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Dickerson v. Commonwealth, 58 Va.App. 351, 709 S.E.2d 717

Facts

In April 2009, Robert Dickerson was arrested for public intoxication after being found passed out in a car. During the arrest, a police officer discovered a scale with marijuana residue and subsequently found marijuana and cocaine in Dickerson's pockets. At trial, Dickerson claimed he did not know how the cocaine got there and did not make a motion to strike the evidence after all the evidence was presented.

In early April of 2009, a police officer for the City of Hampton arrested Dickerson for public intoxication after finding him passed out in a car blocking the driveway of a private residence. As the officer removed Dickerson from the car to arrest him, the officer noticed a scale with what appeared to be marijuana residue on it near Dickerson's left thigh. The officer searched Dickerson incident to his arrest and discovered marijuana and cocaine in his pockets.

Issue

Did Robert Dickerson preserve his challenge to the sufficiency of the evidence for appeal?

Did Robert Dickerson preserve his challenge to the sufficiency of the evidence for appeal?

Rule

Under Rule 5A:18, a challenge to the sufficiency of the evidence must be specifically and timely raised in order to be preserved for appellate review.

Rule 5A:18 states: '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….'

Analysis

The court found that Dickerson did not properly preserve his challenge to the sufficiency of the evidence because he failed to make a motion to strike at the close of all evidence and his closing argument did not clearly articulate a legal challenge to the sufficiency of the evidence. Instead, his argument focused on disbelieving the officer's testimony without addressing the legal sufficiency of the evidence presented.

Here, Dickerson made no motion to strike at the close of all the evidence in his bench trial. Accordingly, he must rely upon his closing argument to preserve his challenge to the sufficiency of the evidence. In his brief closing argument, Dickerson's counsel did nothing more than ask the trial court, sitting as the fact-finder, to disbelieve the police officer's testimony and believe Dickerson's testimony.

Conclusion

The Court of Appeals affirmed Dickerson's conviction, concluding that he failed to preserve his sufficiency challenge for appellate review.

Thus, we affirm Dickerson's conviction.

Who won?

Commonwealth of Virginia; the court affirmed the conviction based on Dickerson's failure to preserve his challenge to the sufficiency of the evidence.

The majority properly affirms Dickerson's conviction for cocaine possession in violation of Code § 18.2–250. However, I would reach this conclusion on the merits of the case because, unlike the majority, I believe the issue of whether Dickerson knew of the presence and character of the cocaine found in his pants pockets was properly preserved.

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