                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Petty, Beales and AtLee
UNPUBLISHED


              Argued at Richmond, Virginia


              CALVIN CARDALE TOWNES
                                                                            MEMORANDUM OPINION* BY
              v.     Record No. 0885-17-2                                   JUDGE RANDOLPH A. BEALES
                                                                                  MARCH 13, 2018
              COMMONWEALTH OF VIRGINIA


                                FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                                            Clarence N. Jenkins, Jr., Judge

                               Kyle Anderson for appellant.

                               Elizabeth Kiernan Fitzgerald, Assistant Attorney General (Mark R.
                               Herring, Attorney General, on brief), for appellee.


                     On November 21, 2016, Calvin Cardale Townes (“appellant”) was convicted of

              unlawfully and feloniously possessing and transporting a firearm after being convicted of a

              violent felony in violation of Code § 18.2-308.2(A) and of eluding police in violation of Code

              § 46.2-817(B). Appellant appeals both convictions, alleging that the trial court erred “by

              denying Townes’s request to withdraw his waiver of his right to be tried by a jury.” He also

              challenges the conviction of possession of a firearm by a violent felon by arguing that the

              evidence was not sufficient for that conviction.

                                                        I. BACKGROUND

                                                    A. Pre-trial Proceedings

                     On August 26, 2016, the parties appeared before the trial court to set appellant’s case for

              trial. At the hearing, appellant’s counsel requested a bench trial on behalf of his client. The trial



                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
judge addressed appellant directly in order to confirm that appellant wanted to waive his right to

a trial by jury and to ensure that appellant understood this waiver.1

       Appellant’s trial commenced on November 21, 2016. Before trial began, appellant’s

counsel alerted the court that appellant wanted to make two motions – a motion for new counsel

and a motion for a continuance. Appellant’s counsel explained that the basis for the motions was

the Commonwealth’s late production of lab results for the DNA analysis on the firearm that

appellant was charged with possessing. When asked to clarify how the late production resulted

in a request for new counsel, appellant’s attorney stated, “To the best of my knowledge, I think




       1
           The trial court and appellant engaged in the following colloquy:

                 THE COURT: Mr. Townes, it is the Court’s understanding that
                 you have discussed this matter with your attorney, and that you
                 wish to be tried before the bench which means that the judge
                 sitting on that day will decide your guilt or innocence; is that
                 correct?

                 THE DEFENDANT: Yes, sir.

                 THE COURT: Do you understand that you have a right to have
                 these charges tried before a jury of your peers sitting in the jury
                 box. It would be 12 people making that determination as to
                 whether your [sic] guilty or innocent versus a judge making that
                 same decision.
                      Do you wish to give up your right to a trial by jury and
                 proceed with a bench trial, or would you rather have a jury trial?

                 THE DEFENDANT: Yeah, I can give it up.

                 THE COURT: All right. And you are making this decision under
                 your own free will after having the opportunity to discuss it with
                 counsel?

                 THE DEFENDANT: Yes, sir.

                 THE COURT: All right. For the record, Mr. Townes is waiving
                 his right to or giving up his right to a trial by jury.
                                                   -2-
that – he [appellant] tells me that he’s entitled to any attorney that he wishes to have representing

him. I presume that he has lost faith in my ability to represent him.”

       The trial court requested to hear directly from appellant, who told the court, “Well, it

don’t feel like he [appellant’s counsel] represent me to the best ability” based on his “coming

down there trying to get me to take a plea. I ain’t trying to take no plea.” The trial judge

explained to appellant that his attorney was required to inform him of any offered plea deals,

and, therefore, that reason alone was insufficient to warrant a change of counsel. Seeking further

information, the trial judge asked, “So, what’s the problem with him telling you about the plea?”

In response, appellant stated, “I didn’t want no bench. I want a jury. So, I don’t want to try to

move forward on the bench.” The judge asked appellant if he recalled having given up his right

to a jury trial, to which appellant responded, “I don’t know.” The trial court reviewed the record

and informed appellant that he had waived his right to a trial by jury on August 26, 2016.

       After informing appellant of the waiver, the trial judge asked if the Commonwealth and

appellant’s counsel were prepared to proceed. Both responded that they were prepared. The trial

court told appellant, “Okay. Mr. Townes, the Court does not feel that you’ve given an adequate

reason for, either, a continuance or withdraw[al] of counsel, so both motions are denied.” After

appellant was arraigned and pled not guilty, the trial judge stated, “All right, and, sir, you have

previously waived your right, or given up your right, to a trial by jury so we will proceed with a

bench trial today as requested back on August 26th.” The trial judge then immediately asked,

“Defense counsel ready to proceed?” Appellant’s trial counsel responded, “Yes, Your Honor,”

and voiced no objections.

                                  B. Evidence Presented at Trial

       We consider the evidence on appeal “in the light most favorable to the Commonwealth,

as we must since it was the prevailing party” in the trial court. Beasley v. Commonwealth, 60

                                                -3-
Va. App. 381, 391, 728 S.E.2d 499, 502 (2012) (quoting Riner v. Commonwealth, 268 Va. 296,

330, 601 S.E.2d 555, 574 (2004)). So viewed, the evidence at trial showed that on February 2,

2016, at 8:30 or 9:30 p.m., Virginia State Police Trooper Brandon Crockwell (“Trooper

Crockwell” or “Crockwell”) was traveling on Fairfield Way in the City of Richmond when he

noticed a Ford Fusion traveling without its headlights illuminated. Trooper Crockwell activated

his lights and siren, at which point the Ford Fusion accelerated and proceeded through a red light

without braking. Crockwell continued to pursue the vehicle until the driver attempted to make a

right turn too quickly, causing the vehicle to hit a curb and disabling it.

       At that point, Trooper Crockwell witnessed appellant exit the driver’s side of the vehicle

and begin running up a nearby alley. Crockwell observed that appellant’s left hand swung

naturally as he ran, but his right arm stayed in front of him by his waistline. Crockwell pursued

appellant, and commanded him to stop. Appellant fell twice during Crockwell’s pursuit. After

appellant’s second fall, Crockwell noticed appellant starting to reach toward his waistline. These

movements made Crockwell concerned that appellant was reaching for a weapon. However,

Crockwell could tell “that whatever he [appellant] was looking for it wasn’t there anymore . . . .”

       After appellant was handcuffed and placed in a police vehicle, Crockwell retraced

appellant’s steps. When he reached the top of an incline, where appellant fell the first time,

Crockwell found a loaded firearm sitting on top of a pile of leaves. Although the leaves were

muddy from an earlier rain, Crockwell noticed that the gun was clean, dry, and warm to the

touch. Crockwell also testified that he found the gun approximately five minutes after appellant

was apprehended and that the area was clear of people, except for police officers.

       In support of the firearm charge, the Commonwealth offered a copy of appellant’s prior

felony conviction. It also offered the gun recovered by Trooper Crockwell and a copy of the




                                                 -4-
certificate of analysis for the DNA testing performed on the gun. The certificate showed that no

DNA sample could be obtained from the gun. Appellant presented no evidence.

       The trial court found appellant guilty of both charges. With respect to the charge for

possession of a firearm by a violent felon, the trial court noted that the case against appellant was

circumstantial, and stated:

               The circumstances are that a gun was found in close proximity to
               where you were right on the trail and that gun happened to be still
               warm and dry, and I think that the conditions were such that if that
               gun had been there a while it would have been wet and cold.

Appellant was sentenced on March 2, 2017. This appeal followed.

                                            II. ANALYSIS

                        A. Appellant’s Waiver of His Right to a Jury Trial

       The Commonwealth argues that appellant failed to preserve this assignment of error for

appeal. We agree. Appellant failed to present the trial court with a motion to withdraw his jury

trial waiver, preventing the trial court from having the opportunity to adequately consider and

rule on any motion to withdraw his waiver. Furthermore, although given the opportunity to

make such a motion (or at least raise that issue), appellant’s counsel failed to notify the trial court

that appellant wanted to make a motion to withdraw his jury trial waiver and failed to object to

proceeding with a bench trial.

       Rule 5A:18 provides, in relevant part, “No 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.” Rule 5A:18. “The rule strives to ensure ‘the trial court has an opportunity to rule

intelligently on the issues presented, thus avoiding unnecessary appeals and reversals.’”

Commonwealth v. Bass, 292 Va. 19, 26, 786 S.E.2d 165, 169 (2016) (quoting Brown v.

Commonwealth, 279 Va. 210, 217, 688 S.E.2d 185, 188 (2010)).
                                                 -5-
        In this case, appellant made no motion to withdraw his waiver of his right to a trial by

jury. Appellant’s counsel informed the trial court that appellant had two motions to present to

the trial court – a motion for new counsel and a motion to continue. He briefly explained that

these motions were the result of the Commonwealth’s late production of the lab results on the

firearm and appellant’s loss of faith in his attorney’s ability to represent him. Appellant’s trial

counsel did not move the trial court to withdraw appellant’s waiver of his right to a jury trial, nor

did he mention appellant’s revived interest in a jury trial.

        After the exchange with appellant’s trial counsel, the trial judge turned to appellant for

additional information, and asked, “The Court understands you have a motion for a new

attorney?” When appellant responded affirmatively, the trial judge asked appellant to explain the

basis for his motion. Appellant told the court that he was upset that his attorney tried to get him

to take a plea. It was only after the trial judge explained that relaying the offer of a plea deal was

an inadequate basis for appellant’s motion for new counsel that appellant mentioned a second

reason for his motion for new counsel – his lack of desire for a bench trial.2 Thus, appellant was

offering his dissatisfaction with the planned bench trial as a basis for his motion for new counsel

– not as a separate motion to be considered independently by the trial court. As a result of

appellant’s failure to make the trial court aware of the true nature of his request (i.e., if he truly

now wanted to withdraw his jury trial waiver) and his counsel’s failure to make a motion to

withdraw the waiver, the trial court never had “an opportunity to rule intelligently on the issues

presented.” Bass, 292 Va. at 26, 786 S.E.2d at 169 (quoting Brown, 279 Va. at 217, 688 S.E.2d

at 188).




        2
         The attorney representing appellant on November 21, 2016 was the same counsel
representing appellant when he waived his right to a jury trial on August 26, 2016. The trial
court confirmed this information during the course of the proceeding.
                                              -6-
       Furthermore, it appears from the record that the trial court understood that appellant’s

statements regarding the bench trial were being offered as support for his motion for new

counsel. After determining that appellant’s counsel and the Commonwealth were prepared to

proceed, the trial court ruled that appellant had failed to give “an adequate reason for, either, a

continuance or withdraw[al] of counsel, so both motions are denied.” Unlike on the motion to

continue and the motion for new counsel, the trial court made no express ruling regarding any

supposed motion to withdraw a jury trial waiver, indicating that the trial court also believed that

appellant’s statements about preferring a jury trial to a bench trial were given as another reason

for his motion for new counsel – not as a separate, independent motion.

       Finally, if appellant had intended his statements to be a request to withdraw his jury trial

waiver, appellant’s counsel had the opportunity to properly put the trial court on notice of such a

motion. However, appellant’s counsel failed to present that motion – or to object to proceeding

with the bench trial. The trial judge asked appellant’s counsel on two occasions if he was

prepared to proceed with the bench trial after appellant addressed the court. On neither occasion

did appellant’s counsel explain that appellant was seeking to withdraw his waiver of a jury trial

or object to the trial judge’s decision to proceed with a bench trial in light of appellant’s

statements. On the second occasion, the trial judge had just finished explaining that appellant

had waived his right to a jury, and, therefore, they would “proceed with the bench trial today as

was requested back on August 26th.” The trial judge then asked appellant’s counsel if he was

prepared to proceed. Appellant’s counsel responded, “Yes, Your Honor” – without objecting or

arguing that appellant was moving to withdraw his waiver. As a result of this failure to properly

alert the trial court that appellant apparently may have wished to withdraw his jury trial waiver,

we find that appellant failed to preserve this assignment of error for our review, as required by

Rule 5A:18.

                                                 -7-
     B. Sufficiency of the Evidence on Appellant’s Conviction for Possession of a Firearm

        When considering the sufficiency of the evidence on appeal, “a reviewing court does not

‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable

doubt.’” Crowder v. Commonwealth, 41 Va. App. 658, 663, 588 S.E.2d 384, 387 (2003)

(quoting Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). “We must instead ask whether ‘any

rational trier of fact could have found the essential elements of the crime beyond a reasonable

doubt.’” Crowder, 41 Va. App. at 663, 588 S.E.2d at 387 (quoting Kelly v. Commonwealth, 41

Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) (en banc)). “This familiar standard gives full

play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh

the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Kelly, 41

Va. App. at 257-58, 584 S.E.2d at 447 (quoting Jackson, 443 U.S. at 319).

        Appellant contends that the evidence was insufficient to support his conviction because

there was no DNA evidence linking him to the firearm, and Trooper Crockwell did not see

appellant throw or drop the firearm. Appellant claims that the fact that Trooper Crockwell

recovered the firearm from an area near where appellant fell is insufficient to establish that

appellant actually possessed the firearm recovered that night.

        A conviction for possession of a firearm may be made based on circumstantial evidence.

See generally Commonwealth v. Hudson, 265 Va. 505, 512-13, 578 S.E.2d 781, 785 (2003). Cf.

Byers v. Commonwealth, 23 Va. App. 146, 150, 474 S.E.2d 852, 854 (1996) (holding “that proof

of ‘actual’ possession of a firearm under Code § 18.2-53.1 may be established by circumstantial

evidence, direct evidence, or both”). “While no single piece of [circumstantial] evidence may be

sufficient, the ‘combined force of many concurrent and related circumstances, each insufficient

in itself, may lead a reasonable mind irresistibly to a conclusion.’” Ervin v. Commonwealth, 57




                                                 -8-
Va. App. 495, 505, 704 S.E.2d 135, 140 (2011) (en banc) (quoting Stamper v. Commonwealth,

220 Va. 260, 273, 257 S.E.2d 808, 818 (1979)).

        When viewing the evidence in the light most favorable to the Commonwealth, as we

must because the Commonwealth prevailed below, the circumstantial evidence in this case

supports appellant’s conviction. The firearm was found close to where appellant fell when he

was being pursued. Trooper Crockwell testified that the firearm was warm to the touch, which is

consistent with its having just been held close to appellant’s body. It was also dry and clean,

suggesting that it had been dropped recently – after the earlier rain. Trooper Crockwell testified

that there were no other individuals in the area who could have dropped the weapon. In addition,

Trooper Crockwell’s observations about appellant’s hand near his waist while running – and

reaching toward his waistband when he was finally stopped – were consistent with appellant’s

possession of a firearm. Considering the totality of the circumstances, we cannot say that no

rational factfinder could have concluded that appellant possessed the firearm the police located

that evening near to where appellant fell. Therefore, we hold that the trial court did not err.

                                             III. CONCLUSION

        Appellant failed to preserve his first assignment of error pursuant to Rule 5A:18. Appellant

never presented the trial court with a motion to withdraw appellant’s earlier waiver of his right to a

jury trial. Although appellant expressed a desire for a jury trial, that statement was made in the

context of why he was dissatisfied with his counsel and in support of his motion for new counsel –

not as a new, independent motion to withdraw his earlier jury trial waiver. If appellant had intended

to make a motion to withdraw his waiver of his right to a jury trial, appellant’s counsel had two

opportunities either to present this motion to the trial court – or to object to the trial court’s

pronouncement that it would proceed with the bench trial. However, on both occasions, appellant’s

counsel only confirmed that he was prepared to proceed with the bench trial.

                                                    -9-
       Furthermore, based on the totality of the circumstances, we cannot say that no rational

factfinder could have found that appellant possessed the firearm found by Trooper Crockwell. The

gun was located very near the spot where appellant fell; it appeared to have been dropped

recently as it was clean, dry, and warm to the touch, as opposed to its surroundings; and

appellant’s actions while fleeing were consistent with those of an individual holding a gun at his

waist. For all of these reasons, we not only affirm appellant’s conviction for eluding police but

also affirm his conviction for possession of a firearm by a violent felon.

                                                                                          Affirmed.




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