Smith motion in Virginia

2025“In its role of judging witness credibility, the fact finder is entitled to disbelieve the self-serving testimony of the accused and to conclude that the accused is lying to conceal his guilt.” Flanagan, 58 Va. App. at 702 (quoting Marable v. Commonwealth, 27 Va. App. 505, 509-10 (1998)).

2025Therefore, it was not an 8 Though Smith acknowledges this, he nonetheless claims he “ought to be able to negate the specific intent request for unlawful wounding by showing that he was so greatly intoxicated as to be incapable of deliberation or premeditation.” In his attempt to make his case appear comparable to those that have found that “[w]hen a man has become so greatly intoxicated as not to be able to deliberate and premeditate, he cannot commit murder of the first degree,” he ignores -8- error of the circuit court to deny Smith’s motion to strike because he testified that he was “drunk”

2025“The admissibility of evidence is within the broad discretion of the trial court.” Cheripka v. Commonwealth, 78 Va. App. 480 , 494 (2023) (quoting Warnick v. Commonwealth, 72 Va. App. 251 , 263 (2020)). “[W]e review a trial court’s decision to admit or exclude evidence using an abuse of discretion standard and, on appeal, will not disturb a trial court’s decision to admit evidence absent a finding of abuse of that discretion.” Kenner v. Commonwealth, 299 Va. 414 , 423 (2021) (alteration in original) (quoting Avent v. Commonwealth, 279 Va. 175, 197 (2010)).

2025Therefore, it was not an 8 Though Smith acknowledges this, he nonetheless claims he “ought to be able to negate the specific intent request for unlawful wounding by showing that he was so greatly intoxicated as to be incapable of deliberation or premeditation.” In his attempt to make his case appear comparable to those that have found that “[w]hen a man has become so greatly intoxicated as not to be able to deliberate and premeditate, he cannot commit murder of the first degree,” he ignores -8- error of the circuit court to deny Smith’s motion to strike because he testified that he was “drunk”

2025“In its role of judging witness credibility, the fact finder is entitled to disbelieve the self-serving testimony of the accused and to conclude that the accused is lying to conceal his guilt.” Flanagan, 58 Va. App. at 702 (quoting Marable v. Commonwealth, 27 Va. App. 505, 509-10 (1998)).

2023See Rowe v. Big Sandy Coal Corp., 197 Va. 136, 143 (1955).

2023A court “always has jurisdiction to determine whether it has subject matter jurisdiction.” Pure Presbyterian, 296 Va. at 50 (quoting Morrison v. Bestler, 239 Va. 166, 170 (1990)).

2022See Williams v. Commonwealth, 64 Va. App. 240, 248 (2015).

2018Upon review, we conclude that Smith’s argument is without merit. “[I]t is well established that the choice of offenses for which a criminal defendant will be charged is within the discretion of the Commonwealth’s Attorney.” Barrett v. Commonwealth, 41 Va. App. 377, 391 , 585 S.E.2d 355, 362 (2003) (quoting Kauffmann v. Commonwealth, 8 Va. App. 400, 410 , 382 S.E.2d 279, 284 (1989)), aff’d, 268 Va. 170 , 597 S.E.2d 104 (2004).

2018Upon review, we conclude that Smith’s argument is without merit. “[I]t is well established that the choice of offenses for which a criminal defendant will be charged is within the discretion of the Commonwealth’s Attorney.” Barrett v. Commonwealth, 41 Va. App. 377, 391 , 585 S.E.2d 355, 362 (2003) (quoting Kauffmann v. Commonwealth, 8 Va. App. 400, 410 , 382 S.E.2d 279, 284 (1989)), aff’d, 268 Va. 170 , 597 S.E.2d 104 (2004).

2018Upon review, we conclude that Smith’s argument is without merit. “[I]t is well established that the choice of offenses for which a criminal defendant will be charged is within the discretion of the Commonwealth’s Attorney.” Barrett v. Commonwealth, 41 Va. App. 377, 391 , 585 S.E.2d 355, 362 (2003) (quoting Kauffmann v. Commonwealth, 8 Va. App. 400, 410 , 382 S.E.2d 279, 284 (1989)), aff’d, 268 Va. 170 , 597 S.E.2d 104 (2004).

2018Upon review, we conclude that Smith’s argument is without merit. “[I]t is well established that the choice of offenses for which a criminal defendant will be charged is within the discretion of the Commonwealth’s Attorney.” Barrett v. Commonwealth, 41 Va. App. 377, 391 , 585 S.E.2d 355, 362 (2003) (quoting Kauffmann v. Commonwealth, 8 Va. App. 400, 410 , 382 S.E.2d 279, 284 (1989)), aff’d, 268 Va. 170 , 597 S.E.2d 104 (2004).

2011Smith v. Commonwealth, 56 Va.App. 351, 363 , 693 S.E.2d 765, 771 (2010).

2011Smith v. Commonwealth, 56 Va.App. 351, 363 , 693 S.E.2d 765, 771 (2010).

2010On appeal from the denial of Smith’s motion to suppress the drugs, this Court held that the officer lacked reasonable suspicion to conduct a pat-down search and that the crack cocaine, “although abandoned by the defendant during flight, *748 was first discovered by the police officer during his attempt to search the defendant during an investigatory stop.” Id. at 1104, 407 S.E.2d at 52 (emphasis added).

2010See, e.g., Collins v. Shepherd, 274 Va. 390, 402 , 649 S.E.2d 672, 678 (2007) (holding anywhere, at any time, or in any manner.’” (quoting Singh v. Mooney, 261 Va. 48, 52 , 541 S.E.2d 549, 551 (2001))). -3- that “[a]n order is void ab initio rather than merely voidable, if ‘the character of the judgment was not such as the court had the power to render, or because the mode of procedure employed by the court was such as it might not lawfully adopt’” (quoting Evans v. Smyth-Wythe Airport Comm’n, 255 Va. 69, 73 , 495 S.E.2d 825, 828 (1998))); Morgan v. Russrand Triangle Assocs., L.L.C., 270 Va. 2

2010See, e.g., Collins v. Shepherd, 274 Va. 390, 402 , 649 S.E.2d 672, 678 (2007) (holding anywhere, at any time, or in any manner.’” (quoting Singh v. Mooney, 261 Va. 48, 52 , 541 S.E.2d 549, 551 (2001))). -3- that “[a]n order is void ab initio rather than merely voidable, if ‘the character of the judgment was not such as the court had the power to render, or because the mode of procedure employed by the court was such as it might not lawfully adopt’” (quoting Evans v. Smyth-Wythe Airport Comm’n, 255 Va. 69, 73 , 495 S.E.2d 825, 828 (1998))); Morgan v. Russrand Triangle Assocs., L.L.C., 270 Va. 2

2010See, e.g., Collins v. Shepherd, 274 Va. 390, 402 , 649 S.E.2d 672, 678 (2007) (holding anywhere, at any time, or in any manner.’” (quoting Singh v. Mooney, 261 Va. 48, 52 , 541 S.E.2d 549, 551 (2001))). -3- that “[a]n order is void ab initio rather than merely voidable, if ‘the character of the judgment was not such as the court had the power to render, or because the mode of procedure employed by the court was such as it might not lawfully adopt’” (quoting Evans v. Smyth-Wythe Airport Comm’n, 255 Va. 69, 73 , 495 S.E.2d 825, 828 (1998))); Morgan v. Russrand Triangle Assocs., L.L.C., 270 Va. 2

2010See, e.g., Collins v. Shepherd, 274 Va. 390, 402 , 649 S.E.2d 672, 678 (2007) (holding anywhere, at any time, or in any manner.’” (quoting Singh v. Mooney, 261 Va. 48, 52 , 541 S.E.2d 549, 551 (2001))). -3- that “[a]n order is void ab initio rather than merely voidable, if ‘the character of the judgment was not such as the court had the power to render, or because the mode of procedure employed by the court was such as it might not lawfully adopt’” (quoting Evans v. Smyth-Wythe Airport Comm’n, 255 Va. 69, 73 , 495 S.E.2d 825, 828 (1998))); Morgan v. Russrand Triangle Assocs., L.L.C., 270 Va. 2

2010See, e.g., Collins v. Shepherd, 274 Va. 390, 402 , 649 S.E.2d 672, 678 (2007) (holding anywhere, at any time, or in any manner.’” (quoting Singh v. Mooney, 261 Va. 48, 52 , 541 S.E.2d 549, 551 (2001))). -3- that “[a]n order is void ab initio rather than merely voidable, if ‘the character of the judgment was not such as the court had the power to render, or because the mode of procedure employed by the court was such as it might not lawfully adopt’” (quoting Evans v. Smyth-Wythe Airport Comm’n, 255 Va. 69, 73 , 495 S.E.2d 825, 828 (1998))); Morgan v. Russrand Triangle Assocs., L.L.C., 270 Va. 2

2010See, e.g., Collins v. Shepherd, 274 Va. 390, 402 , 649 S.E.2d 672, 678 (2007) (holding anywhere, at any time, or in any manner.’” (quoting Singh v. Mooney, 261 Va. 48, 52 , 541 S.E.2d 549, 551 (2001))). -3- that “[a]n order is void ab initio rather than merely voidable, if ‘the character of the judgment was not such as the court had the power to render, or because the mode of procedure employed by the court was such as it might not lawfully adopt’” (quoting Evans v. Smyth-Wythe Airport Comm’n, 255 Va. 69, 73 , 495 S.E.2d 825, 828 (1998))); Morgan v. Russrand Triangle Assocs., L.L.C., 270 Va. 2

2010See, e.g., Collins v. Shepherd, 274 Va. 390, 402 , 649 S.E.2d 672, 678 (2007) (holding anywhere, at any time, or in any manner.’” (quoting Singh v. Mooney, 261 Va. 48, 52 , 541 S.E.2d 549, 551 (2001))). -3- that “[a]n order is void ab initio rather than merely voidable, if ‘the character of the judgment was not such as the court had the power to render, or because the mode of procedure employed by the court was such as it might not lawfully adopt’” (quoting Evans v. Smyth-Wythe Airport Comm’n, 255 Va. 69, 73 , 495 S.E.2d 825, 828 (1998))); Morgan v. Russrand Triangle Assocs., L.L.C., 270 Va. 2

2010See, e.g., Collins v. Shepherd, 274 Va. 390, 402 , 649 S.E.2d 672, 678 (2007) (holding anywhere, at any time, or in any manner.’” (quoting Singh v. Mooney, 261 Va. 48, 52 , 541 S.E.2d 549, 551 (2001))). -3- that “[a]n order is void ab initio rather than merely voidable, if ‘the character of the judgment was not such as the court had the power to render, or because the mode of procedure employed by the court was such as it might not lawfully adopt’” (quoting Evans v. Smyth-Wythe Airport Comm’n, 255 Va. 69, 73 , 495 S.E.2d 825, 828 (1998))); Morgan v. Russrand Triangle Assocs., L.L.C., 270 Va. 2

2010See, e.g., Collins v. Shepherd, 274 Va. 390, 402 , 649 S.E.2d 672, 678 (2007) (holding anywhere, at any time, or in any manner.’” (quoting Singh v. Mooney, 261 Va. 48, 52 , 541 S.E.2d 549, 551 (2001))). -3- that “[a]n order is void ab initio rather than merely voidable, if ‘the character of the judgment was not such as the court had the power to render, or because the mode of procedure employed by the court was such as it might not lawfully adopt’” (quoting Evans v. Smyth-Wythe Airport Comm’n, 255 Va. 69, 73 , 495 S.E.2d 825, 828 (1998))); Morgan v. Russrand Triangle Assocs., L.L.C., 270 Va. 2

2010See, e.g., Collins v. Shepherd, 274 Va. 390, 402 , 649 S.E.2d 672, 678 (2007) (holding anywhere, at any time, or in any manner.’” (quoting Singh v. Mooney, 261 Va. 48, 52 , 541 S.E.2d 549, 551 (2001))). -3- that “[a]n order is void ab initio rather than merely voidable, if ‘the character of the judgment was not such as the court had the power to render, or because the mode of procedure employed by the court was such as it might not lawfully adopt’” (quoting Evans v. Smyth-Wythe Airport Comm’n, 255 Va. 69, 73 , 495 S.E.2d 825, 828 (1998))); Morgan v. Russrand Triangle Assocs., L.L.C., 270 Va. 2

2010See Williams v. Commonwealth, 53 Va. App. 50, 55 , 669 S.E.2d 354, 356 (2008).

2010See Williams v. Commonwealth, 53 Va. App. 50, 55 , 669 S.E.2d 354, 356 (2008).

2010See, e.g., Collins v. Shepherd, 274 Va. 390, 402 , 649 S.E.2d 672, 678 (2007) (holding anywhere, at any time, or in any manner.’” (quoting Singh v. Mooney, 261 Va. 48, 52 , 541 S.E.2d 549, 551 (2001))). -3- that “[a]n order is void ab initio rather than merely voidable, if ‘the character of the judgment was not such as the court had the power to render, or because the mode of procedure employed by the court was such as it might not lawfully adopt’” (quoting Evans v. Smyth-Wythe Airport Comm’n, 255 Va. 69, 73 , 495 S.E.2d 825, 828 (1998))); Morgan v. Russrand Triangle Assocs., L.L.C., 270 Va. 2

2010See, e.g., Collins v. Shepherd, 274 Va. 390, 402 , 649 S.E.2d 672, 678 (2007) (holding anywhere, at any time, or in any manner.’” (quoting Singh v. Mooney, 261 Va. 48, 52 , 541 S.E.2d 549, 551 (2001))). -3- that “[a]n order is void ab initio rather than merely voidable, if ‘the character of the judgment was not such as the court had the power to render, or because the mode of procedure employed by the court was such as it might not lawfully adopt’” (quoting Evans v. Smyth-Wythe Airport Comm’n, 255 Va. 69, 73 , 495 S.E.2d 825, 828 (1998))); Morgan v. Russrand Triangle Assocs., L.L.C., 270 Va. 2

2004See Ryland, 266 Va. at 511 , 587 S.E.2d at 520 (examining fault/negligence issue in context of why Manor Care had not responded to the motion for judgment); Media General, 260 Va. at 291 , 534 S.E.2d at 735 (assessing why Media General did not respond to Smith’s motion for judgment).

2004See Ryland, 266 Va. at 511 , 587 S.E.2d at 520 (examining fault/negligence issue in context of why Manor Care had not responded to the motion for judgment); Media General, 260 Va. at 291 , 534 S.E.2d at 735 (assessing why Media General did not respond to Smith’s motion for judgment).

2004See Ryland, 266 Va. at 511 , 587 S.E.2d at 520 (examining fault/negligence issue in context of why Manor Care had not responded to the motion for judgment); Media General, 260 Va. at 291 , 534 S.E.2d at 735 (assessing why Media General did not respond to Smith’s motion for judgment).

2004See Ryland, 266 Va. at 511 , 587 S.E.2d at 520 (examining fault/negligence issue in context of why Manor Care had not responded to the motion for judgment); Media General, 260 Va. at 291 , 534 S.E.2d at 735 (assessing why Media General did not respond to Smith’s motion for judgment).

2002When a defendant challenges the sufficiency of the evidence on appeal, the reviewing 10 Id. (quoting Williams v. Commonwealth, 4 Va. App. 53, 78-79 , 354 S.E.2d 79, 93 (1987) (quoting Van Arsdall, 475 U.S. at 684 )). - 5 - court must give the judgment of the trial court sitting without a jury the same weight as a jury verdict.

2002When a defendant challenges the sufficiency of the evidence on appeal, the reviewing 10 Id. (quoting Williams v. Commonwealth, 4 Va. App. 53, 78-79 , 354 S.E.2d 79, 93 (1987) (quoting Van Arsdall, 475 U.S. at 684 )). - 5 - court must give the judgment of the trial court sitting without a jury the same weight as a jury verdict.

2001See City of Boerne v. Flores, 521 U.S. 507, 544-65 (1997) (O’Connor, J., joined by Breyer, J., dissenting); id. at 565-66 (Souter, J., dissenting); id. at 566 (Breyer, J., dissenting); City of Hialeah, 508 U.S. at 559-77 (Souter, J., concurring); id. at 578 (Blackmun, J., joined by O’Connor, J., concurring).

2001See City of Boerne v. Flores, 521 U.S. 507, 544-65 (1997) (O’Connor, J., joined by Breyer, J., dissenting); id. at 565-66 (Souter, J., dissenting); id. at 566 (Breyer, J., dissenting); City of Hialeah, 508 U.S. at 559-77 (Souter, J., concurring); id. at 578 (Blackmun, J., joined by O’Connor, J., concurring).

2001See City of Boerne v. Flores, 521 U.S. 507, 544-65 (1997) (O’Connor, J., joined by Breyer, J., dissenting); id. at 565-66 (Souter, J., dissenting); id. at 566 (Breyer, J., dissenting); City of Hialeah, 508 U.S. at 559-77 (Souter, J., concurring); id. at 578 (Blackmun, J., joined by O’Connor, J., concurring).

2001See City of Boerne v. Flores, 521 U.S. 507, 544-65 (1997) (O’Connor, J., joined by Breyer, J., dissenting); id. at 565-66 (Souter, J., dissenting); id. at 566 (Breyer, J., dissenting); City of Hialeah, 508 U.S. at 559-77 (Souter, J., concurring); id. at 578 (Blackmun, J., joined by O’Connor, J., concurring).

1992However, the Court then qualified its holding by stating, "[o]f course this rule should not be applied where the character of the objection is perfectly patent." Id. at 781 , 182 S.E. at 127 *405 (citing Davis v. Commonwealth, 161 Va. 1037, 1041-42 , 171 S.E. 598, 599 (1933)).

1992However, the Court then qualified its holding by stating, "[o]f course this rule should not be applied where the character of the objection is perfectly patent." Id. at 781 , 182 S.E. at 127 *405 (citing Davis v. Commonwealth, 161 Va. 1037, 1041-42 , 171 S.E. 598, 599 (1933)).