                                                                      COURT OF APPEALS OF VIRGINIA

              Present: Judges Alston, McCullough and Senior Judge Clements
              Argued at Richmond, Virginia
UNPUBLISHED



              LASHAWN M. MILES
                                                                                           MEMORANDUM OPINION BY
              v.            Record No. 1781-14-2                                           JUDGE ROSSIE D. ALSTON, JR.
                                                                                               NOVEMBER 3, 2015
              COMMONWEALTH OF VIRGINIA


                                              FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                                                            Bradley B. Cavedo, Judge

                                           Dorian Dalton, Senior Assistant Public Defender (Office of the
                                           Public Defender, on brief), for appellant.

                                           Eugene Murphy, Senior Assistant Attorney General (Mark R. Herring,
                                           Attorney General, on brief), for appellee.


                            Lashawn M. Miles (appellant) challenges her conviction for obstruction of justice. She

              argues first, that the trial court erred in finding the evidence sufficient to convict her of

              obstruction of justice where the Commonwealth failed to prove that she knowingly impeded

              Detective Travers’ investigation, and second, that the trial court erred by precluding defense

              counsel from making a closing argument at trial.

                                                                             BACKGROUND

                            On February 28, 2014, appellant was at the Richmond Probation and Parole Office with

              her brother, Carlton Hugh. Mr. Hugh had been arrested on a firearm-related offense stemming

              from an unrelated shooting.

                            On that day, Detective Travers was instructed to go to that same probation and parole

              office to “locate” and “seize” a beige minivan as part of an investigation related to Mr. Hugh.

              When Detective Travers arrived, appellant was seated in the tan minivan Detective Travers was
                                                                          
                            
                                Pursuant to Code § 17.1-413, this opinion is not designated for publication.
to seize. He instructed appellant to exit the vehicle. Appellant complied. Once appellant exited

the vehicle, Detective Travers observed her and Mr. Hugh’s girlfriend, Ms. Johnson, “walk

across the parking lot in front of [him] and get into another vehicle . . . ,” a blue Dodge Magnum.

       Neither appellant nor Ms. Johnson were otherwise related to the investigation except for

being in the general vicinity of the office on the date of the vehicle seizure. Detective Travers

testified that appellant was “free to leave” at the moment she exited the minivan. However,

Detective Travers “felt the need to investigate further” because “[i]t raised [his] suspicion to the

fact that there were two vehicles.”

       Detective Travers drove his vehicle up behind the Dodge Magnum. He approached the

passenger side of the Dodge Magnum and asked Ms. Johnson to exit. She complied. Upon

Ms. Johnson’s exit from the vehicle, Detective Travers escorted her to his vehicle where she

voluntarily engaged in conversation with him. Ms. Johnson informed Detective Travers that

Mr. Hugh “was in [the blue Dodge Magnum] immediately prior to . . . being arrested on the

firearm-related [charge].” This statement led Detective Travers to believe that “there could

potentially be evidence inside [the] vehicle.” For that reason, he decided to seize the Dodge

Magnum.

       To effect the seizure, Detective Travers approached the driver’s side of the Dodge

Magnum. As he approached, he requested that appellant exit the vehicle. Appellant refused to

comply with his “numerous requests.” Rather than exiting the vehicle, appellant rolled down her

window approximately six to eight inches. In this regard, Detective Travers testified that there

was “enough [room] for [him] to stick [his] arm in the vehicle and unlock the vehicle door.” As

Detective Travers reached into the vehicle, appellant “rolled the window up on [his] arm.”

Despite appellant’s efforts to thwart Detective Travers from accessing the door lock, he was able

to unlock and open the vehicle door. Once the vehicle door was open, Detective Travers again
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instructed appellant to exit her vehicle. Appellant’s recalcitrance continued. Detective Travers

subsequently physically removed appellant from the vehicle and cited her for obstruction of

justice pursuant to Code § 18.2-460.

          At trial on September 11, 2014, Detective Travers testified and following the close of the

Commonwealth’s case-in-chief, appellant made a motion to strike. Appellant argued that the

Commonwealth failed to prove that appellant had “impeded [Detective Travers] while [he] was

lawfully engaged in duties as a law enforcement officer.” Specifically, appellant argued that

sitting in the car was a “passive failure to cooperate with the officer” rather than an active effort

to obstruct Detective Travers from his investigation. The trial court denied appellant’s motion to

strike.

          Appellant then testified that when Detective Travers informed her that he was seizing the

Dodge Magnum she asked him “for what?” According to appellant, Detective Travers

responded by saying “[h]e wasn’t authorized to tell [her] . . . that the lead detective on the case

would explain that to [her].” She then refused to exit her vehicle because she thought “it was

unfair.” Appellant admitted that she locked herself in the vehicle when Detective Travers told

her he needed to investigate further.

          After appellant testified, she renewed her motion to strike and continued to assert that she

was entirely passive during the encounter with Detective Travers. The trial court ruled that

Detective Travers “had a basis to detain the vehicle under the totality of the circumstances that

he was presented with and had a basis to seize the vehicle for further investigation.” The trial

court further found that when appellant “lock[ed] the doors and refused to unlock them,”

appellant’s actions constituted an “active” action, rather than a passive act. According to the trial

court, appellant’s act of rolling up the window while Detective Travers’ arm was in the window



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constituted an act of obstruction. For these reasons, the court denied appellant’s renewed motion

to strike and found appellant guilty.

       Following the trial court’s denial of appellant’s motion to strike, the following exchange

took place:

               [APPELLANT’S COUNSEL]: We don’t get argument?

               THE COURT: Argument? That was argument.

               [APPELLANT’S COUNSEL]: Oh, I thought it was just for the motion to
               strike, the second motion to strike. Is that final argument as well?

               THE COURT: No, I’ve heard all I need to hear, and besides, you had two
               opportunities to argue on that motion. I find [appellant] guilty as charged.

       At sentencing, appellant made the following comments regarding the arguments she

would have advanced during closing:

               This is a situation where they’re investigating another individual. She
               does not have any idea about what’s going on. Closing argument would
               have kind of covered a little bit of the mindset of [appellant] when this
               was happening. She still, to this day, after this matter does not fully
               understand why that vehicle was under investigation. She was never told
               why that vehicle was under investigation.

               She doesn’t have any relationship with Detective Travers. She doesn’t
               really trust Detective Travers too much. Her actions at that time given the
               information that she had [were] somewhat reasonable for somebody who
               does not trust [Detective] Travers.

On September 18, 2014, the trial court entered a final order finding appellant guilty of

obstruction of justice and sentencing her to a fine and ninety days’ incarceration with all ninety

days suspended on condition of her good behavior. This appeal followed.




                                                -4-
                                             ANALYSIS

                I. THE EVIDENCE WAS SUFFICIENT TO CONVICT APPELLANT OF OBSTRUCTION OF
                  JUSTICE

        Appellant first contends that the evidence adduced at trial was insufficient to support her

conviction of obstruction of justice. According to appellant, the evidence was insufficient to

prove that she “knowingly impeded Detective Travers’ investigation,” because her actions

“consisted of her passively remaining in the car.” We disagree.

        Upon an appeal challenging the sufficiency of the evidence, “we review the evidence in

the light most favorable to the Commonwealth, according it the benefit of all reasonable

inferences fairly deducible therefrom.” Singleton v. Commonwealth, 278 Va. 542, 548, 685

S.E.2d 668, 671 (2009) (citation omitted). Under this highly deferential standard of review, we

“‘presume the judgment of the trial court [is] correct,’ and ‘will not set it aside unless it is plainly

wrong or without evidence to support it.’” Chambliss v. Commonwealth, 62 Va. App. 459, 465,

749 S.E.2d 212, 215 (2013) (quoting Davis v. Commonwealth, 39 Va. App. 96, 99, 570 S.E.2d

875, 876-77 (2002)). In doing so, this Court “does not ‘ask itself whether it believes that the

evidence at trial established guilt beyond a reasonable doubt.’” Williams v. Commonwealth, 278

Va. 190, 193, 677 S.E.2d 280, 282 (2009) (emphasis in original) (quoting Jackson v. Virginia,

443 U.S. 307, 318-19 (1979)). Instead, we ask only whether “any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at

319 (emphasis in original).

        Code § 18.2-460(A) provides, in relevant part:

                If any person without just cause knowingly obstructs . . . any
                law-enforcement officer . . . in the performance of his duties as such or
                fails or refuses without just cause to cease such obstruction when
                requested to do so by such . . . law-enforcement officer . . . he shall be
                guilty of a Class 1 misdemeanor.


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       To violate Code § 18.2-460(A), there need not “‘be actual or technical assault upon the

officer.’” Ruckman v. Commonwealth, 28 Va. App. 428, 429, 505 S.E.2d 388, 389 (1998)

(quoting Jones v. Commonwealth, 141 Va. 471, 478-79, 126 S.E. 74, 77 (1925)). Rather, “‘there

must be acts clearly indicating an intention on the part of the accused to prevent the officer from

performing his duty, as to “obstruct” ordinarily implies opposition or resistance by direct

action.’” Id. (quoting Jones, 141 Va. at 479, 126 S.E. at 77).

       Here, the trial court found that appellant’s conduct constituted direct action calculated to

prevent and obstruct Detective Travers’ performance of his duties. Appellant refused Detective

Travers’ repeated order that she exit the vehicle. Appellant then locked the vehicle doors to

prevent Detective Travers from opening them. Appellant also physically obstructed Detective

Travers when he reached inside the open passenger window of her vehicle to unlock the door, by

“roll[ing] the window up on [his] arm.” Even after Detective Travers “unlock[ed] the vehicle,

extract[ed] [his] arm, and then open[ed] the door,” appellant continued to ignore Detective

Travers’ command to exit the vehicle. Appellant’s recalcitrance eventually required Detective

Travers to “physically pull[]” her from the vehicle before he was able to seize the vehicle.

Appellant’s behavior was designed to obstruct Detective Travers’ performance of his duties and

necessitated that he use force against appellant in order to properly perform his duties,

circumstances that certainly fall within Code § 18.2-460(A). We see no reason to disturb the

trial court’s factual determination and its construction of Code § 18.2 460(A) as it relates to this

conduct.

       Accordingly, we find the evidence sufficient to prove appellant’s conviction of

obstruction of justice and affirm the trial court.




                                                 -6-
               II. APPELLANT WAIVED HER CHALLENGE TO THE TRIAL COURT’S RULING
                  FORECLOSING CLOSING ARGUMENT

       Appellant next contends that the trial court erred by not permitting her to make a closing

argument at trial. The Commonwealth argues that appellant did not preserve this argument and it

is therefore barred from consideration by Rule 5A:18. We agree with the Commonwealth.

       Rule 5A:18 states, in relevant part, that “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.” “The purpose of [this] rule is to ensure that the trial court and opposing party

are given the opportunity to intelligently address, examine, and resolve issues in the trial court,

thus avoiding unnecessary appeals.” Andrews v. Commonwealth, 37 Va. App. 479, 493, 559

S.E.2d 401, 408 (2002). “For the circuit court to rule intelligently, the parties must inform the

circuit court ‘of the precise points of objection in the minds of counsel.’” Maxwell v.

Commonwealth, 287 Va. 258, 264-65, 754 S.E.2d 516, 519 (2014) (quoting Gooch v. City of

Lynchburg, 201 Va. 172, 177, 110 S.E.2d 236, 239-40 (1959)). Applying Rule 5A:18, we have

consistently held that we “will not consider an argument on appeal which was not presented to

the trial court.” Ohree v. Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998).

       Following argument on appellant’s renewed motion to strike, the trial court denied the

motion and found appellant guilty of obstruction of justice. The following exchange between

appellant and the trial court occurred:

               [APPELLANT’S COUNSEL]: We don’t get argument?

               THE COURT: That was argument.

               [APPELLANT’S COUNSEL]: Oh, I thought it was just the
               motion to strike. Is that final argument as well?



                                                 -7-
               THE COURT: No, I’ve heard all I need to hear. And besides, you
               had two opportunities to argue on that motion. I find you guilty as
               charged . . . . How do you want to proceed?

Without objection, the parties then agreed to proceed to sentencing.

       Appellant did not object to the trial court’s determination as it pertained to closing

argument. Contrary to the position she now advances on brief, appellant did not “request to

make closing argument” following the denial of her motion to strike. Rather, appellant merely

clarified with the trial court whether argument on the renewed motion to strike constituted “final

argument as well.” On this record, we cannot find any basis from which to conclude that the trial

court knew (or should have known) of appellant’s objection to the limitation of argument.

       Appellant argues in the alternative that this Court should apply the “‘no opportunity to

object’ exception to the contemporaneous objection rule,” provided in Code § 8.01-384 in order

to review her second assignment of error.

       Code § 8.01-384(A) provides a narrow exception to the contemporaneous objection

principle. See Mason v. Commonwealth, 7 Va. App. 339, 373 S.E.2d 603 (1988). It states, in

relevant part, “[I]f a party has no opportunity to object to a ruling or order at the time it is made,

the absence of an objection shall not thereafter prejudice him on motion for a new trial or on

appeal.” Code § 8.01-384(A). “Thus, this provision . . . requires appellate courts to consider

issues on appeal that do not satisfy the contemporaneous objection requirement when the litigant

had no opportunity to make the requisite timely objection.” Maxwell, 287 Va. at 265, 754

S.E.2d at 519. When determining whether to apply this exception, we approach the issue

cautiously, aware that experience has “demonstrate[d] that litigants are rarely precluded from

making contemporaneous objections to orders or rulings of the court.” Amos v. Commonwealth,

287 Va. 301, 309, 754 S.E.2d 304, 308 (2014).



                                                 -8-
       In this case, appellant had the opportunity to object, but failed to do so. After the trial

court denied appellant’s motion to strike and found the evidence sufficient “to find [appellant]

guilty as charged,” appellant questioned whether the parties would have an opportunity for

closing argument, but did not express an objection to the trial court’s decision to forego closing

argument. It is clear from appellant’s discussion with the trial court regarding closing argument

that she had the opportunity to make her objection known to the trial court and to make known

the action she desired the trial court to take in response. There is nothing in this record to

suggest that the trial court precluded appellant from making the requisite timely objection.

Accordingly, we decline to apply the exception to the contemporaneous objection rule provided

in Code § 8.01-384(A) and therefore consider appellant’s challenge to the trial court’s ruling

foregoing closing argument waived.

                                          CONCLUSION

       For the foregoing reasons, we affirm appellant’s conviction of obstruction of justice.

                                                                                           Affirmed.




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