refusal instruction in Virginia

2019McGhee in turn relied upon Harper v. Commonwealth, 196 Va. 723, 731 , 85 S.E.2d 249, 254 (1955), which makes the principle even more clear. (“What reasonably appeared to the accused at the time of the shooting, as creating the necessity for his act, is the test.” (emphasis added) (quoting Taylor v. Commonwealth, 185 Va. 224, 227-28 , 38 S.E.2d 440, 441 (1946))). 11 Hines is factually distinguishable from the instant case in that, as noted above, there is no evidence of any assault by Mohammed at the moment appellant fired his rifle. - 20 - Court held that the refusal was error.

2019McGhee in turn relied upon Harper v. Commonwealth, 196 Va. 723, 731 , 85 S.E.2d 249, 254 (1955), which makes the principle even more clear. (“What reasonably appeared to the accused at the time of the shooting, as creating the necessity for his act, is the test.” (emphasis added) (quoting Taylor v. Commonwealth, 185 Va. 224, 227-28 , 38 S.E.2d 440, 441 (1946))). 11 Hines is factually distinguishable from the instant case in that, as noted above, there is no evidence of any assault by Mohammed at the moment appellant fired his rifle. - 20 - Court held that the refusal was error.

2019McGhee in turn relied upon Harper v. Commonwealth, 196 Va. 723, 731 , 85 S.E.2d 249, 254 (1955), which makes the principle even more clear. (“What reasonably appeared to the accused at the time of the shooting, as creating the necessity for his act, is the test.” (emphasis added) (quoting Taylor v. Commonwealth, 185 Va. 224, 227-28 , 38 S.E.2d 440, 441 (1946))). 11 Hines is factually distinguishable from the instant case in that, as noted above, there is no evidence of any assault by Mohammed at the moment appellant fired his rifle. - 20 - Court held that the refusal was error.

2019McGhee in turn relied upon Harper v. Commonwealth, 196 Va. 723, 731 , 85 S.E.2d 249, 254 (1955), which makes the principle even more clear. (“What reasonably appeared to the accused at the time of the shooting, as creating the necessity for his act, is the test.” (emphasis added) (quoting Taylor v. Commonwealth, 185 Va. 224, 227-28 , 38 S.E.2d 440, 441 (1946))). 11 Hines is factually distinguishable from the instant case in that, as noted above, there is no evidence of any assault by Mohammed at the moment appellant fired his rifle. - 20 - Court held that the refusal was error.

2025See generally McDaniel v. Commonwealth, 73 Va. App. 299 , 317 n.6 (2021) (affirming the challenged convictions based on a merits analysis as the best and narrowest ground rather than merely assuming error and addressing whether any such error was harmless). - 10 - one or both of [those new] convictions, . . . no basis at all [will remain] for a violation of [his] suspended sentence[].” Conversely, he expressly concedes that the outcome of his challenge to the probation revocation depends on this Court’s ruling in the appeal involving his new convictions for the 2022 offenses.8 We do not consid

2025See generally McDaniel v. Commonwealth, 73 Va. App. 299 , 317 n.6 (2021) (affirming the challenged convictions based on a merits analysis as the best and narrowest ground rather than merely assuming error and addressing whether any such error was harmless). - 10 - one or both of [those new] convictions, . . . no basis at all [will remain] for a violation of [his] suspended sentence[].” Conversely, he expressly concedes that the outcome of his challenge to the probation revocation depends on this Court’s ruling in the appeal involving his new convictions for the 2022 offenses.8 We do not consid

2003See Buck v. Jordan, 256 Va. 535, 545 , 508 S.E.2d 880, 885-86 (1998) (noting that, without an objection, a party does not preserve for appeal the court's refusal to rule); Taylor v. Commonwealth, 208 Va. 316, 324 , 157 S.E.2d 185, 191 (1967) (finding waiver where counsel, after objecting to a prosecutor's remark, "did not insist that the court rule"); Harter v. Commonwealth, 31 Va. App. 743, 752 , 525 S.E.2d 606, 610-11 (2000); Fisher v. Commonwealth, 16 Va. App. 447, 454 , 431 S.E.2d 886, 890 (1993) ("Because he was denied nothing by the trial court, there is no ruling for us to review."). -

2003See Buck v. Jordan, 256 Va. 535, 545 , 508 S.E.2d 880, 885-86 (1998) (noting that, without an objection, a party does not preserve for appeal the court's refusal to rule); Taylor v. Commonwealth, 208 Va. 316, 324 , 157 S.E.2d 185, 191 (1967) (finding waiver where counsel, after objecting to a prosecutor's remark, "did not insist that the court rule"); Harter v. Commonwealth, 31 Va. App. 743, 752 , 525 S.E.2d 606, 610-11 (2000); Fisher v. Commonwealth, 16 Va. App. 447, 454 , 431 S.E.2d 886, 890 (1993) ("Because he was denied nothing by the trial court, there is no ruling for us to review."). -

2026And though we cannot review an issue not ruled upon by the trial court, Bailey v. Commonwealth, 73 Va. App. 250 , 264 (2021), we construe the trial court’s refusal to rule on these issues as an implicit rejection of CSN’s arguments, see Mayr v. Osborne, 293 Va. 74 , 79 n.3 (2017) (noting that a trial court’s award of damages following motions to strike by the defendant “necessarily constituted an implicit denial of the motions to strike”). -8- exemption by classification for religious-use properties”).

2026See Mayr, 293 Va. at 79 n.3. - 13 - such portion as is a source of profit or revenue shall be liable for taxation.

2021See Edmondson v. Commonwealth, 248 Va. 388, 389-91 (1994) (approving a jury instruction that use of a false name after the commission of a crime could be considered as evidence of guilt and rejecting a defendant’s argument that such instruction “improperly highlighted this single piece of evidence”); cf. Payne, 292 Va. at 871 (affirming the refusal of an instruction that “would have focused the jury’s attention on four enumerated factors [for assessing eyewitness -7- credibility], thereby suggesting that those four factors were exclusive or at least entitled to special consideration or undue w

2021See Edmondson v. Commonwealth, 248 Va. 388, 389-91 (1994) (approving a jury instruction that use of a false name after the commission of a crime could be considered as evidence of guilt and rejecting a defendant’s argument that such instruction “improperly highlighted this single piece of evidence”); cf. Payne, 292 Va. at 871 (affirming the refusal of an instruction that “would have focused the jury’s attention on four enumerated factors [for assessing eyewitness -7- credibility], thereby suggesting that those four factors were exclusive or at least entitled to special consideration or undue w

2021In approving the refusal of an instruction that was “redundant and inappropriate,” we stated that “[i]t is not desirable to multiply instructions.” Johnson v. Commonwealth, 2 Va. App. 447, 457 (1986) (quoting Ambrose v. Commonwealth, 128 Va. 763 , 766 (1921)) (determining that an instruction derived from United States v. Telfaire, 469 F.2d 552 (D.C.

2019See Vay v. Commonwealth, 67 Va. App. 236, 263-64 (2017) (“The prohibition against approbation and reprobation forces a litigant to elect a particular position, and confines a litigant to the position that she first adopted.”) (quoting Matthews v. Matthews, 277 Va. 522, 528 (2009)). - 11 - Trial Court’s Explanation for its Speedy Trial Ruling Bass also argues that the trial court erred “in refusing to rule on appellant’s objection to trial court’s failure to delineate trial court’s ruling as to dates and specific reasons for its findings regarding the speedy trial issues.” He argues that the tr

2019See Vay v. Commonwealth, 67 Va. App. 236, 263-64 (2017) (“The prohibition against approbation and reprobation forces a litigant to elect a particular position, and confines a litigant to the position that she first adopted.”) (quoting Matthews v. Matthews, 277 Va. 522, 528 (2009)). - 11 - Trial Court’s Explanation for its Speedy Trial Ruling Bass also argues that the trial court erred “in refusing to rule on appellant’s objection to trial court’s failure to delineate trial court’s ruling as to dates and specific reasons for its findings regarding the speedy trial issues.” He argues that the tr

2019This Court has “long recognized [the] dangers inherent in eyewitness identification testimony.” Daniels v. Commonwealth, 275 Va. 460, 464 (2008).

2019See Vay v. Commonwealth, 67 Va. App. 236, 263-64 (2017) (“The prohibition against approbation and reprobation forces a litigant to elect a particular position, and confines a litigant to the position that she first adopted.”) (quoting Matthews v. Matthews, 277 Va. 522, 528 (2009)). - 11 - Trial Court’s Explanation for its Speedy Trial Ruling Bass also argues that the trial court erred “in refusing to rule on appellant’s objection to trial court’s failure to delineate trial court’s ruling as to dates and specific reasons for its findings regarding the speedy trial issues.” He argues that the tr

2009Such a refusal does not bar a subsequent application when the case has been so developed, and especially after a final decree has been entered.” Mathieson Alkali Works v. Va. Banner Coal Corp., 140 Va. 89, 107 , 124 S.E. 470, 475 (1924).

2009Such a refusal does not bar a subsequent application when the case has been so developed, and especially after a final decree has been entered.” Mathieson Alkali Works v. Va. Banner Coal Corp., 140 Va. 89, 107 , 124 S.E. 470, 475 (1924).

2003See Buck v. Jordan, 256 Va. 535, 545 , 508 S.E.2d 880, 885-86 (1998) (noting that, without an objection, a party does not preserve for appeal the court's refusal to rule); Taylor v. Commonwealth, 208 Va. 316, 324 , 157 S.E.2d 185, 191 (1967) (finding waiver where counsel, after objecting to a prosecutor's remark, "did not insist that the court rule"); Harter v. Commonwealth, 31 Va. App. 743, 752 , 525 S.E.2d 606, 610-11 (2000); Fisher v. Commonwealth, 16 Va. App. 447, 454 , 431 S.E.2d 886, 890 (1993) ("Because he was denied nothing by the trial court, there is no ruling for us to review."). -

2003See Buck v. Jordan, 256 Va. 535, 545 , 508 S.E.2d 880, 885-86 (1998) (noting that, without an objection, a party does not preserve for appeal the court's refusal to rule); Taylor v. Commonwealth, 208 Va. 316, 324 , 157 S.E.2d 185, 191 (1967) (finding waiver where counsel, after objecting to a prosecutor's remark, "did not insist that the court rule"); Harter v. Commonwealth, 31 Va. App. 743, 752 , 525 S.E.2d 606, 610-11 (2000); Fisher v. Commonwealth, 16 Va. App. 447, 454 , 431 S.E.2d 886, 890 (1993) ("Because he was denied nothing by the trial court, there is no ruling for us to review."). -

2003"There appears to be no exception in Virginia law to the strict application of this rule." Bennett v. Commonwealth, 29 Va. App. 261, 281 , 511 S.E.2d 439, 448-49 (1999).

2003"There appears to be no exception in Virginia law to the strict application of this rule." Bennett v. Commonwealth, 29 Va. App. 261, 281 , 511 S.E.2d 439, 448-49 (1999).

2003See Buck v. Jordan, 256 Va. 535, 545 , 508 S.E.2d 880, 885-86 (1998) (noting that, without an objection, a party does not preserve for appeal the court's refusal to rule); Taylor v. Commonwealth, 208 Va. 316, 324 , 157 S.E.2d 185, 191 (1967) (finding waiver where counsel, after objecting to a prosecutor's remark, "did not insist that the court rule"); Harter v. Commonwealth, 31 Va. App. 743, 752 , 525 S.E.2d 606, 610-11 (2000); Fisher v. Commonwealth, 16 Va. App. 447, 454 , 431 S.E.2d 886, 890 (1993) ("Because he was denied nothing by the trial court, there is no ruling for us to review."). -

2003See Buck v. Jordan, 256 Va. 535, 545 , 508 S.E.2d 880, 885-86 (1998) (noting that, without an objection, a party does not preserve for appeal the court's refusal to rule); Taylor v. Commonwealth, 208 Va. 316, 324 , 157 S.E.2d 185, 191 (1967) (finding waiver where counsel, after objecting to a prosecutor's remark, "did not insist that the court rule"); Harter v. Commonwealth, 31 Va. App. 743, 752 , 525 S.E.2d 606, 610-11 (2000); Fisher v. Commonwealth, 16 Va. App. 447, 454 , 431 S.E.2d 886, 890 (1993) ("Because he was denied nothing by the trial court, there is no ruling for us to review."). -

2003See Buck v. Jordan, 256 Va. 535, 545 , 508 S.E.2d 880, 885-86 (1998) (noting that, without an objection, a party does not preserve for appeal the court's refusal to rule); Taylor v. Commonwealth, 208 Va. 316, 324 , 157 S.E.2d 185, 191 (1967) (finding waiver where counsel, after objecting to a prosecutor's remark, "did not insist that the court rule"); Harter v. Commonwealth, 31 Va. App. 743, 752 , 525 S.E.2d 606, 610-11 (2000); Fisher v. Commonwealth, 16 Va. App. 447, 454 , 431 S.E.2d 886, 890 (1993) ("Because he was denied nothing by the trial court, there is no ruling for us to review."). -

2003See Buck v. Jordan, 256 Va. 535, 545 , 508 S.E.2d 880, 885-86 (1998) (noting that, without an objection, a party does not preserve for appeal the court's refusal to rule); Taylor v. Commonwealth, 208 Va. 316, 324 , 157 S.E.2d 185, 191 (1967) (finding waiver where counsel, after objecting to a prosecutor's remark, "did not insist that the court rule"); Harter v. Commonwealth, 31 Va. App. 743, 752 , 525 S.E.2d 606, 610-11 (2000); Fisher v. Commonwealth, 16 Va. App. 447, 454 , 431 S.E.2d 886, 890 (1993) ("Because he was denied nothing by the trial court, there is no ruling for us to review."). -

2003See Buck v. Jordan, 256 Va. 535, 545 , 508 S.E.2d 880, 885-86 (1998) (noting that, without an objection, a party does not preserve for appeal the court's refusal to rule); Taylor v. Commonwealth, 208 Va. 316, 324 , 157 S.E.2d 185, 191 (1967) (finding waiver where counsel, after objecting to a prosecutor's remark, "did not insist that the court rule"); Harter v. Commonwealth, 31 Va. App. 743, 752 , 525 S.E.2d 606, 610-11 (2000); Fisher v. Commonwealth, 16 Va. App. 447, 454 , 431 S.E.2d 886, 890 (1993) ("Because he was denied nothing by the trial court, there is no ruling for us to review."). -

2003See Buck v. Jordan, 256 Va. 535, 545 , 508 S.E.2d 880, 885-86 (1998) (noting that, without an objection, a party does not preserve for appeal the court's refusal to rule); Taylor v. Commonwealth, 208 Va. 316, 324 , 157 S.E.2d 185, 191 (1967) (finding waiver where counsel, after objecting to a prosecutor's remark, "did not insist that the court rule"); Harter v. Commonwealth, 31 Va. App. 743, 752 , 525 S.E.2d 606, 610-11 (2000); Fisher v. Commonwealth, 16 Va. App. 447, 454 , 431 S.E.2d 886, 890 (1993) ("Because he was denied nothing by the trial court, there is no ruling for us to review."). -

2003See Buck v. Jordan, 256 Va. 535, 545 , 508 S.E.2d 880, 885-86 (1998) (noting that, without an objection, a party does not preserve for appeal the court's refusal to rule); Taylor v. Commonwealth, 208 Va. 316, 324 , 157 S.E.2d 185, 191 (1967) (finding waiver where counsel, after objecting to a prosecutor's remark, "did not insist that the court rule"); Harter v. Commonwealth, 31 Va. App. 743, 752 , 525 S.E.2d 606, 610-11 (2000); Fisher v. Commonwealth, 16 Va. App. 447, 454 , 431 S.E.2d 886, 890 (1993) ("Because he was denied nothing by the trial court, there is no ruling for us to review."). -

2003See Buck v. Jordan, 256 Va. 535, 545 , 508 S.E.2d 880, 885-86 (1998) (noting that, without an objection, a party does not preserve for appeal the court's refusal to rule); Taylor v. Commonwealth, 208 Va. 316, 324 , 157 S.E.2d 185, 191 (1967) (finding waiver where counsel, after objecting to a prosecutor's remark, "did not insist that the court rule"); Harter v. Commonwealth, 31 Va. App. 743, 752 , 525 S.E.2d 606, 610-11 (2000); Fisher v. Commonwealth, 16 Va. App. 447, 454 , 431 S.E.2d 886, 890 (1993) ("Because he was denied nothing by the trial court, there is no ruling for us to review."). -

2003See Buck v. Jordan, 256 Va. 535, 545 , 508 S.E.2d 880, 885-86 (1998) (noting that, without an objection, a party does not preserve for appeal the court's refusal to rule); Taylor v. Commonwealth, 208 Va. 316, 324 , 157 S.E.2d 185, 191 (1967) (finding waiver where counsel, after objecting to a prosecutor's remark, "did not insist that the court rule"); Harter v. Commonwealth, 31 Va. App. 743, 752 , 525 S.E.2d 606, 610-11 (2000); Fisher v. Commonwealth, 16 Va. App. 447, 454 , 431 S.E.2d 886, 890 (1993) ("Because he was denied nothing by the trial court, there is no ruling for us to review."). -

2003See Buck v. Jordan, 256 Va. 535, 545 , 508 S.E.2d 880, 885-86 (1998) (noting that, without an objection, a party does not preserve for appeal the court's refusal to rule); Taylor v. Commonwealth, 208 Va. 316, 324 , 157 S.E.2d 185, 191 (1967) (finding waiver where counsel, after objecting to a prosecutor's remark, "did not insist that the court rule"); Harter v. Commonwealth, 31 Va. App. 743, 752 , 525 S.E.2d 606, 610-11 (2000); Fisher v. Commonwealth, 16 Va. App. 447, 454 , 431 S.E.2d 886, 890 (1993) ("Because he was denied nothing by the trial court, there is no ruling for us to review."). -

1996Barrett v. Commonwealth, 231 Va. 102, 107 , 341 S.E.2d 190, 193 (1986).

1996Barrett v. Commonwealth, 231 Va. 102, 107 , 341 S.E.2d 190, 193 (1986).

1996Moreover, Roach has not suffered a denial of equal protection from the refusal of such an instruction, because a non-suspect classification is involved here and that classification “rationally advances a reasonable and identifiable governmental objective.” Schweiker v. Wilson, 450 U.S. 221, 235 (1981); see Evans, 228 Va. at 481, 323 S.E.2d at 122.

1988See Payne v. Commonwealth, 233 Va. 460, 469-70 , 357 S.E.2d 500, 505-06 (1987), cert. denied, 484 U.S._, 108 S.Ct. 308 (1988) (vileness finding moots future dangerousness issue). *415 F. “Future Dangerousness” Fisher argues on appeal that the trial court erred as a matter of law in submitting the case to the jury on the issue of “future dangerousness.” That argument is inconsistent with the instruction he offered at trial which would have submitted the case to the jury only on the issue of “future dangerousness.” As noted above, he assigned error to the court’s refusal of that instruction.

1988See Payne v. Commonwealth, 233 Va. 460, 469-70 , 357 S.E.2d 500, 505-06 (1987), cert. denied, 484 U.S._, 108 S.Ct. 308 (1988) (vileness finding moots future dangerousness issue). *415 F. “Future Dangerousness” Fisher argues on appeal that the trial court erred as a matter of law in submitting the case to the jury on the issue of “future dangerousness.” That argument is inconsistent with the instruction he offered at trial which would have submitted the case to the jury only on the issue of “future dangerousness.” As noted above, he assigned error to the court’s refusal of that instruction.