                                         COURT OF APPEALS OF VIRGINIA


            Present: Judges Elder, Frank and Petty
PUBLISHED


            Argued at Salem, Virginia


            CURTIS TRUMAINE CALLOWAY
                                                                                OPINION BY
            v.     Record No. 0387-12-3                                   JUDGE WILLIAM G. PETTY
                                                                              AUGUST 6, 2013
            COMMONWEALTH OF VIRGINIA


                            FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY
                                          Charles J. Strauss, Judge

                           James C. Martin (Martin & Martin Law Firm, on briefs), for
                           appellant.

                           Katherine Quinlan Adelfio, Assistant Attorney General (Kenneth T.
                           Cuccinelli, II, Attorney General, on brief), for appellee.


                   Curtis T. Calloway was convicted of abduction, assault and battery, and felonious

            violation of a protective order. This appeal concerns only the violation of the protective order.

            On appeal, Calloway argues that the trial court erred by convicting him of a felony, rather than a

            misdemeanor, because the evidence was insufficient to show he “furtively entered” the victim’s

            home. For the following reasons, we disagree and affirm Calloway’s conviction.

                                                             I.

                                           A. Preliminary Matter: Rule 5A:12

                   The Commonwealth raises a threshold issue that we must address before reaching the

            merits of this appeal.1 The Commonwealth argues that Calloway’s assignment of error in his

                   1
                      “[T]he inclusion of sufficient assignments of error is a mandatory procedural
            requirement and . . . failure to comply with this requirement deprives this Court of its active
            jurisdiction to consider the appeal.” Davis v. Commonwealth, 282 Va. 339, 339, 717 S.E.2d
            796, 796-97 (2011). Thus, it is necessary for us to determine whether we have active jurisdiction
            before we can consider the merits of the appeal.
petition for appeal is insufficient under Rule 5A:12(c)(1), and therefore we should vacate the

order granting the petition and dismiss the appeal. We decline to do so.

       This Court granted Calloway’s petition for appeal on the following assignment of error:

“The trial court erred in law and fact by ruling that the evidence was sufficient to convict

Calloway of felonious violation of a protective order.” We have recently held that an assignment

of error such as this does not comply with Rule 5A:12. See Whitt v. Commonwealth, 61

Va. App. 637, 647, 739 S.E.2d 254, 259 (2013) (en banc) (“Merely stating that the evidence was

insufficient does not point out with the requisite level of specificity the error made by the court

below, i.e. in what way the evidence was insufficient.”). While the Commonwealth’s attorney

filed a brief in opposition2 to Calloway’s petition for appeal, he did not object to the sufficiency

of Calloway’s assignment of error.

       Rule 5A:12(c)(1)(ii) addresses insufficient assignments of error in petitions for appeal:

               An assignment of error which does not address the findings or
               rulings in the trial court or other tribunal from which an appeal is
               taken, or which merely states that the judgment or award is
               contrary to the law and evidence is not sufficient. If the
               assignments of error are insufficient or otherwise fail to comply
               with the requirements of this Rule, the petition for appeal shall be
               dismissed.

Rule 5A:12 applies only to petitions for appeal. Rule 5A:12 does not apply to opening briefs,

which are filed once a petition for appeal has been granted by this Court. The requirements for

opening briefs are set out in Rule 5A:20.




       2
         A brief in opposition is a valuable resource that gives us the Commonwealth’s legal and
factual arguments supporting a conviction. Further, a brief in opposition alerts us to possible
procedural issues, such as the one presented in this case concerning the sufficiency of an
assignment of error under Rule 5A:12. In short, a brief in opposition is a pleading “which the
[C]ourt has found very helpful in determining whether or not the case should be reviewed.”
Skeens v. Commonwealth, 192 Va. 200, 203, 64 S.E.2d 764, 766 (1951).

                                                -2-
       Unlike the specific language of Rule 5A:12(c)(1)(ii), Rule 5A:20 simply requires the

opening brief to contain: (1) “A statement of the assignments of error”; (2) “a clear and exact

reference to the pages of the transcript, written statement, record, or appendix where each

assignment of error was preserved in the trial court”; (3) “[a] clear and concise statement of the

facts that relate to the assignments of error, with references to the pages of the transcript, written

statement, record, or appendix”; (4) “the standard of review and the argument (including

principles of law and authorities) relating to each assignment of error.” Rule 5A:26 states, “If an

appellant fails to file a brief in compliance with these Rules, the Court of Appeals may dismiss

the appeal.” (Emphasis added).

       Once the petition for appeal is granted, Rule 5A:20 governs the requirements of the

assignments of error in an opening brief. Rule 5A:12 is no longer applicable. Therefore, if the

Commonwealth seeks to challenge the sufficiency of an assignment of error under Rule 5A:12, it

must do so prior to the granting of the petition for appeal.3 In this case, the Commonwealth

failed to challenge the sufficiency of the assignment of error at the petition for appeal stage of

the proceedings. Compliance with Rule 5A:12(c)(1) is subject to waiver if not timely raised.

See Whitt, 61 Va. App. at 651 n.3, 739 S.E.2d at 261 n.3; see also Ghameshlouy v.

Commonwealth, 279 Va. 379, 391, 689 S.E.2d 698, 704 (2010) (“[M]ost statutory and rule-based

procedural prerequisites for the valid exercise of jurisdiction by a court may be waived, even

when couched in mandatory terms by the language of the statute or rule.”). The



       3
          This does not, of course, prevent the Commonwealth, or for that matter this Court, from
raising the sufficiency of an assignment of error in an opening brief under Rule 5A:20. Nor does
it preclude the exercise of our discretionary authority to dismiss the appeal pursuant to Rule
5A:26. Here, however, the Commonwealth has only challenged Calloway’s compliance with
Rule 5A:12(c)(1)(ii), and we decline to raise sua sponte the issue of whether appellant’s brief
complied with Rule 5A:20.


                                                 -3-
Commonwealth’s failure to object to the sufficiency of the assignment of error under Rule 5A:12

prior to the granting of the petition for appeal will be considered a waiver of that objection.4

       We recognize that the Attorney General is generally not bound or limited by the

arguments raised in a brief in opposition. The Supreme Court has stated that “[a] prevailing

party may urge an appellate court to affirm a judgment on any ground appearing in the record.”

Perry v. Commonwealth, 280 Va. 572, 581-82, 701 S.E.2d 431, 437 (2010). Furthermore, “[the

Attorney General] may not be estopped from repudiating the earlier position erroneously taken

by the Commonwealth’s Attorney, nor may the [Commonwealth] be estopped from changing

[its] position.” In re Dep’t of Corr., 222 Va. 454, 465, 281 S.E.2d 857, 863 (1981). However,

these rules apply to inconsistent positions regarding the merits of the appeal where the standard

by which we evaluate the arguments remains constant. Here, the Commonwealth’s attorney

made no objection to the assignment of error when it was subject to evaluation through the prism

of Rule 5A:12. By the time the Attorney General raised an objection, that prism had been

discarded in favor of the standards contained in Rule 5A:20. And Rule 5A:20, unlike Rule

5A:12, contains no provision for mandatory dismissal of an appeal. See Whitt, 61 Va. App. at

655, 739 S.E.2d at 263 (“Rule 5A:20 does not compel dismissal for flaws in the assignment of

error contained in an opening brief (as opposed to in a petition for appeal), and Rule 5A:26

provides that this Court ‘may dismiss the appeal’ whenever the ‘appellant fails to file a brief in

compliance with these Rules,’ but it does not mandate dismissal.”); see also Jay v.



       4
           We recognize that the Attorney General is reliant on the Commonwealth’s attorney to
file a brief in opposition and raise objections to the sufficiency of assignments of error at the
petition stage. But we presume that the Commonwealth’s attorney, who actually tried the case,
is just as capable as the Attorney General in identifying assignments of error that do not meet the
requirements of Rule 5A:12. After all, a prosecutor is required to “act with commitment and
dedication to the interests of the [Commonwealth] and with zeal in advocacy upon the client’s
behalf.” Va. Rules of Prof’l Conduct 1.3 cmt. 1.

                                                -4-
Commonwealth, 275 Va. 510, 520, 659 S.E.2d 311, 318 (2008) (holding that Rule 5A:20 is not a

jurisdictional requirement mandating the dismissal of an appeal).

       Here, no objection to the sufficiency of the assignment of error was raised by the

Commonwealth prior to our granting the petition for appeal. Therefore, we consider any such

objection waived, and we decline the Commonwealth’s request to “vacate the order granting the

petition and dismiss this appeal.”5

                                  B. Sufficiency of the Evidence

       A first-offense violation of a protective order is ordinarily a misdemeanor. See Code

§ 16.1-253.1(C). But Code § 16.1-253.2 elevates it to a felony when a person “violates such a

protective order by furtively entering the home of any protected party while the party is present.”

Calloway argues that the evidence at trial was insufficient to prove he “furtively” entered the

victim’s home; therefore, his conviction for felony violation of a protective order was in error.

We disagree.

       “In examining a challenge to the sufficiency of the evidence, appellate courts will review

the evidence in the light most favorable to the party prevailing at trial and consider any

reasonable inferences from the proven facts.” Towler v. Commonwealth, 59 Va. App. 284, 290,

718 S.E.2d 463, 467 (2011). We will reverse only where the trial court’s decision is “plainly

wrong or without evidence to support it.” Seaton v. Commonwealth, 42 Va. App. 739, 746, 595

S.E.2d 9, 12 (2004). To the extent that our analysis requires us to interpret the term “furtively,”

we review the statute de novo and apply the plain language of the statute unless it leads to an

       5
         The Commonwealth raised its objection to the assignment of error in its appellee’s
brief. Almost three months later, and after oral argument, Calloway filed a motion to amend his
assignment of error to comply with the requirements of Rule 5A:12. The Commonwealth
objected to the motion arguing, “Calloway should not be permitted to amend his pleadings once
the matter has been submitted to the Court for its decision.” Because of our holding, we consider
the motion to amend the assignment of error moot; therefore, we need not decide whether it was
untimely.

                                                -5-
ambiguous or absurd result. Boynton v. Kilgore, 271 Va. 220, 227, 623 S.E.2d 922, 925-26

(2006).

          We find no ambiguity in the General Assembly’s use of the term “furtively.” To

furtively enter a home is to do so stealthily, secretly, surreptitiously, slyly, or sneakily.

Webster’s Third New International Dictionary 924 (1981) (defining furtive as “1a: done by

stealth: secret, surreptitious . . . b: expressive of stealth: sneaky, sly . . . 2a: obtained

underhandedly: stolen”). It is the fact finder’s job to apply common sense to the evidence and

decide if Calloway’s entry was of the “furtive” type singled out by the General Assembly for

more severe punishment. We find no evidence that the trial judge misinterpreted or misapplied

Code § 16.1-253.2.

          The evidence at trial showed that Calloway and the victim were in a romantic relationship

that ended in August 2011. Within weeks of their breakup, the victim obtained a protective order

against Calloway to prevent him from contacting her. Calloway was served with a copy of the

protective order on September 1, 2011. On September 2, 2011, between midnight and 1:00 a.m.,

Calloway approached the house where the victim was living. The lights in the house were off.

The doors and windows were locked. The victim, who was asleep on a couch in the living room,

was the only person in the house.

          Calloway broke a bedroom window at one end of the house to gain access. The victim

was awakened by the noise. As the victim stood up to search for the source of the noise, she saw

Calloway coming towards her from the kitchen. She immediately ran for the front door.

Calloway chased her into the front yard, where neighbors saw him attempting to drag her back

inside while holding a knife to her throat. A neighbor who witnessed the altercation called the

police. Calloway fled when he heard the sound of an approaching car. He was arrested in a

nearby forest about two hours later.

                                                   -6-
       Given these facts, it strains the bounds of reason to argue that Calloway’s entry was not

furtive. Indeed, it is difficult to imagine how Calloway’s entry could have been more furtive.

With every door and window locked, Calloway chose the mode of entry most likely to allow him

to get inside and overpower the victim before she could detect his presence and react. It appears

to us that the purpose of the law is to more severely punish those who violate a protective order

by surprising a victim in his or her own home; this is exactly what happened here.

       Calloway argues that his entry of the house was not furtive because he made noise during

his entry. The fact that Calloway made some noise when breaking the glass does not entitle him

to a conviction on a lesser charge. An entry need not be accomplished with ninja-like stealth to

be furtive for the purposes of Code § 16.1-253.2. Furthermore, contrary to Calloway’s

argument, the noise and brazenness of the subsequent assault is irrelevant. The violation of the

protective order was complete as soon as Calloway entered the home through the window.

       Viewing this evidence in the light most favorable to the Commonwealth, and granting all

reasonable inferences therefrom, we cannot find that the trial court’s conclusion was plainly

wrong or without evidence to support it. Therefore, we affirm Calloway’s conviction for

feloniously violating a protective order by furtively entering the home of the protected party

under Code § 16.1-253.2.

                                                II.

       For the foregoing reasons, we affirm Calloway’s conviction.

                                                                                         Affirmed.




                                               -7-
