                               COURT OF APPEALS OF VIRGINIA


Present: Judges Frank, Clements and Senior Judge Fitzpatrick
Argued at Richmond, Virginia


WALTER ARNOLD RAMOS LARA
                                                               MEMORANDUM OPINION* BY
v.     Record No. 2858-05-4                                     JUDGE ROBERT P. FRANK
                                                                    APRIL 17, 2007
COMMONWEALTH OF VIRGINIA


                 FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
                               William D. Hamblen, Judge

                 William J. Baker for appellant.

                 Gregory W. Franklin, Assistant Attorney General (Robert F.
                 McDonnell, Attorney General; Donald E. Jeffrey, III, Assistant
                 Attorney General, on brief), for appellee.


       Walter Arnold Ramos Lara, appellant, appeals his convictions for criminal gang

participation, pursuant to Code § 18.2-46.2, and malicious wounding, pursuant to Code § 18.2-51.2.

Appellant contends that the trial court erred in denying three separate motions for a mistrial. Upon

review of the record and briefs of the parties, we find that, under Rule 5A:18, appellant failed to

adequately preserve his arguments in the trial court. Accordingly, we affirm appellant’s

convictions.

                                          BACKGROUND

       Appellant was tried before a jury on charges of criminal gang participation and

aggravated malicious wounding in connection with the beating and stabbing of the victim. The

Commonwealth sought to prove that appellant was a member of a gang that participated in a

group assault on the victim outside of a nightclub.


       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                                     First Motion for Mistrial

       In her opening statement, the Commonwealth made the following remarks:

               We have a problem in this county, and we have a problem in
               Northern Virginia, and it’s gangs. Gang activity is on the rise.
               The Governor and the Attorney General’s Office are adamant that
               we’re going to do something about this. The Commonwealth’s
               attorney in Prince William County, Paul Eibert –

At that time, appellant objected, stating, “It’s supposed to be a summary of evidence, not public

policy.” The trial court sustained appellant’s objection, agreeing that the Commonwealth’s

statements were “argumentative.”

       The Commonwealth continued:

                  This happened in our county. Right down the road from here.
               Please pay attention to that. These people were not from Prince
               William County. In fact, you’re going to hear testimony that they
               came from Loudoun County and Fairfax County. . . .

                  I want you to pay attention to this, ladies and gentleman,
               because without any kind of intervention in this kind of problem
               that I’ve brought to you in this case today –

Appellant objected, and, in a bench conference, moved for a mistrial:

                  Judge, the purpose of opening statement is to summarize the
               evidence for the jury, and it is not to make false statements and that
               what we need to do and political overtones.

                  And I objected once. We’re going into again what we need to
               do. It’s improper. I’m moving for a mistrial, and it’s totally
               improper for that in opening statement. The sole purpose of
               opening statement is to comment on evidence.

The trial court directed the Commonwealth, “You may not argue the case to the jury. . . .

Opening statement is to summarize what the evidence is going to be.” The trial court denied

appellant’s motion for a mistrial, but gave a cautionary instruction to the jury as follows:

                   Ladies and gentlemen, to the extent that counsel has done
               anything in her opening statement other than to argue -- other than
               outline what the evidence is going to be, disregard that. Argument
               is properly done at the conclusion of the evidence, not at this stage
               of the trial.
                                               -2-
                                      Second Motion for Mistrial

       On cross-examination of one of appellant’s witnesses, the Commonwealth questioned the

witness about her prior criminal record. The witness admitted being charged with a felony for

forgery, but was convicted of a misdemeanor, the specifics of which she did not remember.

When the Commonwealth approached the witness with her criminal record to attempt to refresh

her memory, the witness expressed difficulty in reading the record. The Commonwealth said,

“These are the charges that you were charged [sic] and the disposition of those charges. Nolle

prossed, nolle prossed.”

       Appellant objected and moved for a mistrial. Appellant argued that by saying “nolle

prossed” twice and referring to “charges,” the Commonwealth was improperly trying to impeach

the witness with offenses that did not result in a conviction. The trial court, while recognizing

that this evidence was inadmissible, denied appellant’s motion for a mistrial. The trial court

observed that it was a “fleeting reference” and that “it’s something that’s more likely than not,

sort of went over the jury’s head.”

       The trial court then instructed the jury:

                  Ladies and gentlemen of the Jury, prior to the break, reference
               was made to other charges which at some point might have been
               pending against this witness but were dropped.

                  You will disregard that reference in its entirety. The fact that
               other charges may at one point have been pending against this
               witness is of no probative value in assessing her credibility.

                                      Third Motion for Mistrial

       On cross-examination of appellant, the Commonwealth asked appellant about two letters

he had received, while incarcerated, from a gang member who had been convicted of the same

crimes for which appellant was on trial. Appellant denied having a copy of the letters. The

Commonwealth then said, in the presence of the jury, “Judge, at this time, I’m going to ask the


                                                   -3-
Court for its indulgence in taking a recess. I have a search warrant that’s being executed and a

document that I would like to use.” The trial court denied the Commonwealth’s request for a

recess and instructed the Commonwealth to continue cross-examination. Appellant offered no

objection or motion at that time.

        After returning from a lunch break, appellant said, “I would renew my motion for a

mistrial in this case because [the Commonwealth’s comment about the search warrant] was

improper.” The trial court responded, “You didn’t make a motion for mistrial when that

statement was made.” The trial court did not rule on appellant’s motion, nor did he instruct the

jury regarding the Commonwealth’s comment.

        The jury convicted appellant of criminal gang participation and malicious wounding,1 and

sentenced appellant to 12 months in jail for criminal gang participation and five years in prison

for malicious wounding.

        This appeal follows.

                                           ANALYSIS

        On appeal, appellant contends that the trial court erred in denying his motions for

mistrial.

        As to the first motion for mistrial, appellant argues that the Commonwealth’s allusion to

the street gang problem in Northern Virginia and her demand that the jury “do something about

this problem” improperly prejudiced the jury into convicting appellant in order to “stamp out

gang related violence.” Appellant relies on the case of Hutchins v. Commonwealth, 220 Va. 17,

255 S.E.2d 459 (1979).2


        1
        The jury found appellant guilty of malicious wounding, a lesser-included offense of
aggravated malicious wounding.
        2
         In Hutchins, the Supreme Court reversed the defendant’s convictions for burglary and
grand larceny where the Commonwealth argued in closing that the jury should “send a message”
to residents of a neighboring city and impose a sentence that would protect county property
                                               -4-
        However, appellant never made this argument to the trial court. He contended only that

the Commonwealth’s comments were in the nature of an argument and that argument was

“improper” during an opening statement, which he observed was intended only to summarize the

evidence. The trial court recognized this distinction, instructing the jury only that argument was

not appropriate “at this stage of the trial.”

        Rule 5A:18 states, “No ruling of the trial court . . . will be considered as a basis for

reversal unless the objection was stated together with the grounds therefore at the time of the

ruling, except for good cause shown or to enable the Court of Appeals to attain the ends of

justice.” Under Rule 5A:18, a specific argument must be made to the trial court at the

appropriate time, or the allegation of error will not be considered on appeal. See Mounce v.

Commonwealth, 4 Va. App. 433, 435, 357 S.E.2d 742, 744 (1987). The purpose underlying this

rule is to afford the trial court an opportunity to rule intelligently on the arguments presented and

to take corrective action if necessary. Martin v. Commonwealth, 13 Va. App. 524, 530, 414

S.E.2d 401, 404 (1992).

        Appellant never argued at trial that the Commonwealth’s opening statement improperly

asked the jury to convict appellant for the purpose of deterring gang violence. Thus, we find that

appellant did not properly preserve this issue for appellate review and we therefore will not

address it for the first time on appeal. See Rule 5A:18.

        As to his second and third motions for mistrial, appellant argues only that the

Commonwealth’s introduction of “improper matters,” taken in conjunction with the

Commonwealth’s comments during opening statements, had a “cumulative effect” that




owners from “intruders” from the neighboring city. Hutchins v. Commonwealth, 220 Va. 17,
18-19, 255 S.E.2d 459, 460-61 (1979). The Supreme Court held that “[c]onviction for an offense
must be based solely upon evidence of guilt, and not upon considerations of deterrence.” Id. at
21, 255 S.E.2d at 461.
                                              -5-
constituted prejudice to appellant. This argument regarding cumulative effect was never

presented to the trial court when appellant made his second and third motions for mistrial. As

such, appellant did not properly preserve this issue and we will not address it for the first time on

appeal. See Rule 5A:18.

       Although Rule 5A:18 allows exceptions for good cause or to meet the ends of justice,

appellant does not argue that we should invoke these exceptions. See Redman v.

Commonwealth, 25 Va. App. 215, 221, 487 S.E.2d 269, 272 (1997). We will not consider such

an argument sua sponte. Edwards v. Commonwealth, 41 Va. App. 752, 761, 589 S.E.2d 444,

448 (2003) (en banc).

                                          CONCLUSION

       As appellant did not raise any of his arguments on appeal before the trial court, Rule

5A:18 bars our consideration of these issues for the first time on appeal. Appellant does not

argue that we should invoke the exceptions for good cause or to meet the ends of justice.

Accordingly, we affirm appellant’s convictions criminal gang participation and malicious

wounding.3

                                                                                           Affirmed.




       3
          While we find that appellant has defaulted his arguments about the trial court’s failure
to grant a mistrial, we certainly do not condone the behavior of the assistant Commonwealth’s
attorney in this case, who continued to make improper comments in the presence of the jury
despite repeated admonitions by the trial court.
                                               -6-
