Arthur Middleton Smith v. Commonwealth of Virginia ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Willis and
Senior Judge Overton
Argued at Alexandria, Virginia
ARTHUR MIDDLETON SMITH
MEMORANDUM OPINION * BY
v. Record No. 0330-00-4 JUDGE NELSON T. OVERTON
FEBRUARY 27, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF STAFFORD COUNTY
Ann Hunter Simpson, Judge
David B. Hargett (Morrissey & Hershner,
P.L.C., on brief), for appellant.
Shelly R. James, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Arthur Middleton Smith (appellant) appeals from a judgment of
the Circuit Court of Stafford County convicting him of obstructing
justice and two counts of assaulting a law enforcement officer.
Appellant contends his convictions should be reversed because he
was merely using reasonable force to resist an unlawful arrest.
Because appellant did not preserve the issue of the sufficiency of
the evidence for appeal, we affirm his convictions.
Appellant was charged after he resisted being arrested for
allegedly being drunk in public. After the Commonwealth rested,
appellant moved to strike the evidence on the ground that the
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
arrest was unlawful, that he therefore had the right to exercise
reasonable force to resist the unlawful arrest, and that his
actions in resisting the unlawful arrest had not been
unreasonable. Appellant did not specifically challenge the
sufficiency of the evidence tending to prove that he had
obstructed justice.
The trial court denied appellant's motion, and appellant
thereafter presented evidence. Upon resting, appellant did not
renew his motion to strike. He also did not move to set aside the
jury's verdict after the jury found him guilty on all three
counts.
In a jury trial, the defendant must make a motion to strike
at the conclusion of all the evidence, or make a motion to set
aside the verdict, in order to preserve the question of the
sufficiency of the evidence. McQuinn v. Commonwealth, 20 Va.
App. 753, 757, 460 S.E.2d 624, 626 (1995) (en banc); McGee v.
Commonwealth, 4 Va. App. 317, 321, 357 S.E.2d 738, 739-40
(1987). A defendant does not preserve the sufficiency of the
evidence for appeal merely by raising the issue in his closing
arguments to the jury. "[I]n a jury trial, the closing argument
is addressed to the jury, not the trial judge, and does not
require the trial judge to rule on the evidence as a matter of
law. Only a motion to strike the evidence accomplishes that
objective in a jury trial." Campbell v. Commonwealth, 12 Va.
App. 476, 481, 405 S.E.2d 1, 3 (1991).
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Appellant did not renew his motion to strike at the close
of all the evidence or move to set aside the jury's verdict.
Accordingly, Rule 5A:18 bars our consideration of this question
on appeal. Moreover, the record does not reflect any reason to
invoke the good cause or ends of justice exceptions to Rule
5A:18.
The judgment of the trial court is affirmed.
Affirmed.
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