Moison v. Commonwealth (ORDER), 1220536

Moison was convicted of multiple sexual-offense counts based on testimony from his two minor daughters alleging long‑term improper touching during weekend visitations.
A November 4, 2018 incident at host Laurie Lee’s party prompted B.M. to disclose prior abuse; both girls described waking to Moison touching them while they slept.
At trial Moison proffered Lee to testify she and Moison remained outside until about 6 a.m. and then watched a movie together until the girls woke — testimony the Commonwealth objected to as an undisclosed alibi under Rule 3A:11(d)(2).
Trial counsel did not argue that Lee’s testimony was offered to impeach the victims; the trial court sustained the Commonwealth’s alibi objection and excluded the testimony.
The Court of Appeals affirmed, holding Lee’s testimony constituted alibi testimony that required pretrial notice; the Supreme Court affirmed the convictions but vacated the Court of Appeals’ ruling that Lee’s testimony provided an alibi because Moison waived his impeachment argument on appeal.

Issue	Commonwealth's Argument	Moison's Argument	Held
Whether Lee’s proffered testimony was alibi testimony requiring Rule 3A:11(d)(2) notice	Lee’s testimony placed Moison outside the room where offenses occurred, making it an alibi	Lee’s testimony did not create an alibi because Moison remained at the same location as the girls; counsel contended not an alibi	Court of Appeals treated it as alibi; Supreme Court vacated that portion of the Court of Appeals’ opinion but left convictions intact
Whether Moison preserved the argument that Lee’s testimony was offered to impeach the victims	Asserted Moison failed to present impeachment theory at trial and thus waived it	Argued on appeal that the testimony was impeachment evidence, not alibi	Supreme Court held Moison waived the impeachment argument because trial counsel never advanced it at trial; appellate consideration of that theory was waived
Whether exclusion of Lee’s testimony requires reversal of convictions	Exclusion was proper given lack of alibi notice; any alternative claim was waived	Exclusion denied admission of relevant defense evidence and warranted reversal	Supreme Court affirmed the convictions and the trial court’s final order despite vacating the appellate opinion’s alibi holding

Maxwell v. Commonwealth, 287 Va. 258 (2014) (objection must be stated with reasonable certainty to preserve error)
Yeatts v. Murray, 249 Va. 285 (1995) (assignments of error must point out errors with reasonable certainty)
Harlow v. Commonwealth, 195 Va. 269 (1953) (purpose of assignments of error to direct court and opposing counsel)
West Alexandria Props., Inc. v. First Va. Mortg. & Real Estate Inv. Tr., 221 Va. 134 (1980) (cannot raise new reasons on appeal that were not presented below)
Floyd v. Commonwealth, 219 Va. 575 (1978) (court will not consider arguments different from those presented at trial)
AlBritton v. Commonwealth, 299 Va. 392 (2021) (interpretation of assignments and related syntactic principles)