PRESENT:   All the Justices


DERRICK GANSON MAXWELL, S/K/A
DERICK GANSON MAXWELL
                                             OPINION BY
v.   Record No. 130810            JUSTICE LEROY F. MILLETTE, JR.
                                         FEBRUARY 27, 2014
COMMONWEALTH OF VIRGINIA

VINCENT A. ROWE

v.   Record No. 130881

COMMONWEALTH OF VIRGINIA


                FROM THE COURT OF APPEALS OF VIRGINIA

      We consider these two appeals together because they present

two different applications of the provision in Code § 8.01-

384(A) that addresses the absence of a contemporaneous objection

when there is no opportunity to make a timely objection.

      In each case, we consider whether the Court of Appeals

erred in holding that Rule 5A:18 barred consideration of issues

on appeal when the litigant had failed to make a

contemporaneous objection in the circuit court.

                           I.   Background

A.    Maxwell

      Derick Ganson Maxwell was indicted for unlawful wounding in

violation of Code § 18.2-51.    On September 26, 2011, Maxwell was

tried by jury for the offense in the Circuit Court of Frederick

County.    Immediately after the jury left the courtroom to begin
deliberations, Maxwell's counsel requested to be excused to go

to her office because she had not "had the opportunity to eat

anything."    Maxwell's counsel indicated that the courtroom was

within ten minutes from her office, and that "[t]hey know my

phone number."

     The circuit court recessed while the jury deliberated, and

Maxwell's counsel, Maxwell, and the Assistant Commonwealth's

Attorney left the courtroom to await the return of the jury's

verdict.   Upon its return, the jury found Maxwell guilty of

unlawful wounding.    After brief testimony, closing arguments,

and deliberations on sentencing, the jury recommended a sentence

of five years' imprisonment.

     After the circuit court dismissed the jury, Maxwell's

counsel indicated that "[i]t has been brought to my attention

that there may have been a jury question.    I am not quite sure

what that is."    The circuit court confirmed that the jury had

submitted questions during deliberations but was unable to find

the questions at that time.    The circuit court went on to

explain the questions and answers, and to indicate that there

was no reason for Maxwell or his counsel to be present:

             The Court: Counsel, I will be happy to
             address [the jury questions and answers] at
             sentencing, but I can tell you what it was.
             I told them to re-read the instructions.
             They asked a question and I told them the
             answer was in the instructions. To re-read
             the instructions was the answer to one of


                                  2
          the particular questions. And the other
          question was . . . it was one again where it
          was in the instructions and I just told them
          to read the instructions that they already
          received. They were not given any new
          instructions whatsoever or were not given
          any new directions. It was just simply to
          read the instructions.

          Ms. Hackett: Okay. And I would just
          inquire because I was not present in court.

          The Court: No one was present because the
          nature of the question only called for them
          to read the instructions. There was no
          reason to bring the Defendant back or
          Counsel back. You were in your office. I
          think [you] had gone for lunch.

     On October 31, 2011, Maxwell filed a motion to set aside

the unlawful wounding conviction.    Maxwell argued, in part, that

the court's ex parte communications with the jury violated his

Sixth Amendment rights and his right under Code § 19.2-259 to be

"personally present during the trial."   Maxwell also alleged

that the court's communications with the jury violated Code

§ 19.2-263.1, which prohibits judges from "communicat[ing] in

any way with a juror in a criminal proceeding concerning . . .

any aspect of the case during the course of the trial outside

the presence of the parties or their counsel."   The circuit

court denied Maxwell's motion.

     Maxwell filed an appeal with the Court of Appeals and

assigned error to the circuit court's ex parte communications

with the jury.   The Court of Appeals, in an unpublished



                                 3
decision, held that Rule 5A:18 prohibited consideration of the

merits of Maxwell's assignment of error because Maxwell did not

make a contemporaneous objection to the circuit court's

allegedly improper communications with the jury.   We awarded

Maxwell this appeal.

B.   Rowe

     Vincent A. Rowe was tried by jury in the Circuit Court for

the City of Portsmouth and found guilty of grand larceny in

violation of Code § 18.2-95 and grand larceny with intent to

sell in violation of Code § 18.2-108.01.   During closing

argument, the attorney for the Commonwealth indicated that

inferences could support a finding of guilt:

            That's why they're part of this case, that's
            why they're referred to as circumstantial
            evidence, and that possession – in order to
            eliminate this inference, if you feel it's
            justified in th[is] case, what has to happen
            is some evidence has to be brought forth by
            the defense to eliminate it. And as you
            know at this point, the defense has offered
            no evidence.

After just two additional sentences, the Commonwealth concluded

its closing argument.   Rowe's counsel stated, "Actually, before

I make my argument, there is a motion I would like to make

outside the presence of the jury."   The circuit court responded,

"We'll deal with it when the jury goes out to retire," and Rowe

replied, "Very well."




                                 4
     After the jury left to begin deliberations, Rowe made a

motion for mistrial.    Rowe argued that the Commonwealth's

statements that "the defendant didn't testify or the defendant

did not present any evidence" were unduly prejudicial and

warranted a mistrial.   The circuit court denied Rowe's motion.

     Rowe filed an appeal with the Court of Appeals, alleging in

part that the circuit court erred by denying his motion for a

mistrial because the Commonwealth's comments during closing

argument prejudiced Rowe by shifting the burden to the defense

to produce evidence.    The Court of Appeals, by order, refused to

reach the merits of this assignment of error, holding that

Rowe's objection to the Commonwealth's closing statement was not

timely made and, as a result, the Court of Appeals could not

reach the alleged error under Rule 5A:18.      We awarded Rowe this

appeal.

                           II.   Discussion


  A. Rule 5A:18

    The Court of Appeals' "interpretation of the Rules of this

Court, like its interpretation of a statute, presents a question

of law that we review de novo."       LaCava v. Commonwealth, 283 Va.

465, 469-70, 722 S.E.2d 838, 840 (2012).      Rule 5A:18 contains

the contemporaneous objection rule applicable to the Court of

Appeals and parallels the requirements of the contemporaneous




                                  5
objection rule applicable to this Court as provided in Rule

5:25.    See, e.g., Brown v. Commonwealth, 279 Va. 210, 217, 688

S.E.2d 185, 189 (2010) (observing that Rule 5:25 is the

"counterpart" to Rule 5A:18).    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.

See also Rule 5:25.     The purpose of the contemporaneous

objection rule "is to avoid unnecessary appeals by affording the

trial judge an opportunity to rule intelligently on objections."

State Highway Comm'r v. Easley, 215 Va. 197, 201, 207 S.E.2d

870, 873 (1974).    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."     Gooch v. City of

Lynchburg, 201 Va. 172, 177, 110 S.E.2d 236, 239-40 (1959).

        For an objection to meet the requirements of Rule 5A:18, it

must also "be made . . . at a point in the proceeding when the

trial court is in a position, not only to consider the asserted

error, but also to rectify the effect of the asserted error."

Scialdone v. Commonwealth, 279 Va. 422, 437, 689 S.E.2d 716, 724

(2010).    This requirement allows the circuit court to remedy the




                                  6
error while also giving "the opposing party the opportunity to

meet the objection at that stage of the proceeding."   Id.

  B. Code § 8.01-384(A)

     Under Code § 8.01-384(A), "[f]ormal exceptions to rulings

or orders of the court" are not required.   Rather, in order to

preserve an issue for appeal a party must, "at the time the

ruling or order of the court is made or sought, make[] 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."

     However, Code § 8.01-384(A) continues, "if 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." (Emphasis added.)

Thus, this provision of Code § 8.01-384(A) 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.

     Both Maxwell and Rowe contend that Code § 8.01-384(A)

applies to preserve their respective assignments of error for

appellate review.   However, the statute that they base their

arguments on is where their similarities end, as the factual

differences between the two cases dictate disparate

dispositions.

  C. Maxwell


                                7
     Maxwell argues that the Court of Appeals erred in applying

the contemporaneous objection requirement of Rule 5A:18 to

refuse to reach his challenge to the circuit court's sua sponte

response to jury questions in his absence.   Maxwell contends

that he had no opportunity to make a contemporaneous objection

to the circuit court's consideration of the jury questions

because Maxwell and his counsel were absent from the courtroom,

and the circuit court did not inform them that the jury

submitted questions to the court or that the court was going to

provide an answer.   Maxwell maintains that he made an objection

when he became aware of the alleged error.   Furthermore, he

contends that because he had no opportunity to object

contemporaneously when the court considered the jury's questions

in his absence, any delay in subsequently making his objection

cannot prejudice his right to appeal pursuant to Code § 8.01-

384(A).

     The Commonwealth argues that Rule 5A:18 bars Maxwell's

appeal because Maxwell had the opportunity to bring the matter

to the circuit court's attention when the court was still in a

position to take corrective action.   The Commonwealth contends

that because the record supports a finding that the parties

learned of the ex parte communications while the jury was still

deliberating, albeit after the question was considered and

answered by the circuit court in the parties' absence, Maxwell


                                8
did have an opportunity to object in a timely manner and failed

to do so, and the Court of Appeals did not err by applying Rule

5A:18 to bar consideration of the merits of the issue on appeal.

     Rule 5A:18 requires the appellant to make an objection to

the court's ruling "with reasonable certainty at the time of the

ruling" in order to preserve the issue for appeal.   The record

is clear that neither Maxwell nor his attorney were present when

the court considered and responded to the jury's questions, and

that Maxwell and his attorney had no opportunity to object to

the court's act of responding to the jury's questions in their

absence.

     Code § 8.01-384(A) requires consideration of Maxwell's

argument on appeal.   Maxwell’s argument in the Court of Appeals

was not to the content of the circuit court's answers to the

jury's questions, but to the circuit court's act of entertaining

and answering the jury's questions when neither he nor his

counsel were present.   The record, specifically the portion of

the transcript in which the court discusses their absence,

reflects that Maxwell and his attorney, through no fault of

their own, were not present in the courtroom when the judge

received and answered the jury's questions.   Thus, by their

absence, Maxwell and his counsel did not have the opportunity to

be present and challenge the court's decision to address

questions from the jury in their absence.   By its plain


                                9
language, Code § 8.01-384(A) prevents Maxwell from being

prejudiced on appeal due to his lack of opportunity to make an

objection contemporaneously with the court’s act of proceeding

in his absence.   See Commonwealth v. Amos, 287 Va.     ,   ,

S.E.2d   ,    (2014)(this day decided).

  D. Rowe

     Rowe contends that he did make a contemporaneous objection,

but that he had no opportunity to articulate the reasons for his

objection in compliance with the requirement of Code § 8.01-

384(A) because the circuit court denied his request to make a

motion outside the presence of the jury.   Rowe contends that his

failure to make a sufficient contemporaneous objection is

excused by the provision of Code § 8.01-384(A) that prohibits

prejudice to his appeal.

     The Commonwealth contends that Rule 5A:18 bars review of

Rowe's objection because Rowe did not make a contemporaneous

objection to the prosecutor's closing argument.   The

Commonwealth argues that Rowe failed to alert the circuit court

of the nature of his objection before the jury retired and,

consequently, Rule 5A:18 applies to bar consideration of the

objection on appeal.

     We agree with the Commonwealth that Rowe failed to make an

objection with the requisite specificity to satisfy Rule 5A:18.

Assuming without deciding that Rowe's delayed objection, made


                                10
after the conclusion of the Commonwealth's argument and only two

sentences after the allegedly improper comment, would have been

timely if its content had been sufficient, we hold that Rowe

failed to articulate a cognizable objection at a time when the

court could take appropriate action.

       As we have previously addressed, the purpose of the

requirement that a litigant make a contemporaneous objection is

that the objection be made at a time when the circuit court, in

considering the objection, can take appropriate action to

correct the error.    Scialdone, 279 Va. at 437, 689 S.E.2d at

724.   Further, it is well-established that the Court will not

consider a defendant's "assignments of error alleging that

improper remarks were made by the prosecutor" unless he "has

made a timely motion for a cautionary instruction or for a

mistrial."    Schmitt v. Commonwealth, 262 Va. 127, 148, 547

S.E.2d 186, 200 (2001); see also Blount v. Commonwealth, 213 Va.

807, 811, 195 S.E.2d 693, 696 (1973)(refusing to reach the

assigned error because the defendant "did not ask that a

cautionary admonition be given directing the jury to disregard

[an] allegedly improper [remark in closing] argument, nor did he

make a motion for a mistrial").    The defendant must make the

motion for mistrial before the jury retires or it "is untimely

and properly refused."    Cheng v. Commonwealth, 240 Va. 26, 39,

393 S.E.2d 599, 606 (1990).


                                  11
     We have also specifically required an appellant who objects

to an allegedly improper statement to do more than merely state

his objection.   See Yeatts v. Commonwealth, 242 Va. 121, 410

S.E.2d 254 (1991).   In Yeatts, defense counsel noted his

objection to a statement by the Commonwealth's witness that "Mr.

Yeatts spoke of his prior convictions and his drug abuse."    242

Va. at 136, 410 S.E.2d at 263.   The circuit court sustained the

objection.    Id., 410 S.E.2d at 264.   Later, after the prosecutor

proceeded with his direct examination of the witness, defense

counsel made a motion for mistrial based on the aforementioned

statement.    Id. at 136-37, 410 S.E.2d at 264.   We held that the

circuit court did not err in denying Yeatts' motion for mistrial

because the second objection, made with reasonable certainty and

specifically requesting a mistrial, was not timely made.     Id. at

137, 410 S.E.2d at 264.

     Therefore, Yeatts' initial and timely objection, which was

limited to "[y]our Honor, I object," was not sufficient to

preserve for appeal Yeatts' argument concerning his motion for

mistrial.    Id. at 136, 410 S.E.2d at 264; see also Hargrow v.

Watson, 200 Va. 30, 35, 104 S.E.2d 37, 40 (1958) ("[Plaintiff's]

counsel . . . simply stated to the court, 'I object to [defense

counsel's] statement that the defendant . . . made a fraudulent

statement as to his marriage.'   No request to declare a mistrial

was included in the objection, and no request was made that the


                                 12
court instruct the jury to disregard the remark.   If such remark

was improper, which we do not here decide, the error was

waived.").

     Before the jury retired, Rowe's counsel stated only,

"Actually, before I make my argument, there is a motion I would

like to make outside the presence of the jury."    Rowe's "motion"

was not an "objection . . . stated with reasonable certainty at

the time of the ruling" as required by Rule 5A:18 because it

failed to state for the court the details of his objection or

the time-sensitive nature of his motion.   Further, Rowe’s

counsel did not move for a mistrial at a time when the circuit

court could have taken action to correct the asserted error.

     Rowe's counsel did not lack the opportunity to make his

objection to the allegedly improper comments to the court.

After the court indicated its intent to "deal with it when the

jury goes out to retire," Rowe chose to respond, "[v]ery well,"

rather than express his need to contemporaneously preserve his

objection.   Rowe's counsel's colloquy with the court makes it

clear that he had the opportunity to make his objection known to

the court and articulate more clearly the action he desired the

court to take and that the action needed to be taken before the

jury retired.

     Nothing in the record supports a finding that Rowe had no

opportunity to make a contemporaneous objection to the


                                13
Commonwealth's argument at a time and in a manner that would

make it clear to the court the relief that Rowe sought.   When

Rowe did subsequently make his objection sufficiently clear to

the court, pursuant to our case law, it was too late for the

court to take the corrective action sought.   The Court of

Appeals did not err in refusing to consider Rowe's challenge to

the allegedly improper statements made by the Commonwealth

during closing argument.

                           III. Conclusion

     For the reasons stated, we will reverse the Court of

Appeals' judgment in Maxwell and remand the case to the Court of

Appeals to consider the assignment of error that it erred in

determining was defaulted.   We will affirm the Court of Appeals'

judgment in Rowe.

                        Record No. 130810 – Reversed and remanded.

                                     Record No. 130881 - Affirmed.


JUSTICE LEMONS, with whom JUSTICE MIMS joins, dissenting -

Record No. 130881.

     When considering questions of preservation and Code § 8.01-

384(A), there has to be a recognition of real world trial

practice.   All the participants, including the judge, are imbued

with a certain amount of understanding regarding what goes on in

trial.   In this case, at the end of the Commonwealth's closing



                                14
argument, the Commonwealth's Attorney made the following

comment, "[a]nd as you know at this point, the defense has

offered no evidence."   The Commonwealth's Attorney then

concluded his argument.

     Within a reasonable amount of time thereafter, defense

counsel stated, "Actually, before I make my argument, there is a

motion I would like to make outside the presence of the jury."

Everyone acquainted with trial practice would know what this

motion was – a motion for a mistrial based upon the

Commonwealth's Attorney's reference to the defendant's failure

to present evidence.    Defense counsel's request could have

included a lesser remedy than a mistrial, such as a jury

instruction to disregard the comment.   Regardless, this

statement by defense counsel, taken in context, made "known to

the court the action which he desire[d] the court to take."

Code § 8.01-384(A).    Thereafter, the trial judge responded,

"[w]e'll deal with it when the jury goes out to retire."    The

trial judge directed the attorney to postpone addressing the

question until a later time.

     Presumably, this case does not represent the first time the

trial judge has seen this scenario: the prosecutor makes remarks

to the jury that may be construed as a comment upon the

defendant’s constitutional right not to testify, and defense

counsel responds with a request to make a motion outside the


                                 15
presence of the jury.    It is objectively unreasonable to

conclude that the trial judge did not know the basis for defense

counsel’s request; it was readily apparent under these

circumstances.   See, e.g., Beck v. Commonwealth, 253 Va. 373,

386, 484 S.E.2d 898, 906 (1997)(relying on "training and

experience" of trial judges regarding evidence issues and

presuming the trial judge considers only that evidence which is

permissible); Smith v. Commonwealth, 280 Va. 178, 184, 694

S.E.2d 578, 581 (2010)(relying on "training, experience and

judicial discipline" of trial judges as a basis to conclude that

a judge "separate[s], during the mental process of adjudication,

the admissible from the inadmissible, even though he has heard

both").   In my judgment, defense counsel’s request of the judge

was therefore sufficient to preserve the matter for appellate

review.

     It is important to remember that this was a criminal trial

before a jury, and the jury was about to retire to decide the

fate of the defendant.    Defense counsel had to decide whether to

argue with the judge in front of the jury and demand that his

motion be heard before the jury retired, or to abide by the

trial court's ruling.    By arguing with the judge immediately

before the jury was to retire, defense counsel risked

prejudicing the jury against him, and by extension, his client.

By acknowledging the trial court's authority to hear the motion


                                 16
at a later time, counsel should not have to risk waiving his

client's fundamental right to an appeal.    Civility and decorum

on the part of defense counsel should not be equated to a waiver

of the defendant's fundamental right to appeal.    See Ashley

Flynn, Procedural Default: A De Facto Exception to Civility, 12

Cap. Def. J. 289, 297-303 & n.63 (2000).

        In this case, defense counsel made known to the trial court

the action he wanted the court to take when he informed the

court that he wished to make a motion immediately after the

Commonwealth concluded its closing argument which included

commentary on the defendant’s lack of evidence and failure to

testify.    To the extent any ambiguity remained regarding exactly

what type of motion he wished to make, defense counsel did not

have a reasonable opportunity to provide a more detailed

objection at that time, in light of the trial court's direction

that defense counsel's motion would be dealt with at a later

time.    Any failure to raise a more specific objection was a

result of the trial court's actions, and Rowe should not be

prejudiced on appeal as a result of the trial court's action.

Therefore, the preservation exception of Code § 8.01-384(A)

should apply, and Rowe's appeal should be considered on the

merits.    Accordingly, I dissent from the majority's decision to

affirm the holding of the Court of Appeals.




                                  17
JUSTICE McCLANAHAN, dissenting - Record No. 130810.

     I disagree with the majority's interpretation and

application of Code § 8.01-384(A), and would affirm the judgment

of the Court of Appeals.   The majority begins by incorrectly

framing the issue on appeal.   This leads to its flawed

conclusion that the Court of Appeals erred in holding that

Maxwell failed to timely raise his objection to the circuit

court's challenged communication with the jury.

                                 I.

     According to the majority, "Maxwell's argument in the Court

of Appeals was not to the content of the circuit court's answers

to the jury's questions, but to the circuit court's act of

entertaining and answering the jury's questions when neither he

nor his counsel were present."   (Emphasis in original.)   The

majority thus determines that no objection could have been made

that would have remedied the circuit court's purported

constitutional error in answering the jury's questions without

Maxwell and his attorney present.     This is merely recognition of

the obvious - that nothing could have been done after the fact

to effect their presence at the time the circuit court answered

the jury's questions.   Under this limited view of the appeal,

the content of the circuit court's answers to the jury's

questions would be irrelevant.   Moreover, there would be no

reason to remand this case to the Court of Appeals, as the


                                 18
majority does, because there would be no basis for a harmless

error analysis absent consideration of the substance of the

circuit court's answers.   In sum, the fact that the ex parte

communication occurred is all that matters.   This, however, is a

misconception of the relevant considerations presented in

Maxwell's appeal to the Court of Appeals.

     A circuit court's act of communicating ex parte with a jury

is inextricably intertwined with the content of that

communication in the context of a party's constitutional

challenge to that communication, as presented here.    Indeed, as

Maxwell has contended from the time he filed his Petition for

Appeal with the Court of Appeals, "the jury questions posed go

to the heart of the issues in the pending case," to which he was

purportedly given "no opportunity to have his counsel argue

appropriate responses."    "The jury questions and the responses

given by the trial judge in [his] absence," Maxwell asserted,

"may have had a significant impact on the outcome of [his] trial

in this case."   (Id. at 23)

     Thus, the content of the circuit court's ex parte

communication with the jury is the overriding substantive

consideration in Maxwell's constitutional challenge to that

communication.   Indeed, highlighting the fact that the actual

content of a circuit court's challenged ex parte communication

with a jury obviously matters, Maxwell himself acknowledged in


                                 19
his opening brief to the Court of Appeals that there would be no

basis for such challenge if, for example, the communication

"raised by the jury regard[ed] comfort and convenience."    That

is because the determining legal factor is whether or not the

communication was prejudicial, triggering a harmless error

analysis.   See Angel v. Commmonwealth, 281 Va. 248, 264, 704

S.E.2d 386, 396 (2011) ("[E]rrors, arising from the denial of a

constitutional right[,] are subject to a harmless error

analysis.") (citing Lilly v. Commonwealth, 258 Va. 548, 551, 523

S.E.2d 208, 209 (1999)).   As Maxwell also acknowledged, for the

Court of Appeals to determine whether the circuit court's ex

parte communication with the jury "should give rise to a

reversal of [his] conviction, [the Court of Appeals] must first

determine whether that error was harmless."   See Clay v.

Commonwealth, 262 Va. 253, 259, 546 S.E. 2d 728, 731 (2001)

(cases cited by Maxwell, addressing harmless constitutional

error); Corado v. Commonwealth, 47 Va. App. 315, 323, 623 S.E.2d

452, 456 (2005) (same).

                                II.

     Accordingly, the dispositive procedural issue in Maxwell's

appeal is whether he preserved the right to assert that he was

prejudiced by the content of the circuit court's ex parte

communication with the jury, i.e., an argument that the

communication was not harmless error.   We must therefore decide


                                20
whether Maxwell was required, after the fact, to raise an

objection with the circuit court concerning the challenged

communication in light of the preservation provisions in Code §

8.01-384(A).

     Under the express terms of Code § 8.01-384(A), a party,

like Maxwell, will not be "prejudice[d]" by his failure to make

a contemporaneous objection if he has no opportunity to do so.

Nevertheless, if that party later has an opportunity to make his

objection in time for the circuit court to correct the purported

error, but fails to object, it is that failure which causes him

"prejudice" on appeal, i.e., default, not the absence of a

contemporaneous objection.   Id.     And, manifestly, the statute

makes no provision to the contrary.

     This Court has long recognized that the purpose of the

contemporaneous objection rule, presently contained in Rules

5:25 and 5A:18, is not "'to obstruct petitioners in their

efforts to secure writs of error, or appeals.'"      Scialdone v.

Commonwealth, 279 Va. 422, 437, 689 S.E.2d 716, 724 (2010)

(quoting Kercher v. Richmond, Fredericksburg & Potomac R.R. Co.,

150 Va. 108, 115, 142 S.E. 393, 395 (1928)).     Rather, its

paramount purpose is "'to protect the trial court from appeals

based upon undisclosed grounds, to prevent the setting of traps

on appeal, to enable the trial judge to rule intelligently, and

to avoid unnecessary reversals and mistrials.'"      Brandon v. Cox,


                                   21
284 Va. 251, 255, 736 S.E.2d 695, 696 (2012) (quoting Reid v.

Boyle, 259 Va. 356, 372, 527 S.E.2d 137, 146 (2000)); see also

Fisher v. Commonwealth, 236 Va. 403, 414, 374 S.E.2d 46, 52

(1988); Harlow v. Commonwealth, 195 Va. 269, 273, 77 S.E.2d 851,

854 (1953).   In effecting this policy, we have held that a party

satisfies Rules 5:25 and 5A:18 if he makes an objection "'at a

point in the proceeding when the trial court is in a position,

not only to consider the asserted error, but also to rectify the

effect of the asserted error.'"        Scialdone, 279 Va. at 437, 689

S.E.2d at 724 (quoting Johnson v. Raviotta, 264 Va. 27, 33, 563

S.E.2d 727, 731 (2002)).    Thus, our analysis of whether these

rules have been satisfied "has consistently focused on whether

the trial court had the opportunity to rule intelligently on the

issue" raised on appeal.    Id.

     Pursuant to these principles, Maxwell was required to

object to the trial court's ex parte communication with the jury

to the extent there was an opportunity for him to do so in time

for the trial court to give purportedly "'rectify[ing]'"

instructions to the jury.   Id.    Maxwell was presented with such

an opportunity but did not pursue it.       While the jury was still

deliberating its verdict, Maxwell learned of the trial court's

subject communication with the jury but did not bring the




                                  22
asserted error to the trial court's attention at that time. 1   It

was only after the jury was discharged upon finding Maxwell

guilty of unlawful wounding that he raised with the trial court

the issue of its communication with the jury.   As the Court of

Appeals noted, "'[a] party litigant should not await the return

of the verdict and have a chance of securing a favorable one,

and then, if unfavorable, make a motion for a new trial.'" 2

Maxwell v. Commonwealth, 2013 Va. App. LEXIS 120, at *9 (Va. Ct.

App. Apr. 16, 2013) (unpublished) (quoting Crockett v.

Commonwealth, 187 Va. 687, 707, 47 S.E.2d 377, 386-87 (1948)).

     For these reasons, I would hold that Maxwell failed to

preserve for appeal a challenge to the trial court's

communication with the jury, and affirm the decision of the

Court of Appeals.   I therefore dissent.




     1
       This fact was established through the prosecutor's
unchallenged, unilateral avowal at oral argument on Maxwell's
motion to set aside the verdict. (App. 431) See Whitaker v.
Commonwealth, 217 Va. 966, 969, 234 S.E.2d 79, 81 (1977) ("[A]
unilateral avowal of counsel, if unchallenged . . . constitutes
a proper proffer.").
     2
       It is here worth noting that during oral argument,
Maxwell's counsel could not provide a cogent explanation as to
why the circuit court's answers to the jury's questions were
wrong and what the circuit court should have said differently.

                                23
JUSTICE POWELL, concurring - Record No. 130810.

     I disagree with the majority’s implicit holding that every

ex parte communication between a circuit court judge and a

deliberating jury automatically excuses a party’s subsequent

failure to object to that communication.   Rather, in my opinion,

the determinative fact is whether the party had a reasonable

opportunity to object to the trial court’s ex parte

communication “at a point in the proceeding when the trial court

is in a position, not only to consider the asserted error, but

also to rectify the effect of the asserted error.”    Johnson v.

Raviotta, 264 Va. 27, 33, 563 S.E.2d 727, 731 (2002).

     Here, it is highly unlikely that either Maxwell or his

attorney became aware of the ex parte communication, much less

had the opportunity to object, at a point when the circuit court

could address any error that may have resulted from the ex parte

communication.   The record demonstrates that the jury only

deliberated for one hour and thirty-six minutes, and during that

time, Maxwell’s attorney had left the courthouse with the

circuit court’s express permission.   On these facts alone, I

agree with the majority’s decision to reverse and remand.
