Murillo-Rodriguez v. Com.

Present: All the Justices

MILTON MURILLO-RODRIGUEZ
OPINION BY
v. Record No. 090510 JUSTICE LAWRENCE L. KOONTZ, JR.
January 15, 2010
COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

Milton Murillo-Rodriguez appeals from a judgment of the

Court of Appeals of Virginia refusing his petition seeking an

appeal of his conviction for abduction with intent to defile

in violation of Code § 18.2-48. The Court of Appeals held

Murillo-Rodriguez’s failure to make either a motion to strike

at the conclusion of all the evidence or a motion to set aside

the jury’s verdict convicting him of that offense constituted

a waiver of his challenge to the sufficiency of the evidence

on appeal. 1 Murillo-Rodriguez contends that Code § 8.01-

384(A), as amended in 1992, and this Court’s decision in King

v. Commonwealth, 264 Va. 576, 570 S.E.2d 863 (2002), applying

that statute to criminal cases, abrogates or limits the waiver

rule applied by the Court of Appeals in this case.

Accordingly, he contends that his motion to strike at the

conclusion of the Commonwealth’s evidence preserved for appeal

1
In the same trial, the jury also convicted Murillo-
Rodriguez of rape in violation of Code § 18.2-61. Murillo-
Rodriguez did not challenge this conviction in his petition to
the Court of Appeals and, accordingly, that conviction is not
before us in this appeal.
the issue of the sufficiency of the evidence. Although we

have previously recognized the Court of Appeals’ long-standing

application of this concept of waiver in its jurisprudence,

see, e.g., Ortiz v. Commonwealth, 276 Va. 705, 723-24, 667

S.E.2d 751, 762 (2008) (holding that failure to assign error

to Court of Appeals finding of waiver barred consideration of

that issue), we have not heretofore expressly addressed this

concept of waiver on its merits.

BACKGROUND

When a defendant challenges the sufficiency of the

evidence on appeal, the evidence is viewed in the light most

favorable to the Commonwealth. Jones v. Commonwealth, 277 Va.

171, 182, 670 S.E.2d 727, 734 (2009). When so viewed, the

evidence presented at trial in this case established that on

the evening of September 8, 2007, Murillo-Rodriguez first

encountered C.U., the victim, as she was walking along Glade

Drive in Reston on her way to a friend’s home. Murillo-

Rodriguez, a passenger in a vehicle driven by Elvis Gladamez,

rolled down the window and offered to give C.U. a ride. When

she declined the offer, Murillo-Rodriguez made an obscene

remark, and C.U. crossed to the opposite side of the road to

avoid having further contact with the two men.

Murillo-Rodriguez and Gladamez drove to Gladamez’s home

nearby and then “decided to abuse [the victim].” Walking back

2
along Glade Road, the two men again encountered C.U. on the

sidewalk. As Gladamez blocked C.U.’s way, Murillo-Rodriguez

grabbed her from behind and covered her mouth with his hand.

The two men pulled C.U. down an embankment adjoining the

sidewalk and into a wooded area where both men raped her.

After the two men released her, C.U. immediately went to

her friend’s home and reported the crimes to the police.

Guided by C.U., police went to the location where the crime

had occurred and recovered physical evidence supporting her

description of the rape. The following day, C.U. saw her two

assailants at a grocery store parking lot and contacted

police, who detained and arrested Murillo-Rodriguez and

Gladamez. During a police interview, Murillo-Rodriguez

admitted to having had sexual contact with C.U., stating that

he understood that he had committed a serious crime. 2

On January 22, 2008, a grand jury in the Circuit Court of

Fairfax County indicted Murillo-Rodriguez for both rape and

abduction with intent to defile. A two-day, bifurcated jury

trial was held in the circuit court beginning on April 22,

2008. During the Commonwealth’s case-in-chief, evidence in

2
The police interviewed Murillo-Rodriguez, who is not
fluent in English, with the assistance of a Spanish-speaking
officer. Murillo-Rodriguez stated that his actions were “un
delito grave” (a serious crime) and when asked what crime he
committed, he replied “[a]buso sexual” (sexual abuse).

3
accord with the above-recited facts was presented to the jury.

At the conclusion of the Commonwealth’s case, Murillo-

Rodriguez’s counsel moved to strike the evidence as to the

abduction charge, contending that the Commonwealth failed to

prove that the restraint of the victim was not merely

“incidental to the rape.” The Commonwealth responded that the

removal of the victim of a rape to a place of seclusion

increased the danger to the victim and was not merely

incidental to the commission of the rape because it involved

restraint greater than was necessary to accomplish that crime.

Thus, the Commonwealth contended that the evidence was

sufficient to support a finding by the jury that there was an

independent abduction of the victim. Agreeing with the

Commonwealth, the court overruled Murillo-Rodriguez’s motion

to strike the evidence as to the abduction charge.

Murillo-Rodriguez elected to introduce evidence in his

defense and testified with the assistance of a Spanish

language translator. Murillo-Rodriguez recanted his prior

statement to the police, contending that he had been

intoxicated at the time of the interview. Murillo-Rodriguez

testified that he was acquainted with C.U. and her family and

that he had engaged in consensual sexual activity with her

prior to the date of the alleged rape. He further testified

that C.U. was intoxicated when they met on September 8, 2007

4
and had voluntarily agreed to go to a nearby park, located

some distance from the location where C.U. had indicated the

rape had occurred, to have sexual intercourse with him. He

further testified that although she initially declined to have

sexual intercourse with Galdamez, she did so after they had

consumed some beer.

After cross-examination and redirect examination of

Murillo-Rodriguez, defense counsel stated, “That’s my case,

your Honor. The defense rests.” Defense counsel did not

renew his prior motion to strike the evidence as to the

abduction charge.

The Commonwealth introduced rebuttal evidence from the

police officer who had acted as translator during the

interview of Murillo-Rodriguez following his arrest. The

officer testified that Murillo-Rodriguez did not appear

intoxicated at the time of the interview. Through this

officer’s testimony and without objection by the defense, the

tape of Murillo-Rodriguez’s interview was played for the jury.

After defense counsel briefly cross-examined the officer, the

Commonwealth rested its case, and the trial was adjourned for

the day.

When the trial resumed the following morning, the jury

was instructed by the circuit court, heard argument from the

Commonwealth and defense counsel, and retired to consider its

5
verdict. The record does not reflect that Murillo-Rodriguez’s

counsel made a new motion to strike the evidence as to the

charge of abduction with intent to defile at any point prior

to the case being given to the jury. The jury unanimously

found Murillo-Rodriguez guilty of rape and abduction with

intent to defile. Although Murillo-Rodriguez’s counsel

requested a poll of the jury, he did not make a motion to set

aside the jury’s verdict.

Following additional testimony from the victim and

Murillo-Rodriguez and additional argument by the parties in

the penalty phase of the trial, the jury again retired to

consider sentencing. The jury recommended sentences of 20

years imprisonment on each charge. The jury was again polled,

but Murillo-Rodriguez’s counsel did not make a motion to set

aside the verdict.

Following preparation of a pre-sentence report, the

circuit court conducted a sentencing hearing on June 26, 2008.

No transcript of the sentencing hearing was included in the

record made available to the Court of Appeals and to this

Court. However, the sentencing order does not reflect, and

Murillo-Rodriguez does not contend, that his counsel made a

motion to set aside the verdict during or at the conclusion of

the sentencing hearing. The court sentenced Murillo-Rodriguez

6
in accordance with the jury’s verdict, directing that the

sentences be served consecutively.

Murillo-Rodriguez noted an appeal to the Court of

Appeals. In his petition for appeal, Murillo-Rodriguez

contended that the circuit court erred in failing to strike

the Commonwealth’s evidence as to the charge of abduction with

intent to defile because the evidence failed to show that the

restraint of the victim “was separate and distinct from the

restraint inherent in the crime of rape.”

In an order dated February 11, 2009, the Court of Appeals

refused the petition for appeal, first noting that, contrary

to the requirements of Rule 5A:20(c), the petition failed to

include “a clear and exact reference to the page(s) of the

transcript, written statement, record, or appendix where each

question was preserved in the trial court.” Murillo-Rodriguez

v. Commonwealth, Record No. 1763-08-4, slip op. at 1 (Feb. 11,

2009). The Court went on to state that in its review of the

record it found that although Murillo-Rodriguez “made a motion

to strike on the abduction charge after the Commonwealth

rested its case-in-chief . . . the record fail[ed] to show

that [Murillo-Rodriguez] renewed his motion to strike any time

thereafter or timely moved to set aside the verdict.” Id.

Citing McQuinn v. Commonwealth, 20 Va. App. 753, 757, 460

S.E.2d 624, 626 (1995) (en banc) (per curiam) (hereinafter,

7
“McQuinn II”) and McGee v. Commonwealth, 4 Va. App. 317, 321,

357 S.E.2d 738, 739-40 (1987), the Court stated that “[i]n a

jury trial, the defendant must make a motion to strike at the

conclusion of all the evidence, or make a motion to set aside

the verdict, in order to preserve the question of sufficiency

of the evidence.” Murillo-Rodriguez, Record No. 1763-08-4,

slip op. at 2. The Court concluded that Murillo-Rodriguez had

not preserved for appeal his challenge to the sufficiency of

the evidence to support the conviction for abduction with

intent to defile. Accordingly, the Court held that Murillo-

Rodriguez’s appeal was barred by Rule 5A:18, and further held

that it would not apply the ends of justice exception of that

rule as the record did not demonstrate that the failure to do

so would permit a miscarriage of justice to occur. Id.

Murillo-Rodriguez noted an appeal from the judgment of

the Court of Appeals to this Court. In his petition for

appeal, Murillo-Rodriguez first assigned error to the judgment

of the Court of Appeals that he had not adequately preserved

for appeal the issue of the sufficiency of the evidence to

support the conviction for abduction with intent to defile by

his motion to strike the evidence at the conclusion of the

Commonwealth’s case-in-chief. He further assigned error to

the failure of the Court of Appeals to overturn his conviction

8
for abduction. By an order dated June 19, 2009, we awarded

Murillo-Rodriguez this appeal.

DISCUSSION

The resolution of Murillo-Rodriguez’s first assignment of

error is dispositive to this appeal and involves the interplay

between two closely related, but distinct concepts of waiver,

and the application of a statutory provision limiting the

circumstances in which an appellate court may find that an

appellant has waived an issue for appeal after having “ma[de]

known to the [trial] court the action which he desires the

court to take or his objections to the action of the court and

his grounds therefor.” Code § 8.01-384(A). The first concept

of waiver is principally a rule of trial procedure, applied by

this Court in criminal cases for over sixty years, requiring a

court to consider all the evidence before it when a defendant

challenges the sufficiency of the evidence after electing to

introduce evidence in his defense at the conclusion of the

Commonwealth’s case-in-chief. The second concept of waiver is

a more recent rule of appellate procedure, first applied by

the Court of Appeals in 1986, which bars the review by an

appellate court of a challenge to the sufficiency of the

evidence where a defendant who has elected to introduce

evidence in his defense does not make either a motion to

9
strike at the conclusion of all the evidence or a motion to

set aside the verdict.

We begin our analysis by examining the relevant statute.

As first enacted in 1970, former Code § 8-225.1 provided that:

Formal exceptions to rulings or orders of the
court shall be unnecessary; but for all purposes for
which an exception has heretofore been necessary, it
shall be sufficient that a party, at the time the
ruling or order of the court is made or sought,
makes known to the court the action which he desires
the court to take or his objections to the action of
the court and his grounds therefor; and, if a party
has no opportunity to object to a ruling or order at
the time it is made, the absence of an objection
shall not thereafter prejudice him on motion for a
new trial or on appeal.

In 1977, Code § 8-225.1 was recodified without amendment as

Code § 8.01-384(A). 1977 Acts ch. 617. In 1992, subsection

(A) of the statute was amended by the addition of the

following text:

No party, after having made an objection or motion
known to the court, shall be required to make such
objection or motion again in order to preserve his
right to appeal, challenge, or move for
reconsideration of, a ruling, order, or action of
the court. No party shall be deemed to have agreed
to, or acquiesced in, any written order of a trial
court so as to forfeit his right to contest such
order on appeal except by express written agreement
in his endorsement of the order. Arguments made at
trial via written pleading, memorandum, recital of
objections in a final order, oral argument reduced
to transcript, or agreed written statements of facts
shall, unless expressly withdrawn or waived, be
deemed preserved therein for assertion on appeal.

10
1992 Acts ch. 564 (emphasis added). The legislation adding

this language to the statute further stated “[t]hat the

provisions of this act are declaratory of existing law.” Id.

In order to determine whether Code § 8.01-384(A) is

applicable to the circumstances of this case, we first examine

the origin of the two concepts of waiver that are implicated

here. Though the concept that presentation of evidence by a

defendant is a waiver of a prior challenge to an opponent’s

evidence is undoubtedly older and was regularly applied by

this Court in civil cases, see, e.g., Rawle v. McIlhenny, 163

Va. 735, 741, 177 S.E. 214, 216 (1934), the application of

this concept of waiver in a criminal case in Virginia derives

from the case of Spangler v. Commonwealth, 188 Va. 436, 50

S.E.2d 265 (1948). In Spangler, citing Rawle and other civil

cases, we said:

When a defendant in a civil or criminal case
proceeds to introduce evidence in his own behalf,
after the trial court has overruled his motion to
strike, made at the conclusion of the introduction
of plaintiff’s evidence in chief, he waives his
right to stand upon such motion. Plaintiff’s case
may be strengthened by defendant’s evidence. If
thereafter a motion is made to strike the evidence
or to set aside the verdict, the court must consider
the entire record in reaching its conclusion.

Id. at 438, 50 S.E.2d at 266. Though we did not expressly

indicate that Spangler made a motion to strike after

introducing his evidence, a subsequent examination of the

11
record by a judge of the Court of Appeals in a later case

confirmed that the trial court had taken Spangler’s motion to

strike the Commonwealth’s evidence under advisement and that

Spangler made a further motion to strike at the conclusion of

all the evidence, which the trial court denied. See McQuinn

v. Commonwealth, 19 Va. App. 418, 431, 451 S.E.2d 704, 710-11

(1994) (Cole, J., concurring in part and dissenting in part)

(hereinafter, “McQuinn I”).

Applying the rule from Rawle, we held in Spangler that

after proceeding to introduce evidence in his own behalf,

Spangler could not thereafter limit his challenge to the

sufficiency of the evidence to that presented solely by the

Commonwealth, but, rather, the only question to be considered

by the trial court, and subsequently by this Court on appeal,

was “whether considering all the evidence, the guilt of the

accused is established beyond a reasonable doubt.” 188 Va. at

438, 50 S.E.2d at 266. The issue in Spangler, therefore, was

not whether the defendant had preserved for appeal his

challenge to the sufficiency of the evidence, but rather what

quantum of evidence from which guilt will be determined should

be considered by the trial court, and in turn by an appellate

court, when a defendant challenges the sufficiency of the

evidence after introducing evidence in his own behalf.

12
 While Spangler was a bench trial, we subsequently applied

the same concept of waiver to jury trials where the defendant

elected to introduce evidence in his defense. See, e.g.,

Orange v. Commonwealth, 191 Va. 423, 428, 61 S.E.2d 267, 269

(1950). In subsequent criminal cases in which we have applied

Spangler or one of its progeny, the expression of the waiver

concept has consistently been that when a defendant elects to

introduce evidence in his own behalf after the denial of a

motion to strike the Commonwealth’s evidence, any further

challenge to the sufficiency of the evidence at trial or on

appeal is to be determined from the entire record, because by

putting on additional evidence, the defendant waives his

ability to challenge the sufficiency of the Commonwealth’s

evidence in isolation. 3

In contrast, the concept of waiver applied by the Court

of Appeals in the present case does not involve the quantum of

evidence to be considered when reviewing the sufficiency of

3
See, e.g., Canady v. Commonwealth, 214 Va. 331, 332-33,
200 S.E.2d 575, 576-77 (1973) (per curiam); Tolley v.
Commonwealth, 216 Va. 341, 347, 218 S.E.2d 550, 554 (1975);
Inge v. Commonwealth, 217 Va. 360, 366, 228 S.E.2d 563, 567
(1976); Hargraves v. Commonwealth, 219 Va. 604, 605, 248
S.E.2d 814, 815 (1978); Carter v. Commonwealth, 223 Va. 528,
531, 290 S.E.2d 865, 866-67 (1982); Starks v. Commonwealth,
225 Va. 48, 55, 301 S.E.2d 152, 156 (1983); Bunch v.
Commonwealth, 225 Va. 423, 439, 304 S.E.2d 271, 280 (1983);
Roberts v. Commonwealth, 230 Va. 264, 270 n.8, 337 S.E.2d 255,
259 n.8 (1985); Sheppard v. Commonwealth, 250 Va. 379, 387,
464 S.E.2d 131, 136 (1995).

13
the evidence. Rather, the focus is upon the concept of waiver

in the context of appellate procedure for determining whether

a challenge to the sufficiency of the evidence has been

preserved for appeal. The Court of Appeals first addressed

this concept of waiver in White v. Commonwealth, 3 Va. App.

231, 348 S.E.2d 866 (1986), involving a jury trial where the

defendant moved to strike the evidence at the conclusion of

the Commonwealth’s case-in-chief, but did not make a motion to

strike at the conclusion of all the evidence and did not make

a motion to set aside the jury’s verdict. While recognizing

the established rule that if a defendant makes a motion to

strike the evidence at the conclusion of all the evidence or

makes a motion to set aside the verdict a “ ‘court must

consider the entire record in reaching its conclusion,’ ” id.

at 233, 348 S.E.2d at 867 (quoting Spangler, 188 Va. at 438,

50 S.E.2d at 266), the Court concluded that no Virginia

authority directly addressed the issue of what consequence

would ensue from the failure of the defendant to make these

motions. The Court observed that because White “never

objected to the sufficiency of the evidence” after presenting

his own case, “the trial court was never asked to rule on this

issue based on the entire record.” White, 3 Va. App. at 233,

348 S.E.2d at 867. Thus, citing Rule 5A:18, the Court held

that by failing to make a motion to strike after he introduced

14
his evidence White waived his challenge to the sufficiency of

the evidence just as if he “failed to object to any other

matter at trial.” 4 Id.

The Court of Appeals revisited the issue of preservation

for appeal of sufficiency issues in a jury trial in Day v.

Commonwealth, 12 Va. App. 1078, 407 S.E.2d 52 (1991). In Day,

the majority applied White, holding that a defendant’s

challenge to the sufficiency of the evidence to show proper

venue in a motion to strike at the conclusion of the

Commonwealth’s case was waived where he failed to renew that

motion after introducing evidence in his defense and made no

express argument on that point in asking the court to set

4
Though not directly relevant to the issue raised in this
appeal, which is essentially indistinguishable from the
circumstances in White, we note that the Court of Appeals has
refined and limited its application of this waiver rule in
subsequent cases. See, e.g., McGee, 4 Va. App. at 321, 357
S.E.2d at 739-40 (holding that “[a] prior motion to strike the
evidence . . . is not a prerequisite to a motion to set aside
the verdict”); Sylvestre v. Commonwealth, 10 Va. App. 253,
255, 391 S.E.2d 336, 338 (1990) (rejecting the Commonwealth’s
contention that White should be extended to bar a defendant
from challenging the sufficiency of the evidence on appeal in
any case where the defendant elects to put on evidence);
Campbell v. Commonwealth, 12 Va. App. 476, 479-81, 405 S.E.2d
1, 2-3 (1991) (en banc) (declining to extend White to a bench
trial where no express motion to strike had been made at the
conclusion of the case, but where sufficiency of the evidence
had been fully addressed in the defense’s closing argument);
Cotter v. Commonwealth, 21 Va. App. 453, 454, 464 S.E.2d 566,
567 (1995) (en banc) (order) (holding that although trial
court ruled on motion to set aide the verdict, failure of
defendant to provide a record of the basis for the motion

15
aside the jury’s verdict. 12 Va. App. at 1079-80, 407 S.E.2d

at 53-54. The majority of the panel in Day did not address

Code § 8.01-384(A). Recognizing that the panel was bound by

the existing precedent of White, a member of the panel in a

concurring opinion nevertheless expressed the view that the

“one objection limit” of Code § 8.01-384(A), as then in effect

since 1970, “eliminat[ed] the need for formal exceptions and

declar[ed] that stating one’s objection and the ground for it

at the time a court rules is sufficient to preserve an issue

for appeal.” Id. at 1081, 407 S.E.2d at 54-55 (Barrow, J.,

concurring).

Following the amendment of Code § 8.01-384(A) in 1992,

the Court of Appeals in McQuinn I considered a challenge to

the waiver concept established in White. There, the

Commonwealth asserted the procedural waiver established in

White, as confirmed by Day, barred McQuinn, who had introduced

evidence in his defense following the denial of his motion to

strike at the conclusion of the Commonwealth’s case-in-chief

and had not thereafter renewed the motion to strike or moved

to set aside the verdict, from challenging the sufficiency of

the evidence on appeal. McQuinn I, 19 Va. App. at 420, 451

S.E.2d at 705. Addressing the issue of preservation of the

barred consideration of challenge to sufficiency of the
evidence).

16
challenge to the sufficiency of the evidence, the majority of

the panel concluded that “the defendant’s motion at the

conclusion of the Commonwealth’s evidence was sufficient to

preserve the question for review on appeal.” Id. The

majority reasoned, in part, that where a defendant elects to

introduce evidence following the denial of a motion to strike

at the conclusion of the Commonwealth’s case-in-chief, Code

§ 8.01-384(A) preserved the challenge to the sufficiency of

the evidence on appeal “if the defendant’s evidence does no

more than conflict with the prosecution’s evidence and does

not render it insufficient as a matter of law, [because] the

question of sufficiency does not change following presentation

of the defendant’s evidence. In such an instance,

reconsideration of a motion to strike the evidence, once

denied, is unnecessary.” Id. at 422, 451 S.E.2d at 706. Both

McQuinn and the Commonwealth petitioned the Court of Appeals

for a rehearing en banc and both petitions were granted.

Sitting en banc, a majority of the Court found that White

barred McQuinn’s sufficiency challenge because he had

introduced evidence in his defense and had not thereafter made

a motion to strike or a motion to set aside the verdict

challenging the evidence as a whole. McQuinn II, 20 Va. App.

at 755-56, 460 S.E.2d at 625-26. The majority rejected

McQuinn’s contention that the 1992 amendment of Code § 8.01-

17
384(A) had abrogated or limited the application of White and

its progeny. The majority reasoned that “[t]he legislature is

presumed to know the decisions of the appellate courts of the

Commonwealth and to acquiesce therein unless it countermands

them explicitly.” Id. at 757, 460 S.E.2d at 626. Applying

this rule of construction, the majority noted that “[t]he

doctrine[s] of Spangler, White, and Day, based on . . .

concept[s] of waiver, w[ere] firmly in place prior to the 1992

amendment to Code § 8.01-384(A)” and, thus, “[t]he 1992

statutory amendment did not address waiver and did not

explicitly overrule the holdings of Spangler, White, and Day.”

Id. This Court refused McQuinn’s petition for appeal from the

judgment of the Court of Appeals. McQuinn v. Commonwealth,

Record No. 951752 (December 27, 1995).

Following McQuinn II, the Court of Appeals has

consistently applied the White/McQuinn II concept of waiver to

require a defendant who elects to introduce evidence in his

defense after the denial of a motion to strike the

Commonwealth’s evidence to reassert in some fashion a

challenge to the sufficiency of the evidence as a whole after

the record is complete, and if he fails to do so, he waives

his ability to raise that issue on appeal. This concept of

waiver is so well established in the jurisprudence of the

Court of Appeals that its application has primarily been

18
confined to unpublished memoranda opinions and, as in this

case, orders refusing petitions for appeal.

Notwithstanding the Court of Appeals’ decisions in White

and McQuinn II, Murillo-Rodriguez asserts that the concept of

waiver established in those cases is not applicable to the

circumstances of his case. He contends that in King this

Court recognized that the amendment of Code § 8.01-384(A) in

1992 superseded the requirement for making a motion to strike

all the evidence once a motion to strike the Commonwealth’s

evidence is made, and that any waiver of a challenge to the

sufficiency of the evidence on appeal must be affirmatively

shown on the record and will not be implied from the failure

to make a subsequent motion to strike the evidence or from the

absence of a motion to set aside the verdict after the

defendant has elected to introduce evidence in his defense.

Murillo-Rodriguez further contends that nothing in the

evidence he presented in this case, or by the Commonwealth in

rebuttal, added to or enhanced the evidence regarding the

length of time or level of force used to restrain the victim

prior to the rape. Accordingly, he maintains that under Code

§ 8.01-384(A) there was no waiver of his challenge to the

sufficiency of the evidence to support the independent offense

of abduction for which he was indicted.

19
 The Commonwealth correctly responds that Murillo-

Rodriguez’s reliance on King is misplaced. In that case the

defendant made a motion to strike at the conclusion of the

introduction of the evidence, but then failed to object to a

jury instruction that addressed the same issue as the argument

made in support of the motion to strike. 264 Va. at 579, 570

S.E.2d at 864. Our holding in King does not stand for the

proposition that Code § 8.01-384(A) as amended in 1992 has

altered or superseded the requirement that a defendant make a

motion to strike all the evidence or thereafter a motion to

set aside an unfavorable verdict in order to challenge on

appeal the sufficiency of the evidence to support a

conviction. In King, in the context of the provisions of Code

§ 8.01-384(A), we held that the issue was made known to the

trial court in the defendant’s motion to strike the evidence

and that the defendant’s failure to subsequently object to a

jury instruction that varied from the language of the

indictment did not constitute a waiver of the issue denied by

the trial court following the motion to strike the evidence.

264 Va. at 580-82, 570 S.E.2d at 865-66.

While we agree with the Commonwealth that King is

distinguishable from, and thus not directly applicable to, the

facts of the present case, this does not resolve Murillo-

Rodriguez’s contention that our application of Code § 8.01-

20
384(A) in that case should be extended to provide for a more

relaxed rule with regard to the necessity for formal

objections to the sufficiency of the evidence in criminal

cases. To the contrary, this case presents us with the

opportunity, not available in Ortiz, specifically to consider

the concept of waiver established by the Court of Appeals in

White and McQuinn II and whether in McQuinn II the Court of

Appeals correctly interpreted the interplay between that

concept of waiver and Code § 8.01-384(A).

Conceding that this Court has not directly applied the

decisions in White and McQuinn II with regard to the concept

of waiver in a direct appeal, the Commonwealth contends that

implicitly we have recognized the application of that concept

in Jerman v. Director, Dept. of Corrections, 267 Va. 432, 593

S.E.2d 255 (2004). However, Jerman involved a petition for

post-conviction relief through habeas corpus. Our conclusion

that appellate counsel’s decision not to challenge the

sufficiency of the evidence on direct appeal was not

ineffective “because that argument was procedurally defaulted

when trial counsel failed to renew the motion to strike at the

close of all the evidence,” id. at 441, 593 S.E.2d at 260,

merely reflects our recognition of the state of the law

applicable to the underlying direct appeal, rather than a

21
considered approval of the Court of Appeals’ decisions in

White and McQuinn II.

Accordingly, we will first consider whether the

application of the concept of waiver originally established

and applied by the Court of Appeals in White was correct, and

second, we will consider whether the Court of Appeals

correctly determined in McQuinn II that the 1992 amendment to

Code § 8.01-384(A) did not abrogate or limit the application

of the concept of waiver established in White.

The concept of waiver first set forth in White is in

reality nothing more than a straightforward application of the

contemporaneous objection rule. “The primary purpose of

requiring timely and specific objections is to allow the trial

court an opportunity to rule intelligently on the issues

presented, thereby avoiding unnecessary appeals and reversals.

A specific, contemporaneous objection also provides the

opposing party an opportunity to address an issue at a time

when the course of the proceedings may be altered in response

to the problem presented. If a party fails to make a timely

objection, the objection is waived for purposes of appeal.”

Shelton v. Commonwealth, 274 Va. 121, 126, 645 S.E.2d 914, 916

(2007) (citations omitted).

When a defendant has elected to introduce evidence on his

own behalf after a motion to strike the Commonwealth’s

22
evidence has been denied, he necessarily changes the quantum

of evidence from which his guilt will be determined. This is

especially true where, as in this case, the defendant

testifies on his own behalf and recants a prior confession,

thereby putting his credibility at issue before the trier of

fact.

As the Court of Appeals observed in White, the failure to

object to the sufficiency of all the evidence is a waiver of

that issue just as if the defendant “failed to object to any

other matter at trial.” 3 Va. App. at 233, 348 S.E.2d at 867.

This is so because, by not reasserting a sufficiency challenge

after he has introduced his own evidence, the defendant has

deprived the trial court of the opportunity to consider and

rule on the sufficiency of the evidence as a matter of law

under the proper standard required by Spangler. 5 Accordingly,

we hold that the Court of Appeals correctly concluded in White

that in such cases the defendant must afford the trial court

the opportunity upon proper motion to decide the question of

the sufficiency of all the evidence, and that if he fails to

5
Although we frequently refer to a defendant “renewing”
his motion to strike at the conclusion of the introduction of
all the evidence, properly understood a “renewed” motion to
strike is a new motion asking the trial court to apply a prior
challenge to the sufficiency of the Commonwealth’s case to all
the evidence.

23
do so, he has waived his right to challenge the sufficiency of

the evidence on appeal.

With regard to the application of Code § 8.01-384(A), in

McQuinn II the en banc Court of Appeals addressed the question

whether the 1992 amendment of that statute had abrogated or

limited the concept of waiver established in White requiring a

challenge to the sufficiency of all the evidence and concluded

that it had not. However, subsequent to the Court of Appeals

decision in McQuinn II, we have applied Code § 8.01-384(A) in

both civil and criminal cases to conclude that a party was not

barred from asserting an issue on appeal that was the subject

of a pre-trial or interlocutory motion or objection overruled

by the trial court and not thereafter renewed when the issue

arose again later in the trial. For example, as noted above,

in King, we held that the defendant was not required to object

to a jury instruction that was contrary to his argument made

during a motion to strike at the conclusion of all the

evidence that the Commonwealth’s evidence did not conform to

the indictment. 264 Va. at 579, 570 S.E.2d at 864. We

explained the application of Code § 8.01-384(A) and its

recognition that a prior objection or argument from a motion

might be waived as follows:

Like the waiver of any legal right, the waiver
referenced in Code § 8.01-384(A) “will be implied
only upon clear and unmistakable proof of the

24
 intention to waive such right for the essence of
waiver is voluntary choice.” Chawla v.
BurgerBusters, Inc., 255 Va. 616, 623, 499 S.E.2d
829, 833 (1998). In Chawla, the appellee also
argued that the failure to object to a jury
instruction was a waiver of a prior objection on the
same issue. Applying Code § 8.01-384(A), we
rejected this argument, finding no support in the
record for the conclusion that the appellant
“abandoned or evidenced an intent to abandon the
[prior] objection.” Id.

The same rationale applies to the circumstances
of this case with equal, if not greater, force
considering the gravity of applying an implied
waiver in a criminal trial. The undeniable purpose
of Code § 8.01-384(A) is to relieve counsel of the
burden of making repeated further objections to each
subsequent action of the trial court that applies or
implements a prior ruling to which an objection has
already been noted. In this regard, the statute and
the contemporaneous objection rule contained in Rule
5A:18, applicable in the Court of Appeals, and in
Rule 5:25, applicable in this Court, are entirely
consistent.

Id. at 581, 570 S.E.2d at 865-66.

We have subsequently applied Code § 8.01-384(A) in a

criminal law context to reject the Commonwealth’s assertion of

a defense waiver of an issue in Gray v. Commonwealth, 274 Va.

290, 305-06, 645 S.E.2d 448, 458 (2007), where we concluded

that an argument raised in a memorandum in support of a pre-

trial motion to declare the capital murder statute

unconstitutional was adequately presented to the trial court

even though not addressed in a subsequent hearing on the

motion. Similarly, in Shelton, we applied the statute in an

appeal of a Sexually Violent Predator Act commitment

25
proceeding to hold that a pre-trial motion and qualified

endorsement of the final order were sufficient to preserve

issues raised on appeal although no objections were raised on

those issues during the commitment hearing. 274 Va. at 127,

645 S.E.2d at 916.

Murillo-Rodriguez contends that the application of Code

§ 8.01-384(A) by this Court in these cases essentially

supports his contention that the proper application of the

concept of waiver at issue would allow an appeal challenging

the sufficiency of the evidence based solely on a motion to

strike the Commonwealth’s evidence so long as the evidence

offered by the defendant does not “change[] the context in

which the court had judged the sufficiency of the evidence as

it related to his earlier motion to strike.” He contends that

such would be the case here because his motion to strike at

the end of the Commonwealth’s evidence “fully [apprised] the

trial court of his contention that the evidence was legally

insufficient to support a charge of abduction separate and

distinct from that of rape,” and thereafter the evidence he

introduced “gave a completely different account of what

transpired . . . there was no abduction, no asportation, and

no rape.” Accordingly, Murillo-Rodriguez contends that under

Code § 8.01-384(A) he was not required to raise a further

challenge to the sufficiency of the evidence to support the

26
separate crime of abduction with intent to defile because the

evidence of that crime was limited to the evidence presented

by the Commonwealth in its case-in-chief.

We do not agree with Murillo-Rodriguez that Code § 8.01-

384(A) should be applied in this case, or in any similar case,

to permit appellate review of the sufficiency of the evidence

based solely on a motion to strike denied after the

Commonwealth’s case-in-chief. To the contrary, we hold that

the statute does not apply to the circumstances of such cases

for the self-evident reason, clearly set out in Spangler and

in the subsequent line of cases which followed its rationale,

that a motion to strike the evidence presented after the

Commonwealth’s case-in-chief is a separate and distinct motion

from a motion to strike all the evidence, or a motion to set

aside an unfavorable verdict, made after the defendant has

elected to introduce evidence on his own behalf.

In each of the cases in which we have applied Code

§ 8.01-384(A) to find that the statute did not permit an

appellee to assert waiver of an issue by the appellant, we

have been consistent in holding that in order for a waiver to

be found the statute requires that “the record must

affirmatively show that the party who has asserted an

objection has abandoned the objection [or argument of an

overruled motion] or has demonstrated by his conduct the

27
intent to abandon” that argument. Shelton, 274 Va. at 127-28,

645 S.E.2d at 917; see also Helms v. Manspile, 277 Va. 1, 6,

671 S.E.2d 127, 129 (2009); King, 264 Va. at 581, 570 S.E.2d

at 865-66; Chawla, 255 Va. at 623, 499 S.E.2d at 833.

However, the concept of waiver established in Spangler, which

is the underpinning of White and its progeny including McQuinn

II, is that by electing to introduce evidence in his defense

after a motion to strike the Commonwealth’s evidence is

denied, a defendant has affirmatively “waive[d] his right to

stand upon such motion.” 188 Va. at 438, 50 S.E.2d at 266.

In short, by electing to introduce evidence in his defense,

the defendant demonstrates “by his conduct the intent to

abandon” the argument that the Commonwealth failed to meet its

burden through the evidence presented in its case-in-chief.

Graham v. Cook, 278 Va. 233, 248, 682 S.E.2d 535, 543 (2009)

(citing Helms, 277 Va. at 6, 671 S.E.2d at 129). Thus, any

challenge to the sufficiency of the evidence after such waiver

will necessarily raise a new and distinct issue from the one

presented by the denied motion to strike.

Furthermore, even if we were to agree with Murillo-

Rodriguez that his self-serving testimony, especially his

recantation of his statement to police, did not implicate the

question of whether he abducted the victim, we would

nonetheless reject his contention that the concept of waiver

28
established in Spangler should apply only where the evidence

presented by a defendant after a motion to strike is denied is

directly relevant to the issue which he subsequently seeks to

challenge on sufficiency grounds. To the contrary, while we

indicated that the basis for the waiver was that the

“[prosecution’s] case may be strengthened by defendant’s

evidence,” 188 Va. at 438, 50 S.E.2d at 266 (emphasis added),

the waiver arises as soon as the defendant elects to introduce

any evidence without regard to its quality, focus or import.

In the absence of this bright line rule, appellate courts

would be forever reviewing the evidence presented by

defendants to determine whether, directly or by inference, it

related to a particular question of the sufficiency of the

evidence being asserted on appeal.

In sum, the waiver rule established in Spangler bars the

defendant from challenging only the sufficiency of the

Commonwealth’s evidence, both in the trial court and on

appeal, if he elects to introduce evidence of his own. By

contrast, the waiver rule established in White and confirmed

in McQuinn II is addressed only to whether the defendant will

be allowed to challenge the sufficiency of all the evidence on

appeal. The Court of Appeals’ waiver rule, which we now

expressly approve, is not subject to the application of Code

§ 8.01-384(A) because the failure of the defendant to

29
challenge the sufficiency of the evidence at the conclusion of

the introduction of all the evidence, whether by a motion to

strike or a motion to set aside the verdict, does not present

the same issue as was asserted in a previously denied motion

to strike the Commonwealth’s evidence. While Code § 8.01-

384(A), by its express language, supports the application of

the waiver in Spangler because the defendant, by electing to

introduce evidence in his defense, has affirmatively waived

his objection limited to the Commonwealth’s evidence, the

statute simply does not apply to the application of the waiver

rule established in White and McQuinn II because that waiver

applies when the defendant, after introducing evidence in his

defense, has failed to challenge the sufficiency of the

evidence as a whole in the trial court. Simply put, a

defendant may not rely upon Code § 8.01-384(A) to preserve for

appeal an issue that he never allowed the trial court to rule

upon.

Accordingly, we hold that the Court of Appeals correctly

determined that Murillo-Rodriguez had waived his challenge to

the sufficiency of all the evidence to support his conviction

for abduction with intent to defile. We further agree with

the Court of Appeals that the ends of justice do not require

that the question of the sufficiency of the evidence be

reviewed despite this waiver, as the record from the circuit

30
court amply demonstrates that no miscarriage of justice has

occurred.

CONCLUSION

For these reasons, we hold that the Court of Appeals did

not err in refusing Murillo-Rodriguez’s petition for appeal.

Accordingly, the judgment of the Court of Appeals will be

affirmed.

Affirmed.

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