Donte Lavell Brooks v. Commonwealth of Virginia
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PUBLISHED
COURT OF APPEALS OF VIRGINIA
Present:
Chief Judge Felton, Judges Elder, Frank, Humphreys, Kelsey, Petty, Beales, Alston,
McCullough, Huff and Chafin
Argued at Richmond, Virginia
DONTE LAVELL BROOKS
v.
OPINION BY
JUDGE STEPHEN R. McCULLOUGH
MARCH 26, 2013
Record No. 2708-10-1
COMMONWEALTH OF VIRGINIA
UPON REHEARING EN BANC
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
John W. Brown, Judge1
Kenneth L. Singleton for appellant.
Alice T. Armstrong, Assistant Attorney General II (Kenneth T.
Cuccinelli, II, Attorney General, on brief), for appellee.
The question before us in this appeal is whether appellant, Donte Lavell Brooks, failed to
comply with Rule 5A:12(c)(1), which requires him to include with each assignment of error
“[a]n exact reference to the pages of the transcript, written statement of facts, or record where the
alleged error has been preserved in the trial court.” (Emphasis added). We conclude that Brooks
did not comply with the requirements of the Rule. We further conclude that although such
defects do not mandate dismissal, dismissal is appropriate here given Brooks’s repeated failure to
correct the defect in spite of multiple opportunities to do so.
BACKGROUND
Brooks was convicted of possession of cocaine, in violation of Code § 18.2-250. He filed
his petition for appeal with this Court, arguing that the trial court erred in various respects. This
1
Judge V. Thomas Forehand, Jr., presided over Brooks’s trial and found him guilty.
Judge Brown subsequently presided over Brooks’s sentencing hearing and entered the final
order.
Court granted Brooks’s petition for appeal and directed the parties to address the following
additional question:
[W]hether the petition for appeal should be dismissed under
Rule 5A:12 on the basis (1) that appellant’s petition for appeal did
not contain – on or before June 8, 2011, the deadline for filing
appellant’s petition for appeal in this Court – any reference to “the
pages of the transcript, written statement of facts, or record where
the alleged error has been preserved in the trial court” from which
the appeal is taken, or (2) that appellant’s June 27, 2011
replacement petition for appeal did not contain “[a]n exact
reference to the pages of the transcript, written statement of facts,
or record where the alleged error has been preserved in the trial
court” from which the appeal is taken. See Rule 5A:12(c)(1);
Davis v. Commonwealth, 282 Va. 339, 717 S.E.2d 796 (2011).
A divided panel of this Court held that it was without active jurisdiction to consider
Brooks’s appeal, and consequently dismissed it. We subsequently determined on our own
motion to rehear the appeal en banc, pursuant to Code § 17.1-402(D). 2 On rehearing en banc, we
dismiss Brooks’s appeal.
ANALYSIS
I. THE PURPOSE OF RULE 5A:12(C)(1)
Rule 5A:12(c)(1) requires that “[a]n exact reference to the pages of the transcript, written
statement of facts, or record where the alleged error has been preserved in the trial court . . . shall
be included with each assignment of error.” (Emphasis added). The purpose of this requirement
is to efficiently put the appellate court on notice as to where the party satisfied Rule 5A:18 to
spare the Court from having to comb the entire record to determine whether and where the
2
By determining to rehear the case en banc, the Court vacated the previous panel
decision. See Logan v. Commonwealth, 47 Va. App. 168, 170, 622 S.E.2d 771, 772 (2005) (en
banc).
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alleged error was preserved. The exact reference requirement in Rule 5A:12(c)(1) was a part of
the revisions to the Rules that became effective July 1, 2010. 3
Under Rule 5A:18, “[n]o ruling of the trial court . . . will be considered as a basis for
reversal unless an objection was stated with reasonable certainty at the time of the ruling, except
for good cause shown or to enable the Court of Appeals to attain the ends of justice.”
“The laudatory purpose behind Rule 5A:18 . . . is to require that
objections be promptly brought to the attention of the trial court
with sufficient specificity that the alleged error can be dealt with
and timely addressed and corrected when necessary. The rules
promote orderly and efficient justice and are to be strictly enforced
except where the error has resulted in manifest injustice.”
Redman v. Commonwealth, 25 Va. App. 215, 220, 487 S.E.2d 269, 272 (1997) (omission in
original) (quoting Brown v. Commonwealth, 8 Va. App. 126, 131, 380 S.E.2d 8, 10 (1989)).
Furthermore, Rule 5A:18 “places the parties on notice that they must give the trial court the first
opportunity to rule on disputed evidentiary and procedural questions. The purpose of this rule is
to allow correction of an error if possible during the trial, thereby avoiding the necessity of
mistrials and reversals.” Gardner v. Commonwealth, 3 Va. App. 418, 423, 350 S.E.2d 229, 232
(1986). Compliance with the exact reference requirement of Rule 5A:12(c)(1) enables this Court
to identify the argument of the appellant at the trial level and the ultimate ruling made in the
court below, and helps this Court to avoid improvidently awarded appeals.
II. APPELLANT’S DESIGNATION OF THE NEAR ENTIRETY OF THE TRANSCRIPT DOES
NOT SATISFY THE EXACT REFERENCE REQUIREMENT OF RULE 5A:12(C)(1).
Brooks included two assignments of error in his replacement petition for appeal. For his
first assignment of error, that “the trial court erred when it did not suppress the evidence obtained
from the search of the vehicle,” Brooks cited to pages 3-39, the portion of the transcript
3
For the April 30, 2010 order of the Supreme Court amending the Rules, see
http://www.courts.state.va.us/courts/scv/amendments/2010_0513_part_five_and_part_five_a.pdf.
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containing the entire hearing on the motion to suppress, as his reference to where the alleged
error was preserved below. Likewise, for his second assignment of error that “the trial court
erred when it found the circumstantial evidence sufficient to convict [him] of possession of the
cocaine,” Brooks cited to pages 39-67 for his second assignment of error. This constitutes the
near entirety of the trial. 4
As a threshold matter, we conclude that appellant’s citations here do not constitute an
“exact” reference “to the pages of the transcript, written statement of facts, or record where the
alleged error has been preserved in the trial court.” Certainly, the broad reference encompasses
his specific objections and the trial court’s rulings. Also included, however, are many pages of
irrelevant material, thus precluding the Court from efficiently locating where appellant preserved
the issue raised on appeal. Such broad references, if accepted, would deprive Rule 5A:12(c)(1)
of any utility. 5 Satisfying the Rule’s requirement to provide an exact reference in the record
where the alleged error was preserved is not an onerous burden and can be met by simply citing
the page(s) of the record where the objection or motion below was made.
III. THIS COURT IS NOT REQUIRED TO DISMISS PETITIONS FOR APPEAL THAT DO NOT
COMPLY WITH THE EXACT REFERENCE REQUIREMENT OF RULE 5A:12(C)(1).
The next question is whether this failure mandates dismissal. We conclude that dismissal
for failure to cite to the exact place in the record where the issue has been preserved is not
required for several reasons. First and foremost, the plain text of the Rule does not require
dismissal. Second, automatic dismissal would needlessly harm litigants and the timely, efficient
4
In light of our disposition, we need not address whether the assignments of error are
crafted with sufficient precision.
5
We recognize that appellate courts must have some latitude in determining what
constitutes an “exact” reference. A needlessly strict construction of the term would result in
unwarranted dismissals. Regardless of how liberally one might construe the term, however, the
references at issue here do not comply with the Rule.
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adjudication of justice. Finally, avoiding automatic dismissal is most consistent with one of the
stated goals of the committee constituted to revise the appellate rules, namely, to “mak[e] the
rules more fair, efficient, and user friendly.” Supreme Court of Virginia, Appellate Rules
Advisory Committee, Report of the Committee 3 (June 9, 2008).
The plain text of Rule 5A:12(c)(1) draws a clear distinction between “the assignment of
error” and the separate but related requirement that an appellant point out where the alleged error
was preserved in the trial court. The appellant must provide “[a]n exact reference to the pages of
the transcript, written statement of facts, or record where the alleged error has been preserved”
“with” the assignment of error – this exact reference is not the assignment of error. These two
separate requirements serve different functions. The purpose of the assignment of error is to
alert the appellate court and opposing counsel to the precise error allegedly committed below and
to limit review to that issue. The requirement of providing an exact reference to where the issue
was preserved helps the Court grant review only for cases where the issue was preserved, or
where the ends of justice exception applies. We decline to conflate these two distinct
requirements.
Moreover, Rule 5A:12(c)(1)(ii) does not state “[i]f the assignments of error are
insufficient or otherwise fail to comply with the requirements of this Rule, or appellant fails to
comply with the requirement to provide an exact reference to where the alleged error has been
preserved, the petition for appeal shall be dismissed.” The specific language of the Rule calls for
dismissal for insufficient or otherwise noncompliant assignments of error. In other words, the
dismissal remedy triggered by the language “or otherwise fail to comply with the requirements of
this Rule” applies only to “assignments of error.” For example, an assignment of error, in
addition to being “insufficient,” i.e. too broad, could be unclear, inconsistent, or contain
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“extraneous argument.” As we note in Whitt v. Commonwealth, ___ Va. App. ___, ___ S.E.2d
___ (this day decided) (en banc), such deficiencies, if not corrected or amenable to correction,
will result in dismissal.
Dismissing a petition for appeal for any defect pursuant to Rule 5A:12(c)(1)(ii), no matter
how inconsequential the defect, would create a number of problems. Foremost among these is
the fact that the reflexive dismissal remedy would punish the client when the mistake, and a
relatively minor one at that, was made by his attorney. 6 The remedies available following
dismissal, petitioning for a delayed appeal or for a writ of habeas corpus, are less than promising.
First, most litigants will not avail themselves of either of these remedies. Second, the process is
cumbersome for those appellants who choose to pursue one of these potential avenues of relief.
The Court must first dismiss the claim. Then, the appellant must initiate a separate proceeding,
either by petitioning for a writ of habeas corpus or by resorting to Code § 19.2-321.1. A court
must adjudicate the claim and grant relief. If the appellant is successful, the appeal is reinstated.
Then and only then, many months later, can a conforming brief be filed. It is difficult to fathom
why these protracted and convoluted remedies are preferable to the simple expedient of
permitting counsel to insert a few lines in a corrected amended brief while the appeal still is
pending.
Reflexively dismissing noncompliant petitions for appeal would also be unwise because,
at least in some cases, it may not be clear what constitutes an exact reference to the record. For
example, suppose that a litigant in good faith designates a motion to strike, which incorporates
by reference points made in an earlier motion to strike. Will the Rule be satisfied if counsel cites
6
Although persons accused of committing crimes would bear the brunt of a mandatory
rule of dismissal, there is no doubt that appeals brought by the Commonwealth would also suffer
from a contrary ruling.
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to the renewed motion – or must the petition for appeal also cite to the earlier motion to strike?
If counsel guesses wrong with regard to what constitutes an exact reference, the appeal should
not face automatic dismissal. Or, suppose there is a typographical error with regard to where the
issue was preserved, e.g., appellant states that the issue was preserved on Transcript p. 354 when
the correct place is p. 345. Litigants and attorneys would face apprehension, confusion, and
frustration based on the risk that they may not have designated the exact portion of the record
where the issue had been preserved. Allowing corrective amendments with regard to the exact
reference requirement permits the appeal to proceed and ensures the efficient administration of
justice. Permitting corrective amendments for such situations also constitutes the reading of the
Rule that is the most “fair, efficient, and user friendly.”
Furthermore, if dismissal were mandated with no opportunity for correction, the attention
of the appellate judges of this Court, and, presumably, the Justices of the Supreme Court, would
be diverted to addressing motions to dismiss for inexact references to the record, rather than
adjudicating the merits of cases. Offering the opportunity to cure the defect, or granting it when
requested, does not entail a significant expenditure of court resources or of the judges’ time. In
the vast majority of cases where such a defect is present, the clerk’s office readily can identify
most of these defects and require counsel to file a conforming brief, with no intervention needed
by the judges.
This is not to say that the requirement to state where the issue has been preserved can be
ignored by appellants. Remedies short of dismissal, however, are available in the event appellant
fails to note where the issue was preserved. Specifically, counsel could seek, or the Court could
compel, the filing of an amended brief that complies with this Rule.
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IV. THIS COURT MAY EXERCISE ITS DISCRETION TO DISMISS FOR REPEATED
FAILURES TO COMPLY WITH THE RULES.
We now turn to the petition at hand. Brooks initially filed a petition for appeal that did
not contain any reference to the exact place in the record where the issue was preserved, in plain
violation of the Rules. His second, amended petition for appeal designated the entire trial
transcript. Such an imprecise designation does not, in our view, constitute “[a]n exact reference
to the pages of the transcript, written statement of facts, or record where the alleged error has
been preserved.” Therefore, the amended petition for appeal did not comply with Rule
5A:12(c)(1).
Although the Rules do not mandate the harsh sanction of dismissal, the remedy of
dismissal nonetheless may constitute an appropriate exercise of discretion in some situations,
whether at the petition stage or after an appeal has been granted. Dismissal is appropriate here
where counsel for appellant, despite multiple opportunities to cure the defect in his petition for
appeal, did not do so. 7 Moreover, there is no request before the Court to file an amended brief to
correct the defect. Therefore, we exercise our discretion to dismiss the case. 8
CONCLUSION
The appeal is dismissed.
Dismissed.
7
We further note that once this Court grants the petition for appeal, Rules 5A:20 and
5A:26, rather than Rule 5A:12, govern the opening brief. Rule 5A:20(c) provides that an
opening brief must contain “[a] statement of the assignments of error with a clear and exact
reference to the page(s) of the transcript, written statement, record, or appendix where each
assignment of error was preserved in the trial court.” Rule 5A:26 provides that this Court “may
dismiss the appeal” whenever the “appellant fails to file a brief in compliance with these Rules.”
(Emphasis added).
8
We recognize that Brooks has the right to move this Court for leave to pursue a delayed
appeal, pursuant to Code § 19.2-321.1.
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Petty, J.,with whom Frank and Humphreys, JJ., join, concurring.
Rule 5A:12(c)(1) requires that “[a]n exact reference to the pages of the transcript, written
statement of facts, or record where the alleged error has been preserved in the trial court . . . shall
be included with each assignment of error.” (Emphasis added). In Brooks’s replacement
petition for appeal, he included two assignments of error. For his first assignment of error, that
“the trial court erred when it did not suppress the evidence obtained from the search of the
vehicle,” Brooks cited to the portion of the transcript containing the entire hearing on the motion
to suppress as his reference to where the alleged error was preserved below. Likewise, Brooks
cited the portion of the transcript containing the entire trial, including the arraignment, for his
second assignment of error, that “the trial court erred when it found the circumstantial evidence
sufficient to convict [him] of possession of the cocaine.”
In order to ascertain how “exact” a petitioner’s reference must be to comply with Rule
5A:12(c)(1), I believe it to be helpful to restate the reason behind requiring an “exact” reference
in the first place. 9 Under Rule 5A:18, “[n]o ruling of the trial court . . . will be considered as a
basis for reversal unless an objection was stated with reasonable certainty at the time of the
ruling, except for good cause shown or to enable the Court of Appeals to attain the ends of
justice.”
“The laudatory purpose behind Rule 5A:18 . . . is to require that
objections be promptly brought to the attention of the trial court
with sufficient specificity that the alleged error can be dealt with
and timely addressed and corrected when necessary. The rules
promote orderly and efficient justice and are to be strictly enforced
except where the error has resulted in manifest injustice.”
9
I recognize that appellate courts must have some latitude in defining the term “exact” to
ensure that slightly overbroad or erroneous page references do not result in unwarranted
dismissals. Regardless of how liberally one might construe the term, however, in the context of
this case, the reference to the entire hearing or trial transcript is inexact.
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Redman v. Commonwealth, 25 Va. App. 215, 220, 487 S.E.2d 269, 272 (1997) (omission in
original) (quoting Brown v. Commonwealth, 8 Va. App. 126, 131, 380 S.E.2d 8, 10 (1989)).
Furthermore, Rule 5A:18 “places the parties on notice that they must give the trial court the first
opportunity to rule on disputed evidentiary and procedural questions. The purpose of this rule is
to allow correction of an error if possible during the trial, thereby avoiding the necessity of
mistrials and reversals.” Gardner v. Commonwealth, 3 Va. App. 418, 423, 350 S.E.2d 229, 232
(1986).
The role of an appellate court is to review alleged errors by the court below, and the
intent behind the requirement for an “exact reference to the pages of the transcript . . . where the
alleged error has been preserved in the trial court . . . from which the appeal is taken,” Rule
5A:12(c)(1), is to efficiently put this Court on notice of where the party satisfied Rule 5A:18
without requiring that we engage in what would be akin to a scavenger hunt to find it.
Furthermore, compliance with the Rule enables this Court quickly to identify the argument of the
appellant at the trial level and the ultimate ruling made in the court below.
Satisfying the requirement of Rule 5A:12(c)(1) to provide an exact reference in the
record where the alleged error was preserved is not an onerous burden and can be met by simply
citing the page(s) of the record where the objection or motion below was made and the grounds
stated. It is clear that Brooks has not done so in this case. By citing the entire transcript of the
proceedings on the motion to suppress and the trial below, Brooks attempts to circumvent the
obvious purpose behind the Rule. While his broad reference necessarily encompasses his
specific objections and the trial court’s rulings, it also includes many pages of testimony that
contain neither a part of any allegation by Brooks of potential error by the trial court nor
Brooks’s supporting legal theory. Thus, instead of enabling this Court to readily and efficiently
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identify the points at which he stated his legal position to the trial court, Brooks would require us
to search through the entire proceedings below to identify such points. Indeed, if such broad
references were sufficient, the Rule would be superfluous.
Rule 5A:12(c)(1)(ii) requires, “If the assignments of error are insufficient or otherwise
fail to comply with the requirements of this Rule, the petition for appeal shall be dismissed.” As
I explain in Chatman v. Commonwealth, ___ Va. App. ___, ___ S.E.2d ___ (this day decided)
(en banc) (Petty, J., dissenting), I believe that the amended mandatory dismissal language of
Rule 5A:12(c)(1), together with the Supreme Court’s recent directive in Davis, requires us to
dismiss a petition for appeal containing assignments of error that fail to comply with the
requirements of Rule 5A:12(c)(1). Brooks’s replacement petition for appeal in this case
contained assignments of error that failed to comply with a mandatory requirement of Rule
5A:12(c)(1). Thus, under the Supreme Court’s direction, Brooks’s failure to comply with the
Rule’s requirements “deprives this Court of its active jurisdiction to consider the appeal,” Davis,
282 Va. at 339, 717 S.E.2d at 796-97, and requires dismissal of the appeal, see Rule
5A:12(c)(1)(ii). 10
Because Brooks failed to file a petition for appeal that complied with the requirements of
Rule 5A:12(c)(1), I would vacate the order granting his petition and dismiss his appeal. 11
10
I am not unsympathetic with the majority’s observation that Rule 5A:12 does not seem
to advance the stated intent of the Appellate Rules Advisory Committee, which is to make the
rules more fair, efficient, and user friendly. However, rather than apply a strained reading of the
Rule to accomplish that goal, I believe that the better course is simply to amend the Rules.
11
Of course, as I stated in Chatman, this jurisdictional requirement may be waived and
the failure to comply with Rule 5A:12 renders a resulting judgment merely voidable, not void.
Chatman, ___ Va. App. at ___ n.4, ___S.E.2d at ___ n.4. Further, I agree that Brooks has the
right to move this Court for leave to pursue a delayed appeal, pursuant to Code § 19.2-321.1.
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Huff, J., dissenting.
While I agree with the majority that the inclusion of exact page references to the
transcript is required by the Rule, I believe the page references in this case were adequate to
satisfy the exactitude requirement and alert us to the issues on appeal. Making “an exact
reference” to the preserved error may fairly include the statement of the objection, the grounds
asserted, the trial court’s ruling, and the noting of an exception (if required). If those facets of
the issue comprise an entire transcript, as they did here, then citing to the entire transcript
satisfies the Rule’s requirement of “an exact reference to the pages of the transcript . . . where the
alleged error has been preserved . . . .” Rule 5A:12(c)(1). Thus, I would address the merits of
the appeal.
With regard to appellant’s first contention that the trial court erred in denying his motion
to suppress, appellant argues that the search of his vehicle was improper because there was no
reasonable belief of the existence of a weapon within appellant’s immediate control.
“To prevail on appeal, ‘the defendant must show that the trial court’s denial of his
suppression motion, when the evidence is considered in the light most favorable to the
prosecution, was reversible error.’” Slayton v. Commonwealth, 41 Va. App. 101, 105, 582
S.E.2d 448, 450 (2003) (quoting Whitfield v. Commonwealth, 265 Va. 358, 361, 576 S.E.2d
463, 464 (2003)). “‘Though the ultimate question whether the officers violated the Fourth
Amendment triggers de novo scrutiny, we defer to the trial court’s findings of historical fact and
give due weight to the inferences drawn from those facts by resident judges and local law
enforcement officers.’” Id. at 105, 582 S.E.2d at 449-50 (quoting Barkley v. Commonwealth, 39
Va. App. 682, 689-90, 576 S.E.2d 234, 237-38 (2003)).
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“In Terry v. Ohio, 392 U.S. 1 (1968), the United States Supreme Court approved ‘a
protective search for weapons in the absence of probable cause to arrest . . . when [a police
officer] possesses an articulable suspicion that an individual is armed and dangerous.’” Pierson
v. Commonwealth, 16 Va. App. 202, 204, 428 S.E.2d 758, 759 (1993) (alteration in original)
(quoting Michigan v. Long, 463 U.S. 1032, 1034 (1983); Lansdown v. Commonwealth, 226 Va.
204, 211-12, 308 S.E.2d 106, 111 (1983), cert. denied, 465 U.S. 1104 (1984)).
Recognizing the “‘inordinate risk confronting an officer as he
approaches a person seated in an automobile,’” Long, 463 U.S. at
1048 (quoting Pennsylvania v. Mimms, 434 U.S. 106, 110 (1977)),
the Court has extended such protective searches “beyond the
person,” including “areas” of the “passenger compartment of an
automobile in which a weapon may be placed or hidden.”
Id. (quoting Long, 463 U.S. at 1049-50; Glover v. Commonwealth, 3 Va. App. 152, 156, 348
S.E.2d 434, 437-38 (1986), aff’d, 236 Va. 1, 372 S.E.2d 134 (1988)). Moreover, “[i]f the officer
‘should . . . discover contraband other than weapons’ during this investigation, ‘he . . . cannot be
required to ignore [it], and the Fourth Amendment does not require its suppression in such
circumstances.’” Id. at 204, 428 S.E.2d at 759-60 (second alteration in original) (quoting Long,
463 U.S. at 1050).
In the present case, the officer conducted a lawful traffic stop during which he observed
appellant reach toward the back seat of his vehicle as well as into the glove compartment.
Appellant then refused to check the glove compartment for his registration information, even
after the officer suggested he look there. After the officer returned to his patrol vehicle with
appellant’s driver’s license, he again saw appellant reach toward the glove compartment. On this
basis, the officer reasonably believed that appellant “was trying to get to something, a firearm.”
Thus, the officer was entitled to conduct a protective search of the glove compartment in which a
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weapon could have been hidden. Accordingly, the trial court did not err in denying appellant’s
motion to suppress.
With regard to appellant’s contention that the trial court erred in finding the evidence
sufficient to support the conviction, appellant argues the evidence did not prove he possessed the
cocaine.
“When considering on appeal the sufficiency of the evidence presented below, we
‘presume the judgment of the trial court to be correct’ and reverse only if the trial court’s
decision is ‘plainly wrong or without evidence to support it.’” Wood v. Commonwealth, 57
Va. App. 286, 296, 701 S.E.2d 810, 815 (2010) (quoting Davis v. Commonwealth, 39 Va. App.
96, 99, 570 S.E.2d 875, 876-77 (2002)).
Possession may be actual or constructive. Constructive possession
exists when “an accused has dominion or control over the drugs.”
Such “possession may be proved by evidence of acts, declarations
or conduct of the accused from which the inference may be fairly
drawn that he knew of the existence of narcotics at the place where
they were found.”
Brown v. Commonwealth, 15 Va. App. 1, 7-8, 421 S.E.2d 877, 882 (1992) (en banc) (quoting
Castaneda v. Commonwealth, 7 Va. App. 574, 583-84, 376 S.E.2d 82, 86-87 (1989)).
The evidence in this case proved that appellant was aware of cocaine in his vehicle and
that it was subject to his dominion and control. Appellant repeatedly refused to check the glove
compartment for his registration information even after the officer suggested that he look there.
Rather, appellant reached toward the glove compartment only when the officer had left the
vicinity of his vehicle, thus supporting the inference that appellant knew the cocaine was in the
glove compartment. Based on these circumstances, the trial court did not err in finding the
evidence sufficient to support appellant’s conviction for possession of cocaine. For the reasons
stated, I would affirm the judgment of the trial court.
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VIRGINIA:
In the Court of Appeals of Virginia on Wednesday the 29th day of August, 2012.
Roberto Tyrone Chatman,
against
Appellant,
Record No. 0858-11-2
Circuit Court Nos. CR10-609, CR10-616 and CR10-617
Commonwealth of Virginia,
Appellee.
From the Circuit Court of Dinwiddie County
Donte Lavell Brooks,
against
Appellant,
Record No. 2708-10-1
Circuit Court No. CR09-4095
Commonwealth of Virginia,
Appellee.
From the Circuit Court of the City of Chesapeake
Steve Whitt,
against
Appellant,
Record No. 0885-11-3
Circuit Court Nos. CR953-09 and CR954-09
Commonwealth of Virginia,
Appellee.
From the Circuit Court of Buchanan County
Before the Full Court
Pursuant to Code § 17.1-402(D), the Court, on its own motion, has decided to rehear these cases
en banc. The parties shall file briefs in compliance with Rule 5A:35(b). It is further ordered that the
appellant in each case shall file twelve additional copies of the appendix previously filed.
In accordance therewith, the order entered herein on August 14, 2012 is stayed pending the
decisions of the Court en banc and the appeals are reinstated on the docket of this Court.
A Copy,
Teste:
original order signed by the Clerk of the
Court of Appeals of Virginia at the direction
of the Court
Clerk
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VIRGINIA:
In the Court of Appeals of Virginia on Tuesday
the 14th day of August, 2012.
Roberto Tyrone Chatman,
against
Appellant,
Record No. 0858-11-2
Circuit Court Nos. CR10-609, CR10-616 and CR10-617
Commonwealth of Virginia,
Appellee.
From the Circuit Court of Dinwiddie County
Donte Lavell Brooks,
against
Appellant,
Record No. 2708-10-1
Circuit Court No. CR09-4095
Commonwealth of Virginia,
Appellee.
From the Circuit Court of the City of Chesapeake
Steve Whitt,
against
Appellant,
Record No. 0885-11-3
Circuit Court Nos. CR953-09 and CR954-09
Commonwealth of Virginia,
Appellee.
From the Circuit Court of Buchanan County
Before Judges Elder, Humphreys and Petty
In these three cases, 1 we address whether the appellants failed to comply with the requirements
of Rule 5A:12(c)(1) in their respective petitions for appeal, and if so, whether such failures require us to
dismiss the appeals. We conclude that each appellant failed to comply with Rule 5A:12(c)(1).
Moreover, in light of the Supreme Court’s recent published order in Davis v. Commonwealth, 282 Va.
1
We consolidate these cases for purposes of decision only.
339, 717 S.E.2d 796 (2011), we also conclude that we consequently must dismiss the appeals for lack of
jurisdiction.
Roberto Tyrone Chatman, No. 0858-11-2
Roberto Tyrone Chatman appeals his convictions of aggravated malicious wounding, in violation
of Code § 18.2-51.2(A), and abduction, in violation of Code § 18.2-47. 2 Chatman argues that the trial
court erred in various respects. We granted Chatman’s petition for appeal and directed the parties to
address the following additional question:
Where, as here, the only petition for appeal filed within the time period set
out in Rule 5A:12(a) does not contain an exact reference to the pages of
the transcript, written statement of facts, or record where the alleged error
was preserved in the trial court, as required by Rule 5A:12(c)(1), does this
Court have active jurisdiction to consider the appeal in light of Davis v.
Commonwealth, 282 Va. 339, 717 S.E.2d 796 (2011), and Rule
5A:12(c)(1)(ii)?
Because we now conclude that we are without jurisdiction to consider Chatman’s appeal, we
dismiss it.
Rule 5A:12(a) states that “[w]hen an appeal to the Court of Appeals does not lie as a matter of
right, a petition for appeal must be filed with the clerk of this Court not more than 40 days after the
filing of the record with the Court of Appeals.” The trial court record in Chatman’s case was received in
the clerk’s office of this Court on June 21, 2011. Thus, Chatman’s petition for appeal was originally due
by July 31, 2011. However, Rule 5A:12(a) also provides that “[a]n extension of 30 days may be granted
on motion in the discretion of this Court upon a showing of good cause sufficient to excuse the delay.”
See Rule 5A:3(c)(2) (providing a motion for extension of time for filing a petition pursuant to Rule
5A:12(a) is timely “if filed . . . with the specified extension period”); see also Code § 17.1-408 (not
specifying when a motion for extension for filing a petition must be filed or granted). Chatman filed a
motion for an extension of time on July 27, 2011, and this Court granted the motion on August 11, 2011,
2
Chatman was also convicted of assault and battery of a family member, in violation of Code
§ 18.2-57.2, but he has not assigned error to anything pertinent to that conviction on appeal.
-2-
extending the deadline for the filing of Chatman’s petition to August 30, 2011. On August 29, 2011,
Chatman filed his original petition for appeal.
Rule 5A:12(c)(1) requires that “[a]n exact reference to the pages of the transcript, written
statement of facts, or record where the alleged error has been preserved in the trial court . . . shall be
included with each assignment of error.” The assignments of error in Chatman’s original petition did
not contain any such references. On September 6, 2011, the clerk’s office notified Chatman of this and
other deficiencies in his petition and directed him to submit a replacement petition within 10 days. On
September 16, 2011, Chatman submitted a replacement petition that again failed to contain page
references to where he had preserved the alleged errors in the trial court. On September 20, 2011, this
Court entered an order requiring Chatman to file a second replacement petition in compliance with Rule
5A:12(c)(1). Chatman then filed a second replacement petition.
After our order directing Chatman to file a second replacement petition to correct the deficient
assignments of error, the Supreme Court entered a published order in the case of Davis v.
Commonwealth, 282 Va. 339, 717 S.E.2d 796 (2011). 3 In Davis, the Supreme Court dismissed an
appeal for failure to comply with Rule 5:17(c)(1)(ii). Rule 5:17 is the Supreme Court’s counterpart to
this Court’s Rule 5A:12. Under Rule 5:17(c)(1)(ii), “When appeal is taken from a judgment of the
Court of Appeals, only assignments of error relating to assignments of error presented in, and to actions
taken by, the Court of Appeals may be included in the petition for appeal to [the Supreme] Court.” The
assignment of error in Davis alleged error in the trial court rather than in this Court, thereby violating the
rule’s directive. Under Rule 5:17, “An assignment of error that does not address the findings or rulings
in the . . . tribunal from which an appeal is taken . . . is not sufficient. If the assignments of error are
insufficient, the petition for appeal shall be dismissed.” Rule 5:17(c)(1)(iii) (emphasis added).
Accordingly, pursuant to the dictates of Rule 5:17, the Supreme Court dismissed the appeal in
Davis, because the assignment of error “[did] not address any finding or ruling of the Court of Appeals.”
3
The Supreme Court denied Davis’s petition for rehearing on January 20, 2012.
-3-
Davis, 282 Va. at 340, 717 S.E.2d at 797. As the Supreme Court explained, “[b]y prescribing dismissal
of the appeal, [Rule 5:17(c)(1)(iii)] establishe[s] that the inclusion of sufficient assignments of error is a
mandatory procedural requirement and that the failure to comply with this requirement deprives [the
Supreme] Court of its active jurisdiction to consider the appeal.” Id. at 339, 717 S.E.2d at 796-97
(emphasis added) (citing Smith v. Commonwealth, 281 Va. 464, 467-68, 706 S.E.2d 889, 891-92
(2011); Jay v. Commonwealth, 275 Va. 510, 518-19, 659 S.E.2d 311, 315-16 (2008)).
As we have stated above, Rule 5A:12(c)(1) requires that “[a]n exact reference to the pages of the
transcript, written statement of facts, or record where the alleged error has been preserved in the trial
court . . . shall be included with each assignment of error.” With dismissal language mirroring that in
Rule 5:17, Rule 5A:12 provides: “If the assignments of error are insufficient or otherwise fail to comply
with the requirements of this Rule, the petition for appeal shall be dismissed.” Rule 5A:12(c)(1)(ii)
(emphasis added). Because the Supreme Court has interpreted Rule 5:17’s language, “shall be
dismissed,” as prescribing mandatory dismissal for lack of active jurisdiction, we are left with no
alternative but to conclude that our counterpart Rule 5A:12’s identical language, “shall be dismissed,”
also requires dismissal for lack of active jurisdiction. 4
Heretofore, it has often been this Court’s practice to permit amendments to non-conforming
petitions for appeal after the filing deadline has passed. Indeed, the language of former Rule 5A:12(c)
before the July 1, 2010 amendments contained no mention of dismissal for failure to comply with its
requirements. 5 However, with the amendment of Rule 5A:12(c) to mandate dismissal of a petition “[i]f
4
While we may at times refer to the procedural rules applicable to proceedings in this Court as
“our Rules” or “the Rules of this Court,” we recognize the Supreme Court’s conclusion that the
provisions of Part 5A of the Rules of the Supreme Court are “precisely that – Rules of [the Supreme]
Court.” LaCava v. Commonwealth, 283 Va. 465, 471, 722 S.E.2d 838, 840 (2012). Accordingly, we
are bound by that Court’s interpretation of the Rules. See id. at 469-71, 722 S.E.2d at 840.
5
Prior to the 2010 amendments, Rule 5A:12(c) simply required the petition for appeal to
conform to the requirements for an appellant’s opening brief as set forth in Rule 5A:20. Neither Rule
5A:12(c) nor Rule 5:17(c) (nor Rule 5A:20, for that matter) prescribed dismissal for failure to conform
to its requirements, except for the fact that Rule 5:17(c) prescribed dismissal for failure to include any
assignments of error at all. However, in July 2010, the Rules were significantly amended and Rules
-4-
the assignments of error . . . fail to comply with the requirements of this Rule,” Rule 5A:12(c)(1)(ii),
coupled with the Supreme Court’s recent interpretation and application of such mandatory dismissal
language in Davis, we acknowledge that our previous practice is no longer permissible. Hence, we
acknowledge that we now must dismiss a petition for appeal containing assignments of error that fail to
comply with the requirements of Rule 5A:12(c)(1).
Here, the only petition Chatman timely filed under Rule 5A:12(a) was the initial petition filed on
August 29, 2011. 6 As already noted, the assignments of error in this petition did not contain any
references to where Chatman had preserved the alleged errors in the proceedings below. Thus, the
assignments of error failed to comply with the requirements of Rule 5A:12(c)(1). Furthermore, because
the initial petition was non-compliant, we cannot consider an amended petition filed beyond the
deadline. Cf. Wellmore Coal Corp. v. Harman Mining Corp., 264 Va. 279, 283, 568 S.E.2d 671, 673
(2002) (per curiam) (holding that an amended notice of appeal filed beyond the jurisdictional 30-day
period contained in Rule 5:9(a) was invalid where the original notice of appeal was defective).
Therefore, as the Supreme Court has instructed us, Chatman’s failure to comply with the rule’s
requirements “deprives this Court of its active jurisdiction to consider the appeal,” Davis, 282 Va. at
339, 717 S.E.2d at 796-97, and requires that we dismiss the appeal, see Rule 5A:12(c)(1)(ii). 7
5:17 and 5A:12 rewritten. The 2010 amendments were proposed by the Appellate Rules Advisory
Committee established by then Chief Justice Hassell and chaired by Justice Lemons. One of the goals of
the Committee was “to harmonize the rules in the Court of Appeals with the rules in the Supreme
Court.” Kent Sinclair, Appellate Rules Revisions, The Va. State Bar Professional Guidelines, 1 (May 5,
2010), http://www.vsb.org/ docs/SCV-appellate-rules-05-05-10.pdf. Accordingly, excepting a few
minor differences not relevant here, Rule 5:17(c)(1) and Rule 5A:12(c)(1) now contain identical
mandatory dismissal language, and we must interpret the language in Rule 5A:12(c)(1) in the same way
the Supreme Court has interpreted this language in Rule 5:17(c)(1).
6
Although Rule 5A:12(a) provides for the granting of a thirty-day extension, this Court had
already granted Chatman such an extension, extending the filing deadline for his petition from July 31,
2011 to August 30, 2011. Thus, August 30, 2011 was the last day Chatman had on which to file a
conforming petition before we lost active jurisdiction over his appeal.
7
We note that in Jay, the Supreme Court appeared to limit the remedy of dismissal to
jurisdictional violations. 275 Va. at 517, 659 S.E.2d at 315 (“By dismissing rather than denying the
appeals, the Court of Appeals rendered the requirements of Rule 5A:20(e) jurisdictional.” (emphasis in
-5-
Because Chatman failed to timely file a petition for appeal that complied with the requirements
of Rule 5A:12(c)(1), we must vacate the order granting his petition and dismiss his appeal.
Donte Lavell Brooks, No. 2708-10-1
Donte Lavell Brooks appeals his conviction of possession of cocaine, in violation of Code
§ 18.2-250. Brooks argues that the trial court erred in various respects. We granted Brooks’s petition
for appeal and directed the parties to address the following additional question:
[W]hether the petition for appeal should be dismissed under Rule 5A:12
on the basis (1) that appellant’s petition for appeal did not contain – on or
before June 8, 2011, the deadline for filing appellant’s petition for appeal
in this Court – any reference to “the pages of the transcript, written
statement of facts, or record where the alleged error has been preserved in
the trial court” from which the appeal is taken, or (2) that appellant’s June
27, 2011 replacement petition for appeal did not contain “[a]n exact
reference to the pages of the transcript, written statement of facts, or
record where the alleged error has been preserved in the trial court” from
which the appeal is taken. See Rule 5A:12(c)(1); Davis v.
Commonwealth, 282 Va. 339, 717 S.E.2d 796 (2011).
We now conclude that we are without jurisdiction to consider Brooks’s appeal and must dismiss
it on the second of these alternative grounds. 8
original)). Subsequently, in 2010, Rule 5:1A was added to the Rules of the Supreme Court, providing
that “[the Supreme] Court may dismiss an appeal or impose such other penalty as it deems appropriate
for non-compliance with these Rules.” Rule 5:1A(a) (emphasis added). The new rule also authorizes
the Court, prior to dismissal, to allow a party in violation a chance to correct most defects. See id.
Hence, this rule raises the question of whether the remedy of dismissal continues to be limited to
jurisdictional violations. See McDowell v. Commonwealth, 282 Va. 341, 343, 718 S.E.2d 772, 774
(2011) (dismissing an appeal for appellant’s failure to properly preserve an issue in the trial court).
However, in 2011, the Supreme Court reaffirmed its holding in Jay that “by dismissing the appeal rather
than denying it, the Court of Appeals erroneously rendered [Rule 5A:20(e)] jurisdictional.” Smith, 281
Va. at 468, 706 S.E.2d at 892. Moreover, the Court in Davis cited both Jay and Smith in support of its
holding that the dismissal language of Rule 5:17(c)(1)(iii) implies that insufficient assignments of error
“deprive[] [the] Court of its active jurisdiction to consider the appeal.” Davis, 282 Va. at 339, 717
S.E.2d at 796-97. In light of the Supreme Court’s repeated affirmation of the idea that dismissal implies
lack of jurisdiction, we are obligated to adhere to this principle in our analysis.
8
For purposes of our analysis in Brooks’s appeal, we assume without deciding that his
replacement petition for appeal is properly before us, as it was filed on the seventieth day after the
record was received in the clerk’s office of this Court. See Rule 5A:12(a) (providing that this Court may
extend the deadline for filing a petition for appeal for an additional thirty days beyond the general
forty-day limit).
-6-
As we have already noted, Rule 5A:12(c)(1) requires that “[a]n exact reference to the pages of
the transcript, written statement of facts, or record where the alleged error has been preserved in the trial
court . . . shall be included with each assignment of error.” Rule 5A:12(c)(1) (emphasis added). In
Brooks’s replacement petition for appeal, he included two assignments of error. For his first assignment
of error, that “the trial court erred when it did not suppress the evidence obtained from the search of the
vehicle,” Brooks cited to the portion of the transcript containing the entire hearing on the motion to
suppress as his reference to where the alleged error was preserved below. Likewise, Brooks cited the
portion of the transcript containing the entire trial for his second assignment of error, that “the trial court
erred when it found the circumstantial evidence sufficient to convict [him] of possession of the cocaine.”
In order to ascertain how “exact” a petitioner’s reference needs to be to comply with Rule
5A:12(c)(1), we find it helpful to restate the reason behind requiring an “exact” reference in the first
place. 9 Under Rule 5A:18, “[n]o ruling of the trial court . . . will be considered as a basis for reversal
unless an objection was stated with reasonable certainty at the time of the ruling, except for good cause
shown or to enable the Court of Appeals to attain the ends of justice.”
“The laudatory purpose behind Rule 5A:18 . . . is to require that objections
be promptly brought to the attention of the trial court with sufficient
specificity that the alleged error can be dealt with and timely addressed
and corrected when necessary. The rules promote orderly and efficient
justice and are to be strictly enforced except where the error has resulted
in manifest injustice.”
Redman v. Commonwealth, 25 Va. App. 215, 220, 487 S.E.2d 269, 272 (1997) (omission in original)
(quoting Brown v. Commonwealth, 8 Va. App. 126, 131, 380 S.E.2d 8, 10 (1989)). Furthermore, Rule
5A:18 “places the parties on notice that they must give the trial court the first opportunity to rule on
disputed evidentiary and procedural questions. The purpose of this rule is to allow correction of an error
9
We recognize that appellate courts must have some latitude in defining the term “exact” in
order to ensure that slightly overbroad or erroneous page references do not result in unwarranted
dismissals. Regardless of how liberally one might construe the term, however, we find it difficult to
imagine how it might include a reference to an entire hearing or trial transcript.
-7-
if possible during the trial, thereby avoiding the necessity of mistrials and reversals.” Gardner v.
Commonwealth, 3 Va. App. 418, 423, 350 S.E.2d 229, 232 (1986).
The role of an appellate court is to review alleged errors by the court below, and the intent
behind the requirement for an “exact reference to the pages of the transcript . . . where the alleged error
has been preserved in the trial court . . . from which the appeal is taken,” Rule 5A:12(c)(1), is to
efficiently put this Court on notice of where the party satisfied Rule 5A:18 without requiring that we
engage in what would be akin to a scavenger hunt to find it. Furthermore, compliance with the rule
enables this Court to quickly identify the argument of the petitioner at the trial level and the ultimate
ruling made in the court below.
Satisfying the requirement of Rule 5A:12(c)(1) to provide an exact reference in the record where
the alleged error was preserved is not an onerous burden and can be met by simply citing the page(s) of
the record where the objection or motion below was made and the grounds therefor stated. It is clear
that Brooks did not do so in this case. By citing the entire transcript of the proceedings on the motion to
suppress and the trial below, Brooks attempts to circumvent the obvious purpose behind the rule. While
his broad reference necessarily encompassed his specific objections and the trial court’s rulings, it also
included many pages of testimony that contained no part of any allegation by Brooks of potential error
by the trial court or his supporting legal theory. Thus, instead of enabling this Court to readily and
efficiently identify the points at which he stated his legal position to the trial court, Brooks would
require us to search through the entire proceedings below to identify such points. Indeed, if such broad
references were sufficient, the rule would be superfluous.
As we explained above in our discussion of Chatman’s appeal, the amended mandatory dismissal
language of Rule 5A:12(c)(1), together with the Supreme Court’s recent directive in Davis, requires us
to dismiss a petition for appeal that fails to comply with the requirements of Rule 5A:12(c)(1). Brooks’s
replacement petition for appeal in this case failed to comply with a mandatory requirement of Rule
5A:12(c)(1). Thus, as the Supreme Court has directed, Brooks’s failure to comply with the rule’s
-8-
requirements “deprives this Court of its active jurisdiction to consider the appeal,” Davis, 282 Va. at
339, 717 S.E.2d at 796-97, and requires that we dismiss the appeal, see Rule 5A:12(c)(1)(ii).
As with Chatman’s appeal, because Brooks failed to file a petition for appeal that complied with
the requirements of Rule 5A:12(c)(1), we must vacate the order granting his petition and dismiss his
appeal.
Steve Whitt, No. 0885-11-3
Steve Whitt appeals his two convictions for attempted capital murder of a law enforcement
officer, in violation of Code § 18.2-31. Whitt’s single assignment of error reads as follows: “The circuit
court judge committed error by not dismissing the convictions against the appellant based upon
insufficient evidence as a matter of law.” 10 The Commonwealth moved to dismiss Whitt’s petition for
appeal for failure to include an adequate assignment of error. We granted the petition and directed the
parties to address the following additional question:
Is an assignment of error stating “[t]he circuit court judge committed error
by not dismissing the convictions against the appellant based upon
insufficient evidence as a matter of law,” an insufficient assignment of
error under Rule 5A:12(c)(1)(ii) and, if so, does this Court have active
jurisdiction to consider the appeal in light of Davis v. Commonwealth, 282
Va. 339, 717 S.E.2d 796 (2011)?
Because we now conclude that we are without jurisdiction to consider Whitt’s appeal, we
dismiss it.
The requirements for an acceptable assignment of error are not of recent vintage. It has long
been established that “‘[t]he purpose of assignments of error is to point out the errors with reasonable
certainty in order to direct [the] court and opposing counsel to the points on which appellant intends to
10
Whitt requested permission from this Court to file an amended petition for appeal with a
modified assignment of error. However, he made this request on the seventy-first day after the record
had been filed with this Court. Hence, his request was beyond the time period permitted for filing a
petition for appeal. See Code § 17.1-408 (providing for a potential maximum of seventy days, if the
Court grants an extension of time, for the filing of a petition for appeal); Rule 5A:12(a) (same). Thus,
we consider only his original assignment of error contained in his petition for appeal that was timely
filed.
-9-
ask a reversal of the judgment, and to limit discussion to these points.’” Yeatts v. Murray, 249 Va. 285,
290, 455 S.E.2d 18, 21 (1995) (quoting Harlow v. Commonwealth, 195 Va. 269, 271, 77 S.E.2d 851,
853 (1953)). Consequently, it is the duty of an appellant’s counsel “to ‘lay his finger on the error’ in his
[assignments of error],” Carroll v. Commonwealth, 280 Va. 641, 649, 701 S.E.2d 414, 418 (2010)
(quoting First Nat’l Bank of Richmond v. William R. Trigg Co., 106 Va. 327, 342, 56 S.E. 158, 163
(1907)), and not to invite an appellate court “to delve into the record and winnow the chaff from the
wheat,” Loughran v. Kincheloe, 160 Va. 292, 298, 168 S.E. 362, 364 (1933).
Simply alleging, as Whitt has done here in his assignment of error, that the evidence was
insufficient to support his convictions as a matter of law fails to point out any particular error “with
reasonable certainty.” Rather than laying his finger on the error he wishes us to address, Whitt’s counsel
has essentially invited us “to delve into the record and winnow the chaff from the wheat.” An
assignment of error that simply alleges insufficient evidence is broad enough to encompass numerous
discrete and unrelated arguments based on the various elements of any given offense (e.g., lack of the
requisite intent to commit the crime or misidentification of the perpetrator). It would even permit an
appellant to include an evidentiary argument. Rushing v. Commonwealth, 284 Va. 270, 277-78, 726
S.E.2d 333, 338 (2012) (holding that an argument regarding the admissibility of evidence may properly
be made as the reason why the evidence is insufficient). But see John Crane, Inc. v. Hardick, 283 Va.
358, 376, 722 S.E.2d 610, 620 (2012) (recognizing that “whether evidence is admissible is a separate
issue from whether that evidence is sufficient” and thus holding that an argument only attacking the
sufficiency of the evidence does not adequately support an assignment of error challenging only the
admissibility of evidence).
Were we to grant a petition for appeal containing an assignment of error that only generally
alleged insufficient evidence, an appellant, in his brief on the merits, could add completely new
arguments not raised in his petition, as long as he had preserved such arguments below. Such
maneuvers would require this Court to address arguments that it never intended to address when
-10-
granting the petition. Cf. Hamilton Dev. Co. v. Broad Rock Club, Inc., 248 Va. 40, 43-44, 445 S.E.2d
140, 142-43 (1994) (refusing to consider an argument encompassed by the revised language of an
assignment of error that the appellant had modified after his petition for appeal had been granted).
Thus, Whitt’s assignment of error, which alleges only a general insufficiency of the evidence as
a matter of law, fails to meet the long-established standard for assignments of error. Accordingly, his
petition violated Rule 5A:12(c)(1)’s requirement that a petition “shall list, clearly and concisely and
without extraneous argument, the specific errors in the rulings below upon which the party intends to
rely.” Rule 5A:12(c)(1) (emphasis added); see Commonwealth Transp. Comm’r v. Target Corp., 274
Va. 341, 352-53, 650 S.E.2d 92, 98 (2007) (holding that an assignment of error stating, “The trial court
erred in failing to find that the jury commissioners’ report is contrary to the evidence at trial,” violated
Rule 5:17(c)).
The Supreme Court has traditionally adjudged imprecise assignments of error to be in violation
of the procedural requirements for assignments of error. See, e.g., Harlow, 195 Va. at 272-73, 77 S.E.2d
at 853-54 (collecting and discussing cases). What the Supreme Court has done recently in Davis is to
clarify that insufficient assignments of error deprive an appellate court of its active jurisdiction over an
appeal. As we have explained above in our discussion of Chatman’s appeal, the Supreme Court’s
decision in Davis requires us to dismiss petitions for appeal that fail to comply with the requirements of
Rule 5A:12(c)(1).
Therefore, as with the other two appeals we have addressed in this order, because Whitt failed to
timely file a petition for appeal that complied with the requirements of Rule 5A:12(c)(1), we must
vacate the order granting his petition and dismiss his appeal.
Elder, J., concurring, in part, and dissenting, in part.
Although I admire the efforts of the majority to discern and comply with the Supreme Court’s
relevant holdings in this area, I believe it applies these holdings and the applicable rules more rigidly
-11-
than necessary. In my view, the Supreme Court’s relevant decisions leave room for the conclusion that
this Court obtains active jurisdiction to adjudicate an appeal when the appellant timely files a petition
that substantially complies with Rule 5A:12(c). Because I believe a more lenient interpretation of the
Rules better serves public policy, I would conclude we obtain active jurisdiction over a substantially
compliant petition for appeal and would continue our practice of allowing a reasonable time for the
correction of minor non-jurisdictional deficiencies, unless and until the Supreme Court provides
unequivocally to the contrary. Thus, I concur in the majority’s decision vacating the order granting the
petition for appeal of Whitt and dismissing that appeal. However, as to the appeals of Brooks and
Chatman, I would conclude dismissal is not required and would affirm the challenged convictions.
Thus, I respectfully dissent from the majority’s holdings as to Brooks and Chatman.
I. APPLICABLE CASE PRECEDENT & RULES OF COURT
As the majority acknowledges, supra at page 4, prior to the instant decision, “it has often been
this Court’s practice to permit amendments to non-conforming petitions for appeal after the filing
deadline has passed.” Prior to the amendment of the Rules in 2010, the Supreme Court’s decisions
supported this practice. See Jay v. Commonwealth, 275 Va. 510, 520, 659 S.E.2d 311, 317 (2008)
(recognizing this Court may “require an appellant to re-submit [a] petition for appeal” when the Court
otherwise has jurisdiction but the petition fails to comply with a formatting rule), cited with approval on
other grounds in Davis v. Commonwealth, 282 Va. 339, 340, 717 S.E.2d 796, 797 (2011), and Smith v.
Commonwealth, 281 Va. 464, 468, 706 S.E.2d 889, 892 (2011); Moore v. Commonwealth, 276 Va. 747,
753, 668 S.E.2d 150, 153 (2008) (recognizing Jay as holding that whereas the time for filing a petition
for appeal under Rule 5A:3(a) is jurisdictional, the requirements of Rule 5A:12(c) “have been expressly
held to be not jurisdictional”); Riner v. Commonwealth, 40 Va. App. 440, 453-54, 579 S.E.2d 671,
678-79 (2003) (allowing an appellant, with leave of court, after the initial petition was filed and granted
but before the appeal was heard on the merits, to expand the scope of the questions presented despite
-12-
language in Rule 5A:12(c) requiring that “the petition for appeal shall contain the questions presented”
(emphasis added)), aff’d, 268 Va. 296, 601 S.E.2d 55 (2004).
Only four months before the amendments to the Rules took effect, the Supreme Court considered
“what is required for an appellate court to acquire [active] jurisdiction over a case that falls within its
potential jurisdiction.” Ghameshlouy v. Commonwealth, 279 Va. 379, 390, 698 S.E.2d 698, 703 (2010)
(emphasis added). It noted in Ghameshlouy that “filing a timely notice of appeal is a mandatory
prerequisite to an appellate court acquiring jurisdiction over a case.” Id. at 390, 689 S.E.2d at 703-04;
see also Wellmore Coal Corp. v. Harman Mining Corp., 264 Va. 279, 568 S.E.2d 671 (2002) (holding
notice of appeal filed pursuant to Rule 5:9(a) was invalid because it was signed only by out-of-state
counsel and not by associated local counsel, as required by Rule 1A:4(2), and that because that rule
expressly defined a notice lacking such a signature as “invalid,” meaning “not legally binding” or
“ha[ving] no legal effect,” the Court did not obtain jurisdiction over the appeal during the thirty-day
appeal period and, thus, that the attempted amendment did not revive the appeal). However, it explained
further that
not every requirement of the rule prescribing when and how a notice of
appeal is to be prepared and filed implicates the court’s initial acquisition
of jurisdiction. Thus, we have never required that a notice of appeal be
precise, accurate, and correct in every detail before the appellate court can
acquire jurisdiction over the case in which the notice is filed. To the
contrary, both this Court and the Court of Appeals have consistently held
that most statutory and rule-based procedural prerequisites for the valid
exercise of jurisdiction by a court may be waived, even when couched in
mandatory terms by the language of the statute or rule.
Ghameshlouy, 279 Va. at 391, 689 S.E.2d at 704. In support of that principle, the Court cited with
approval both its decision in Jay and the Court of Appeals’ decision in Riner, which it summarized as
“holding that Rule 5A:12 was not jurisdictional and, thus, did not bar the Court from granting an
appellant leave to amend and enlarge the questions presented in his petition for appeal.” Ghameshlouy,
279 Va. at 391-92, 689 S.E.2d at 704 (citing Riner, 40 Va. App. at 452-53, 579 S.E.2d at 677-78). With
those principles in mind, the Court determined “the notice of appeal timely filed by Ghameshlouy . . . ,
-13-
although defective[ and ‘not a model of clarity’], was sufficient to cause the potential jurisdiction of the
Court of Appeals to consider such appeals to ripen into active jurisdiction over this specific case.” Id. at
394, 698 S.E.2d at 705.
Since the amendments to the Rules took effect in 2010, the Supreme Court has issued two
relevant decisions in which it cited liberally to its pre-amendment case decisions. In Smith v.
Commonwealth, 281 Va. 464, 706 S.E.2d 889 (2011), which involved a transcript filed eight days late
under Rule 5A:8, the Court reiterated as follows:
In Ghameshlouy, we identified compliance with the appellate rule
requiring the timely filing of a notice of appeal, Rule 5A:6, as an element
which must be present to transform an appellate court’s potential
jurisdiction to proceed to judgment into active jurisdiction to do so. This
rule demands mandatory compliance and is “a prerequisite to an appellate
court’s obtaining and exercising jurisdiction over a case.” [Ghameshlouy,
279 Va.] at 391, 689 S.E.2d at 704. Similarly, noncompliance with the
rule involving the timely filing of a petition for appeal and including
assignments of error in that petition deprive[s] the appellate court of active
jurisdiction over the appeal. Rule 5:17. Not all procedural rules, however,
are treated as mandatory or jurisdictional, carrying a consequence of
dismissal for noncompliance. Jay involved the dismissal of an appeal by
the Court of Appeals for noncompliance with the rule requiring
presentation of arguments on brief, Rule 5A:20(e). We reversed the Court
of Appeals’ decision, holding that, by dismissing the appeal rather than
denying it, the Court of Appeals erroneously rendered the rule
jurisdictional. Noncompliance with that rule may have prevented the
Court of Appeals from resolving the issue due to waiver, but it did not
defeat the active jurisdiction of the Court of Appeals to proceed to
judgment in the appeal.
In our view, the timely filing requirement of Rule 5A:8 [for a
transcript or statement of facts], like the rule at issue in Jay, is not a
mandatory procedural rule that is necessary to enable the potential
jurisdiction of the appellate court to become active jurisdiction and
proceed to a valid decree or disposition. . . . Elements required to ripen
the appellate court’s potential jurisdiction into active jurisdiction are
elements that must be applicable in every appeal; they cannot be [rules
that may be] selectively applied depending on the issues presented in the
appeal.
Furthermore, cases contain issues that are not resolved on the
merits in the appeal because of noncompliance with the appellate rules,
including the rule relating to the filing of transcripts. Examples include
the failure to present argument on an assigned error, the failure to proffer
certain excluded testimony that is the subject of an appeal, or the failure to
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include a rejected jury instruction. In these circumstances, we consider
the issue waived and resolve the case on the basis of those issues properly
presented to us. We do not treat the absence of these elements as
defeating our ability to exercise active jurisdiction over the appeal, even
though they may preclude us from resolving the issue. Indeed, included
within appellate review of a case is consideration of whether an issue is
defaulted or waived on appeal.
Id. at 467-69, 706 S.E.2d at 892 (citations omitted) (emphasis added).
In Davis v. Commonwealth, 282 Va. 339, 717 S.E.2d 796 (2011), the Court applied Smith’s
theory of active jurisdiction to Rule 5:17, dealing with the phrasing of an appellant’s assignments of
error. Before the Court of Appeals, Davis argued that the trial court erred in accepting his guilty plea.
The Court of Appeals denied the appeal on the ground that his guilty plea waived all non-jurisdictional
defects. In his appeal to the Supreme Court, Davis again assigned as error the trial court’s acceptance of
his guilty plea and did not assign error to the Court of Appeals’ holding that his guilty plea waived
non-jurisdictional defects. The Supreme Court held as follows:
The Rules of the Supreme Court of Virginia have long provided that in
appeals from the Court of Appeals, this Court will consider “only
assignments of error relating to assignments of error presented in, and to
actions taken by, the Court of Appeals . . . .” Rule 5:17(c)(1)(ii).
Effective July 1, 2010, subparagraph (c)(1)(iii) was added to Rule 5:17.
That amendment provides that an assignment of error that does not
address a finding or ruling of a “[t]ribunal from which an appeal is taken”
is insufficient and that “[i]f the assignments of error are insufficient, the
petition for appeal shall be dismissed.” Rule 5:17(c)(1)(ii). By
prescribing dismissal of the appeal, this amendment established that the
inclusion of sufficient assignments of error is a mandatory procedural
requirement and that the failure to comply with this requirement deprives
this Court of its active jurisdiction to consider the appeal. Smith[, 281 Va.
at 467-68, 706 S.E.2d at 891-92]; Jay[, 275 Va. at 518-19, 659 S.E.2d at
315-16].
Id. at 339-40, 717 S.E.2d at 796-97 (emphasis added). Because Davis’ sole assignment of error “[did]
not address any finding or ruling of the Court of Appeals,” the Court dismissed the appeal. Id. at 340,
717 S.E.2d at 797 (citing Rule 5:17(c)(1)(iii)).
The majority concludes the holding in Davis mandates dismissal of any petition which does not
fully comply with Rule 5A:12(c)(1)’s requirements before the time limits of that rule and Code
-15-
§ 17.1-408 expire. 11 Based on the applicable precedent and rules, I would reach a somewhat different
conclusion for two reasons.
First, Davis involved Rule 5:17(c), applicable to proceedings in the Supreme Court, which states
that “If the assignments of error are insufficient, the petition for appeal shall be dismissed.” It was in
this context that the Court held dismissal was required in Davis. However, the similar rule applicable in
the Court of Appeals, Rule 5A:12(c), contains additional language not present in Rule 5:17(c) and
provides that “If the assignments of error are insufficient or otherwise fail to comply with the
requirements of this Rule, the petition for appeal shall be dismissed.” Rule 5A:12(c) (emphasis added).
Thus, the Supreme Court, in deciding Davis, simply did not address the meaning of this additional
language in Rule 5A:12(c) and whether it mandates dismissal of an otherwise substantially compliant
petition. See Rule 5:17(c) (providing prior to the 2010 amendment that “only assignments of error
relating to questions presented in, or actions taken by, the Court of Appeals may be included in the
petition for appeal to this court” and that “the appeal will be dismissed” only “[i]f the petition for appeal
does not contain assignments of error” or does not state “in what respect the decision of the Court of
Appeals involves (1) a substantial constitutional question as a determinative issue, or (2) matters of
significant precedential value”).
Second, Davis addressed deficiencies in the granted assignment of error detected at the merits
stage of the proceedings. It did not address the Court’s discretion, at the petition stage, to allow an
appellant a reasonable amount of time to remedy non-jurisdictional deficiencies in a timely filed petition
11
The Commonwealth concedes this Court has both the ability to exercise its inherent authority
to require a party to correct a pleading and authority pursuant to Code § 17.1-408 and Rule 5A:12(a) to
extend the time in which a conforming petition may be filed. Code § 17.1-408 and Rule 5A:12(a)
authorize a thirty-day extension of the forty-day deadline for filing a petition for appeal, which allows us
in our discretion to consider as timely a petition filed within seventy days after receipt of the record in
the Court of Appeals. See Code § 17.1-408 (not specifying by when a motion for extension for filing a
petition must be filed or granted); Rule 5A:3(c)(2) (providing a motion for extension for filing a petition
pursuant to Rule 5A:12(a) is timely “if filed . . . within the specified extension period”). I agree with
this concession as far as it goes but would hold, as discussed infra in the text, that our authority extends
further.
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which contains sufficient assignments of error and otherwise substantially complies with the applicable
rule. See Nelms v. Vaughan, 84 Va. 696, 700, 5 S.E. 704, 706 (1888) (providing that “whether [a]
statute [using the word ‘shall’ is] mandatory or not depend[s] upon whether the thing directed to be done
[is] the essence of the thing required” and that even where a statute is mandatory, if its provisions
“hav[e] been substantially complied with in all essential particulars, . . . there can be no doubt . . . that
the matter is within the jurisdiction of [the Court]” (emphases added)).
We must presume the Supreme Court is aware of its own decisions. Cf. Weathers v.
Commonwealth, 262 Va. 803, 805, 553 S.E.2d 729, 730 (2001) (“When the General Assembly acts in an
area in which one of its appellate courts already has spoken, it is presumed to know the law as the court
has stated it and to acquiesce therein, and if the legislature intends to countermand such appellate
decision it must do so explicitly.”). When the Supreme Court amended the Rules of Court to provide
that a petition “shall be dismissed” based on certain deficiencies and applied Rule 5:17 in Davis, it
provided no indication that it meant to deprive this Court of the opportunity, in its discretion, to give a
party who had substantially complied with Rule 5A:12(c) the chance to submit an amended petition to
correct any non-jurisdictional deficiencies in order to comply fully with the rule. See Jay, 275 Va. at
520, 659 S.E.2d at 317 (recognizing in a pre-amendment case that this Court may “require an appellant
to re-submit [a] petition for appeal” when the Court otherwise has jurisdiction but the petition fails to
comply with a formatting rule), cited with approval on other grounds in Davis, 282 Va. at 340, 717
S.E.2d at 797, and Smith, 281 Va. at 468, 706 S.E.2d at 892; Yarbrough v. Commonwealth, 258 Va.
347, 361, 519 S.E.2d 602, 608 (1999) (recognizing the “inherent authority [of the Court] to administer
cases on its docket”); see also Riner, 40 Va. App. at 454, 579 S.E.2d at 679 (relying in part on
Yarbrough’s recognition of inherent authority in support of its interpretation of prior Rule 5A:12 to
allow the Court, in its discretion, to expand an otherwise timely filed and properly constituted petition
for appeal by adding an additional assignment of error), quoted with approval in Ghameshlouy, 279 Va.
at 391-92, 689 S.E.2d at 704, and Jay, 275 Va. at 518, 659 S.E.2d at 315. Thus, as to non-jurisdictional
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deficiencies, I would hold Rule 5A:12(c)(1)’s dismissal requirement comes into play only after this
Court has had the opportunity, in its discretion, to direct an appellant to correct such deficiencies in a
substantially compliant petition and resubmit it by a date certain, even if that date falls outside the filing
deadlines allowed by the applicable statutes and rules.
Whether to act sua sponte to notify an appellant of such a deficiency and give the appellant an
opportunity to correct it rests within the sound discretion of the Court. An appellant who submits a
deficient petition “acts at his peril” because the Court is compelled neither to examine the petition to
identify any errors at that stage of the proceedings nor “to grant . . . leave” to correct any errors it does
identify, cf. Riner, 40 Va. App. at 454, 579 S.E.2d at 678 (granting discretionary leave to enlarge a
petition to add an additional issue). 12 But where the Court identifies such an error and the appellant
corrects it within the time allowed by the Court, I would hold the petition meets the requirements of
Rule 5A:12(c) and dismissal is not required.
This approach would provide a more efficient use of judicial and other resources by preventing
the need for an appellant to seek a delayed appeal. See Code § 19.2-321.1 (permitting this Court to
grant a motion for a delayed appeal “[w]hen, due to the error, neglect, or fault of counsel representing
the appellant, or of the court reporter, or of the circuit court or an officer or employee thereof, an appeal
in a criminal case has . . . been dismissed for failure to adhere to proper form, procedures, or time limits
in the perfection of the appeal” if certain other requisites are met). The filing of a delayed appeal
increases the administrative burdens on this Court and the local Commonwealth’s Attorney or Attorney
General and may also require the payment of additional fees to defense counsel.
In sum, under my analysis, whether dismissal is required under Rule 5A:12(c) turns on whether
the deficiencies in the petition were of sufficient significance to prevent this Court from obtaining active
jurisdiction over the appeals.
12
Of course an appellant remains free to submit a corrected petition without leave of Court any
time within the filing period prescribed in the applicable statute and rule. See Code § 17.1-408; Rule
5A:12(a).
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II. ANALYSIS
A. Steve Whitt, No. 0885-11-3
In Whitt’s timely petition for appeal, he included a single assignment of error: “The circuit court
judge committed error by not dismissing the convictions against the appellant based on insufficient
evidence as a matter of law.” Whitt’s argument in his petition challenged the sufficiency of the evidence
to prove two specific elements of the crime of attempted capital murder of a police officer—intent to kill
and an act in furtherance of the attempt.
The Commonwealth’s attorney filed a brief in opposition in which he moved to dismiss the
petition as failing to comply with Rule 5A:12(c)(1)(ii), noting that although Whitt challenged only two
elements of the offense in his written argument, his assignment of error was not so limited.
On the seventy-first day after our receipt of the record, Whitt filed a response to the motion to
dismiss in which he contended his petition was adequate. In the alternative, he moved the Court to
allow him to amend his petition to substitute the following assignment of error: “The circuit court judge
committed error by not dismissing the convictions against the appellant based upon insufficient evidence
as a matter of law regarding the elements of intent and overt, but ineffectual action.”
Without ruling on the motion to dismiss or Whitt’s motion to amend, a judge of this Court
granted his petition on his original assignment of error and directed the parties to address, in addition,
whether Whitt’s original assignment of error was insufficient under Rule 5A:12(c)(1)(ii) and, if so,
whether this Court had active jurisdiction to consider the appeal.
On these facts, I agree dismissal is mandated by Rule 5A:12(c)(1)(ii), which provides “[a]n
assignment of error . . . which merely states that the judgment or award is contrary to the law and the
evidence is not sufficient” and that “[i]f the assignments of error are insufficient . . . , the petition for
appeal shall be dismissed.” See Davis, 282 Va. at 339-40, 717 S.E.2d at 796-97 (holding similar Rule
5:17 “establish[es] the inclusion of sufficient assignments of error is a mandatory procedural
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requirement and that the failure to comply with this requirement deprives this Court of its active
jurisdiction to consider the appeal”).
Simply alleging, as Whitt does in his original assignment of error, that the evidence was
insufficient to support his convictions as a matter of law fails to point out any particular error “‘with
reasonable certainty,’” Yeatts, 249 Va. at 290, 455 S.E.2d at 21 (quoting Harlow v. Commonwealth, 195
Va. 269, 271, 77 S.E.2d 851, 853 (1953)). Although Whitt moved to amend his assignment of error, he
did so beyond the time period specified in Code § 17.1-408 and Rule 5A:12(a) for the filing of his
petition. Whitt’s granted assignment of error, which alleged only general insufficiency of the evidence
as a matter of law, fails to meet the long-established standard for assignments of error. Thus, his
petition violated Rule 5A:12(c)(1)’s requirement that a petition “shall list, clearly and concisely and
without extraneous argument, the specific errors in the rulings below upon which the party intends to
rely.” Rule 5A:12(c)(1) (emphasis added); see Commonwealth Transp. Comm’r v. Target Corp., 274
Va. 341, 352-53, 650 S.E.2d 92, 98 (2007). The Supreme Court’s decision in Davis, coupled with the
2010 amendments to the Rules of Court, provide that insufficient assignments of error deprive an
appellate court of its active jurisdiction over an appeal.
Thus, I join the majority’s decision vacating the order granting Whitt’s petition and dismissing
his appeal.
B. Donte Lavell Brooks, No. 2708-10-1
Brooks challenges his conviction for possessing cocaine.
1. Procedural Issues
Brooks filed a timely petition for appeal contending the trial court erroneously denied his motion
to suppress and found the evidence was sufficient to prove possession of cocaine. This Court then
notified him that his petition for appeal did not comply with Rule 5A:12(c)(1) because “[t]he
assignments of error included in the petition do not contain an exact reference to the pages of the
transcript, written statement of facts, or record where the alleged error has been preserved in the trial
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court from which the appeal is taken.” Brooks submitted a replacement petition within ten days as
directed by the Court, which was also within seventy days of the date the record was received by the
Court of Appeals, as permitted under Code § 17.1-408 and Rule 5A:12(a). Thereafter, we granted
Brooks’ petition for appeal and directed that the parties address, in addition, whether the petition should
be dismissed under Rule 5A:12 due to his failure to include exact page references showing where he
preserved the alleged errors in the trial court.
Assuming without deciding Brooks’ page number citations in his replacement petition were too
expansive to constitute “[a]n exact reference” to the pages of the record on which the assignments were
preserved, I would hold that this deficiency does not mandate dismissal based on a lack of jurisdiction.
Rule 5A:12(c) provides that “[a]n exact reference to the pages of the transcript, written statement of
facts, or record where the alleged error has been preserved in the trial court or other tribunal from which
the appeal is taken shall be included with each assignment of error.” Rule 5A:12(c)(1) (emphasis
added). The fact that the rule requires page numbers to be provided “with” each assignment of error
clearly distinguishes the two: the required page number reference is not part of the assignment of error
to which it pertains. Thus, an inadequacy in citation to page numbers showing preservation is not
subject to the holding in Davis that Rule 5A:12(c)(1)(ii), by analogy to Rule 5:17(c), mandates dismissal
for lack of jurisdiction where “the assignments of error are insufficient.” To the extent Brooks’ failure
to cite to the precise page numbers showing preservation constitutes “otherwise fail[ing] to comply with
the requirements of this Rule,” as contained in the second clause of Rule 5A:12(c)(1)(ii), I would
conclude the Supreme Court has not held this failure deprives the Court of active jurisdiction over the
appeal. See Davis, 282 Va. at 339-40, 717 S.E.2d at 796-97 (addressing the meaning of Rule 5:17,
applicable to the Supreme Court, requiring that “[i]f the assignments of error are insufficient, the
petition for appeal shall be dismissed,” and not including the additional language present in Rule
5A:12(c), “or otherwise fail to comply with the requirements of this Rule”).
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Thus, I would conclude the Court obtained active jurisdiction to consider the appeal. I would
next apply the holding in Jay, 275 Va. at 520, 659 S.E.2d at 317, to Brooks’ imprecise page number
citations to determine “whether [the] failure to strictly adhere to the requirements” of the portion of Rule
5A:12(c)(1) requiring “[a]n exact reference to the page(s) of the transcript . . . where the alleged error
has been preserved” is “significant,” as required to support a conclusion that Brooks waived his
assignments of error. I would conclude Brooks’ page references here provide sufficient specificity to
permit us to review the issues without sacrificing judicial economy. As to the assignment of error
challenging the trial court’s denial of his suppression motion, Brooks cites the entire transcript from the
suppression hearing. However, that transcript is only thirty-seven pages long; the eight pages of his
attorney’s argument, which are contained at the beginning and ending of the passage he cites, are readily
discernible as a result of his page citation. Similarly, as to his assignment of error challenging the
sufficiency of the evidence, Brooks cites twenty-eight pages of the trial transcript, including four pages
of Brooks’ attorney’s argument as well as Brooks’ own testimony, which supports his motion. Although
those twenty-eight pages also include the Commonwealth’s rebuttal evidence, the four pages of Brooks’
counsel’s argument preserving the sufficiency issue are readily discernible as a result of his page
citation. Thus, I would conclude Brooks’ violation of the rule was not significant and that no waiver
occurred, and I would proceed to address the merits of his appeal.
2. Merits
Brooks argues the denial of his motion to suppress was error and that the evidence was
insufficient to support his conviction.
a. Motion to Suppress
Brooks concedes Officer Johnson was justified in conducting a traffic stop but contends the
search of his car for weapons violated his Fourth Amendment rights.
On appeal of a ruling on a motion to suppress, “we are bound by the trial court’s findings of
historical fact unless ‘plainly wrong’ or without evidence to support them[,] and we give due weight to
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the inferences drawn from those facts by resident judges and local law enforcement officers.” McGee v.
Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc); see McCain v.
Commonwealth, 261 Va. 483, 490, 545 S.E.2d 541, 545 (2001). However, we review de novo the trial
court’s application of defined legal standards, such as whether the police had reasonable suspicion or
probable cause for a search or seizure. Ornelas v. United States, 517 U.S. 690, 699 (1996). Our review
of the existence of probable cause or reasonable suspicion involves application of an objective rather
than subjective standard. See, e.g., Whren v. United States, 517 U.S. 806, 812-13 (1996).
“In Terry v. Ohio, 392 U.S. 1 (1968), the United States Supreme Court approved ‘a protective
search for weapons in the absence of probable cause to arrest . . . when [a police officer] possesses an
articulable suspicion that an individual is armed and dangerous.’” Pierson v. Commonwealth, 16
Va. App. 202, 204, 428 S.E.2d 758, 759 (1993) (quoting Michigan v. Long, 463 U.S. 1032, 1034
(1983)). The holding in Long extended a Terry search for weapons into those areas where the suspect
might reach for weapons, for example, the passenger compartment of the suspect’s vehicle. Because of
the “‘inordinate risk confronting an officer as he approaches a person seated in an automobile,’” Long,
463 U.S. at 1048 (quoting Pennsylvania v. Mimms, 434 U.S. 106, 110 (1977)), if a police officer
“possesses a reasonable belief based on ‘specific and articulable facts which . . . reasonably warrant’ the
officer in believing the suspect is dangerous and . . . may gain immediate control of weapons,” “the
officer may conduct a . . . frisk of the suspect himself and search the accessible areas of the passenger
compartment of the car in which a weapon might be hidden.” Stanley v. Commonwealth, 16 Va. App.
873, 875, 433 S.E.2d 512, 514 (1993) (quoting Long, 463 U.S. at 1049-50). An officer need only
believe the suspect reasonably might have a weapon and gain control of it. The degree of certainty
required by the reasonable suspicion standard is “considerably [lower] than proof of wrongdoing by a
preponderance of the evidence, and obviously less demanding than that for probable cause.” Perry v.
Commonwealth, 280 Va. 572, 581, 701 S.E.2d 431, 436 (2010).
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In this case, Officer Johnson observed Brooks as he reached toward the back seat, then to the
glove compartment. Despite Officer Johnson’s requests for Brooks to look in the glove compartment for
the vehicle registration, Brooks refused. Then, after Officer Johnson walked away, Brooks moved
toward the glove compartment again. I would hold this “suspicious and furtive conduct” by Brooks
created an objectively reasonable “concern for [Officer Johnson’s] security[] and [that] he acted
reasonably and appropriately to minimize the threat.” Pierson, 16 Va. App. at 205, 428 S.E.2d at 760;
see Whren, 517 U.S. at 814.
b. Sufficiency of the Evidence
Brooks also challenges the sufficiency of the evidence to prove he constructively possessed the
cocaine found in the car’s glove compartment.
On appeal, “we review the evidence in the light most favorable to the Commonwealth, granting
to it all reasonable inferences fairly deducible therefrom.” Martin v. Commonwealth, 4 Va. App. 438,
443, 358 S.E.2d 415, 418 (1987).
To support a conviction based upon constructive possession, “the Commonwealth must point to
evidence of acts, statements, or conduct of the accused or other facts or circumstances which tend to
show that the defendant was aware of both the presence and character of the substance and that it was
subject to his dominion and control.” Powers v. Commonwealth, 227 Va. 474, 476, 316 S.E.2d 739, 740
(1984). “The Commonwealth is not required to prove that there is no possibility that someone else may
have planted, discarded, abandoned or placed the [contraband] . . . .” Brown v. Commonwealth, 15
Va. App. 1, 10, 421 S.E.2d 877, 883 (1992) (en banc).
Ownership or occupancy of a vehicle . . . where . . . [contraband is] found
is a circumstance that may be considered together with other evidence
tending to prove that the owner or occupant exercised dominion and
control over items in the vehicle . . . in order to prove that the owner or
occupant constructively possessed the contraband . . . . Furthermore,
proof that a person is in close proximity to contraband is a relevant fact
that, depending on the circumstances, may tend to show that, as an owner
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or occupant . . . of a vehicle, the person necessarily knows of the presence,
nature and character of a substance that is found there.
Burchette v. Commonwealth, 15 Va. App. 432, 435, 425 S.E.2d 81, 83 (1992).
Brooks was alone in the vehicle where the drugs were found in the glove box, within Brooks’
arm’s reach. Brooks was in an area known for a high incidence of drug activity. Brooks’ repeated
reaching into and toward the glove box, as well as his refusal to open the glove box in front of the
officer, demonstrated his knowledge that contraband was located there. No evidence tended to prove the
scale bearing cocaine residue was left in the glove box by another person. Accordingly, I would hold
the evidence was sufficient to prove beyond a reasonable doubt that Brooks knew of the cocaine in the
glove compartment, that it was subject to his dominion and control, and that he was guilty of the charged
offense.
Thus, I would affirm Brooks’ conviction.
C. Roberto Tyrone Chatman, No. 0858-11-2
Chatman appeals his convictions for aggravated malicious wounding and abduction. 13
1. Procedural Issues
Chatman filed a timely petition for appeal challenging the sufficiency of the evidence to support
his convictions on various specific grounds. His petition included a heading entitled “Assignment of
Error,” with three numbered paragraphs worded as questions. His petition failed to include “with each
assignment of error” “[a]n exact reference to the pages of the transcript, written statement of facts, or
record where the alleged error has been preserved in the trial court,” as required by Rule 5A:12(c)(1).
The clerk’s office of this Court then notified Chatman that it interpreted his petition as failing to comply
with Rule 5A:12(c)(1) because it did not contain assignments of error, which it indicated were
affirmative statements rather than questions. The notice further indicated the petition failed to comply
13
Chatman was also convicted of assault and battery of a family member, but he has not
assigned error to anything pertinent to that conviction on appeal.
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with that rule because it did not include “an exact reference to the pages of the transcript, written
statement of facts, or record where the alleged error has been preserved in the trial court.”
Chatman then filed a replacement petition for appeal outside the seventy-day time frame for
filing allowed by Code § 17.1-408 and Rule 5A:12(a), although within the time ordered by this Court.
That petition contained assignments of error worded as affirmative statements, but the petition still
lacked page references indicating where in the record each assignment of error had been preserved. This
Court issued an order granting Chatman an additional period of ten days in which to submit a
replacement petition. Chatman then filed a second replacement petition, which contained the “exact
[page] reference[s]” required. Again, this filing was outside the seventy-day period allowed by Code
§ 17.1-408 and Rule 5A:12(a) but within the time ordered by this Court.
We then granted Chatman’s petition for appeal and directed the parties to address whether the
Court had active jurisdiction to consider the appeal in light of Chatman’s failure in his original and only
timely filed petition to include an exact reference to the pages of the transcript, written statement of
facts, or record where the alleged error was preserved in the trial court, as required by Rule 5A:12(c)(1).
The Commonwealth, in its brief on the merits, also raised the issue of Chatman’s failure in his original
and only timely filed petition to word his assignments of error as affirmative statements rather than
questions.
I would hold Chatman’s failure in his original petition to cite the page numbers on which the
alleged errors were preserved does not mandate dismissal based on a lack of jurisdiction. As discussed
supra, in Part II.B.1., the fact that Rule 5A:12(c) requires page numbers to be provided “with” each
assignment of error clearly distinguishes the two: the required page number reference is not part of the
assignment of error to which it pertains. Thus, an inadequacy in citation to page numbers showing
preservation is not subject to the provision of Rule 5A:12(c)(1)(ii) mandating dismissal for lack of
jurisdiction where “the assignments of error are insufficient.” To the extent Chatman’s failure to cite to
the page numbers showing preservation constitutes “otherwise fail[ing] to comply with the requirements
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of this Rule,” as required by the second clause of Rule 5A:12(c)(1)(ii), I would conclude, as above, that
the Supreme Court has not held this failure deprives the Court of active jurisdiction over the appeal. See
Davis, 282 Va. at 339-40, 717 S.E.2d at 796-97 (addressing the meaning of Rule 5:17, applicable to the
Supreme Court, requiring that “[i]f the assignments of error are insufficient, the petition for appeal shall
be dismissed,” and not including the additional language present in Rule 5A:12(c), “or otherwise fail to
comply with the requirements of this Rule”).
Further, nothing in Rule 5A:12(c) requires that assignments of error must be worded in the
affirmative. The rule provides only that “[u]nder a heading entitled ‘Assignments of Error,’ the petition
shall list, clearly and concisely and without extraneous argument, the specific errors in the rulings below
upon which the party intends to rely.” Rule 5A:12(c)(1). I am unaware of any precedent requiring that
assignments of error must be worded in the affirmative in order to invoke the Court’s jurisdiction.
Compare Rule 5:17 (prior to 2010 amendment) (requiring both assignments of error and questions
presented, which would support the inference that, at that time, questions presented were questions
whereas assignments of error, referred to then, as now, as “the specific errors in the rulings below upon
which the party intends to rely,” were intended to be affirmative assertions).
Thus, I would conclude the Court obtained active jurisdiction to consider the appeal and had the
discretion to grant Chatman a reasonable time in which to correct the non-jurisdictional deficiencies in
his petition.
2. Merits
On appeal, Chatman contends that the evidence was insufficient to prove abduction and
malicious wounding.
The convictions stem from Chatman’s attack on his wife, in which he hit her repeatedly with his
closed fist, knocking her to the floor, and then hit her repeatedly with a hot clothes iron. Throughout the
next day, the victim begged Chatman to obtain medical help for her, as the attack had rendered her
unable to see and physically unable to leave the house or otherwise summon help herself. Chatman
-27-
failed to get her any assistance, disabled the phone lines, and stayed in the house with her the entire day.
Two days after the attack, Chatman left the house and called 911.
a. Abduction
Chatman argues the evidence was insufficient to support his abduction conviction because any
detention of the victim was incidental to the assault. He contends that no separate abduction took place
because no evidence indicated he held the victim against her will. “[W]e review the evidence in the
light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible
therefrom.” Martin, 4 Va. App. at 443, 358 S.E.2d at 418.
Applying constitutional principles of the Double Jeopardy Clause of the Fifth Amendment to the
United States Constitution, the Supreme Court has held that
one accused of abduction by detention and another crime involving
restraint of the victim, both growing out of a continuing course of conduct,
is subject upon conviction to separate penalties for separate offenses only
when the detention committed in the act of abduction is separate and apart
from, and not merely incidental to, the restraint employed in the
commission of the other crime.
Brown v. Commonwealth, 230 Va. 310, 314, 337 S.E.2d 711, 713-14 (1985).
At trial, the Commonwealth argued that the abduction took place after the beating, when the
victim was unable to leave and Chatman refused to take her to a hospital or otherwise get help.
Therefore, the conduct underlying the abduction conviction continued well after the malicious wounding
and was not incidental to it. See Hoyt v. Commonwealth, 44 Va. App. 489, 494, 605 S.E.2d 755, 757
(2004) (listing factors used to determine whether an abduction is incidental to another crime).
As for the sufficiency of the evidence to prove Chatman’s intent to abduct the victim, Code
§ 18.2-47(A), under which Chatman was convicted, provides:
Any person who, by force, intimidation or deception, and without legal
justification or excuse, seizes, takes, transports, detains or secretes another
person with the intent to deprive such other person of his personal liberty
or to withhold or conceal him from any person, authority or institution
lawfully entitled to his charge, shall be deemed guilty of “abduction.”
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“Intent is the purpose formed in a person’s mind and may be, and frequently is, shown by
circumstances[,]” including “[his] conduct” and “his statements.” Barrett v. Commonwealth, 210 Va.
153, 156, 169 S.E.2d 449, 451 (1969).
The specific intent to commit [a crime] may be inferred from the conduct
of the accused if such intent flows naturally from the conduct proven.
Where the conduct of the accused under the circumstances involved points
with reasonable certainty to a specific intent to commit [the crime], the
intent element is established.
Wilson v. Commonwealth, 249 Va. 95, 101, 452 S.E.2d 669, 674 (1995) (citation omitted).
The trial court was entitled to infer Chatman’s intent to deprive the victim of her personal liberty
from the evidence that he rendered her physically helpless and kept her in the house despite her pleas for
medical help.
b. Malicious Wounding
Chatman argues the evidence was not sufficient to prove he intended to maim, disfigure, disable
or kill the victim and, thus, did not support his malicious wounding conviction. Chatman did not
challenge his malicious wounding conviction in his motion to strike or closing argument.
Under Rule 5A:18, “a challenge to the specificity of the Commonwealth’s evidence is waived if
not raised with some specificity in the trial court.” Mounce v. Commonwealth, 4 Va. App. 433, 435,
357 S.E.2d 742, 744 (1987). By failing to specifically challenge the sufficiency of the evidence
supporting the malicious wounding charge, appellant waived his right to raise that argument on appeal. 14
See, e.g., Scott v. Commonwealth, 58 Va. App. 35, 44-46, 707 S.E.2d 17, 22 (2011) (holding the
defendant’s motion to strike the evidence as to one charge did “not also function as a motion to strike”
as to another charge).
Thus, I would affirm Chatman’s convictions.
14
To the extent appellant raises the ends of justice exception under Rule 5A:18, I would
conclude this exception does not apply because the record does not affirmatively prove that an element
of the offense did not occur. See, e.g., Brittle v. Commonwealth, 54 Va. App. 505, 514, 680 S.E.2d 335,
340 (2009) (delineating the narrow circumstances under which the ends of justice exception is to be
used).
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III.
For these reasons, I concur in the majority’s decision vacating the order granting the petition of
Whitt and dismissing his appeal. As to the appeals of Brooks and Chatman, I would conclude dismissal
is not required and would affirm the challenged convictions. Thus, I respectfully dissent from the
majority’s holdings as to Brooks and Chatman.
The Commonwealth shall recover of the appellants the costs in the respective trial courts. In
addition, in Record No. 0858-11-2, the Commonwealth shall recover of the appellant the amount
previously awarded to Joseph M. Teefey, Jr., Esquire, for his representation of Roberto Tyrone
Chatman, in addition to his costs and necessary direct out-of-pocket expenses.
This order shall be published and certified to the trial courts.
Costs due the Commonwealth
by appellant in Record No. 0858-11-2
in Court of Appeals of Virginia:
Attorney’s fee
$100.00 plus costs and expenses
A Copy,
Teste:
Cynthia L. McCoy, Clerk
By:
original order signed by a deputy clerk of the
Court of Appeals of Virginia at the direction
of the Court
Deputy Clerk
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