Scott Paul Dellinger v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judge Annunziata and
Senior Judge Duff
Argued at Alexandria, Virginia
SCOTT PAUL DELLINGER
v. Record No. 1807-94-4 MEMORANDUM OPINION * BY
JUDGE ROSEMARIE ANNUNZIATA
COMMONWEALTH OF VIRGINIA MARCH 5, 1996
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Thomas A. Fortkort, Judge
John J. Grimaldi, II (Rosenthal, Rich,
Grimaldi & Guggenheim, on briefs), for
appellant.
Kathleen B. Martin, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Following a bench trial, appellant, Scott Paul Dellinger,
was convicted of two counts of indecent exposure and sentenced to
six months in jail on each count. Appellant appeals his
convictions on the ground that the identification testimony by
the two complaining witnesses was improperly admitted. The
Commonwealth contends the appeal is procedurally barred since
appellant failed to provide a record sufficient for this Court to
determine whether appellant raised at trial the issues he raises
on appeal. Finding the appellant failed to preserve the issues
he raises for appeal, we affirm the conviction.
On appeal, a trial court's ruling will not be considered as
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
a basis for reversal "unless the objection was stated together
with the grounds therefor at the time of the ruling." Rule
5A:18. It is well established that this Court will not consider
an issue on appeal for which no "specific contemporaneous
objection" was made at trial. E.g., Rodriguez v. Commonwealth,
18 Va. App. 277, 284, 443 S.E.2d 419, 424 (1994) (en banc),
aff'd, 249 Va. 203 (1995). An objection is sufficient if a party
"makes known to the court the action which he desires the court
to take or his objections to the action of the court and his
grounds therefor." Campbell v. Commonwealth, 12 Va. App. 476,
480, 405 S.E.2d 1, 2 (1991) (en banc) (citation omitted). "A
matter not in dispute before the trial court will not be
considered for the first time on appeal." Connelly v.
Commonwealth, 14 Va. App. 888, 891, 420 S.E.2d 244, 246 (1992).
On appeal,
the judgment of the lower court is presumed to be correct
and the burden is on the appellant to present to [the
reviewing court] a sufficient record from which [it] can
determine whether the lower court has erred in the respect
complained of. If the appellant fails to do this, the
judgment will be affirmed.
Smith v. Commonwealth, 16 Va. App. 630, 635, 432 S.E.2d 2, 6
(1993) (quoting Justis v. Young, 202 Va. 631, 632, 119 S.E.2d
255, 256-57 (1961)). An appellate court may act only on the
facts contained in the record and "cannot base its decision upon
appellant's petition or brief, or statement of counsel in open
court." Id. Where the record fails to establish that the issues
raised on appeal were raised at trial "by an objection with a
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statement of the reasons therefor," this Court "cannot assume
that appellant's objection and reasons were proffered but not
made part of the record." Lee v. Lee, 12 Va. App. 512, 516, 404
S.E.2d 736, 738-39 (1991).
Here, in lieu of filing the transcript, the appellant filed
in the trial court a written statement of facts, testimony, and
other incidents of the case. See Rule 5A:8. The written
statement indicates that "At trial, over objection, both women
identified Mr. Dellinger as the man whom they had seen
masturbating in the foyer." Dellinger included nothing in the
record to demonstrate that he raised his appellate issues at
1
trial or that his objection was specific.
Accordingly, Dellinger's failure procedurally bars his
appeal, and his convictions are affirmed.
Affirmed.
1
Moreover, as the Commonwealth points out, the record
contains no reference to a motion to suppress.
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