                                                                    COURT OF APPEALS OF VIRGINIA


            Present: Chief Judge Huff, Judges Petty and Alston
PUBLISHED


            Argued at Chesapeake, Virginia


            JEFFREY D. WELLS
                                                                                                 OPINION BY
            v.            Record No. 0611-15-1                                              JUDGE WILLIAM G. PETTY
                                                                                               JANUARY 26, 2016
            COMMONWEALTH OF VIRGINIA


                                      FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
                                                 H. Vincent Conway, Jr., Judge Designate

                                         Heather M. Barnes, Assistant Public Defender, for appellant.

                                         Susan Baumgartner, Assistant Attorney General (Mark R. Herring,
                                         Attorney General, on brief), for appellee.


                          Jeffrey Wells was convicted of reckless driving by speeding in violation of Code

            § 46.2-862 on April 13, 2015. On appeal, Wells argues that the trial court erred in finding him

            guilty because the Commonwealth failed to present evidence to establish that the radar device

            used to determine Wells’s speed was properly calibrated. For the following reason, we affirm

            Wells’s conviction.

                                                                            I. BACKGROUND

                          “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).

                          On May 2, 2014, Virginia State Trooper Napier was operating stationary radar on

            Interstate 64.1 He observed an SUV traveling past him at a high rate of speed. His radar

                                                                        
                          1
                     There is no transcript of the trial. The facts are set out in two written statements of facts
            and incidents of trial that were filed with the record.
indicated the speed of the car was ninety-four miles per hour. The posted speed limit at that

location was sixty miles per hour. Trooper Napier stopped the SUV and identified the operator

as Wells.

       At trial, Trooper Napier testified that his stationary radar “was working properly” and

that it displayed a speed of ninety-four miles per hour. Wells made no objection to Trooper

Napier’s testimony concerning the accuracy of the radar unit or the speed it displayed, and he

asked no questions on cross-examination. At the conclusion of the evidence, Wells made a

motion to strike the Commonwealth’s evidence. He argued that there was insufficient evidence

to convict him because the Commonwealth had not introduced evidence to prove that the radar

had been calibrated within six months of the stop and because no calibration certificate had been

presented. The trial court denied the motion.

       The trial court found Wells guilty of reckless driving pursuant to Code § 46.2-862,

sentenced him to sixty days in jail, imposed a fine of $1,000, and suspended his license to

operate a motor vehicle for ninety days. Wells appealed.

                                          II. ANALYSIS

       Wells assigns error to the trial court’s finding of guilt “because no evidence was

presented to prove that the radar was properly calibrated.” He argues that the court should have

granted his motion to strike because the Commonwealth’s failure to offer evidence that the radar

had been properly set up, adjusted, and tested for accuracy rendered the evidence as a whole

insufficient for a conviction. We disagree.

       “When a defendant on appeal challenges the sufficiency of the evidence to sustain a

conviction, we must examine the evidence that supports the conviction and allow the conviction

to stand unless it is plainly wrong or without evidence to support it.” Vincent v. Commonwealth,

276 Va. 648, 652, 668 S.E.2d 137, 139-40 (2008). “[W]e review ‘the evidence in the light most
                                                -2-
favorable to the Commonwealth, the prevailing party in the [trial] court’ and ‘accord the

Commonwealth the benefit of all reasonable inferences deducible from the evidence.’” Noakes

v. Commonwealth, 280 Va. 338, 345, 699 S.E.2d 284, 288 (2010) (second alteration in original)

(quoting Brown v. Commonwealth, 278 Va. 523, 527, 685 S.E.2d 43, 45 (2009)). During such a

review we determine “whether ‘any rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt.’” Commonwealth v. McNeal, 282 Va. 16, 20, 710

S.E.2d 733, 735 (2011) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Finally, when

reviewing the evidence for sufficiency, we must consider all the evidence admitted at trial,

including evidence admitted erroneously. See Jennings v. Commonwealth, 65 Va. App. 669,

681, 779 S.E.2d 864, ___ (2015) (“In appeals to the Court of Appeals or the Supreme Court,

when a challenge to a conviction rests on a claim that the evidence was insufficient because the

trial court improperly admitted evidence, the reviewing court shall consider all evidence

admitted at trial to determine whether there is sufficient evidence to sustain the conviction.”

(quoting Code § 19.2-324.1)).

       Here, Wells was convicted of reckless driving under Code § 46.2-862, which provides,

               A person shall be guilty of reckless driving who drives a motor
               vehicle on the highways in the Commonwealth (i) at a speed of
               twenty miles per hour or more in excess of the applicable
               maximum speed limit or (ii) in excess of eighty miles per hour
               regardless of the applicable maximum speed limit.

The only element at issue in this case is the speed at which Wells was traveling. No particular

method of determining speed is required by Code § 46.2-862. To that end, Code § 46.2-882

provides several methods by which the Commonwealth may prove the speed of a motor vehicle.

In relevant part, Code § 46.2-882 states that “[t]he speed of any motor vehicle may be

determined by the use of . . . (ii) radar,” and “[t]he results of such determinations shall be

accepted as prima facie evidence of the speed of such motor vehicle in any court or legal
                                                 -3-
proceeding where the speed of the motor vehicle is at issue.” The statute further establishes a

hearsay exception regarding the admissibility of evidence that the radar unit was calibrated and

working properly.

               In any court or legal proceeding in which any question arises about
               the calibration or accuracy of any . . . radar . . . used to determine
               the speed of any motor vehicle, a certificate, or a true copy thereof,
               showing the calibration or accuracy of (i) the speedometer of any
               vehicle, (ii) any tuning fork employed in calibrating or testing the
               radar . . . or (iii) any other method employed in calibrating or
               testing any laser speed determination device, and when and by
               whom the calibration was made, shall be admissible as evidence of
               the facts therein stated. No calibration or testing of such device
               shall be valid for longer than six months.

Id. (emphasis added).

       Despite having raised no objection as to either the accuracy or the admissibility of the

radar unit measurement, Wells nevertheless argues that the Commonwealth’s evidence could not

constitute sufficient evidence to convict because there was no testimony that the radar unit was

properly set up, adjusted, or that it had been recently tested for accuracy. The fallacy of this

argument, however, is that it assumes that accuracy of the radar unit is an element of the offense,

as opposed to a prerequisite for the admission into evidence of its speed measurement.

        “The admissibility of evidence and the sufficiency of evidence are distinct issues.”

Banks v. Mario Indus., 274 Va. 438, 455, 650 S.E.2d 687, 696 (2007). “For any type of

evidence to be admissible, its offeror need only prove that it is ‘material—tending to prove a

matter . . . properly at issue in the case—and relevant.’” Crawley v. Commonwealth, 29

Va. App. 372, 377, 512 S.E.2d 169, 172 (1999) (alteration in original) (quoting Johnson v.

Commonwealth, 2 Va. App. 598, 601, 347 S.E.2d 163, 165 (1986)). “When scientific evidence

is offered, the court must make a threshold finding of fact with respect to the reliability of the

scientific method offered” before the result can be deemed relevant and admitted into evidence.


                                                -4-
Spencer v. Commonwealth, 240 Va. 78, 97, 393 S.E.2d 609, 621 (1990). However, “once the

[radar reading] is admitted into evidence, its weight is a matter for the jury to determine.” Tipton

v. Commonwealth, 224 Va. 256, 261, 295 S.E.2d 880, 883 (1982).

          In contrast, “[t]he standard for judging the sufficiency of evidence to prove identity or any

other key fact in a criminal case is much higher—the Commonwealth must prove that fact

beyond a reasonable doubt.” Crawley, 29 Va. App. at 377-78, 512 S.E.2d at 172. When we

consider the admissibility of the evidence we consider each piece of evidence individually, but

“when we consider the sufficiency of the evidence we do not consider each piece of evidence in

isolation. Instead, we review the totality of the evidence to determine whether it was sufficient

to prove an offense.” Bowling v. Commonwealth, 51 Va. App. 102, 107, 654 S.E.2d 354, 356

(2007).

          It therefore “follows that objections to the admissibility of evidence and the sufficiency

of evidence are also distinguishable.” Banks, 274 Va. at 455, 650 S.E.2d at 696. Specifically,

                 [a]n objection to the admissibility of evidence must be made when
                 the evidence is presented. The objection comes too late if the
                 objecting party remains silent during its presentation and brings the
                 matter to the court’s attention by a motion to strike made after the
                 opposing party has rested.

Kondaurov v. Kerdasha, 271 Va. 646, 655, 629 S.E.2d 181, 185 (2006); see also Burns v. Bd. of

Supervisors, 227 Va. 354, 363, 315 S.E.2d 856, 862 (1984) (holding that the appellant’s “silence

. . . amounts to a waiver of its hearsay objection,” and therefore the trial court did not err when it

admitted the testimony). Moreover, any evidence presented without objection will be deemed to

be properly before the trial court. See Gregory v. Commonwealth, 22 Va. App. 100, 111, 468

S.E.2d 117, 122-23 (1996) (holding that because the appellant failed to object when the

statement at issue was presented at trial the statement was properly before the trial court).



                                                  -5-
       An objection to the sufficiency of the evidence, on the other hand, “is properly made by a

motion to strike, rather than when the evidence is first offered. Obviously, the objecting party

cannot be sure, nor can the court decide, until the offering party has rested, whether the various

fragments of evidence have added up to a justiciable whole.” Kondaurov, 271 Va. at 655, 629

S.E.2d at 185 (citation omitted). Under well-settled principles:

                        When the sufficiency of a plaintiff’s evidence is challenged
               by a motion to strike, the trial court should resolve any reasonable
               doubt as to the sufficiency of the evidence in plaintiff’s favor and
               should grant the motion only when it is conclusively apparent that
               plaintiff has proven no cause of action against defendant, or when
               it plainly appears that the trial court would be compelled to set
               aside any verdict found for the plaintiff as being without evidence
               to support it.
Banks, 274 Va. at 454-55, 650 S.E.2d at 696 (quoting Saks Fifth Ave., Inc. v. James, Ltd., 272

Va. 177, 188, 630 S.E.2d 304, 311 (2006)). And “[w]hen determining the sufficiency of the

evidence, we consider all admitted evidence, including the evidence appellant here asserts was

inadmissible.” Lunsford v. Commonwealth, 55 Va. App. 59, 62, 683 S.E.2d 831, 833 (2009);

see Code § 19.2-324.1 (stating in relevant part, “In appeals . . . , when a challenge to a conviction

rests on a claim that the evidence was insufficient because the trial court improperly admitted

evidence, the reviewing court shall consider all evidence admitted at trial to determine whether

there is sufficient evidence to sustain the conviction”).

       Although the radar reading was admitted into evidence without objection, Wells relies

upon Royals v. Commonwealth, 198 Va. 876, 96 S.E.2d 812 (1957), and Gray v.

Commonwealth, 18 Va. App. 663, 446 S.E.2d 480 (1994), to argue that the Commonwealth did

not meet its burden of proving that the radar device had been properly set up and tested. His

argument, however, ignores that under the facts of Royals and Gray, the appellants made

objections to the admissibility of the radar evidence, something Wells failed to do.


                                                -6-
       In Royals, the appellant’s final assignment of error was “that the evidence of the reading

of the speedmeter of the radar machine was inadmissible against him because the

Commonwealth failed to prove that the machine was properly set up and tested.” Royals, 198

Va. at 879, 96 S.E.2d at 814 (emphasis added). At trial, Royals had both objected to the

introduction of the trooper’s testimony, and cross-examined the trooper on his methods of testing

the machine. Id. at 880, 96 S.E.2d at 814-15. In Gray, the appellant argued that under Code

§ 46.2-882 “the Commonwealth was required to prove the accuracy of both” tests performed by

the trooper and that “the lack of a ‘true copy’ of the tuning fork accuracy certificate prevented

the Commonwealth from meeting that burden.” 18 Va. App. at 665, 446 S.E.2d at 482. At trial

Gray had objected to both “the introduction of the calibration certificate on the ground that it was

not a true copy of the original,” as well as “to the introduction of the evidence of the radar

device’s use” by the trooper to measure Gray’s speed. Id. at 644-65, 446 S.E.2d at 481. This

trend is followed in numerous other cases that cite to Royals. See Biesser v. Holland, 208 Va.

167, 168, 156 S.E.2d 792, 793 (1967) (“The defendant objected to all testimony of the officer on

the ground that it was hearsay.”); Untiedt v. Commonwealth, 18 Va. App. 836, 838, 447 S.E.2d

537, 538 (1994) (“Untiedt objected to the photocopy’s admission . . . .”); cf. Farmer v.

Commonwealth, 205 Va. 609, 610, 139 S.E.2d 40, 41 (1964) (stating that the facts of the case

were presented on appeal in an agreed statement of facts, which “lack[ed] some of the desired

details pertinent to the questions presented,” but indicated that Farmer had at least

cross-examined the trooper on his testimony).

       Simply put, under the facts of the above recited case law and Code § 46.2-882, the

question of calibration under Code § 46.2-882 must be addressed within the context of an

objection to admissibility, not in the context of a motion to strike. Specifically, Code § 46.2-882

by its express terms only addresses presentation of a calibration certificate, “[i]n any court or
                                                -7-
legal proceeding in which any question arises about the calibration or accuracy of any . . . radar

    . . . used to determine the speed of any motor vehicle.” (Emphasis added).2 While Wells

“couches [the radar unit’s accuracy] as a challenge to the sufficiency of the evidence, it presents

only a question regarding the admissibility of [the radar reading], which was waived because the

objection was not timely raised during the trial.” Bitar v. Rahman, 272 Va. 130, 140, 630 S.E.2d

319, 325 (2006).

              By waiting to raise the issue of the radar system calibration until his motion to strike,

Wells ultimately failed to properly preserve an objection to the admissibility of Trooper Napier’s

testimony. See Kondaurov, 271 Va. at 655, 629 S.E.2d at 185 (“An objection to the

admissibility of evidence must be made when the evidence is presented. The objection comes

too late if the objecting party remains silent during its presentation and brings the matter to the

court’s attention by a motion to strike made after the opposing party has rested.”). Rule 5A:183

requires an appellant to “challenge the admissibility of the evidence in the trial court to preserve

his argument on appeal.” Arrington v. Commonwealth, 53 Va. App. 635, 641, 674 S.E.2d 554,


                                                            
              2
         On brief, Wells argues that failure to require the Commonwealth to affirmatively prove
the accuracy of the radar unit would impermissibly shift to him the burden of proving it was not
accurate. This argument fails to recognize that the only burden placed on Wells was that
imposed by Rule 5A:18; he was required to make a timely objection to the introduction of the
evidence. The burden of proving, by otherwise admissible evidence, that the radar unit was
properly calibrated and accurate remained on the Commonwealth once a proper objection was
made. 
              3
         Rule 5A:18 states that “[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 main
purpose of requiring timely specific objections is to afford the trial court an opportunity to rule
intelligently on the issues presented, thus avoiding unnecessary appeals and reversals. In
addition, a specific, contemporaneous objection gives the opposing party the opportunity to meet
the objection at that stage of the proceeding.” Weidman v. Babcock, 241 Va. 40, 44, 400 S.E.2d
164, 167 (1991) (citation omitted).
 

                                                               -8-
557 (2009). And “[b]y failing to object to the evidence . . . [an appellant] deprives the trial court

of the opportunity to consider the admissibility of the evidence, thus waiving his argument on

appeal.” Id. at 642, 674 S.E.2d at 557. Wells has therefore waived under Rule 5A:18 any

argument pertaining to the admissibility of that evidence.

       “When determining the sufficiency of the evidence, we consider all admitted evidence,

including the evidence appellant here asserts was inadmissible.” Lunsford, 55 Va. App. at 62,

683 S.E.2d at 833. We therefore consider all of Trooper Napier’s testimony when determining

sufficiency, including his testimony that the radar recorded Wells’s speed as ninety-four miles

per hour and that the radar was “working properly.” This evidence was sufficient for the trial

court to find Wells guilty.

                                         III. CONCLUSION

       For the foregoing reason, we hold that the trial court did not err when it found Wells

guilty of reckless driving. We therefore affirm Wells’s conviction.

                                                                                           Affirmed.




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