                       COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Bray and Frank
Argued at Chesapeake, Virginia


INGRID EVERETTE, S/K/A
 INGRID A. EVERETTE
                                           MEMORANDUM OPINION * BY
v.   Record No. 0633-00-1                   JUDGE RICHARD S. BRAY
                                                MARCH 27, 2001
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK
                     Rodham T. Delk, Jr., Judge

           (Lynn A. Sugg; Sugg & Scott, P.C., on brief),
           for appellant. Appellant submitting on
           brief.

           (Mark L. Earley, Attorney General; H.
           Elizabeth Shaffer, Assistant Attorney
           General, on brief), for appellee. Appellee
           submitting on brief.

     Ingrid A. Everette (defendant) was convicted in a bench trial

of assault and battery upon a law enforcement officer engaged in

performance of her public duties, a violation of Code

§ 18.2-57(C). 1   On appeal, defendant challenges the sufficiency of

the evidence to support the conviction, complaining the trial

court "failed to credit" her testimony "that she did not remember"

the incident as proof that she lacked "the requisite intent" to

commit the offense.    However, because defendant did not properly

     *
       Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     1
       Defendant was indicted for malicious wounding of a law
enforcement officer engaged in the performance of her duties in
articulate her argument before the trial court, we decline to

consider the merits of the appeal.

     The parties are fully conversant with the record, and this

memorandum opinion recites only those facts necessary to a

disposition of the appeal.

                                  I.

     The Commonwealth's evidence was uncontroverted.     Following a

disagreement with her boyfriend, defendant summoned Suffolk police

and reported "that [her] daughter was kidnapped, and [she] was

beaten up, and wanted to take out a warrant on [him]."    As a

result of the ensuing investigation, a temporary detention order

against defendant was obtained, and she was transported by

Officers Tyrell Champagne and J.L. Naylor to a local hospital for

observation and treatment.

     En route, defendant, "very drunk," "hostile and

uncooperative," was placed in handcuffs.   On arrival, she was "out

of control," "very loud and obnoxious[,] cursing and

uncooperative," and hospital staff requested Officer Naylor to

assist undressing defendant and "getting her into hospital

clothes."   When Officer Naylor removed the handcuffs, defendant

began "flaying her arms," Naylor "grabbed hold of one of [her]

arms," and defendant "bit" her on the hand, breaking the skin and

leaving a scar, the injury that prompted the instant prosecution.



violation of Code § 18.2-51.1.

                                 - 2 -
     At the close of the Commonwealth's case-in-chief, counsel for

defendant argued simply, "I would submit that the Commonwealth has

not met its burden of proof in this case."   The court overruled

the "motion," defendant presented evidence in her defense and

rested, without moving the court to strike the Commonwealth's

evidence.

     In closing argument, her counsel contended that, at the time

of the offense, defendant was "suicidal[,] . . . used poor

judgment[,] . . . apparently lost it" and was in a "mental state"

that "could not give rise to a malicious wounding."   The court

agreed, but reminded defense counsel of the remaining "assault and

battery issue."   Counsel then acknowledged the incident "did

happen," "can't excuse it," but contended misdemeanor "assault and

battery would be enough . . . to punish [defendant] for the

incident."   The court, however, found her guilty of "assault and

battery of a police officer in the performance of her duties," a

felony proscribed by Code § 18.2-57(C), and this appeal followed.

                                 II.

     "No ruling of the trial court . . . will be considered as a

basis for reversal unless the objection was stated together with

the grounds therefor 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.   In furtherance of Rule 5A:18, this

Court has oftentimes instructed "that in a bench trial, where a

defendant wishes to preserve a sufficiency motion after

                                - 3 -
presenting evidence, the defendant must make a motion to strike

at the conclusion of all the evidence, present an appropriate

argument in summation, or make a motion to set aside the

verdict."    Howard v. Commonwealth, 21 Va. App. 473, 478, 465

S.E.2d 142, 144 (1995).

     Thus, assuming, without deciding, that defendant's remarks at

the conclusion of the Commonwealth's evidence constituted a motion

to strike, she waived her right to stand on such motion by

subsequently presenting defense evidence.   White v. Commonwealth,

3 Va. App. 231, 234, 348 S.E.2d 866, 868 (1986).   When defendant

failed to either renew her motion at the close of all the

evidence, or make a motion to set aside the verdict, the remaining

avenue available for preservation of the sufficiency issue was

closing argument.   However, "[n]ot every closing argument

accomplishes this objective.   A closing argument may address other

issues."    Campbell v. Commonwealth, 12 Va. App. 476, 481, 405

S.E.2d 1, 3 (1991).

     Defendant maintains before us that the court erroneously

"fail[ed] to credit [her] testimony" that she "did not remember"

the incident, as proof she lacked the requisite intent to commit

the offense.   However, a review of defendant's closing argument

does not disclose a sufficiency challenge to proof of intent based

upon her evidence of memory loss, the sole issue on appeal.      To

the contrary, defendant acknowledged an assault and battery of

Officer Naylor but urged the court to convict her of a

                                - 4 -
misdemeanor.   Defendant, therefore, defaulted her appellate

argument by not properly raising and preserving the issue before

the trial court.

     Defendant's assertion of the "ends of justice" exception to

Rule 5A:18 to justify review of her appeal is without merit.   To

successfully invoke the exception in the context of a challenge to

the sufficiency of the evidence, "the appellant must demonstrate

that he or she was convicted for conduct that was not a criminal

offense or the record must affirmatively prove that an element of

the offense did not occur," circumstances clearly not present on

the instant record.   Redman v. Commonwealth, 25 Va. App. 215, 222,

487 S.E.2d 269, 272 (1997).




                               - 5 -
Accordingly, we affirm the conviction.

                                         Affirmed.




                         - 6 -
Benton, J., dissenting.

     I believe that at the conclusion of the trial evidence

Ingrid Everette's trial counsel made a minimal but sufficient

argument to preserve the appeal issue.   To put this matter in

perspective, a fuller recitation of the evidence and incidents

of trial is needed.

                                I.

     Everette was indicted and tried for malicious wounding of a

police officer in violation of Code § 18.2-51.1.   The

Commonwealth's evidence proved that police officers were

dispatched to the Western Tidewater Mental Health Center to

transport Everette to Obici Hospital in the City of Suffolk.     A

magistrate had issued an emergency civil custody order, which

was replaced by a temporary detention order for mental health

treatment.   See Code §§ 37.1-67.01 through 37.1-67.3.    The

Commonwealth's evidence did not prove in any detail the

circumstances that led to Everette's detention for mental health

treatment.

     The record, however, contains a trial exhibit, which

consists of the various mental health reports prepared the night

Everette was detained and involuntarily committed for mental

health treatment.   The pre-admission screening form, which was

prepared prior to the events at the hospital, reports that

Everette "was assaulted by boyfriend," that "[t]his evening her


                               - 7 -
boyfriend tried to choke her [and] dragged her out of car," and

that Everette "verbalized suicidal" intentions and "is

depressed."    The detention order, which formed the basis of

Everette's referral to the hospital, recites that Everette is

"mentally depressed and danger to self."

        A nurse, who testified for the Commonwealth, indicated that

after the police brought Everette to the hospital, Everette

mentioned that she was concerned about the welfare of her child

and that Everette was hysterical and abusive.    She testified

that Everette was in need of mental and physical attention and

that she wanted to medicate Everette as soon as possible.    She

also testified that they needed "to get [Everette] to change

[into hospital] clothes."    Everette was in handcuffs, and she

refused to remove her clothes.

        One of the officers testified that "after she was given the

shot [of a sedative,] the nurse asked all the males in the room

to leave because they wanted to get the young lady undressed."

He further testified that when Everette "went to the back room

she had to be unhandcuffed in order to be strapped down to the

bed."    Everette "had one [injection of a sedative] prior to

[their] taking her clothes."

        The female officer who was to assist in undressing Everette

testified she was injured as follows:

             She started flaying her arms and kicking her
             arms, and she wouldn't let us get her
             clothing off to get her into hospital

                                 - 8 -
            clothes. So in an attempt to help the
            nurses get her clothing off, I grabbed hold
            of one of her arms. And when I did she
            brought my hand down to her mouth and bit
            me.

The officers and hospital personnel again injected Everette with

a sedative and strapped her in restraints.

     Following these events at the hospital, Everette was

evaluated by a physician who found "sufficient cause to believe

that [she is] mentally ill; . . . presents an imminent danger to

[herself]; . . . and . . . require[s] involuntary

hospitalization."   As a consequence, Everette was committed to

Eastern State Hospital upon the finding that she "presents an

imminent danger to [her]self as a result of mental illness."

     Everette testified in her defense that she and her

seven-year-old daughter had spent the day at the waterfront in

Norfolk with Everette's male friend.    As they were driving back

to Everette's home in North Carolina, an argument ensued between

Everette and her friend.   After she convinced him to stop for

water for her daughter, Everette became "very scared," refused

to return to the car, and "was trying to think of a way to get

[her] daughter out of the car."   When she refused her friend's

demand that she return to the car, he beat her.   She testified

that he choked her, pushed her to the ground, kicked her,

dragged her over the parking lot, and then drove away with her

daughter.   She heard him say he was "going to kidnap" her

daughter, and she saw her daughter's hands at the window as the

                                - 9 -
car left.   The police arrived after Everette went into the store

and asked for help.   Everette testified that she related these

events to the police before the paramedics treated her and took

her to the mental health center.

     Everette also testified concerning the following events:

            I was taken to the building and there was a
            person out there that was asking me
            questions. I was telling her I was beaten
            and my daughter was kidnapped. Was anyone
            getting my daughter back? He had threatened
            me before that he was going to take my
            daughter. That's all I have is my daughter.
            I didn't know what he was going to do to
            her, you know, and I wanted them -- I wanted
            my daughter back. And she told me she was
            going to send me to the hospital. I asked
            her why do I need to go to the hospital for?
            She said because I told her I was going to
            kill myself. I didn't have anything else to
            live for without my daughter. And she said
            yes, we're going to help you because you
            didn't deserve this. And the next thing I
            know I was taken away. I was handcuffed. I
            asked them why were they handcuffing me?
            And the officers held me down because I
            didn't want to be handcuffed. I didn't know
            what was going to happen to me. And then
            they took me out of the car and took me into
            the hospital. And all I remember is being
            at the hospital, and I remember getting a
            shot, and I don't remember anything after
            that. I woke up the next morning and I was
            like in a daze. I was asking what I was
            doing here. I stayed like that all day. My
            head was light and then I was transported to
            another hospital, Williamsburg Mental
            Hospital. And I stayed there either eight
            or nine days.

                                 II.

     At the close of the evidence, Everette's trial counsel

first argued as follows:

                               - 10 -
           If Your Honor please, in noting the report
           from Western Tidewater Mental health on that
           night it's noted in there that this offense
           of where she was assaulted by her boyfriend
           that was taken approximately at 11:30 on
           that night that she says she was assaulted
           by her boyfriend. They say basically in the
           report that she was suicidal. She used poor
           judgment. Her insight was limited, and she
           apparently just lost it.

              How does that answer to the charge in
           this case? The answer to the charge is in
           this report, Your Honor. I think based on
           her mental state that night, I'm not sure
           that can give rise to a malicious wounding.

     The trial judge ruled that the evidence did not prove

malice but "[w]e've got unlawful and we've got this assault and

battery issue."   In response, trial counsel further argued as

follows:

           And, of course, I would argue to the Court
           that this lady is out here at night. Her
           boyfriend kicks her out and beats her up and
           runs out with the child. She gets
           committed. I might come in and argue that
           while she was mentally off and maybe that
           would secure it, but based on her own
           testimony that it would not elevate to a
           felony because of an incident that happened
           when she was obviously not in her total
           right mind. It happened that fast. It
           shouldn't have happened. She could be
           punished for a misdemeanor assault and
           battery with a year hanging over her, and
           whatever is enough length of treatment.

              She's an emotional girl, which I was
           hoping that the Court would not elevate it
           to a felony because of the one little
           incident. After that incident she was
           medicated, but I can't excuse it. It did
           happen. I'd say she ought to be found not
           guilty. But I think assault and battery



                              - 11 -
           would be enough on her record to punish her
           for the incident.

                                 III.

      Rule 5A:18 is designed to allow the trial judge an

opportunity to correct any error that is noted by a party at

trial and to allow the opposing party the opportunity to offer

an alternative to an objectionable ruling.      Lee v. Lee, 12 Va.

App. 512, 514, 404 S.E.2d 736, 737 (1991).     The rule, thus,

promotes judicial efficiency by reducing the necessity for new

trials and protects against the costs of unnecessary litigation.

Id.   While a general objection does not satisfy the rule, a

"simple statement that embodies the objection and reason

therefor" does suffice.     Id. at 515, 404 S.E.2d at 738.

Furthermore, counsel may make this statement during closing

argument provided that he or she directly addresses the argument

to the judge and "expressly raise[s] the issue."      Campbell v.

Commonwealth, 12 Va. App. 476, 480-81, 405 S.E.2d 1, 2-3 (1991).

      In this case, Everette's trial counsel clearly argued that

"she ought to be found not guilty."      Trial counsel's argument

alternatively suggested that at best the evidence established

only a misdemeanor offense.    He raised the issue of intent by

stating that Everette "was suicidal.     She used poor judgment.

Her insight was limited."    He continued that argument by

contending that Everette's mental state could not "give rise to




                                - 12 -
a malicious wounding."   He argued that she was medicated and the

evidence could lead to no more than a misdemeanor.

     The record indicates the trial judge knew what issue they

were discussing.   Despite the fact that Everette's trial counsel

did not specifically mention Everette's loss of memory, he did

assert her suicidal state of mind, lack of insight, and the

injection she was given.   Clearly, the trial judge understood

the argument concerning intent because he reduced the offense

from malicious wounding to the lesser offense of felony assault

and battery of a law enforcement officer.   See Code

§ 18.2-57(C).   The judge sentenced her to two years in prison,

suspended one year and six months of that sentence, and imposed

the mandatory minimum sentence of six months in prison.

          On this record, there is no question that
          the trial court was adequately advised of
          the defendant's position, that it did
          consider the issue raised, and that it had
          the opportunity to take corrective action.
          Therefore, the purpose underlying the
          contemporaneous objection rule was
          fulfilled, and it would be a useless
          technicality [to reject this appeal under
          Rule 5A:18].

Campbell, 12 Va. App. at 480, 405 S.E.2d at 2.   I would hold

that trial counsel's argument in its totality was sufficient to

alert the trial judge to the issue that the evidence was

insufficient to prove Everette acted with criminal intent and,

therefore, she was not guilty of an offense.




                              - 13 -
                                  IV.

     Everette contends on appeal that the evidence proved she

"did not intend to bite [the] officer."   The following

principles are applicable here:

           Assault and battery . . . requires proof of
           "an overt act or an attempt . . . with force
           and violence, to do physical injury to the
           person of another," "whether from malice or
           from wantonness," together with "the actual
           infliction of corporal hurt on another . . .
           willfully or in anger." One cannot be
           convicted of assault and battery "without an
           intention to do bodily harm -- either an
           actual intention or an intention imputed by
           law."

Boone v. Commonwealth, 14 Va. App. 130, 132-33, 415 S.E.2d 250,

251 (1992).   Like any other element of an offense, criminal

intent may be proved by circumstantial evidence, as long as such

evidence excludes all reasonable hypotheses of innocence flowing

from it.   See Rice v. Commonwealth, 16 Va. App. 370, 372, 429

S.E.2d 879, 880 (1993).   Thus, intent must be proved beyond a

reasonable doubt.   See Martin v. Commonwealth, 13 Va. App. 524,

529, 414 S.E.2d 401, 403 (1992) (en banc).

     The evidence proved that immediately prior to the incident

Everette had been beaten by her male friend.   When Everette

arrived at the hospital, she was concerned about the welfare of

her child, and she was suicidal, hysterical, and suffering from

a mental illness.   In this state, she was handcuffed, given a

sedative by injection, and told to disrobe.    She was then

forcibly disrobed by several people.

                              - 14 -
     Although the evidence proved Everette was hysterical,

suicidal, and abrasive, no evidence proved beyond a reasonable

doubt that she acted with criminal intent when, in her struggle

to keep her clothing and in a state of severe mental anxiety,

she bit the officer.   The reports prepared immediately prior to

this incident noted that Everette was suicidal, "mentally

depressed and [a] danger to [her]self."   This evidence provides

a reasonable hypothesis that Everette lacked the intent required

to sustain this conviction.

     For these reasons, I would reverse the conviction.




                              - 15 -
