Summary
The Supreme Court of Virginia held that Wayne R. McDowell waived his challenge to whether a notice under Code § 18.2-118(b) could establish prima facie evidence of fraudulent intent. McDowell failed to renew his motion to strike after presenting defense evidence and did not reassert the notice issue in closing argument. The court vacated the Court of Appeals’ judgment addressing the merits and dismissed the appeal.
Topics
Practice areas
Questions Presented
- Whether McDowell preserved his challenge to the use of the Code § 18.2-118(b) notice as prima facie evidence of intent to defraud after introducing defense evidence without renewing his motion to strike or reasserting the issue in closing argument.
- Whether the ends-of-justice exception required review of the unpreserved issue.
Holdings
- A defendant who introduces evidence after the trial court overrules a motion to strike must renew the motion at the conclusion of all the evidence or, in a bench trial, at minimum reassert the issues raised in the original motion in closing argument. Because McDowell did neither, he waived his challenge to the Commonwealth's reliance on the notice as prima facie evidence of fraudulent intent.
- The ends-of-justice exception did not require review of McDowell's waived challenge.
- The notice issue was not properly before the Court of Appeals because it had not been preserved in the circuit court.
Key quotations
“Accordingly, we hold that appellant waived his challenge to whether the Commonwealth could rely upon the notice to establish the appellant's fraudulent intent.” (at 3)
“For these reasons, we vacate the judgment of the Court of Appeals addressing the merits of appellant's challenge to the sufficiency of the Commonwealth's evidence to prove fraudulent intent through the Code § 18.2-118(b) notice, and dismiss the appeal.” (at 4)
Factual background
McDowell was convicted of failing to return rental property under Code § 18.2-118. The lessor sent statutory notice to an address that included additional information beyond the address listed in the lease. At the close of the Commonwealth's evidence, McDowell moved to strike, arguing that the notice did not strictly comply with the statute and therefore could not support the statutory prima facie showing of intent to defraud. After the motion was denied, he presented defense evidence, did not renew the motion to strike, and did not expressly reassert the notice-compliance issue in closing argument.
Procedural history
McDowell was convicted in a bench trial in the Circuit Court of the City of Charlottesville. The Court of Appeals affirmed, holding that adding more accurate information to the lease address did not violate Code § 18.2-118(b), while other arguments were barred by Rules 5A:12(c) and 5A:18. The Supreme Court granted review limited to the notice-compliance assignment of error, held that McDowell waived the issue by introducing defense evidence without renewing his motion to strike or reasserting the issue in closing argument, vacated the Court of Appeals' merits judgment, and dismissed the appeal.