entered the garage in the nighttime. While acknowledging, at oral argument, that he did not
specifically argue at trial that the Commonwealth’s evidence was insufficient to prove he entered
the garage in the nighttime, Young claims that argument was properly preserved for appeal because
the trial court was given the opportunity to consider the issue. Alternatively, Young argues that,
even if he did not preserve the argument for appeal, we should consider it nevertheless in order to
attain the ends of justice.
The Commonwealth concedes that, because Radford’s garage and utility room had no doors
when the entry occurred, Young could have burglarized the garage only if he entered it in the
nighttime with the intent to commit larceny. The Commonwealth contends, however, that Young’s
argument on appeal that the evidence failed to prove the entry occurred in the nighttime is
procedurally defaulted under Rule 5A:18 because he did not raise that argument at trial. The
Commonwealth further contends that the ends of justice exception to Rule 5A:18 is not applicable
here because the record does not affirmatively show that Young’s entry into the garage to steal the
smaller motorcycle occurred in the daytime. We agree with the Commonwealth.
Rule 5A:18 provides, in pertinent part:
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 . . . . A mere statement that the judgment or award is contrary to the law and the evidence is not sufficient to constitute a question to be ruled upon on appeal.
(Emphasis added).
-4- Pursuant to Rule 5A:18, we “will not consider an argument on appeal [that] was not
presented to the trial court.” Ohree v. Commonwealth, 25 Va. App. 299, 308, 494 S.E.2d 484, 488
(1998).
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COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Bumgardner and Clements Argued at Salem, Virginia
RICHARD CRAIG YOUNG MEMORANDUM OPINION* BY v. Record No. 0007-03-3 JUDGE JEAN HARRISON CLEMENTS JULY 13, 2004 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PATRICK COUNTY Charles M. Stone, Judge
S. Jane Chittom, Appellate Defender (Public Defender Commission, on briefs), for appellant.
John H. McLees, Senior Assistant Attorney General (Jerry W. Kilgore, Attorney General; Virginia B. Theisen, Assistant Attorney General, on brief), for appellee.
Richard Craig Young was convicted in a bench trial of breaking and entering, in violation of
Code § 18.2-91.1 On appeal, Young contends the evidence was insufficient, as a matter of law, to
sustain his conviction because the Commonwealth failed to prove that a “breaking” occurred or,
alternatively, that the entry occurred in the nighttime. For the reasons that follow, we affirm the
conviction.
As the parties are fully conversant with the record in this case and because this
memorandum opinion carries no precedential value, this opinion recites only those facts and
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 1 Young was also convicted in the same proceeding of three additional counts of breaking and entering, nine counts of grand larceny, and one count of entering property with the intent to damage, a misdemeanor. By orders dated June 16, 2003 and December 10, 2003, we refused Young’s petition for appeal as to those convictions. incidents of the proceedings as are necessary to the parties’ understanding of the disposition of this
appeal.
I. BACKGROUND
“Under familiar principles of appellate review, we view the evidence and all reasonable
inferences fairly deducible from that evidence in the light most favorable to the Commonwealth,
the party that prevailed below.” Banks v. Commonwealth, 41 Va. App. 539, 543, 586 S.E.2d
876, 877 (2003). So viewed, the evidence presented to the trial court established that, on June
29, 2001, at 7:00 a.m., Greg Radford discovered that a leaf blower and his son’s motorcycle were
missing from a utility room inside the garage attached to his house. Radford, who was “in the
middle of working on” the garage, had installed the doorframes for the utility room and the garage
but had not installed any of the doors yet. Thus, someone could “walk into [the] garage and utility
room without opening any doors or windows.”
After reporting the theft to the police, Radford moved his other son’s motorcycle behind a
“four-wheeler” vehicle in the garage. At 11:00 a.m., he went to the store to get “some cables to lock
everything else up.” When he returned home that afternoon at 1:00 p.m., he discovered that the
other motorcycle had been taken while he was gone.
Young was subsequently indicted by the grand jury for, inter alia, breaking and entering
into Radford’s house with the intent to commit larceny, on or about June 28, 2001, in violation of
Code § 18.2-91.
At trial, Charles Burchette, III, a witness for the Commonwealth, testified that he and Young
committed numerous burglaries and larcenies in Patrick County, taking motorcycles, power tools,
generators, and “things of that general nature.” He testified that, at the time, his father worked at
Sara Lee from 7:00 p.m. to 7:00 a.m. He further testified that he and Young “were stealing in
-2- Virginia” while his father was working. Burchette stated that he could not recall the specific dates
on which the various offenses were committed.
Shown a photograph of Radford’s property, Burchette testified that he and Young went to
Radford’s garage “on two different occasions between two different days.” He testified that, the
first time they went there, they stole “a small dirt bike,” and “the next day,” they “went back” and
stole a “bigger bike.”
At the conclusion of the Commonwealth’s evidence, Young moved to strike the evidence on
the ground that the structure from which the items were stolen was not a “dwelling house.” Young
further “generally” moved to strike the evidence on the ground that the Commonwealth’s evidence
did “not rise to the level of a conviction at this point.” In response, the Commonwealth argued that,
as shown by its photographic exhibit depicting Radford’s property, Radford’s garage was attached
to and, thus, a part of his house. The Commonwealth further argued that its evidence was sufficient
to establish a prima facie case. The trial court denied Young’s motion to strike.
At the conclusion of the defense’s evidence, Young again moved to strike the
Commonwealth’s evidence, arguing solely that the trial court should not credit Burchette’s
inconsistent, confused, and biased testimony. The trial court again denied Young’s motion to strike.
During its closing argument, the Commonwealth argued that the trial court could conclude
from Burchette’s testimony that the first of the two thefts from Radford’s garage “occurred in the
evening hours or nighttime hours.” Young lodged no objection to the Commonwealth’s argument
and made no counter argument in response.
The trial court subsequently convicted Young of, inter alia, breaking and entering, in
violation of Code § 18.2-91, and this appeal followed.
-3- II. ANALYSIS
On appeal, Young contends the trial court erred in denying his motions to strike the
evidence because the Commonwealth failed to prove that he either broke into the victim’s garage or
entered the garage in the nighttime. While acknowledging, at oral argument, that he did not
specifically argue at trial that the Commonwealth’s evidence was insufficient to prove he entered
the garage in the nighttime, Young claims that argument was properly preserved for appeal because
the trial court was given the opportunity to consider the issue. Alternatively, Young argues that,
even if he did not preserve the argument for appeal, we should consider it nevertheless in order to
attain the ends of justice.
The Commonwealth concedes that, because Radford’s garage and utility room had no doors
when the entry occurred, Young could have burglarized the garage only if he entered it in the
nighttime with the intent to commit larceny. The Commonwealth contends, however, that Young’s
argument on appeal that the evidence failed to prove the entry occurred in the nighttime is
procedurally defaulted under Rule 5A:18 because he did not raise that argument at trial. The
Commonwealth further contends that the ends of justice exception to Rule 5A:18 is not applicable
here because the record does not affirmatively show that Young’s entry into the garage to steal the
smaller motorcycle occurred in the daytime. We agree with the Commonwealth.
Rule 5A:18 provides, in pertinent part:
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 . . . . A mere statement that the judgment or award is contrary to the law and the evidence is not sufficient to constitute a question to be ruled upon on appeal.
(Emphasis added).
-4- Pursuant to Rule 5A:18, we “will not consider an argument on appeal [that] was not
presented to the trial court.” Ohree v. Commonwealth, 25 Va. App. 299, 308, 494 S.E.2d 484, 488
(1998).
Under this rule, a specific argument must be made to the trial court at the appropriate time, or the allegation of error will not be considered on appeal. A general argument or an abstract reference to the law is not sufficient to preserve an issue. Making one specific argument on an issue does not preserve a separate legal point on the same issue for review.
Edwards v. Commonwealth, 41 Va. App. 752, 760, 589 S.E.2d 444, 448 (2003) (en banc). Thus,
preserving one argument on sufficiency of the evidence does not allow argument on appeal
regarding other sufficiency questions. See Clark v. Commonwealth, 30 Va. App. 406, 411-12, 517
S.E.2d 260, 262 (1999). Moreover, the same specific argument must have been raised at trial before
we may consider it on appeal. See Buck v. Commonwealth, 247 Va. 449, 452-53, 443 S.E.2d 414,
417 (1994) (holding that appellant’s failure to raise the same arguments “before the trial court
precludes him from raising them for the first time on appeal”); Floyd v. Commonwealth, 219 Va.
575, 584, 249 S.E.2d 171, 176 (1978) (holding that only the same specific sufficiency argument
presented to the trial court may be considered on appeal). The purpose of these rules is to ensure
that the trial court and opposing party are given the opportunity to intelligently address, examine,
and resolve issues in the trial court, thus avoiding unnecessary appeals. See Lee v. Lee, 12 Va. App.
512, 514, 404 S.E.2d 736, 737 (1991); Kaufman v. Kaufman, 12 Va. App. 1200, 1204, 409 S.E.2d
1, 3-4 (1991).
Here, in support of his initial motion to strike, Young argued only that Radford’s garage was
not a “dwelling house” within the meaning of Code § 18.2-91 and that the Commonwealth’s
evidence did “not rise to the level of a conviction at this point.” In support of his second motion to
strike, Young argued only that Burchette’s testimony was not credible. During the
Commonwealth’s closing argument, Young raised no objection to the Commonwealth’s claim that -5- the trial court could find from the evidence that the theft of the smaller motorcycle from Radford’s
garage occurred in the nighttime. Likewise, he offered no argument to refute that claim. Thus, the
trial court was never advised of the claim Young makes on appeal that the Commonwealth’s
evidence was insufficient to prove that the entry did not occur in the nighttime. We hold, therefore,
that Young did not preserve this issue for appeal and is barred by Rule 5A:18 from raising it for the
first time on appeal, unless, as Young submits, the ends of justice exception to Rule 5A:18 applies.
See Redman v. Commonwealth, 25 Va. App. 215, 220, 487 S.E.2d 269, 272 (1997) (stating that
“we do not consider trial court error as a basis for reversal where no timely objection was made
except in extraordinary circumstances to attain the ends of justice”).
“‘The ends of justice exception is narrow and is to be used’” only when the trial court
error is “‘clear, substantial and material.’” Id. at 220-21, 487 S.E.2d at 272 (quoting Brown v.
Commonwealth, 8 Va. App. 126, 132, 380 S.E.2d 8, 10-11 (1989)).
To invoke the ends of justice exception to Rule 5A:18, the record must “affirmatively show[] that a miscarriage of justice has occurred, not . . . merely . . . that a miscarriage might have occurred.” Mounce v. Commonwealth, 4 Va. App. 433, 436, 357 S.E.2d 742, 744 (1987). To satisfy this burden, an appellant must show “more than that the Commonwealth failed to prove an element of the offense. . . . The 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, 25 Va. App. at 221-22, 487 S.E.2d at 272-73.
Marshall v. Commonwealth, 26 Va. App. 627, 636-37, 496 S.E.2d 120, 125 (1998) (alterations
in original) (second emphasis added).
Young does not argue that he was convicted for conduct that was not a criminal offense.
Instead, he argues the record affirmatively establishes that he entered the garage to steal the smaller
motorcycle in the daytime, rather than nighttime. Thus, he contends the record affirmatively proves
that an element of the charged offense did not occur. We disagree.
-6- As pertinent to the charged crime, the record before us establishes solely the following:
Radford first noticed the smaller motorcycle was missing at 7:00 a.m. The second motorcycle was
stolen later that same day between 11:00 a.m. and 1:00 p.m., while Radford was at the store.
Burchette testified that he and Young stole the smaller motorcycle the day before they stole the
larger motorcycle. Burchette also testified that he and Young “were stealing in Virginia” while
Burchette’s father was at work from 7:00 p.m. to 7:00 a.m.
From this evidence, it is impossible to determine with any certainty when in fact the smaller
motorcycle was stolen. Consequently, the record does not affirmatively establish that Young
entered the garage to steal the smaller motorcycle in the daytime. It is just as likely, based on the
evidence before us, that the smaller motorcycle was stolen during the nighttime. We conclude,
therefore, that the record does not affirmatively prove, as Young contends, that an element of the
charged offense did not occur.
Young having failed to present the same argument to the trial court and having failed to
affirmatively persuade us that a miscarriage of justice has occurred, we will not consider the
merits of his claim that the Commonwealth failed to prove he entered the victim’s garage in the
nighttime. Accordingly, we affirm his conviction.
Affirmed.
-7-