Edwards v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Benton, Elder, Annunziata, Bumgardner, Frank,
Humphreys, Clements, Felton and Kelsey
Argued at Richmond, Virginia

LOLITA EDWARDS
OPINION BY
v. Record No. 2846-01-1 JUDGE ROBERT P. FRANK
DECEMBER 9, 2003
COMMONWEALTH OF VIRGINIA

UPON A REHEARING EN BANC

FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Von L. Piersall, Jr., Judge

Joseph R. Winston, Special Appellate Counsel (Public Defender
Commission, on brief), for appellant.

Richard B. Smith, Senior Assistant Attorney General (Jerry W.
Kilgore, Attorney General, on briefs), for appellee.

Lolita Edwards (appellant) was indicted for attempted capital murder of a law enforcement

officer, in violation of Code §§ 18.2-25 and 18.2-31, eluding the police, in violation of Code

§ 46.2-817(B), and leaving the scene of an accident involving personal injury, in violation of Code

§ 46.2-894. In a bench trial, she was convicted of assault on a law enforcement officer, in violation

of Code § 18.2-57, in addition to the indicted offenses of eluding and leaving the scene. A panel of

this Court reversed the conviction of assault and affirmed the conviction of leaving the scene.

Edwards v. Commonwealth, 41 Va. App. 99, 581 S.E.2d 910 (2003). Thereafter, we stayed the

mandate of that decision and granted the Commonwealth’s petition for a rehearing en banc.

Appellant contends she was improperly convicted of assault on a law enforcement officer

because that offense is not a lesser-included offense of the indicted charge, attempted capital murder
of a law enforcement officer. She also argues the evidence was insufficient to prove she left the

scene of an accident. Upon rehearing en banc, we affirm the trial court on both offenses.

BACKGROUND

Around 8:00 p.m. on May 4, 2001, Portsmouth Police Officer S.D. White saw a burgundy

Pontiac with “music . . . playing extremely loud,” traveling without its headlights illuminated.

Officer White activated his lights and siren, but the Pontiac did not stop. Officer White continued to

follow the vehicle, with his “wigwag headlights” activated and his siren engaged, for approximately

one mile. The Pontiac swerved from one lane to another. A passing car was forced off the road by

the Pontiac. Eventually, the vehicle crossed the Churchland Bridge, “stopped suddenly,” and

“jumped the curb.” The officer swerved his car slightly to avoid hitting the Pontiac and then

stopped his police unit “slightly beside [appellant’s] vehicle.”

Officer White, who was in uniform with his badge displayed, exited his vehicle. He walked

up to the Pontiac and found appellant in the driver’s seat. The car was still running. Officer White

reached through the driver’s side window, telling appellant, “Turn off the car, turn off the car.”

The officer described what happened next:

I reached in, there was some yelling or something from inside the
car and the car drove off. When the car drove off, it pinned my
arm back behind the headrest and drug me towards the front of my
car at that point.

I was able to work myself free and I remember getting hit in the
back with either a car or a mirror and the next thing I remember I
was being loaded into an ambulance.

Officer Peter Sykes had arrived just before appellant stopped her car. He observed

Officer White reach into appellant’s car, grab her arm, and attempt to extract her from the

Pontiac. According to Officer Sykes, the car then “began to proceed eastbound . . . leaving the

curb, partially dragging Officer White towards his police vehicle. Officer White eventually let

go of the driver’s arm.” Officer Sykes testified the Pontiac was “creeping off the curb” when

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appellant drove off with Officer White’s arm in her car. He estimated the car traveled about five

or six feet until Officer White “let go.” After the officer “let go,” the Pontiac struck White’s

vehicle and then another police car.

Officer Sykes followed the car approximately a hundred feet, during which time it

jumped the curb, traveled across a lawn, and stopped. The officer placed appellant under arrest.

Officer White was treated for his injuries.

At the conclusion of the Commonwealth’s evidence, appellant moved to strike the

evidence on the attempted capital murder count. After argument, the trial court sustained the

motion. The Commonwealth then inquired if the court was “striking that down to possibly a

lesser included offense?” The Commonwealth suggested assault on a law enforcement officer as

a lesser-included offense. Appellant argued the latter offense was not a lesser-included offense.

The following exchange occurred:

MR. MEDA [appellant’s counsel]: Your Honor, I think under the
Blockburger analysis for lesser included offenses, I don’t think that
meets the requirement. The attempted capital murder statute does
not include the element of the defendant having reason to know the
person was a law enforcement officer. Assault and battery on a
police officer requires that --

* * * * * * *

The elements of the statute of attempted capital murder do not
include that as a requirement. The statute for assault and battery
on a law enforcement officer requires the Commonwealth to prove
as an element that the defendant had reason to know that the
person assaulted is a law enforcement officer.

The Commonwealth’s attorney responded, arguing that an attempted capital murder

indictment also requires the Commonwealth prove a defendant should have known the victim

was a law enforcement officer. The entire focus of the argument to the trial court was whether

the Commonwealth must prove the offender had reason to know the person was a law

enforcement officer in order to prove attempted capital murder. The trial court ruled on this

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issue when it found assault on a law enforcement officer was a lesser-included offense of

attempted capital murder.

ANALYSIS

A. Lesser-Included Offense

On appeal, appellant contends assault and battery of a law enforcement officer is not a

lesser-included offense of attempted capital murder because a battery is not an element of

attempted capital murder.1 Appellant also argues the definitions of “law enforcement officer”

contained in Code § 18.2-57, the assault statute, and Code § 18.2-31(6), the murder statute,

differ, which precludes a finding that assault of a law enforcement officer is a lesser-included

offense of attempted capital murder of a law enforcement officer. The Commonwealth concedes

this second argument. However, the Commonwealth contends any argument based on these

different definitions is procedurally defaulted under Rule 5A:18.2 We agree.

The argument at trial focused solely on whether both offenses require proof that the

assailant knew her intended victim was a law enforcement officer. Appellant argued Code

§ 18.2-57 includes this element and attempted capital murder does not. However, on appeal,

appellant attempts to distinguish the elements of these two offenses on a different basis, i.e., the

1
Appellant was convicted of assault on a law enforcement officer, not assault and battery
on a law enforcement officer. Thus, we will not address this contention.
2
Rule 5A:18 states:

No ruling of the trial court or the Virginia Workers’ Compensation
Commission will be considered as a basis for reversal unless the
objection was stated together with the grounds therefor at the time
of the ruling, except for good cause shown or to enable the Court
of Appeals to attain the ends of justice. A mere statement that the
judgment or award is contrary to the law and the evidence is not
sufficient to constitute a question to be ruled upon on appeal.

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statutory definition of a law enforcement officer, not the assailant’s perception of the victim’s

status as a law enforcement officer. Appellant did not raise the point she now asserts before the

trial court.

Nothing in appellant’s argument before the trial court alerted the trial court to her

argument before this Court. The trial court had no opportunity to consider the issue presented on

appeal. See Neal v. Commonwealth, 15 Va. App. 416, 422, 425 S.E.2d 521, 525 (1992) (“This

Court has said ‘the primary function of Rule 5A:18 is to alert the trial judge to possible error so

that the judge may consider the issue intelligently and take any corrective actions necessary to

avoid unnecessary appeals, reversals and mistrials.’” (quoting Martin v. Commonwealth, 13 Va.

App. 524, 530, 414 S.E.2d 401, 404 (1992))).

Rule 5A:18 requires an “objection [be] stated together with the grounds therefor at the

time of the ruling, except for good cause shown or to enable the Court of Appeals to attain the

ends of justice.” Under this rule, a specific argument must be made to the trial court at the

appropriate time, or the allegation of error will not be considered on appeal. See Mounce v.

Commonwealth, 4 Va. App. 433, 435, 357 S.E.2d 742, 744 (1987). A general argument or an

abstract reference to the law is not sufficient to preserve an issue. Buck v. Commonwealth, 247

Va. 449, 452-53, 443 S.E.2d 414, 416 (1994); Scott v. Commonwealth, 31 Va. App. 461,

464-65, 524 S.E.2d 162, 164 (2000). Making one specific argument on an issue does not

preserve a separate legal point on the same issue for review. See Clark v. Commonwealth, 30

Va. App. 406, 411-12, 517 S.E.2d 260, 262 (1999) (preserving one argument on sufficiency of

the evidence does not allow argument on appeal regarding other sufficiency questions).

Thus, we will not consider this issue for the first time on appeal. See Rule 5A:18; West

Alexandria Prop., Inc. v. First Virginia Mortgage and Real Estate Inv. Trust, 221 Va. 134, 138,

267 S.E.2d 149, 151 (1980) (“On appeal, though taking the same general position as in the trial

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court, an appellant may not rely on reasons which could have been but were not raised for the

benefit of the lower court.”); Floyd v. Commonwealth, 219 Va. 575, 584, 249 S.E.2d 171, 176

(1978) (holding that appellate courts will not consider an argument that differs from the specific

argument presented to the trial court, even if it relates to the same general issue).

Although Rule 5A:18 allows exceptions for good cause or to meet the ends of justice,

appellant does not argue that we should invoke these exceptions. See e.g., Redman v.

Commonwealth, 25 Va. App. 215, 221, 487 S.E.2d 269, 272 (1997) (“In order to avail oneself of

the exception, a defendant must affirmatively show that a miscarriage of justice has occurred, not

that a miscarriage might have occurred.” (emphasis added)). We will not consider, sua sponte, a

“miscarriage of justice” argument under Rule 5A:18. Further, we find nothing in the record to

support such an argument.

Appellant relies on our decision in Lowe v. Commonwealth, 33 Va. App. 583, 535

S.E.2d 689 (2000), to contend that her assignment of error can be raised at any time. In Lowe, a

defendant was indicted for statutory burglary, but convicted of trespass, without an amendment

of the indictment. The conviction was reversed because trespass under Code § 18.2-219 is not a

lesser-included offense of statutory burglary. At trial, Lowe did not object to the conviction of

the reduced charge. The Commonwealth, as it did here, contended Rule 5A:18 barred Lowe

from raising the issue on appeal. This Court noted:

“[T]he fact that the defendant did not object to . . . the conviction
on the ground that he was convicted for an offense with which he
was not charged is of no moment. Unless an indictment is
amended to conform to the proof or an accused acquiesces in being
found guilty of an offense other than the one charged, a trial court
lacks the authority to find an accused guilty of an offense other
than the one charged or a lesser included offense. . . . The lack of
authority of the trial Court to render the judgment that it did may
be raised at any time and by this court on its own motion.”

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 Fontaine v. Commonwealth, 25 Va. App. 156, 165, 487 S.E.2d
241, 244 (1997) (citations omitted).

Id. at 588, 535 S.E.2d at 691-92. This Court then held:

Acquiescence requires something more than a mere failure to
object. See [Fontaine, 25 Va. App. at 165, 487 S.E.2d at 244]
(holding that failing to object, coupled with statement to judge
clarifying that conviction was for misdemeanor rather than felony,
did not constitute acquiescence).

Id. at 588, 535 S.E.2d at 692. This Court found the issue was not defaulted and proceeded to

consider the merits of the appeal. Id.

In Fontaine, 25 Va. App. 156, 487 S.E.2d 241, a defendant was indicted for leaving the

scene of an accident in which a person was injured, a felony under Code § 46.2-900. However,

he was convicted, without an amendment of the indictment, of leaving the scene of an accident

involving property damage, a misdemeanor under Code § 46.2-900. Id. at 159, 487 S.E.2d at

242-43. Fontaine did not object to the conviction of the reduced charge. Id. at 162, 487 S.E.2d

at 244. In the context of a sufficiency issue, the Commonwealth argued that Fontaine had

“concurred” in the misdemeanor conviction by asking the trial court for clarification. Id. at 163,

487 S.E.2d at 244. This Court held Fontaine did not “acquiesce” in the trial court’s decision. Id.

The Commonwealth also argued the evidence was sufficient to convict Fontaine of the

misdemeanor because it was a lesser-included offense of the felony, and the evidence was

sufficient to convict him of the felony. Id. at 163, 487 S.E.2d at 244-45.

This Court noted, “[N]ot only is [the lesser-included issue] crucial to the

Commonwealth’s sufficiency argument, but, more importantly it is critical to the determination

of whether the trial court had jurisdiction to find the defendant guilty of an offense not directly

charged in the indictment.” Id. at 163-64, 487 S.E.2d at 245. This Court, after finding “hit and

run property damage” is not a lesser-included offense of “hit and run personal injury,” explained:

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 By convicting the defendant of an offense that was not lesser
included and that was not charged, the trial court exceeded its
authority. The indictment did not charge the defendant generally
with hit and run in violation of Code § 46.2-894. Instead, it
specifically charged hit and run personal injury. Thus, the
Commonwealth charged the defendant with one offense and found
him guilty of another. “The state may not accuse a person of one
crime and convict him by proving another unless the offense is a
lesser included one of that charged.” Harrell v. Commonwealth,
11 Va. App. 1, 6, 396 S.E.2d 680, 682 (1990). The fact that the
defendant did not object to or appeal the conviction on the ground
that he was convicted for an offense with which he was not
charged is of no moment.

Id. at 164-65, 487 S.E.2d at 245.

The Commonwealth asks this Court to overturn Lowe and reject the analysis in Fontaine.

The Commonwealth argues that conviction of an offense which is not a lesser-included offense

cannot create a jurisdictional issue and contends appellant’s arguments are subject to the usual

procedural requirements for consideration on appeal.

The Commonwealth notes both Lowe, 33 Va. App. at 589, 535 S.E.2d at 692, and

Fontaine, 25 Va. App. at 165, 487 S.E.2d at 245, allow waiver of this issue if a defendant

acquiesces in the trial court’s decision. However, the Commonwealth correctly explains,

jurisdictional issues by definition cannot be waived, even with acquiescence. Nelson v. Warden

of the Keen Mountain Corr. Ctr., 262 Va. 276, 281, 552 S.E.2d 73, 75 (2001) (noting

jurisdictional issues cannot be waived). Given this contradiction between the definition of

jurisdictional issues and the principles expressed in Lowe and Fontaine, we must reconsider

these two cases.

Fontaine, as embraced in Lowe, underscores the concept that a trial court “lack[s]

authority” to convict a person of an offense which is not a lesser-included offense. We do not

disagree with this statement of the law. However, the Fontaine and Lowe decisions presume

enthymematically that, when courts “lack authority,” they necessarily also lack essential

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jurisdiction over the matter in controversy. The decisions also conclude that this lack of

authority allows the issue to be raised at any time, whether preserved under Rule 5A:18 or not, a

prospect reserved only for void judgments. Lowe, 33 Va. App. at 588-89, 535 S.E.2d at 691-92;

Fontaine, 25 Va. App. at 165, 487 S.E.2d at 245. Essentially, Fontaine and Lowe equate the

“lack of authority” to exercise jurisdiction with a jurisdictional defect. This notion was clearly

rejected in Nelson, 262 Va. at 281-84, 552 S.E.2d at 75-77.

Referring to its earlier decision in David Moore v. Commonwealth, 259 Va. 431, 527

S.E.2d 406 (2000), the Supreme Court explained in Nelson,

[W]e made a point in David Moore of “emphasizing the necessary
distinction to be drawn . . . between the power of a court to
adjudicate a specified class of cases, commonly known as ‘subject
matter jurisdiction,’ and the authority of a court to exercise that
power in a particular case.” Id. at 437, 527 S.E.2d at 409.

We said that “[s]ubject matter jurisdiction is granted by
constitution or statute,” that “[i]t cannot be waived,” that “any
judgment rendered without it is void ab initio,” and that “lack of
subject matter jurisdiction ‘may be raised at any time in any
manner, before any court, or by the court itself.’” Id. (quoting
Humphreys v. Commonwealth, 186 Va. 765, 772, 43 S.E.2d 890,
893 (1947)).

* * * * * * *

After noting the Court’s emphasis on the distinction between
subject matter jurisdiction and the authority to exercise that
jurisdiction, the Court’s next step should have been to demonstrate
the difference resulting from the distinction. Yet, we made a
distinction without a difference for, with our very next step, we
elevated the failure of a court to comply with the requirements for
exercising its authority to the same level of gravity as a lack of
subject matter jurisdiction.

262 Va. at 281, 552 S.E.2d at 75. The Supreme Court reversed the reasoning in David Moore

and found the failure to notify Nelson’s father of the charges against his son did not result in a

void judgment.

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 Nelson did not preserve the error in the juvenile court’s failure to
give his father notice and did not raise the issue until he filed his
petition for a writ of habeas corpus in this Court. Because
Nelson’s convictions were merely voidable, his failure to raise the
issue in a timely manner constitutes a waiver of the error and
results in the dismissal of his petition.

Id. at 285, 552 S.E.2d at 78.

Lowe and Fontaine follow the erroneous logic of David Moore by equating the authority

to exercise jurisdiction with basic jurisdictional requirements. These decisions cannot be

reconciled with Nelson. Therefore, we are required to overrule those decisions to the extent that

they conclude a conviction of an offense that is not a lesser-included offense of the indicted

charge renders the judgment void, i.e., it can be raised at any time in any court.

In reaching this conclusion, we remain aware of the doctrine of stare decisis. As the

Supreme Court said in Selected Risks Ins. Co. v. Dean:

In Virginia, the doctrine of stare decisis is more than a mere cliché.
That doctrine plays a significant role in the orderly administration
of justice by assuring consistent, predictable, and balanced
application of legal principles. And when a court of last resort has
established a precedent, after full deliberation upon the issue by the
court, the precedent will not be treated lightly or ignored, in the
absence of flagrant error or mistake.

233 Va. 260, 265, 355 S.E.2d 579, 581 (1987) (citation omitted). “Our strong adherence to the

doctrine of stare decisis does not, however, compel us to perpetuate what we believe to be an

incorrect application of the law . . . .” Nunnally v. Artis, 254 Va. 247, 253, 492 S.E.2d 126, 129

(1997). See Code § 17.1-402(D) (“The court [of appeals] sitting en banc shall consider and

decide the case and may overrule any previous decision by any panel or of the full court.”);

Nelson, 262 Va. at 280-81, 552 S.E.2d at 75 (quoting Nunnally). We may exercise the authority

to overrule previous decisions where a “detailed inquiry” demonstrates “‘a mistake exists in our

prior decisions.”’ Armstrong v. Commonwealth, 36 Va. App. 312, 321, 549 S.E.2d 641, 645

(2001) (en banc).

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 Further, precedent from the Supreme Court supports the distinction we now make

between a void and a voidable judgment in the context of differences between the indictment and

the final conviction. In Cunningham v. Hayes, 204 Va. 851, 134 S.E.2d 271 (1964), Hayes was

indicted for manslaughter, yet convicted of first-degree murder. In his petition for a writ of

habeas corpus, Cunningham asserted his conviction was illegal because he was indicted for one

offense and convicted of another. Id. at 858, 134 S.E.2d at 276. In dismissing the petition, the

Court held the judgment was voidable, not void.

“This court has repeatedly held that a writ of habeas corpus does
not lie where the judgment of conviction is merely voidable by
reasons of error of law or fact, omissions, or other irregularities, no
matter how numerous or flagrant they may be. The remedy in such
cases is by appeal or writ of error. The underlying question in such
[habeas corpus] proceedings is that of jurisdiction – that is,
whether the court had jurisdiction of the person and the subject
matter and the power to render the particular judgment. If the
court had jurisdiction of the person and of the subject matter of the
prosecution, and if the punishment imposed is of the character
prescribed by law, a writ of habeas corpus does not lie to release
the prisoner from custody merely because of irregularities or
defects in the sentence.” (Citing cases). Royster v. Smith, 195 Va.
228, 232-[3]3, 77 S.E.2d 855 [(1953)]. See also Ex parte Belt, 159
U.S. 95, 15 S. Ct. 987, 988, 40 L. Ed. 88, 90 [(1895)].

In Virginia there is no constitutional requirement that prosecutions
for felonies be by indictment. The requirement is merely statutory
and may be waived by the accused. § 19.1-162, Code of 1950, as
amended.

* * * * * * *

Since a person charged with a felony may waive indictment and be
tried on a warrant or information[,] the requirement of an
indictment is not jurisdictional.

Id. at 854-55, 134 S.E.2d at 274.

Here, the trial court clearly had subject matter jurisdiction over the case, which involved

a criminal matter. See Code § 17.1-513 (giving circuit courts jurisdiction over criminal cases).

Appellant does not contend the offense occurred outside the Commonwealth of Virginia or that

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the court lacked jurisdiction over her person. Thus, no jurisdictional defect renders her

conviction of assault on a police officer void. Since Rule 5A:18 bars consideration of this issue,

we affirm the conviction of assault on a police officer.

B. Sufficiency of the Evidence

Appellant argues the evidence does not support the conviction for leaving the scene of an

accident involving personal injury. She contends she did not deliberately drive away from the

scene and, alternatively, she did not leave the scene.

When considering sufficiency issues, “we review the evidence in the light most favorable to

the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom.” Martin v.

Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). When the sufficiency of the

evidence is challenged on appeal, “it is our duty to look to that evidence which tends to support the

verdict and to permit the verdict to stand unless plainly wrong.” Snyder v. Commonwealth, 202 Va.

1009, 1016, 121 S.E.2d 452, 457 (1961). “The judgment of a trial court sitting without a jury is

entitled to the same weight as a jury verdict and will not be set aside unless it appears from the

evidence that the judgment is plainly wrong or without evidence to support it.” Martin, 4 Va. App.

at 443, 358 S.E.2d at 418.

Code § 46.2-894 criminalizes leaving the scene of an accident:

The driver of any vehicle involved in an accident in which a person
is killed or injured or in which an attended vehicle or other
attended property is damaged shall immediately stop as close to the
scene of the accident as possible without obstructing traffic, as
provided in § 46.2-888, and report his name, address, driver’s
license number, and vehicle registration number forthwith to the
State Police or local law-enforcement agency, to the person struck
and injured if such person appears to be capable of understanding
and retaining the information, or to the driver or some other
occupant of the vehicle collided with or to the custodian of other
damaged property.

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Appellant claims this statute requires the Commonwealth prove an accused deliberately drove

away from the scene of an accident, citing Herchenbach v. Commonwealth, 185 Va. 217, 38

S.E.2d 328 (1946), to support this interpretation of the statute. She then argues the evidence

does not support an inference that she deliberately continued driving after she injured the officer.

Appellant’s reliance on Herchenbach is misplaced. Herchenbach held the

Commonwealth must prove an accused knew an accident had occurred, which is not appellant’s

argument. Id. at 220, 38 S.E.2d at 329. See Cottee v. Commonwealth, 31 Va. App. 546, 558,

525 S.E.2d 25, 31 (2000). Herchenbach did note, however, “The duty imposed upon the driver

of a vehicle involved in an accident is not passive. It requires positive, affirmative action; -- that

is, to stop and give the aid and information specified.” 185 Va. at 220, 38 S.E.2d at 329.

Code § 46.2-894 requires a driver “immediately stop” at an accident scene. This

language plainly does not allow a person to continue driving until circumstances stop the vehicle.

See Rasmussen v. Commonwealth, 31 Va. App. 233, 238, 522 S.E.2d 401, 403 (1999) (statutory

language should be given its plain meaning). Even if, as appellant contends, she initially could

not stop the vehicle because she was “yanked . . . off those brakes” by Officer White, she could

have applied the brakes to stop the car once the officer had released her. She did not do this, but

instead continued to drive the car until it hit two police vehicles and almost hit a house. This

evidence is sufficient to prove appellant did not immediately stop as required by the statute.

Appellant also contends she did not leave the scene, contending the movement of her car

did not take her away from the scene. She relies on Smith v. Commonwealth, 32 Va. App. 228,

527 S.E.2d 456 (2000), to support this analysis. Again, her reliance is misplaced.

Smith addressed the meaning of “scene of the accident” in the context of Code § 19.2-81,

the statute allowing an arrest without a warrant. Id. at 231, 527 S.E.2d at 458. Appellant is

correct that this Court held Smith was at “the scene of any accident” when she was arrested, even

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though she stopped her car 100 yards away from the road sign she had struck. Id. However, in a

footnote, this Court foresaw appellant’s argument here:

Appellant contends that the phrase, “the scene of any accident,” in
Code § 19.2-81 should be construed as co-extensive with the
phrase, “the scene of the accident,” in Code § 46.2-894, Virginia’s
“hit-and-run” statute. Because appellant’s hit-and-run charge was
disposed of by nolle prosequi and never considered by the court,
we see no reason to analyze the meaning of the challenged phrase
in the hit-and-run statute. We note, however, that the hit-and-run
statute contains language significantly different from the statute
under which appellant was convicted. Code § 46.2-894 requires a
driver involved in an accident to “stop as close to the scene of the
accident as possible without obstructing traffic,” and the purpose
of the statute is to “facilitate accident investigation and to preserve
public order.” Johnson v. Commonwealth, 14 Va. App. 769, 771,
418 S.E.2d 729, 731 (1992). Code § 19.2-81, by contrast, permits
an officer to make a warrantless arrest of a motor vehicle driver,
under certain conditions, “at the scene of any accident.”

Id. at 234 n.2, 527 S.E.2d at 460 n.2.

We agree with the analysis in Smith’s footnote. By requiring a driver to stop

immediately and as close to the “scene” as possible, Code § 46.2-894 distinguishes and limits the

area labeled “the scene” in a manner that Code § 19.2-81 does not. The hit-and-run statute

clearly requires drivers to stop as close to the accident, or point of impact, as safety will permit.

Any other interpretation of the statute would make the word “immediately” meaningless and foil

the intent of the statute. See Gray v. Graves Mountain Lodge, Inc., 26 Va. App. 350, 355-56,

494 S.E.2d 866, 869 (1998) (explaining that courts should avoid interpretations that make words

within a statute meaningless and ignore legislative intent).

The trial court found appellant “drove fifty to a hundred feet away” after injuring Officer

White. The evidence supports that finding. After Officer White fell from her car, appellant hit

two police cars and eventually stopped in the lawn of a private residence. Nothing in the record

suggests that stopping in the lawn was an immediate stop or that the lawn was the first safe place

to park the car.
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 CONCLUSION

We find appellant was properly convicted of assault on a law enforcement officer and

that the evidence was sufficient to convict appellant of leaving the scene of an accident involving

personal injury. Thus, we affirm both convictions.

Affirmed.

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Benton J., dissenting.
I.

The Commonwealth concedes that assault on a law enforcement officer as proscribed by

Code § 18.2-57, which is the offense of which Lolita Edwards was convicted, is not a

lesser-included offense of attempted capital murder of a law enforcement officer as proscribed

by Code § 18.2-31(6), which was the offense charged in the indictment.

The Due Process Clauses of the Constitution of the United
States and the Constitution of Virginia mandate that an accused be
given proper notification of the charges against him. U.S. Const.
amend. XIV; Va. Const. art. 1, § 8. Code § 19.2-220 provides, in
pertinent part, that an indictment shall be “a plain, concise and
definite written statement, (1) naming the accused, (2) describing
the offense charged, (3) identifying the county, city or town in
which the accused committed the offense, and (4) reciting that the
accused committed the offense on or about a certain date.” An
indictment, to be sufficient, must give an accused notice of the
nature and character of the charged offense so the accused can
make his defense. Satcher v. Commonwealth, 244 Va. 220, 231,
421 S.E.2d 821, 828 (1992), cert. denied, 507 U.S. 933 (1993).

It is firmly established, therefore, that an accused cannot be
convicted of a crime that has not been charged, unless the crime is
a lesser-included offense of the crime charged.

Commonwealth v. Dalton, 259 Va. 249, 253, 524 S.E.2d 860, 862 (2000).

The record establishes that, after the trial judge granted the motion to strike the charge of

attempted capital murder, the prosecutor inquired about whether the judge was inclined to

convict Edwards of a lesser-included offense. The following colloquy ensued:

[Prosecutor]: Your Honor, with that, will you be striking that
down to possibly a lesser included offense under that, Your
Honor?

[Judge]: Well, I haven’t heard any argument about that.

[Prosecutor]: I didn’t know if that’s possible --

[Judge]: What lesser included offense would you suggest?

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 [Prosecutor]: Your Honor, the Commonwealth would argue that
under any of the homicide statutes or attempted homicide statutes,
Your Honor, that any of the assault and battery offenses would be
lesser included which would include malicious wounding,
unlawful wounding, assault and battery on a law enforcement
officer --

[Judge]: So you don’t have an argument then for that, just
anything I want to do is okay with you?

[Prosecutor]: Well, Your Honor, just articulating what the lesser
included offenses would be.

[Judge]: I know what all I can do. I just wanted to know if you
had a position on it.

[Prosecutor]: Your Honor, the Commonwealth would argue that
here, clearly, an assault on a law enforcement officer did take
place . . . .

* * * * * * *

[Judge]: You think assault on a police officer is a lesser included
offense?

[Prosecutor]: In this particular case, Your Honor, given the
elements --

[Judge]: Not in this particular case, in any case is assault on a
police officer a lesser included offense of attempted capital
murder?

[Prosecutor]: Under the enumerated section that makes this
attempted capital murder because it was on a law enforcement
officer, Your Honor, it’s the Commonwealth’s position that yes, it
is.

The record indicates that Edwards’s attorney objected. In pertinent part, he gave the

following reasons:

Your Honor, I think under the Blockburger analysis for
lesser included offenses, I don’t think that meets the requirement.
The attempted capital murder statute does not include the element
of the defendant having reason to know the person was a law
enforcement officer. Assault and battery on a police officer
requires that --

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 * * * * * * *

The elements of the statute of attempted capital murder do
not include that as a requirement. The statute for assault and
battery on a law enforcement officer requires the Commonwealth
to prove as an element that the defendant had reason to know that
the person assaulted is a law enforcement officer.

Just as to the argument as to whether or not the Court could
find for a lesser included offense, I don’t think assault and battery
on a police officer is a lesser included offense of attempted --

* * * * * * *

As I stated, the element in assault and battery on a police
officer requires the Commonwealth to prove that the defendant had
reason to know that the person assaulted was a law enforcement
officer.

* * * * * * *

Yes, sir, judge, but there’s no element in the attempted
capital murder statute that requires the Commonwealth to prove
that the defendant had reason to know that the person was a law
enforcement officer.

The context in which the lesser offense was suggested by the prosecutor is important

because these discussions indicate the prosecutor was unsure that a lesser-included offense was

“possible” and then suggested with some uncertainty various alternatives that the judge might

consider. Only after the judge pressed for her “position” did the prosecutor settle upon assault

on a law enforcement officer as a lesser-included offense. Then, however, the prosecutor argued

that the facts “[i]n this particular case” suggested that the offense of assault was a lesser-included

offense. See Ragsdale v. Commonwealth, 38 Va. App. 421, 427-28, 565 S.E.2d 331, 334-35

(2002) (noting that the Blockburger test suggests the “two offenses ‘are to be examined in the

abstract, rather than with reference to the facts of a particular case under review’”). Responding

to those arguments, Edwards’s attorney said, “Your Honor, I think under the Blockburger

analysis for lesser included offenses I don’t think that meets the requirement.” Although

Edwards’s attorney advanced at trial a Blockburger analysis different than the one now urged on
- 18 -
appeal, I would hold that the uncertainty that prevailed at the trial on this issue provides a “good

cause” basis to consider this issue on appeal. See Jones v. Commonwealth, 194 Va. 273, 280, 72

S.E.2d 693, 697 (1952) (holding that “formal objection” would be excused when the attorneys

were “taken by surprise” by the judge’s actions and the attorneys “were rather depending on the

court in a situation new to them”); Campbell v. Commonwealth, 14 Va. App. 988, 996, 421

S.E.2d 652, 656 (1992) (Barrow, J., concurring) (noting that “‘[g]ood cause’ relates to the reason

why an objection was not stated at the time of the ruling”).

Because Edwards’s trial attorney’s objection invoked the correct legal principle, i.e.,

Blockburger, I would hold that her argument, which focused on only one of several possible

analyses, does not bar our review of the appeal under the good cause prong of Rule 5A:18.

Accordingly, I would reverse the conviction for assault and remand this issue to the trial court.

II.

In addition to convicting Edwards of assaulting a law enforcement officer, the trial judge

convicted her of eluding a law enforcement officer after receiving a signal to bring her vehicle to

a stop, see Code § 46.2-817, driving under the influence of alcohol, see Code § 18.2-266, driving

on a suspended license, see Code § 46.2-301, and failing to stop at the scene of an accident to

give information and render assistance, see Code § 46.2-894. Edwards contends the evidence

was insufficient to prove a violation of Code § 46.2-894.

The evidence proved Edwards was driving erratically, although not exceeding the speed

limit, and while intoxicated. Officer White, who followed Edwards with his siren activated,

testified that Edwards’s “music was playing extremely loud.” When Edwards stopped her

vehicle at the end of a bridge, Officer White stopped his vehicle “slightly beside [Edwards’s]

vehicle” and to the left of it. Officer White testified that he “exited [his] vehicle and attempted

to extract [Edwards,] the driver” when the following events occurred:

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 Q: Now, you said you reached in the driver’s side and put your
hands on the defendant to try to get that person out of the vehicle?

A: That’s correct.

Q: Put both hands on the individual?

A: No, my right hand.

Q: The window, was it -- It was already down, correct?

A: Yes.

* * * * * * *

Q: Now, was the defendant’s vehicle still running at that time?

A: Yes.

Q: Did you make any attempts to or commands for the defendant
to get out of the vehicle before you put your hands into the vehicle
trying to get her out?

A: I was saying, “Turn off the car, turn off the car,” which is what
I normally do, but there were sirens --

Q: Did you attempt to open -- You didn’t attempt to open the door
before you put your hands in?

A: I couldn’t. There wasn’t enough room between the cars.

As Officer White pulled at Edwards through the window to “extract” her from the

vehicle, Edwards’s vehicle moved forward. Officer Sykes, who had stopped his vehicle behind

Edwards, testified that Edwards’s vehicle began to move after Officer White “grabbed

[Edwards’s] arm and attempted to pull [Edwards] from the vehicle.” He described the

movement of Edwards’s vehicle as follows:

Q: And was that -- That was at a speed of about five to ten miles,
is that correct?

A: If that. She kind of like was creeping off the curb. It wasn’t a
fast acceleration.

Edwards’s vehicle hit Officer White’s vehicle, hit another officer’s vehicle, which was

parked ahead of Officer White’s vehicle, and then jumped the curb onto a lawn. Officer Sykes
- 20 -
testified that he drove around the two damaged vehicles and “positioned [his] vehicle alongside

[Edwards’s] vehicle, kind of following [Edwards’s] vehicle.” He said Edwards’s “vehicle was

headed toward the house but stopped before striking the house.” Edwards’s vehicle had traveled

fifty to one hundred feet from the place where Officer White had attempted to pull Edwards from

her vehicle.

In pertinent part, Code § 46.2-894 provides that “[t]he driver of any vehicle involved in

an accident in which a person is . . . injured or in which an attended vehicle . . . is damaged shall

immediately stop as close to the scene of the accident as possible without obstructing traffic . . .

and report [identifying information].” Applying a substantially similar predecessor statute, the

Supreme Court held as follows:

[I]n order to be guilty of violating the statute, the driver must be
aware that harm has been done; it must be present in his mind that
there has been an injury; and then, with that in his mind, he must
deliberately go away without making himself known.

Herchenbach v. Commonwealth, 185 Va. 217, 220, 38 S.E.2d 328, 329 (1946) (citations and

internal quotations omitted) (emphasis added).

The evidence failed to prove that Edwards intentionally, consciously, or deliberately

drove her vehicle as Officer White attempted to pull her from the vehicle while the vehicle’s

engine was engaged. Indeed, the evidence fails to negate the hypothesis that the officer’s actions

dislodged Edwards’s foot from the brake pedal, as she testified, and, thus, caused the vehicle to

move without any control being exercised by Edwards. Officer Sykes’s testimony that the

vehicle slowly moved away and came to a halt fifty to one hundred feet away on a lawn before

striking a house supports the hypothesis that Edwards momentarily lost control as a result of

Officer White’s attempt to pull her from the vehicle through the window.

It has long been the rule that “[t]he gravamen of the charge under consideration is the

flight from the scene and failure to give succor or aid to the injured party.” Blankenship v.
- 21 -
Commonwealth, 184 Va. 495, 500, 35 S.E.2d 760, 762 (1945). See also James v.

Commonwealth, 178 Va. 28, 37, 16 S.E.2d 296, 300 (1941). Evidence that established only that

the vehicle moved fifty to one hundred feet after the operator momentarily was deprived of

control of the vehicle is insufficient to prove beyond a reasonable doubt the element of flight or

deliberately driving away as required to prove a violation of Code § 46.2-894.

For these reasons, I would reverse that conviction.

A Copy,

Teste:

Cynthia L. McCoy, Clerk

By:

Deputy Clerk

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 Tuesday 9th

December, 2003.

Lolita Edwards, Appellant,

against Record No. 2846-01-1
Circuit Court Nos. CR01-1568, CR01-1569 and
CR01-1640-01 through CR01-1640-03

Commonwealth of Virginia, Appellee.

Upon a Rehearing En Banc

Before Chief Judge Fitzpatrick, Judges Benton, Elder, Annunziata, Bumgardner, Frank,
Humphreys, Clements, Felton and Kelsey

For reasons stated in writing and filed with the record, the Court is of opinion that Rule

5A:18 bars consideration of appellant’s argument pertaining to the conviction of assault on a law

enforcement officer. Accordingly, that part of the Court’s May 13, 2003 opinion which reversed

and dismissed that conviction is withdrawn, the part of the mandate with regard thereto is

vacated, and that conviction (CR01-1640-01) is affirmed. The stay of the May 13, 2003

mandate with regard to appellant’s conviction of leaving the scene of an accident (CR01-1640-

03) is lifted.

Appellant did not challenge on appeal appellant’s convictions of elude the police

(CR01-1640-02), driving under the influence (CR01-1568) and driving on a suspended license

(CR01-1569).

The Commonwealth shall recover of the appellant the costs in this Court, which costs

shall include a total fee of $925 for services rendered by the Public Defender on this appeal, in

addition to counsel's necessary direct out-of-pocket expenses, and the costs in the trial court.
- 23 -
 This order shall be certified to the trial court.

Costs due the Commonwealth by
appellant in Court of Appeals of Virginia:

Public Defender $925.00 plus costs and expenses

A Copy,

Teste:

Cynthia L. McCoy, Clerk

By:

Deputy Clerk

- 24 -
 COURT OF APPEALS OF VIRGINIA

Present: Judges Frank, Kelsey and Senior Judge Willis
Argued at Chesapeake, Virginia

LOLITA EDWARDS
OPINION BY
v. Record No. 2846-01-1 JUDGE ROBERT P. FRANK
MAY 13, 2003
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Von L. Piersall, Jr., Judge

Joseph R. Winston, Special Appellate Counsel (Public Defender
Commission, on briefs), for appellant.

Richard B. Smith, Senior Assistant Attorney General (Jerry W.
Kilgore, Attorney General, on brief), for appellee.

Lolita Edwards (appellant) was indicted for attempted capital murder of a law enforcement

officer, in violation of Code §§ 18.2-25 and 18.2-31, eluding the police, in violation of Code

§ 46.2-817(B), and leaving the scene of an accident involving personal injury, in violation of Code

§ 46.2-894. In a bench trial, she was convicted of assault on a law enforcement officer, in violation

of Code § 18.2-57, and the eluding and leaving the scene offenses. On appeal, she contends she was

improperly convicted of assault on a law enforcement officer because that offense is not a lesser-

included offense of attempted capital murder of a law enforcement officer. She also argues the

evidence was insufficient to prove she left the scene of an accident. For the reasons stated, we

reverse and dismiss the assault conviction and affirm the leaving the scene conviction.

- 25 -
 BACKGROUND

Around 8:00 p.m. on May 4, 2001, Portsmouth Police Officer S.D. White saw a burgundy

Pontiac, with "music . . . playing extremely loud," traveling without its headlights illuminated.

Officer White activated his lights and siren, but the Pontiac did not stop.

Officer White continued to follow the vehicle, with his "wigwag headlights" activated and

his siren going, for approximately one mile. The Pontiac was swerving from one lane to another. A

passing car was forced off the road by the Pontiac. Eventually, the vehicle crossed the Churchland

Bridge, "stopped suddenly," and "jumped the curb." The officer swerved slightly to avoid hitting

the car and stopped his police unit "slightly beside [appellant's] vehicle."

Officer White, in uniform with his badge displayed, exited his vehicle. He walked up to the

car, where appellant was seated in the driver's seat. Officer White reached through the driver's side

window, telling appellant, "Turn off the car, turn off the car." The car was still running.

The officer described what happened next:

I reached in, there was some yelling or something from inside the
car and the car drove off. When the car drove off, it pinned my
arm back behind the headrest and drug me towards the front of my
car at that point.

I was able to work myself free and I remember getting hit in the
back with either a car or a mirror and the next thing I remember I
was being loaded into an ambulance.

Officer Peter Sykes had arrived just before appellant stopped her car. He observed

Officer White reach into appellant's vehicle, grab her arm, and attempt to extract her from the

Pontiac. According to Officer Sykes, the vehicle then "began to proceed eastbound . . . leaving

the curb, partially dragging Officer White towards his police vehicle. Officer White eventually

let go of the driver's arm." Officer Sykes testified the Pontiac was "creeping off the curb" when

appellant drove off with Officer White's arm in her car, traveling about five or six feet until

Officer White "let go." The Pontiac then struck White's vehicle and another police car.

- 26 -
 Officer Sykes followed the car approximately a hundred feet, where it jumped the curb,

traveled across a lawn, and stopped. The officer placed appellant under arrest. Officer White

was treated for his injuries.

At the conclusion of the Commonwealth's evidence, appellant moved to strike the

evidence on the attempted capital murder count. After argument, the trial court sustained the

motion. The Commonwealth then inquired if the court was "striking that down to possibly a

lesser included offense?" The Commonwealth suggested assault on a law enforcement officer as

a lesser-included offense. Appellant argued the latter offense was not a lesser-included

offense. The following exchange occurred:

MR. MEDA [appellant's counsel]: Your Honor, I think under the
Blockburger analysis for lesser included offenses, I don't think that
meets the requirement. The attempted capital murder statute does
not include the element of the defendant having reason to know the
person was a law enforcement officer. Assault and battery on a
police officer requires that --

* * * * * * *

The elements of the statute of attempted capital murder do not
include that as a requirement. The statute for assault and battery
on a law enforcement officer requires the Commonwealth to prove
as an element that the defendant had reason to know that the
person assaulted is a law enforcement officer.

The Commonwealth's attorney responded to appellant's argument, contending an

attempted capital murder indictment does require the Commonwealth prove that a defendant

should have known the victim was a law enforcement officer. The entire focus of the argument

to the trial court was whether the Commonwealth must prove the offender had reason to know

the person was a law enforcement officer in order to prove attempted capital murder. The trial

court ruled on this argument when it found assault on a law enforcement officer was a lesser-

included offense of attempted capital murder.

- 27 -
 ANALYSIS

A. Lesser-Included Offense

On appeal, appellant contends assault and battery of a law enforcement officer3 is not a

lesser-included offense of attempted capital murder because a battery is not an element of

attempted capital murder. Appellant also argues the definitions of "law enforcement officer"

contained in Code § 18.2-57 and Code § 18.2-31(6) differ, which precludes a finding that the

assault on a law enforcement officer statute is a lesser-included offense of attempted capital

murder of a law enforcement officer. The Commonwealth concedes this second argument is

correct.

However, the Commonwealth contends these arguments are procedurally defaulted under

Rule 5A:18.4 While we agree these issues were not preserved, under the ruling in Lowe v.

Commonwealth, 33 Va. App. 583, 589, 535 S.E.2d 689, 691-92 (2000), if appellant was

convicted of a charge for which she was not indicted and which is not a lesser-included offense

of an indicted charge, then the issue can be raised at any time. See also Fontaine v.

Commonwealth, 25 Va. App. 156, 165, 487 S.E.2d 241, 244 (1997). In effect, these decisions

find that the issues raised by appellant involving lesser-included offense convictions are

jurisdictional. See Nelson v. Warden of the Keen Mountain Corr. Ctr., 262 Va. 276, 281-82, 552

3
Appellant was convicted of assault on a law enforcement officer, not assault and battery
on a law enforcement officer.
4
Rule 5A:18 states:

No ruling of the trial court or the Virginia Workers' Compensation
Commission will be considered as a basis for reversal unless the
objection was stated together with the grounds therefor at the time
of the ruling, except for good cause shown or to enable the Court
of Appeals to attain the ends of justice. A mere statement that the
judgment or award is contrary to the law and the evidence is not
sufficient to constitute a question to be ruled upon on appeal.

- 28 -
S.E.2d 73, 75-76 (2001) (explaining the difference between jurisdiction and the power to

exercise that jurisdiction).

The Commonwealth argues that conviction of an offense which is not a lesser-included

offense cannot create a jurisdictional issue and contends appellant's arguments are subject to the

usual procedural requirements for consideration on appeal. The Commonwealth notes both

Lowe, 33 Va. App. at 589, 535 S.E.2d at 692, and Fontaine, 25 Va. App. at 165, 487 S.E.2d at

245, allow waiver of this issue if a defendant acquiesces in the trial court's decision. However,

the Commonwealth explains, jurisdictional issues cannot be waived, even with acquiescence.

Nelson, 262 Va. at 281, 552 S.E.2d at 75 (noting jurisdictional issues cannot be waived).

The Commonwealth's argument is persuasive. However, we are bound under the

principles of stare decisis to follow the explicit ruling in Lowe. Collins v. Commonwealth, 30

Va. App. 443, 449, 517 S.E.2d 277, 280 (1999). Therefore, Rule 5A:18 does not bar our review

of this case.

The Commonwealth concedes assault on a law enforcement officer is not a lesser-

included offense of attempted capital murder of a law enforcement officer. Thus, we reverse the

trial court's finding and dismiss the assault conviction.

B. Sufficiency

Appellant argues the evidence does not support the conviction for leaving the scene of an

accident involving personal injury. She contends she did not deliberately drive away from the

scene and, alternatively, she did not leave the scene.

When considering sufficiency issues, "we review the evidence in the light most favorable to

the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom." Martin v.

Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). When the sufficiency of the

evidence is challenged on appeal, "it is our duty to look to that evidence which tends to support the

- 29 -
verdict and to permit the verdict to stand unless plainly wrong." Snyder v. Commonwealth, 202 Va.

1009, 1016, 121 S.E.2d 452, 457 (1961). "The judgment of a trial court sitting without a jury is

entitled to the same weight as a jury verdict and will not be set aside unless it appears from the

evidence that the judgment is plainly wrong or without evidence to support it." Martin, 4 Va. App.

at 443, 358 S.E.2d at 418.

Code § 46.2-894 requires:

The driver of any vehicle involved in an accident in which a person
is killed or injured or in which an attended vehicle or other
attended property is damaged shall immediately stop as close to the
scene of the accident as possible without obstructing traffic, as
provided in § 46.2-888, and report his name, address, driver's
license number, and vehicle registration number forthwith to the
State Police or local law-enforcement agency, to the person struck
and injured if such person appears to be capable of understanding
and retaining the information, or to the driver or some other
occupant of the vehicle collided with or to the custodian of other
damaged property.

Appellant cites Herchenbach v. Commonwealth, 185 Va. 217, 38 S.E.2d 328 (1946), as

supporting her interpretation that the statute requires the Commonwealth prove an accused

deliberately drove away from the scene of an accident. She then argues the evidence does not

support an inference that she deliberately continued driving after she injured the officer.

Appellant's reliance on Herchenbach is misplaced. Herchenbach held the

Commonwealth must prove an accused knew an accident had occurred, which is not appellant's

argument. Id. at 220, 38 S.E.2d at 329. See also Cottee v. Commonwealth, 31 Va. App. 546,

558, 525 S.E.2d 25, 31 (2000); Johnson v. Commonwealth, 14 Va. App. 769, 771-72, 418 S.E.2d

729, 731 (1992). Herchenbach did note, however, "The duty imposed upon the driver of a

vehicle involved in an accident is not passive. It requires positive, affirmative action; -- that is,

to stop and give the aid and information specified." 185 Va. at 220, 38 S.E.2d at 329.

- 30 -
 Code § 46.2-894 requires a driver "immediately stop" at an accident scene. This

language plainly does not allow a person to continue driving until circumstances stop the vehicle.

See Rasmussen v. Commonwealth, 31 Va. App. 233, 238, 522 S.E.2d 401, 403 (1999) (statutory

language should be given its plain meaning). Even if, as appellant contends, she initially could

not stop the vehicle because she was "yanked . . . off those brakes" by Officer White, she could

have applied the brakes to stop the car once the officer had released her. She did not do this, but

instead continued to drive the car until it hit two police vehicles and almost hit a house. This

evidence is sufficient to prove appellant did not immediately stop as required by the statute.

Appellant also contends she did not leave the scene, contending the movement of her car

did not take her away from the scene. She relies upon Smith v. Commonwealth, 32 Va. App.

228, 527 S.E.2d 456 (2000), to support this analysis. Again, her reliance is misplaced.

Smith addressed the meaning of "scene of the accident" in the context of Code § 19.2-81,

the statute allowing an arrest without a warrant. Id. at 231, 527 S.E.2d at 458. Appellant is

correct that this Court held Smith was at "the scene of any accident" when she was arrested, even

though she stopped her car 100 yards away from the road sign she had struck. Id. However, in a

footnote, this Court foresaw appellant's argument here:

Appellant contends that the phrase, "the scene of any accident," in
Code § 19.2-81 should be construed as co-extensive with the
phrase, "the scene of the accident," in Code § 46.2-894, Virginia's
"hit-and-run" statute. Because appellant's hit-and-run charge was
disposed of by nolle prosequi and never considered by the court,
we see no reason to analyze the meaning of the challenged phrase
in the hit-and-run statute. We note, however, that the hit-and-run
statute contains language significantly different from the statute
under which appellant was convicted. Code § 46.2-894 requires a
driver involved in an accident to "stop as close to the scene of the
accident as possible without obstructing traffic," and the purpose
of the statute is to "facilitate accident investigation and to preserve
public order." Johnson v. Commonwealth, 14 Va. App. 769, 771,
418 S.E.2d 729, 731 (1992). Code § 19.2-81, by contrast, permits

- 31 -
 an officer to make a warrantless arrest of a motor vehicle driver,
under certain conditions, "at the scene of any accident."

Id. at 234 n.2, 527 S.E.2d at 459-60 n.2.

We agree with the analysis in the footnote of Smith. By requiring a driver to stop

immediately and as close to the "scene" as possible, Code § 46.2-894 distinguishes and limits the

area labeled "the scene" in a manner that Code § 19.2-81 does not. The hit-and-run statute

clearly requires drivers to stop as close to the accident, or point of impact, as safety will permit.

Any other interpretation of the statute would make the word "immediately" meaningless and foil

the intent of the statute. See Gray v. Graves Mountain Lodge, Inc., 26 Va. App. 350, 355-56,

494 S.E.2d 866, 869 (1998) (the courts should avoid interpretations that make words within a

statute meaningless and ignore legislative intent).

The trial court found appellant "drove fifty to a hundred feet away" after injuring Officer

White. The evidence supports that finding. After Officer White fell from her car, appellant hit

two police cars and eventually stopped in the lawn of a private residence. Nothing in the record

suggests that stopping in the lawn was an immediate stop or that the lawn was the first safe place

to park the car.

CONCLUSION

We find appellant was improperly convicted of assault on a law enforcement officer, and

we reverse and dismiss that conviction. However, we find the evidence was sufficient to convict

appellant of leaving the scene of an accident involving personal injury, and we affirm that

conviction.

Reversed and dismissed in part;
affirmed in part.

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