*1 Richmond DAY, CLYDE O. JR.
COMMONWEALTH OF VIRGINIA
No. 1603-89-2 Decided August Counsel Maus,
John R. for appellant. Martin, Kathleen B. Assistant Attorney General Sue (Mary Terry, General, Attorney brief), for appellee.
Opinion stolen from WILLIS, J. four On December Later Haney home Robert LeWalter Carter, sold the company Stanley in the that day, appellant, *2 home in Fluvanna Redmond’s Charles Redmond at guns Carter, his had car testified that he lent County. The appellant whence they Roads from at Zion’s Cross and had then met Carter sold. The appel where the guns Redmond home went to the had sold the guns Sheriff he Bryant lant admitted Deputy he were “hot.” they knew that Redmond for Carter sell, me said, things things did some give He Carter “Stanley met him he place . ... . . did rid of items get . At . .” 15 and Charlottesville me at Cross Roads and on Route trial, however, he Carter Zion’s testified that met appellant Cross Roads. At guns. grand larceny was prosecuted
Appellant evidence, the trial court conclusion of the Commonwealth’s receiving stolen charge grand larceny by property. amended the appellant At the conclusion of the Commonwealth’s not moved that venue had ground to strike did show that he had been because the evidence not established denied, This motion was received the property did renew the his evidence. He not appellant presented Therefore, his objec motion at the conclusion of all the evidence. evidence to establish venue tion sufficiency Commonwealth, Va. waived. See White v. finding guilty, appellant
After the returned its verdict him jury set to the law and contrary moved that the verdict be aside as on what counsel grounds, evidence. When the trial court asked answered, save point.” “to appellant reversed be- conviction should be Appellant contends that his However, pre- not proven. argument cause venue not for appeal. served
The motion strike the evidence on appellant’s made, sufficiently proven, though timely that venue was not of the conclusion all was waived his failure to renew it at verdict, there When he his motion to set aside evidence. made was no identified “to save.” The motion to set aside ver- point dict did not state the venue with sufficient question particularity submit issue to the trial court. Rule 5A:18. See be venue must raised before verdict. aside the set verdict came too late to serve this purpose. judgment court is affirmed.
Affirmed. J.,* Cole, concurred.
Barrow, J., concurring. In my opinion, his preserved right to challenge However, the evidence of venue. decisis, since I am bound doctrine join of stare af- firming the appellant’s conviction.
Rule 5A.T8 bars an the if evidence is Commonwealth, the issue not raised at trial. v. 12 Campbell 1, App. Va. S.E.2d 2 (1991) (en banc). 405 An issue is however, sufficiently preserved, if “at time the order the or ruling court the is made or sought, makes known to party] [a court the action which he desires the to court take or his objection to the actions of the court and his ground therefor.” 384; 480, see also 12 Va. at 405 S.E.2d Campbell, App. at 2. The appellant’s motion to strike made to “known the court action which he desire court to take . . his ground . and therefor.” [d] Thus, he with the complied statutory mandate of the action neces- to sary preserve an for issue appeal. court, relies opinion on of another of this Commonwealth, 231,
White 3 Va. 348 S.E.2d App. (1986), 866 require a motion strike also be made at the conclusion of the presentation White, turn, of a defendant’s own evidence. in on relies in Supreme Court v. Com- Spangler monwealth, 436, 188 Va. 50 S.E.2d 265 * Judge participated Cole in prior decision this case effec- to the 30, April tive of his by designation date retirement pursuant on 1991 and thereafter Code 17-116.01. § to strike be that a motion require does not Spangler, evidence in defendant’s own of a criminal made at the conclusion appeal. of the evidence for of sufficiency an issue preserve evi- presents a defendant who the Court said that Admittedly, court has overruled behalf after the trial dence on his or her own strike, right upon stand “waives at How- at 266. such Spangler, motion.” ever, that a holding in the context of it made this statement to set aside a ver- the evidence or in a motion to strike ruling on defendant, must consider is presented dict after evidence defend- record, including presented by entire Thus, ant, is deciding in whether the evidence sufficient. a waiver to in Spangler waiver Court recognized by only Commonwealth, a real- rely only presented by evidence trial nor acknowledgment istic that neither the court However, the truth. Court ex- court should shut its eyes of the con- ruling to extend this to a waiver pressed no intention rule. temporaneous objection broadly as as even if can be construed Spangler 8.01-384, White, longer done in is no the law. Code such § declaring that stat- the need formal
eliminating exceptions it time a court rules ing one’s at the objection adopted is preserve sufficient an issue 1970 Va. ruling Spangler. after the Court’s twenty-two years Thus, ch. is the law de- Acts the extent that Spangler White, statute. scribed in it has been overruled Finally, objection” the “one limit contained Code 8.01-384 objection rule accomplishes purpose contemporaneous without needless rule technicality. contemporaneous by allowing avoids reversals and mistrials “unnecessary appeals, and, judge intelligently necessary, consider an issue 12 Va. Campbell, take corrective action.” *4 own S.E.2d at 7. though, Even under Spangler, review of a motion evidence would be considered in to strike made at the conclusion of the Commonwealth’s “it would be a useless to hold that the failure technicality to renew his strike at the conclu- defendant’s attorney sion of his own evidence barred this appeal.”
This panel, by is bound the decision White virtue Burns, of the rule of stare decisis. Commonwealth 173-74, 457 (1990). Only a decision con panel mistake,” corrected, tains a error or “flagrant and, then, may it be only “through the en process.” Id. hearing banc S.E.2d at 457.1
Therefore, though even am adequately preserved the issue evidence for stare decisis am constrained to join affirming the judgment of conviction. 1 Application effectively negates of the rule of stare decisis part manner 17-116.02(D)(ii) of Code relating panels judges in conflict. Instead of three others, panel one initiating member of the and two an en banc because aof decisions, conflict between possibly stare decisis eliminates the of a conflict and re- result, quires, as a a of the court decide to hear a case en banc in correct an panel. 17-116.02(D)(ii). erroneous decision of a See Code §