                                                                      COURT OF APPEALS OF VIRGINIA


              Present: Judges Chafin, Malveaux and Senior Judge Frank
UNPUBLISHED


              Argued at Norfolk, Virginia


              ABDUL HAKIM GRANT
                                                                                             MEMORANDUM OPINION* BY
              v.            Record No. 1473-15-1                                              JUDGE TERESA M. CHAFIN
                                                                                                 OCTOBER 11, 2016
              COMMONWEALTH OF VIRGINIA


                                             FROM THE CIRCUIT COURT OF SOUTHAMPTON COUNTY
                                                      W. Richard Savage, III, Judge Designate

                                           Elisabeth N. Culpepper, Assistant Public Defender (James S.
                                           Ellenson, Assistant Public Defender, on brief), for appellant.

                                           Donald E. Jeffrey, III, Senior Assistant Attorney General (Mark R.
                                           Herring, Attorney General, on brief), for appellee.


                            At the conclusion of a jury trial held in the Circuit Court of Southampton County, Abdul

              Hakim Grant was convicted of possession of a firearm by a convicted felon in violation of Code

              § 18.2-308.2, reckless handling of a firearm in violation of Code § 18.2-56.1, and discharge of a

              firearm in a public place in violation of Code § 18.2-280. On appeal, he contends that the circuit

              court erred by denying his motion for a mistrial following the improper admission of hearsay

              testimony. For the reasons that follow, we conclude that Grant waived this issue by failing to

              timely move for a mistrial, and we affirm the trial court’s decision on that basis.

                                                                             I. BACKGROUND

                            “In accordance with established principles of appellate review, we state the facts in the

              light most favorable to the Commonwealth, the prevailing party in the trial court[, and] accord

              the Commonwealth the benefit of all inferences fairly deducible from the evidence.” Riner v.
                                                                          
                            *
                                Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Commonwealth, 268 Va. 296, 303, 601 S.E.2d 555, 558 (2004). So viewed, the evidence is as

follows.1

              Grant’s convictions arose from a shooting incident that occurred outside an apartment

building in Franklin, Virginia. Lacontis Murphy, a resident of the building, saw Grant shooting a

firearm at another individual during the early morning hours of August 23, 2014. When Murphy

called the police during the shooting, Grant ran away from the building. He was eventually

arrested and charged with the aforementioned offenses. At Grant’s trial, Murphy testified that

she knew Grant from previous encounters and that she was certain that he was shooting a small

black firearm in the parking lot of her apartment building on the night in question.2

              Sergeant Todd Lyons of the Franklin Police Department testified that he responded to

Murphy’s report of gunfire. Lyons explained that, among other things, he searched the parking

lot for shell casings and other signs of recent gunfire. In addition to finding eight shell casings,

Lyons observed a hole in the back window of a vehicle parked in the parking lot.




                                                            
              1
         Because the parties are fully conversant with the record in this case and this
memorandum opinion carries no precedential value, we recite only those facts and incidents of
the proceedings as are necessary to the parties’ understanding of the disposition of this appeal.
              2
          Grant’s sole assignment of error erroneously refers to the testimony of Lacontis Murphy
rather than the testimony of Sergeant Lyons. His assignment reads, “The trial court erred in not
granting appellant’s motion for a mistrial because the curative instruction given by the trial court
was not adequate to cure the prejudice caused by Lacontis Murphy’s testimony.” (Emphasis
added). Grant moved for a mistrial based on hearsay statements elicited during Lyons’s
testimony rather than Murphy’s testimony, and the circuit court’s curative instruction addressed
those hearsay statements. While we are mindful that “litigants are required to identify with
specificity the error committed by the trial court,” Findlay v. Commonwealth, 287 Va. 111, 115,
752 S.E.2d 868, 871 (2014), this error is not dispositive in this case in light of our conclusion
that Grant waived the issue raised in the assignment of error by failing to timely move for a
mistrial.
                                                     -2-
              Grant asked Lyons several questions about the hole in the vehicle on cross-examination.3

When he asked Lyons if he could determine whether the hole “was fairly recent,” Lyons replied,

“Yes, because the owner of the vehicle told me it wasn’t there before.” Grant immediately

objected to this testimony on hearsay grounds.4

              Following his objection, Grant proceeded with his cross-examination of Lyons. The

Commonwealth then briefly questioned Lyons about the shell casings that he found in the

parking lot and the hole in the vehicle. Although Grant objected to Lyons’s testimony

concerning how long the shell casings had been in the parking lot, he did not object to his

testimony about the hole in the vehicle.5 Following the Commonwealth’s redirect examination,

Grant asked Lyons additional questions about the evidence he collected from the parking lot.

              Grant moved for a mistrial at the conclusion of his recross-examination of Lyons, arguing

that Lyons had purposefully injected inadmissible hearsay statements from the owner of the

vehicle into his testimony to establish that a shooting had recently occurred in the parking lot of

the apartment building. The circuit court denied the motion, noting that Grant had opened the

door to Lyons’s testimony about the hole in the vehicle by asking him whether he knew if the

hole in the vehicle was recently made.6 After denying the motion, however, the circuit court


                                                            
              3
                  We note that the attorney representing Grant in the present appeal did not represent him
at trial.
              4
         While the trial transcript failed to indicate the circuit court’s initial ruling on Grant’s
hearsay objection, the circuit court expressly indicated that it had sustained the objection when it
gave a curative instruction concerning the hearsay testimony.
              5
         Although Grant’s attorney initially objected when the Commonwealth asked Lyons to
describe the hole in the vehicle, she immediately withdrew this objection. Furthermore, she did
not specify the grounds for the withdrawn objection in the record.
              6
        “The principle is long standing in Virginia that an appellate court will not ‘notice error
which has been invited by the party seeking to take advantage thereof on appeal.’” McBride v.
Commonwealth, 44 Va. App. 526, 529, 605 S.E.2d 773, 774 (2004) (quoting Saunders v.
                                                  -3-
instructed the jury to disregard the challenged hearsay statements from the owner of the damaged

vehicle.

              At the conclusion of Grant’s trial, the jury convicted him of the charged offenses. This

appeal followed.

                                                               II. ANALYSIS

              Under Code § 8.01-361, a trial court may declare a mistrial and discharge a jury when

there is a “manifest necessity” to do so. See Code § 8.01-361. The decision to declare a mistrial

lies within the discretion of the trial court, and is based on the consideration of the particular

facts and circumstances of the case. See Blanton v. Commonwealth, 280 Va. 447, 455, 699

S.E.2d 279, 284 (2010). “[A] trial court’s denial of a motion for a mistrial will not be reversed

on appeal unless there exists a manifest probability as a matter of law that . . . improper evidence

prejudiced the accused.” Bennett v. Commonwealth, 29 Va. App. 261, 273-74, 511 S.E.2d 439,

445 (1999) (quoting Mills v. Commonwealth, 24 Va. App. 415, 420, 482 S.E.2d 860, 862

(1997)).

              Before we review whether an error sufficiently prejudiced an appellant to a degree

requiring the declaration of a mistrial, we must first determine whether a timely motion for a

mistrial was made during the trial proceedings. See Lewis v. Commonwealth, 211 Va. 80, 83,

175 S.E.2d 236, 238 (1970). The Supreme Court has repeatedly explained that “if a defendant

wishes to take advantage on appeal of some incident he regards as objectionable enough to

warrant a mistrial, he must make his motion timely or else be deemed to have waived his

objection.” Yeatts v. Commonwealth, 242 Va. 121, 137, 410 S.E.2d 254, 264 (1991) (citations

omitted). “Making a timely motion for mistrial means making the motion ‘when the
                                                            
Commonwealth, 211 Va. 399, 400, 177 S.E.2d 637, 638 (1970)). In light of the grounds of our
disposition of this case, it is unnecessary to determine whether Grant’s appeal is barred under the
invited error doctrine.
                                                     -4-
objectionable words were spoken.’” Id. (quoting Reid v. Baumgardner, 217 Va. 769, 774, 232

S.E.2d 778, 781 (1977)). Stated alternatively, “[a] motion for a mistrial must be made at the time

an objectionable element is injected into the trial of the case.” Tizon v. Commonwealth, 60

Va. App. 1, 13, 723 S.E.2d 260, 266 (2012) (quoting Ronald J. Bacigal, Criminal Procedure

§ 17:26, at 545 (2011-12)).

       In the present case, Grant failed to timely move for a mistrial based on Lyons’s

testimony. Grant did not move for a mistrial when Lyons testified regarding the hearsay

statements from the owner of the vehicle in question. Instead, he continued his

cross-examination of Lyons and allowed the Commonwealth to question Lyons about the hole in

the vehicle on redirect examination. He then recross-examined Lyons about the evidence that he

collected at the crime scene. Thus, three additional series of Lyons’s examination occurred

before Grant moved for a mistrial based on the hearsay statements.

       While Grant eventually moved for a mistrial based on the inadmissible statements at the

conclusion of Lyons’s testimony, the objectionable element had already been injected into the

case at that time. Therefore, his motion for a mistrial was untimely and he has waived appellate

review of the issue. See Yeatts, 242 Va. at 136-37, 410 S.E.2d at 263-64 (holding that an

appellant’s motion for mistrial was untimely under similar circumstances).

                                      III. CONCLUSION

       As Grant failed to timely move for a mistrial, we conclude that he waived his appellate

challenge to the circuit court’s decision denying a mistrial based on Lyons’s testimony.

Accordingly, we affirm his convictions without reaching the merits of his case.

                                                                                           Affirmed.




                                                  -5-
