*1 Paul, (1974) Paul v. (citation omitted). parties’ decree, contract merged into the final but
we no discern reason for a different result from applying reached in Rubio Hering and where the contracts did not merge. Merger prescribes enforcing the methods of entitle- contract, ments created and the distinction between merged non-merged agreements important is the con- text of enforcement. The situation is different when address- ing authority modify of court to the contract under Code § 20-109. The development the remedies available to a spouse seeking support choosing eliminated the dilemma of mutually between exclusive forms of relief. property Basic rights judicial that limit parties modification arise when the agreement. form an Those essential benefits and detriments now need not if contract expire merges into the decree for Indeed, purposes. enforcement a party would receive no if merger benefit negotiated rights obliterates that afford stability predictability to the parties after divorce. Ac- reversed, cordingly, judgment modifying contract is and the case for remanded reinstatement of the support obligation.
Reversed and remanded.
Court of
Richmond.
Dec. 2003. *4 (Public Winston, De- Counsel Special Appellate R. Joseph Commission, brief), for appellant. on fender Smith, (Jerry Attorney Assistant General Richard B. Senior briefs), General, for appellee. on Attorney Kilgore, W. BENTON, ELDER, FITZPATRICK, C.J., Present: HUMPHREYS, BUMGARDNER, FRANK, ANNUNZIATA, KELSEY, CLEMENTS, and JJ. FELTON EN BANC A REHEARING UPON FRANK, Judge. attempted capi- for was indicted (appellant)
Lolita Edwards
officer, in
of Code
violation
of a law enforcement
tal murder
of Code
18.2-31,
violation
eluding
police,
§§
and
18.2-25
involving
46.2-817(B),
of an accident
leaving
§
and
the scene
In
§ 46.2-894.
a bench
in violation of Code
injury,
personal
a law enforcement
trial,
of assault on
she was convicted
18.2-57, in
to the
addition
officer, in
of Code
violation
A
panel
the scene.
eluding
leaving
indicted offenses
of assault and affirmed
the conviction
this Court reversed
Edwards v.
leaving the scene.
conviction of
(2003). Thereafter,
stayed
we
99,
BACKGROUND p.m. May Around 8:00 on Police Portsmouth Officer S.D. White a burgundy saw Pontiac with “music ... playing loud,” extremely traveling headlights without its illuminated. siren, Officer White his lights activated but the Pontiac vehicle, did not stop. Officer White continued follow the with his “wigwag headlights” activated and engaged, his siren for approximately one mile. The Pontiac from swerved one lane to another. A off passing car was forced road by the Pontiac. Eventually, the vehicle crossed the Churchland Bridge, “stopped suddenly,” and the curb.” The “jumped officer his car slightly hitting swerved to avoid the Pontiac and stopped police then his unit “slightly [appellant’s] beside vehi- cle.” White,
Officer who inwas uniform with his badge displayed, exited his up vehicle. He walked to the Pontiac and found appellant in the driver’s seat. running. The car was still window, Officer White reached through driver’s side tell- ing car, “Turn appellant, off the turn off the car.”
The officer what described happened next: in, I reached there some yelling something from inside the car car and the drove off. When the car drove off, it pinned my arm back drug behind the headrest and me my towards front car at that point.
I myself to work was able and I hit getting free remember in the back with thing either car or a mirror and next I I being remember was into loaded an ambulance.
Officer Sykes just Peter had arrived before appellant her car. stopped He observed White reach into appel- Officer arm, car, to extract her from grab attempt her lant’s car “began to Officer then According Sykes, Pontiac. curb, dragging partially ... proceed leaving eastbound *6 his Officer White even- police towards vehicle. Officer White the Sykes arm.” Officer testified tually go let of the driver’s off appellant was off the curb” when drove “creeping Pontiac the car arm car. He estimated with Officer White’s her go.” or six until Officer White “let traveled about five feet struck vehicle go,” After the officer “let the Pontiac White’s ear. police and then another a Sykes approximately car hundred
Officer followed the curb, across a feet, time it the traveled during jumped which lawn, arrest. appellant The under stopped. placed officer injuries. for Officer White was treated his evidence, appel- of the At the conclusion Commonwealth’s capital the attempted lant moved strike the on to evidence trial argument, count. After court sustained murder if was inquired the court motion. The Commonwealth then a offense?” “striking possibly that lesser included down a suggested assault on law enforcement The Commonwealth Appellant argued as a offense. officer lesser-included following not a lesser-included offense. The latter offense was exchange occurred: Honor, I think Your [appellant’s counsel]:
MR. MEDA offenses, Blockburger for lesser included analysis under attempted requirement. I think that meets the don’t of the include the element statute does not capital murder a law person know the was having defendant reason to on officer battery police Assault and a enforcement officer. requires that—
[*] [*] [*] do attempted murder capital of the statute of The elements for assault requirement. a The statute that as include requires officer a law enforcement battery on the defendant prove as an element Commonwealth a law assaulted is person reason to know had officer. enforcement attorney that an responded, arguing
The Commonwealth’s capital attempted requires murder indictment also the Com- victim prove monwealth defendant should have known the argu- was a officer. focus of the law enforcement The entire trial ment to the court was whether the Commonwealth must prove person the offender had reason to know law officer in mur- prove attempted enforcement order capital on der. The trial court ruled this issue when it found assault on a law enforcement officer was a lesser-included offense capital attempted murder.
ANALYSIS A. Lesser-included Offense On appeal, appellant contends assault and of a law battery *7 enforcement officer is anot lesser-included offense of attempt- capital ed a is battery murder because not an of element attempted capital Appellant argues murder.1 also defini- the § tions of “law enforcement officer” contained 18.2- Code statute, 18.2-31(6), the assault and Code the murder statute, differ, precludes finding which a of a assault law officer attempted enforcement is a offense of lesser-included capital of murder a law enforcement officer. The Common- However, wealth argument. concedes this second Com- the monwealth any argument contends based on different these is procedurally definitions defaulted under Rule 5A:18.2 We agree. officer, Appellant
1. was convicted of assault on a law enforcement not Thus, battery assault and on a law enforcement will not officer. we address this contention. 2. Rule states: 5A:18 ruling Virginia Compensation No of the trial court the Workers’ will Commission be considered as a for unless the basis reversal objection together grounds was stated with the therefor at the time of except ruling, good the for cause or to enable Court shown the of Appeals justice. to attain the mere ends A statement the
judgment contrary or award is to the law and the is evidence not question upon appeal. sufficient to constitute a to be ruled on solely at trial on both
The focused whether argument her intended that the assailant knew require proof offenses Appellant argued officer. victim was a law enforcement attempted murder capital § 18.2-57 includes this element and However, to distin appeal, appellant attempts not. on does basis, a of these on guish the elements two offenses different officer, i.e., the of a law enforcement statutory definition the victim’s status as law perception the assailant’s raise she Appellant point did not the enforcement officer. trial now court. asserts before alert- Nothing argument before trial court appellant’s this argument court to her before Court. ed trial presented court no to consider issue opportunity trial had Commonwealth, 416, 422, 15 Va.App. Neal v. appeal. on See (1992) (“This has ‘the primary Court said trial to judge possible function of 5A:18 is alert the Rule may intelligently consider the issue judge error so that the unneces- necessary avoid and take corrective actions ” (quoting Martin sary appeals, reversals mistrials.’ 401, 404 (1992))). “objection togeth stated requires 5A:18 an [be]
Rule ruling, except time of therefor at the grounds er with Appeals or to the Court of good for cause shown enable rule, argu this justice.” specific Under attain ends time, must to the trial court at the appropriate ment be made appeal. considered on or the of error will not be allegation *8 433, Commonwealth, 435, 357 S.E.2d Va.App. 4 See Mounce v. (1987). 742, or an abstract reference general 744 A argument v. an Buck law issue. preserve to the is not sufficient to 414, 452-53, 416 Commonwealth, 449, 443 247 Va. S.E.2d 464-65, 461, (1994); Commonwealth, 524 Va.App. 31 Scott v. (2000). on an specific 162, Making argument one S.E.2d 164 point on the same legal a preserve separate issue does not Commonwealth, Va.App. 30 for Clark v. issue review. See (1999) 260, argu- one 406, 411-12, (preserving 517 S.E.2d 262
761 argument of does not allow sufficiency ment on the evidence sufficiency questions). on other appeal regarding Thus, not issue for the first time on we will consider this 5A:18; Inc. v. First Rule Alexandria appeal. Prop., See West Trust, Mortgage and Estate Inv. Virginia Real (1980) (“On appeal, taking 151 though court, trial general position may same as in an appellant which have been but not raised rely on reasons could were court.”); Commonwealth, of Floyd for the the lower v. benefit (1978) 575, 584, (holding 249 176 that Va. that appellate argument will not an differs courts consider court, if specific argument from the to the trial even presented issue). it the same general relates Although good Rule cause exceptions 5A:18 allows for or to of justice, appellant argue meet the ends does not we invoke should these See Redman v. exceptions. e.g., Commonwealth, Va.App.
(1997) (“In order to avail of exception, oneself a defendant must a affirmatively justice show that miscarriage of has occurred, (em not that a miscarriage might have occurred.” added)). phasis consider, We will not sua sponte, “miscar riage justice” Further, argument Rule under 5A:18. we find nothing in the record to such an support argument. Commonwealth, on
Appellant relies our Lowe decision (2000), S.E.2d 689 that her contend assignment Lowe, error In can be raised at time. statutory defendant was indicted for burglary, but convicted of trespass, without an of the amendment indictment. The con- viction was trespass reversed because under Code 18.2-219 trial, is not a lesser-included At statutory burglary. offense of object Lowe did not charge. the conviction the reduced here, as it did contended Rule 5A:18 from raising barred Lowe issue on This appeal. Court noted: object
“[T]he fact did not to ... defendant conviction on the ground that he was convicted for an offense with which he not charged is of no moment. *9 762 proof to conform to the an indictment is amended
Unless
of an offense
being
guilty
found
acquiesces
an accused
authority
lacks the
a trial court
charged,
other than the one
other than the one
guilty
an accused
of an offense
to find
lack of
included offense.... The
author
charged or a lesser
may
that it did
judgment
trial
to render the
ity of the
Court
on its own motion.”
at
time and
this court
be raised
487 S.E.2d
Fontaine
Va.App.
omitted).
(1997) (citations
241, 244
Id. at
588,
This Court then held:
Acquiescence requires [Fontaine, 165, 487 S.E.2d at See at object. Va.App. with statement failing object, coupled (holding 244] for misdemeanor that conviction was judge clarifying acquiescence). not constitute felony, rather than did This found the issue was Id. at at 692. Court to consider the merits proceeded not defaulted Id. appeal. Fontaine, a defendant
In
a
in which
the scene of an accident
leaving
was indicted for
However,
§ 46.2-900.
injured,
felony
under Code
person was
indictment,
convicted,
an
of the
without
amendment
he
damage,
involving property
of an accident
leaving the scene
Id. at
at
487 S.E.2d
under Code
46.2-900.
misdemeanor
of the
object
to the conviction
242-43. Fontaine did
Id. at
at 244.
In the context
487 S.E.2d
charge.
reduced
issue,
that Fon-
argued
sufficiency
of a
the Commonwealth
by ask-
conviction
taine had “concurred”
the misdemeanor
Id. at
at
trial court for clarification.
ing the
in the trial
“acquiesce”
did not
244. This Court held Fontaine
Id. The Commonwealth
argued
also
court’s
decision.
of the misdemean-
to convict Fontaine
evidence was sufficient
felony,
offense of the
it was a lesser-included
or because
Id. at
felony.
him
to convict
of the
was sufficient
the evidence
163,
This Court but, sufficiency argument, crucial to the Commonwealth’s more it critical importantly is to the determination of whether jurisdiction the trial court had to find guilty the defendant *10 Id. at 163- an offense not in directly charged the indictment.” 64, Court, 487 at 245. finding This after “hit and run property damage” is not a offense of “hit and lesser-included run personal injury,” explained:
By convicting the of an defendant offense that was not lesser charged, included and was not the trial court authority. exceeded its charge The indictment did not the generally defendant with hit run in and violation of Code Instead, § 46.2-894. it specifically charged hit and run Thus, personal injury. charged the Commonwealth defendant with one offense him guilty and found of another. may “The state person accuse a of one crime and convict him proving another unless the offense is a lesser included one of that charged.” Harrell v. 1, 6, (1990).
11 Va.App. 680, 682 The fact that the defendant object did not to or appeal the conviction on ground he was for an convicted offense with which he was not charged is of no moment.
Id. at
164-65,
The Commonwealth asks this Court to overturn Lowe in Fontaine. reject analysis argues Commonwealth that conviction of an offense is not a which lesser-included offense cannot jurisdictional create a issue and contends appel- lant’s arguments subject are procedural to the usual require- ments for consideration on appeal. Lowe,
The Commonwealth notes Va.App. both 33 at Fontaine, 535 S.E.2d at Va.App. at 487 S.E.2d at allow waiver of this issue if a defendant acquiesces However, in trial court’s decision. the Com correctly monwealth explains, jurisdictional issues by defini waived, tion cannot be Nelson v. acquiescence. even with Ctr., Warden Keen Mountain Corr. (2001) (noting jurisdictional issues cannot be
waived). Given this contradiction between the definition of in Lowe and
jurisdictional principles expressed issues and the Fontaine, two cases. we must reconsider these
Fontaine,
Lowe,
concept
as embraced
underscores
to convict a
of an
authority”
person
that a trial court “lack[s]
do not
which is not a lesser-included offense. We
offense
However,
law.
the Fon-
disagree with this statement
that,
enthymematically
Lowe
presume
taine and
decisions
necessarily also lack essen-
authority,” they
when courts “lack
controversy.
The decisions
jurisdiction
tial
over the matter
issue to be
authority
that this lack of
allows the
also conclude
time,
under Rule 5A:18
preserved
raised at
whether
Lowe,
not,
only
judgments.
reserved
for void
prospect
691-92; Fontaine,
588-89,
at
535 S.E.2d at
Va.
Fontaine and
Essentially,
at
Referring to its earlier decision (2000), monwealth, Supreme the Va. Nelson, explained in Court “emphasizing in Moore of the point made a David
[W]e power ... to be drawn between necessary distinction cases, commonly adjudicate specified court to a class a authority of a ‘subject jurisdiction,’ matter and the known as Id. at that in a case.” power particular court to exercise 437, 527 at 409. by is “[s]ubject jurisdiction granted that matter
We said
waived,”
statute,”
cannot be
constitution or
“[i]t
initio,”
it is void ab
and
“any judgment rendered without
be raised at
subject
jurisdiction ‘may
that “lack of
matter
manner,
court,
any
in
the court
any
any
time
before
”
Commonwealth, 186 Va.
Humphreys
Id.
(quoting
itself.’
(1947)).
765, 772, be-
on the distinction
noting
emphasis
After
the Court’s
to
authority
exer-
subject
jurisdiction
tween
matter
next
should have been
jurisdiction,
step
cise that
the Court’s
resulting
from the distinction.
to demonstrate
difference
for,
our
Yet,
without a difference
with
we made
distinction
comply
failure of a court to
very
step,
next
we elevated the
to the
exercising
authority
with
for
its
requirements
subject
jurisdiction.
a lack of
matter
gravity
same level of
as
Supreme
at
Nelson did his father notice and did not raise the issue give failure until for a in this petition corpus he filed his writ habeas voidable, merely Court. Because Nelson’s convictions were his in a timely failure raise issue manner constitutes in waiver of the error and results the dismissal of his petition.
Id. at
In reaching this
we remain aware of the
doctrine of stare
decisis. As the
Supreme
Court said
*12
Dean,
Selected Risks Ins.
v.Co.
260,
233 Va.
In than Virginia, the doctrine of stare decisis is more a mere cliché. That doctrine a in plays significant orderly role the consistent, justice assuring administration of by predictable, application legal principles. and balanced of And when a precedent, court of last resort has established a after full court, upon by precedent deliberation the issue the the will not in the of lightly ignored, flagrant be treated or absence error or mistake.
766 260, (1987) (citation omitted). 233 Va. 355 S.E.2d 581 “Our strong adherence to the doctrine of stare decisis does not, however, compel perpetuate us to what we believe to be law____” Artis, v. an incorrect of Nunnally application 254 247, 253, (1997). Va. 492 See S.E.2d 129 17.1- (“The 402(D) court appeals] sitting en banc shall [of consider and may decide the case and overrule any previous decision by court.”); Nelson, panel 280-81, or of the full 262 Va. at at Nunnally). (quoting mayWe exercise the authority to previous overrule decisions where “detailed “ inquiry” ‘a demonstrates mistake exists in our prior deci ” Armstrong v. sions.’ (2001) (en banc).
Further, precedent
from
Supreme
Court supports the
distinction we now make between a
void and
voidable
in
judgment
the context of differences between the indictment
final
In Cunningham Hayes,
conviction.
(1964),
Hayes
was indicted for manslaugh-
ter, yet convicted of
In
first-degree murder.
his
for a
petition
writ of habeas corpus, Cunningham asserted his conviction
was illegal because he was indicted for one offense and
Id.
convicted of
another.
at
“This corpus habeas repeatedly court has held that a writ of does not lie where the judgment merely conviction is by fact, omissions, voidable reasons of error of law or or irregularities, other no matter or flagrant how numerous they in may remedy by be. The such cases is or writ appeal of error. corpus [habeas underlying question such ] proceedings is, is that of jurisdiction that whether the court jurisdiction subject had of the and the person matter and If power particular judgment. render the the court jurisdiction subject had of the person and matter of if prosecution, punishment is of the imposed law, corpus habeas prescribed character a 'writ of does prisoner lie to release the from custody merely because cases). irregularities (Citing defects the sentence.”
767
Smith,
232-2[3]3,
v.
In there is no constitutional Virginia by requirement is ecutions for felonies be indictment. § 19.1- merely statutory may be waived the accused. as amended. Code [******] indictment charged felony may with a waive person
Since information[,] requirement and be tried on a warrant or jurisdictional. of an is not indictment 854-55, 134 Id. at 274. S.E.2d at
Here, subject jurisdiction trial court clearly had matter case, matter. See over the which involved a criminal jurisdiction § 17.1-513 circuit courts criminal (giving over cases). Appellant does not the offense contend occurred Virginia outside the Commonwealth of or that the court lacked jurisdiction Thus, over person. jurisdictional her no defect renders her conviction of assault on a police officer void. issue, Since Rule 5A:18 bars affirm consideration this we the conviction of assault on police officer.
B. Sufficiency of the Evidence Appellant argues support evidence does the convic- leaving tion for the scene of an involving personal accident injury. deliberately away She contends she did not drive from and, alternatively, the scene she did not leave the scene. issues, considering sufficiency
When “we review Commonwealth, light the evidence most favorable to the to it all granting fairly reasonable inferences deducible there Commonwealth, from.” Martin v. 438, 443, 358 (1987). sufficiency of the evidence When is challenged appeal, duty on “it is our to look to that evidence which support permit tends the verdict and the verdict plainly wrong.” Snyder stand unless (1961). judgment Va. “The a trial sitting jury court without a is entitled to the same
weight
jury
as a
verdict
will not
be set aside unless it
appears from the evidence that
judgment
is plainly wrong
*14
Martin,
4 Va.App. at
or without
support
443,
evidence to
it.”
Code 46.2-894 criminalizes leaving the scene of an acci- dent: driver of vehicle involved an accident in which a
person is injured killed or or in which an attended vehicle other property damaged attended is shall immediately stop as close to the scene of the accident as possible without traffic, obstructing 46.2-888, § as provided report and his name, address, number, driver’s license regis- and vehicle tration number forthwith to the State Police or local law- enforcement agency, person to the struck if injured person such to appears capable be of understanding and information, retaining the or to the driver or some other occupant of the vehicle with collided or to the custodian other damaged property.
Appellant claims this statute requires
the Commonwealth
deliberately
prove an
accused
drove
from
away
the scene of an
Commonwealth,
accident,
Herchenbach v.
citing
217,
(1946),
Appellant’s reliance on
misplaced.
chenbach held the
prove
Commonwealth must
an accused
occurred,
an
knew
accident had
which is not appellant’s argu
Id. at
220,
at language an accident scene. This does not allow a plainly vehi- stop circumstances driving continue until person to Rasmussen cle. See (1999) given should be (statutory language if, contends, initial- she appellant Even as meaning).
its plain ... off “yanked because she was the vehicle ly stop could White, applied she could have Officer those brakes” officer had released her. She the car once the stop brakes to car until it this, but instead continued to drive the did not do hit a house. This evidence hit two vehicles and almost police immediately stop as did not prove appellant is sufficient statute. required by the scene, con- contends she did not leave the
Appellant also
away
car
not take her
from
the movement
her
did
tending
Commonwealth, 32 Va.App.
the scene.
relies on Smith v.
She
(2000),
analysis. Again,
this
support
Smith addressed 19.2-81, allowing § in of the statute an dent” the context Code a warrant. Id. at 77 S.E.2d arrest without Appellant at 458. is correct that this Court held Smith arrested, was any was at “the scene of accident” when she from the though stopped yards away even she her car 100 footnote, However, in a this sign road she had struck. Id. foresaw here: appellant’s argument Court of phrase, contends that “the scene Appellant accident,” § in construed as co- Code 19.2-81 should be accident,” in “the scene of the phrase, extensive with 46.2-894, § statute. Because Virginia’s Code “hit-and-run” by of nolle appellant’s charge disposed hit-and-run was court, we see no prosequi by and never considered in analyze meaning challenged phrase reason to note, however, that the hit- the hit-and-run statute. We different language significantly and-run statute contains appellant from the statute under which was convicted. in requires § 46.2-894 a driver involved an accident Code as possible as close to the scene of the accident “stop traffic,” purpose and the of the statute obstructing without investigation preserve public is to “facilitate and to accident Johnson v. order.” 14 Va.App. (1992). 19.2-81, contrast, § permits an officer to make a warrantless arrest of a motor driver, conditions, vehicle under certain “at the of any scene accident.”
Id. at 234 n.
We with the By requir- ing a to stop immediately driver and as close to the “scene” as § possible, Code 46.2-894 distinguishes and limits the area labeled in “the scene” a manner that Code 19.2-81 does not. The hit-and-run clearly statute requires stop drivers to as accident, close to the or point impact, as will safety permit. Any interpretation other of the statute would make the word “immediately” meaningless and foil the intent of the statute. Inc., See Gray Lodge, Graves Mountain 26 Va.App. 355-56, (1998) (explaining that courts should avoid interpretations that make words within a statute intent). meaningless ignore legislative The trial court found appellant fifty “drove to a hundred away” feet after injuring Officer White. The sup- evidence ports finding. car, After Officer White fell from her appellant police hit two cars eventually stopped in the private lawn residence. Nothing suggests the record stopping the lawn was an stop immediate that the lawn was the first place park safe the car.
CONCLUSION We find appellant properly convicted of assault on law *16 enforcement officer and that the evidence was sufficient convict of appellant leaving the scene of an involving accident Thus, personal injury. we affirm both convictions. Affirmed. J., dissenting.
BENTON
I. The Commonwealth concedes that assault on a law enforce- ment proscribed 18.2-57, § officer as by Code which is the
771 convicted, is not lesser- which Lolita Edwards offense of a law murder of enforce- attempted capital included offense of 18.2-31(6), § which was proscribed by ment officer as in charged the offense the indictment. of the of the Constitution
The Due Process Clauses that Virginia mandate and the Constitution United States charges notification of the given proper an accused be XIV; art. Va. Const. him. U.S. Const. amend. against that an provides, pertinent part, § 19.2-220 8.Code concise and definite written plain, indictment shall be “a (1) (2) statement, accused, describing the offense naming (3) county, city or town which charged, identifying (4) offense, reciting that accused committed the date.” accused committed the offense on or about certain indictment, sufficient, an notice give An to be must accused charged of the nature character of the offense so the make his defense. Satcher can accused denied, (1992), cert. Va. (1993). 1319, 122 507 U.S. 113 S.Ct. L.Ed.2d established, therefore, an cannot firmly It is accused charged, be convicted of a crime that has not been unless charged. the crime is a lesser-included offense the crime Dalton, Commonwealth v. (2000). that, trial judge granted
The record establishes after the murder, charge attempted capital the motion to strike the prosecutor inquired judge about whether was inclined following to convict Edwards of a lesser-included offense. The colloquy ensued: Honor, that, you striking Your with will be
[Prosecutor]: that, possibly that down to a lesser included offense under Your Honor? Well, I that.
[Judge]: any argument haven’t heard about I if that’s possible— didn’t know [Prosecutor]: you suggest? offense would [Judge]: What lesser included Honor, argue Your the Commonwealth would [Prosecutor]: homi- attempted of the homicide statutes or under *17 statutes, Honor, cide Your that any of the assault and battery offenses would be lesser included which in- would clude malicious wounding, unlawful wounding, assault and battery on a law enforcement officer— [Judge]: you that, So don’t have an argument then for just I anything want to do is okay you? with Well, Honor, just Your [Prosecutor]: articulating what the lesser included offenses would be.
[Judge]: I know what all I can do. I just wanted to know if you position had a on it. Honor, Your
[Prosecutor]: the Commonwealth argue would here, that clearly, an assault aon law enforcement officer place.... did take
[Judge]: You think assault on a police officer is a lesser included offense? case, In this particular Honor,
[Prosecutor]: Your given the elements—
[Judge]: case, Not in particular this in any case is assault on a police officer a lesser included of attempted offense capital murder?
[Prosecutor]: Under the enumerated section that makes this attempted capital murder it because was on a law officer, Honor, enforcement Your it’s the Commonwealth’s position yes, it is.
The record objected. indicates that Edwards’s In attorney pertinent part, he gave following reasons: Honor,
Your I think under the Blockburger for analysis offenses, lesser included I don’t think that meets the re- quirement. The attempted capital murder statute does not include the element of having the defendant reason to know person was a law enforcement officer. Assault and battery police on a officer requires that—
The elements of the statute of attempted capital murder do not include that requirement. as a The statute for requires on a law enforcement officer battery assault the defen- an element prove Commonwealth as *18 a law that assaulted is person to know the had reason dant officer. enforcement Court as to whether not the argument as to the
Just offense, I don’t think assault for could find a lesser included of officer offense battery police on a is a lesser included attempted— %
i-: sK stated, in battery police I on a As the element assault to requires prove the Commonwealth that the defen- officer awas person had reason to know that the assaulted dant officer. law enforcement
Yes, sir, attempted there’s judge, but no element the murder statute that the Commonwealth capital requires the that defendant reason to know that prove the had awas enforcement person law officer. by
The context the was suggested which lesser offense prosecutor important the is these discussions indicate because that the was unsure a lesser-included offense was prosecutor suggested uncertainty and then with some various “possible” the judge Only alternatives that the consider. after might prosecutor upon for her settle judge pressed “position” did on a law enforcement officer as lesser-included assault Then, however, prosecutor argued that the facts offense. particular suggested case” that the offense of assault this “[i]n Ragsdale a lesser-included offense. See v. Common 331, (2002) wealth, 421, 427-28, Va.App. 38 565 S.E.2d 334-35 the “two offenses (noting Blockburger suggests that test abstract, in the rather than with reference ‘are to be examined ”). Responding the facts of case review particular under said, Honor, I arguments, attorney to those Edwards’s “Your for lesser of Blockburger analysis think under the included requirement.” Although I don’t think that meets fenses Blockburger analysis at trial a attorney Edwards’s advanced I urged than now on would hold appeal, different the one at uncertainty prevailed the trial on this pro issue “good vides a appeal. cause” basis to consider this issue on Commonwealth, v. See Jones Va. (1952) (holding objection” that “formal would be excused attorneys by
when the were “taken surprise” judge’s attorneys actions and the rather depending “were on the court them”); in a Campbell situation new (1992) (Barrow, J., “ concurring) (noting that relates to ‘[g]ood cause’ the reason an why objection was not stated at ruling”). the time attorney’s objection Because Edwards’s trial invoked the legal correct i.e. I principle, Blockburger, would hold that her argument, only which focused on possible one several analyses, does not bar our appeal good review the under the *19 prong cause of Rule 5A:18. I Accordingly, would reverse conviction for assault and remand this to issue the trial court.
II. In addition to Edwards convicting assaulting of a law en- officer, judge forcement the trial her eluding convicted a signal bring law enforcement officer after receiving to her 46.2-817, § to a see stop, driving vehicle Code under alcohol, 18.2-266, § influence see Code on a sus- driving license, 46.2-301, pended § failing see to at the stop of an give assistance, scene accident to information and render § see Code 46.2-894. Edwards contends evidence was to prove insufficient violation Code 46.2-894. evidence al- proved driving erratically, Edwards was limit, though exceeding the speed and while intoxicated. White, activated, Officer who followed Edwards with his siren testified Edwards’s was playing extremely “music loud.” stopped bridge, When Edwards her vehicle at the end of a stopped Officer White his vehicle beside “slightly [Edwards’s] vehicle” and to the left of it. Officer that he White testified [Edwards,] attempted “exited vehicle and to [his] extract driver” when the following events occurred: put side and driver’s Now, you reached you said Q: out of get person to try to on the defendant hands your the vehicle? That’s correct.
A: individual? hands on the Q: Put both No, hand. my right A: down, correct? window, already it —It was was
Q: The A: Yes.
sfc # [*] [*] [*] [*] at that running still Now, vehicle the defendant’s Q: time?
A: Yes. for the to or commands attempts you make
Q: Did your you put before out of the vehicle get to defendant out? get to her trying into the vehicle hands car,” car, which turn off the “Turn off the saying, A: I was do, were sirens— normally I but there is what attempt open open didn’t Q: you attempt Did —You in? hands you put your before the door room between enough There wasn’t A: I couldn’t. cars. the window to through at Edwards pulled
As Officer White for- vehicle, vehicle moved from Edwards’s “extract” her his vehicle behind stopped had Sykes, who ward. Officer after began to move Edwards, that Edwards’s vehicle testified attempted arm and “grabbed [Edwards’s] Officer White *20 the move- He described from the vehicle.” pull [Edwards] follows: vehicle as ment Edwards’s of about five to ten speed was at a And was that —That Q: miles, is that correct? It off the curb. creeping was
A: If that. She kind of like wasn’t a fast acceleration. vehicle, another hit hit vehicle Officer White’s
Edwards’s vehicle, ahead of Officer White’s parked which was officer’s Sykes Officer curb onto lawn. vehicle, jumped then the and he testified that drove the two damaged around vehicles and “positioned vehicle, [his] vehicle alongside kind of [Edwards’s] following [Edwards’s] vehicle.” He said Edwards’s “vehicle was the but headed toward house stopped striking before the house.” Edwards’s vehicle had traveled to one fifty hundred place feet from the where attempted Officer White had to pull from Edwards her vehicle.
In pertinent part, 46.2-894 provides that “[t]he any driver of vehicle in an involved accident in which a person is ... or in injured which an attended ... is damaged vehicle immediately shall to stop as close the scene of the accident as possible without ... obstructing traffic and report [identifying Applying substantially predecessor information].” similar statute, Supreme Court as held follows: statute, to guilty order be violating
[I]n the driver done; must that be aware harm has been present it must be then, his mind that an injury; there has been with mind, that in his he must deliberately go away without himself making known.
Herchenbach (1946) (citations omitted) and internal quotations added).
(emphasis The evidence failed to that prove Edwards intentionally, consciously, deliberately drove her vehicle as Officer White attempted pull to her from the vehicle the vehicle’s while engine engaged. Indeed, negate evidence fails hypothesis that the officer’s actions dislodged Edwards’s foot thus, pedal, testified, and, from the brake as she caused the vehicle to move without control being exercised Ed- Sykes’s wards. testimony Officer slowly the vehicle away fifty moved and came to a away halt to one hundred feet on a lawn before striking supports a house hypothesis momentarily Edwards lost control as a result of Officer attempt White’s from pull her through vehicle window.
It been long gravamen has the rule that of the charge “[t]he under consideration is the from the flight scene failure *21 v. Blankenship injured party.” aid to the succor or give (1945). Commonwealth, Va. 16 S.E.2d James v. See also only that (1941). established Evidence that operator after the to one hundred feet fifty moved vehicle is insuffi- control of the vehicle momentarily deprived flight the element a reasonable doubt beyond to prove cient a violation of prove driving away required as deliberately 46.2-894. reasons, that conviction. I would reverse For these Wayne
Randy MARSHALL Liberty FORKLIFT, INC. and CRAFT Company. Mutual Insurance Record No. 0893-03-1. Virginia, Appeals of
Court of Chesapeake. 9, 2003.
Dec.