Opinion
Record No. 1056-91-2
November 10, 1992
FROM THE CIRCUIT COURT OF HALIFAX COUNTY CHARLES L. MCCORMICK, III, JUDGE.
Stephen C. Bass (Carter, Craig, Bass, Blair Kushner, P.C., on brief), for appellant.
Robert B. Condon, Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellee.
Present: Judges Benton, Elder and Willis.
Argued at Richmond, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated publication.
Charles Danny Elliott, following a bench trial, appeals his conviction for driving under the influence of alcohol. Appellant alleges that the evidence was insufficient to support a finding that he was under the influence of alcohol or other intoxicants at the time of the alleged offense. Our consideration of this assignment of error is barred by Rule 5A:18; therefore, the appeal is dismissed.
In a jury trial, the generally accepted method for preserving an assignment of error pertaining to the sufficiency of the evidence is through a motion to strike made at the conclusion of the trial. Campbell v. Commonwealth, 12 Va. App. 476, 481, 405 S.E.2d 1, 3 (1991) (en banc). In challenging the sufficiency of the evidence following a bench trial, however, the standards for preservation are somewhat less strict.
[W]here an issue of sufficiency of evidence is presented to a trial court, sitting without a jury, in a motion to strike at the conclusion of the Commonwealth's evidence and, upon its denial and upon conclusion of the defendant's evidence, the same issue is presented in the defendant's final argument to the court, the defendant has preserved his right to appeal this issue, even though he did not make a motion to strike at the conclusion of his own evidence.
Id. at 478, 405 S.E.2d at 1; see also Harris v. Commonwealth, 13 Va. App. 593, 595-96, 413 S.E.2d 354, 355 (1992); Klink v. Commonwealth, 12 Va. App. 815, 819-20, 407 S.E.2d 5, 8 (1991). However, "[n]ot every closing argument accomplishes this objective," for the closing may "address other issues: application of a statute of limitations, an affirmative defense or the weight of the evidence." Campbell, 12 Va. App. at 481, 405 S.E.2d at 3.
In this case, appellant filed a statement of facts in lieu of a transcript. The statement filed contains no allegation of facts to show that appellant properly preserved his assignment of error. Appellant's statement includes no information from which this Court can determine whether he challenged the sufficiency of the evidence at trial, nor did it state whether he moved to strike the Commonwealth's evidence either immediately following its case-in-chief or at the close of all evidence. In addition, the record contains no other information which would indicate that such a motion was made, and it contains no information indicating that appellant made such a challenge in his closing argument.
Finally, appellant does not argue that the ends of justice require consideration of his appeal. We find that the ends of justice do not require that we consider this appeal. Accordingly, this appeal is dismissed.
Dismissed.