MEMORANDUM OPINION* BY EVA LAVONNE STEPHENSON JUDGE WILLIAM G. PETTY AUGUST 23, 2022 v. Record No. 0974-21-3

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF AUGUSTA COUNTY W. Chapman Goodwin, Judge

H. Eugene Oliver, III (Evans Oliver PLC, on briefs), for appellant.

Stephen J. Sovinsky, Assistant Attorney General (Jason S. Miyares, Attorney General, on briefs), for appellee.

A jury convicted Eva Lavonne Stephenson of two counts of misdemeanor assault and sentenced her to two days in jail and a $1000 fine.1 On appeal, Stephenson argues that the convictions violated her statutory and constitutional speedy trial rights. She contends that the Supreme Court of Virginia’s judicial emergency orders issued in response to the COVID-19 pandemic could not justify the delays in her trial because they violated the Virginia Constitution’s

separation of powers provisions. Stephenson also challenges the trial court’s exclusion of certain * Pursuant to Code § 17.1-413, this opinion is not designated for publication.

The Commonwealth originally charged Stephenson with two counts of felony assault on a firefighter in violation of Code § 18.2-57(C). On each indictment, the jury convicted her of the lesser-included offense of misdemeanor assault. medical records from the evidence and the sufficiency of the evidence to prove she intended to commit an assault. Finally, Stephenson argues that the trial court erred by revoking a

previously-suspended sentence based on the allegedly “improper” assault convictions. For the following reasons, we affirm the trial court’s judgments.

BACKGROUND2

A. Procedural History

On August 17, 2019, Stephenson was arrested on two felony charges of assaulting a firefighter and denied bail. On January 9, 2020, the general district court found probable cause to certify the assault charges to the grand jury and, on January 27, 2020, the grand jury indicted her on two counts of assaulting a firefighter. Stephenson demanded a jury trial, which was initially set for April 27, 2020.

On March 16, 2020, the Supreme Court of Virginia declared a judicial emergency in response to the COVID-19 pandemic and restricted all trials and non-emergency proceedings.

See In re: Order Declaring a Judicial Emergency in Response to COVID-19 Emergency 1-2 (Va.

Mar. 16, 2020).3 The order also tolled and extended all deadlines pursuant to Code

§ 17.1-330(D). Id. at 1 ¶ 4. Effective every twenty-one days thereafter, the Supreme Court entered emergency orders unanimously extending the period of judicial emergency.^[4] The order of May 1, 2020 specifically tolled the running of the speedy trial deadlines set out in Code

§ 19.2-243. See EDO of May 1, 2020, at 2 ¶ 3. Subsequent orders continued the tolling of Virginia’s statutory speedy trial deadlines. Taken together, the Supreme Court’s emergency

orders suspended jury trials entirely during a roughly eight-week period. See EDO of May 6, 2020, at 5 ¶ 12; EDO of June 22, 2020 (6th Order), at 5 ¶¶ 15-16; EDO of July 8, 2020, at 1 ¶ 2.

The Supreme Court then authorized jury trials to resume in each judicial circuit, subject to the Court’s approval of a written plan detailing how that circuit would conduct such trials safely

during the pandemic. See EDO of June 22, 2020 (6th Order), at 5-6 ¶¶ 15-16; EDO of July 8, 2020, at 1 ¶ 2. Nevertheless, it continued the tolling of deadlines imposed by the Speedy Trial

Act, Code § 19.2-243. See EDO of Sept. 11, 2020, at 1-2. These deadlines remained suspended throughout the period before Stephenson’s jury trial.

In this case, because of the ongoing judicial emergency and “risk of COVID-19 exposure,” the trial court sua sponte continued Stephenson’s jury trial date three times over her objection. On February 5, 2021, the Supreme Court approved the trial court’s plan to resume jury trials. The trial court then set Stephenson’s jury trial for August 11 and 12, 2021.

B. Motion to Dismiss

On February 24, 2021, Stephenson moved to dismiss the indictments on statutory and constitutional speedy trial grounds. In her written motion, Stephenson argued that the trial court’s “rescheduling” of trial “beyond the five-month” time period specified in Code § 19.2-243 violated her right to a speedy trial. At a hearing on March 30, 2021, Stephenson reiterated her statutory speedy trial argument. In addition, Stephenson argued that the Commonwealth was

“using COVID-19 as an excuse” to coerce inmates to accept plea bargains by deliberately protracting their pretrial detention, “rather than provid[e] the constitutional rights to . . . a speedy trial.” The trial court held that the COVID-19 pandemic and the Supreme Court’s emergency orders justified the delay. Accordingly, the trial court denied the motion to dismiss.

C. Trial

The Commonwealth’s evidence established that at 3:30 a.m. on August 13, 2019, Craigsville Volunteer Fire Department Chief Tracy Martin and Lieutenant David Stokes arrived at Stephenson’s residence in response to a reported fire. In a field behind the property, Stokes found Stephenson leaning on a shovel as she watched flames spread from her mobile home to an

abandoned house. When Martin and Stokes encouraged her to move to a safer location, Stephenson appeared “confused” and “began saying a lot of stuff that didn’t make any sense.”

Stephenson became upset and swung the shovel at the firefighters “like a baseball bat.” Dodging the attack, Martin and Stokes had police transport Stephenson to a hospital.

Testifying for the defense, Dr. George Lindbeck, an emergency room physician, explained that Stephenson “exhibited delusional thinking” when she was admitted to the emergency room. He testified that Stephenson’s account that she had just survived a fire “didn’t seem to fit” because she “had no burn injuries.” Consequently, Dr. Lindbeck concluded that

Stephenson’s “concept of the fire and the resulting burns was delusional.” He grew “[c]oncerned about [Stephenson’s] ability to take care of herself” and had considered obtaining a temporary detention order. Ultimately, however, he did not seek such an order because he determined that

“effects of multiple medications” likely caused Stephenson’s delusions, rather than a mental condition.

During Dr. Lindbeck’s testimony, Stephenson sought to admit an emergency department report that contained a summary of her psychiatric history. Specifically, the report stated that

she had “a history of T2DM, depression, anxiety, PTSD, HCV, fibromyalgia, and MVC in March 2017.” The Commonwealth objected that the psychiatric history was inadmissible under

Code § 19.2-271.6 because the statute required Stephenson to establish that she had a mental condition that “existed at the time of the offense.” The Commonwealth conceded that

Dr. Lindbeck could testify regarding his personal observations but maintained that Stephenson’s prior psychiatric diagnoses were admissible solely as “mitigation evidence for sentencing.”

Stephenson countered that the statute “entitled” the jury to receive such evidence because it was probative of her intent at the time of the offense.

During voir dire outside the jury’s presence, Dr. Lindbeck testified that Stephenson’s

“delusional thinking” was likely “medication-related” rather than “psychiatric” because her mental state improved during treatment. He acknowledged, however, that he was not a psychiatrist and could not definitively diagnose Stephenson with a mental illness at the time of the offense.

Following additional argument, the trial court found that Code § 19.2-271.6 required

Stephenson to present “evidence of her [mental] condition at the time of the incident” and the evidence did not establish that she had a mental condition at the time the assaults occurred.

Accordingly, the trial court ruled that the report was inadmissible but allowed Dr. Lindbeck to testify regarding his personal observations and “whether he believe[d], based on the records [he reviewed], that this is a mental illness and not a medication-related issue.”5 At the conclusion of the Commonwealth’s case-in-chief, Stephenson did not move to strike the evidence. After presenting evidence in her defense, she “renew[ed]” her motion to strike without making any specific argument. The trial court denied the motion, finding that

Stephenson “attempted to swing a shovel at [the firefighters] and put them in fear.” After further argument by counsel, the jury convicted Stephenson on both charges of the lesser-included offense of misdemeanor assault. Stephenson appeals.

ANALYSIS

I. Speedy Trial

Stephenson argues that the trial court erred in denying her motion to dismiss because the trial court violated her right to a speedy trial under both Code § 19.2-243 and the United States and Virginia Constitutions. We disagree.

A. Statutory Speedy Trial Claim

Stephenson argues that the trial court violated her statutory right to a speedy trial by ordering “more than three” continuances of her trial date beyond Code § 19.2-243’s five-month limitation. “[A] statutory speedy trial challenge presents a mixed question of law and fact.”

Young v. Commonwealth, 297 Va. 443, 450 (2019). This Court “gives deference to the trial court’s factual findings but reviews legal issues de novo,” including questions involving statutory interpretation. Ali v. Commonwealth, 75 Va. App. 16, ___ (2022) (citing Young, 297 Va. at 450).

If an adult defendant “is held continuously in custody” following a district court’s finding of “probable cause to believe that [she] has committed a felony, the accused . . . shall be forever

discharged from prosecution for such offense if no trial is commenced in the circuit court within five months from the date” of that finding. Code § 19.2-243. That five-month limitation, however, is “not absolute.” Young, 297 Va. at 451. Code § 19.2-243 enumerates several exceptions to the time requirement for circumstances “beyond the control of a trial judge and the parties.” Schwartz v. Commonwealth, 45 Va. App. 407, 426 (2005) (quoting Baity v. Commonwealth, 16 Va. App. 497, 502 (1993)). One such exception is when “failure to try the accused was caused . . . [b]y a natural disaster.” Code § 19.2-243(7); see EDO of May 1, 2020, at 1.

In Ali, this Court recently considered Code § 19.2-243’s “natural disaster” provision in the context of the COVID-19 pandemic. 74 Va. App. at ___. Ali argued that the trial court violated his statutory and constitutional speedy trial rights by delaying trial approximately thirteen months under the Supreme Court’s COVID-19 emergency orders. Id. at ___. We

rejected that argument, holding that the pandemic qualified as a “natural disaster” and the emergency orders validly tolled statutory speedy trial deadlines through Ali’s trial date. Id. at

___.

We find that Ali is dispositive of Stephenson’s argument. The Supreme Court declared a judicial emergency on March 16, 2020, only sixty-seven days after the district court found probable cause on January 9, 2020. See EDO of Mar. 16, 2020. The Supreme Court then extended the period of judicial emergency through the dates of Stephenson’s jury trial on August

11 and 12, 2021. During that time, the Supreme Court’s emergency orders tolled the running of any statutory speedy trial period. Ali, 74 Va. App. at ___; see also EDO of Aug. ^[4], 2021

(ordering continued tolling of “speedy trial act deadlines”). Accordingly, the trial court did not err in denying Stephenson’s motion to dismiss on statutory speedy trial grounds.

B. Constitutional Speedy Trial Claim

Stephenson also argues that the trial court violated her rights to a speedy trial under the federal and Virginia Constitutions. Relying on the United States Supreme Court’s decision in Barker v. Wingo, 407 U.S. 514 (1972), she argues that the trial court made “insufficient findings to justify” its approximately two-year delay of trial. We decline to consider this argument, as

Stephenson raises it for the first time on appeal.

“No ruling of the trial court . . . will be considered as a basis for reversal unless an objection was stated with reasonable certainty at the time of the ruling, except for good cause shown or to enable this Court to attain the ends of justice.” Rule 5A:18. Accordingly, “this

Court ‘will not consider an argument on appeal [that] was not presented to the trial court.’”

Farnsworth v. Commonwealth, 43 Va. App. 490, 500 (2004) (quoting Ohree v. Commonwealth, 26 Va. App. 299, 308 (1998)). “Specificity and timeliness undergird the contemporaneous-objection rule [and] animate its highly practical purpose.” Bethea v. Commonwealth, 297 Va. 730, 743 (2019). “Not just any objection will do. It must be both specific and timely—so that the trial judge would know the particular point being made in time to do something about it.” Id. (quoting Dickerson v. Commonwealth, 58 Va. App. 351, 356

(2011)). Thus, 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.” Edwards v. Commonwealth, 41 Va. App. 752, 761 (2003) (en banc) (citing Floyd v. Commonwealth, 219 Va.

575, 584 (1978)). “Rule 5A:18 applies to bar even constitutional claims.” Farnsworth, 43

Va. App. at 500 (quoting Ohree, 26 Va. App. at 308).

Stephenson waived the constitutional speedy trial claim she now argues for the first time on appeal. In her written motion to dismiss filed in the trial court, Stephenson invoked her

speedy trial rights under the Sixth Amendment of the United States Constitution and the “Virginia Constitutional Bill of Rights.” Both in her motion and during argument, however, Stephenson did not offer any theory on how those constitutional provisions applied to the facts of this case. Instead, she argued that the Commonwealth was “using COVID-19 as an excuse” to extort inmates by prolonging their pretrial incarceration. Thus, Stephenson failed to present her constitutional speedy trial claim to the trial court, despite the opportunity to do so. Accordingly, the issue is waived. Cf. Howard v. Commonwealth, 55 Va. App. 417, 426 (2009), aff’d, 281 Va.

455 (2011) (holding Rule 5A:18 barred review of defendant’s constitutional speedy trial

argument raised for first time on appeal). Although there are exceptions to Rule 5A:18, Stephenson does not invoke them, and we will not do so sua sponte. Edwards, 41 Va. App. at

761.6

II. Stephenson’s Psychiatric History Evidence

Stephenson contends that the trial court abused its discretion by excluding the emergency department report summarizing her psychiatric history as inadmissible under Code § 19.2-271.6.

She alleges that the trial court misconstrued that statute as barring evidence of prior psychiatric

diagnoses to prove a defendant’s mental condition at the time of the offense. Because prior diagnoses may be probative of “symptoms or behaviors in the moment,” Stephenson argues that

such evidence is admissible. She argues further that any “concerns” regarding “the use of historical [diagnostic] information and its connection to the present” pertained to the weight of the evidence, rather than its admissibility. Therefore, Stephenson contends that the “only reason” to exclude such evidence is “if there is a prohibition by either statute or case law to its admission.” We disagree.

It is well-settled that “[d]ecisions regarding the admissibility of evidence ‘lie within the trial court’s sound discretion and will not be disturbed on appeal absent an abuse of discretion.’” Blankenship v. Commonwealth, 69 Va. App. 692, 697 (2019) (quoting Michels v. Commonwealth, 47 Va. App. 461, 465 (2006)). “Only when reasonable jurists could not differ can we say an abuse of discretion has occurred.” Grattan v. Commonwealth, 278 Va. 602, 620

(2009) (quoting Thomas v. Commonwealth, 44 Va. App. 741, 753, adopted upon reh’g en banc, 45 Va. App. 811 (2005)). Nevertheless, a trial court “by definition abuses its discretion when it makes an error of law.” Robinson v. Commonwealth, 68 Va. App. 602, 606 (2018) (quoting

Dean v. Commonwealth, 61 Va. App. 209, 213 (2012)). To the extent that the admissibility determination involves a question of law—including “the interpretation of a statute”—this Court

reviews that issue de novo. Beckham v. Commonwealth, 67 Va. App. 654, 658 (2017). “The primary purpose of statutory interpretation ‘is to ascertain and give effect to legislative intent.’”

Holloway v. Commonwealth, 72 Va. App. 370, 375 (2020) (quoting Botkin v. Commonwealth, 296 Va. 309, 314 (2018)). This Court “determines legislative intent from the words employed in the statute,” Botkin, 296 Va. at 314 (quoting Alger v. Commonwealth, 267 Va. 255, 259 (2004)), and “[w]hen the language of a statute is unambiguous, we are bound by the plain meaning of the words used,” Antisdel v. Ashby, 279 Va. 42, 48 (2010) (citing Smit v. Shippers’ Choice of Virginia, Inc., 277 Va. 593, 597 (2009)).

Finally, the proponent of evidence has the burden of establishing its admissibility by a

“preponderance of the evidence.” Campos v. Commonwealth, 67 Va. App. 690, 702 (2017)

(quoting Witt v. Commonwealth, 215 Va. 670, 674 (1975)). A trial court resolves factual questions underlying admissibility, Bloom v. Commonwealth, 262 Va. 814, 821 (2001) (quoting

Witt, 215 Va. at 674), and such findings are binding on appeal “unless ‘plainly wrong’ or without evidence to support them,” Campos, 67 Va. App. at 702 (quoting McGee v. Commonwealth, 25

Va. App. 193, 198 (1997) (en banc)). An appellant bears the burden of providing the appellate

- 10 - court with authority and argument in support of her request for reversal. Bartley v. Commonwealth, 67 Va. App. 740, 744-45 (2017). Evidence “offered by [a criminal] defendant” regarding her “mental condition” at the time of the alleged offense, “including expert testimony,” is “relevant, is not evidence concerning an ultimate issue of fact, and shall be admitted if” it “tends to show the defendant did not have the intent required for the offense charged and . . . is otherwise admissible pursuant to the general rules of evidence.” Code § 19.2-271.6(B); see 2021 Va. Acts Sp. Sess. I, chs. 523, 540. Further, “to establish the underlying mental condition,” the defendant “must show” that the condition “existed at the time of the offense and that the condition satisfies the diagnostic criteria for (i) a mental illness, (ii) a developmental disability or intellectual disability, or (iii) autism spectrum disorder as defined in the most recent edition of the [DSM].” Code § 19.2-271.6 (B). “Mental illness” is “a disorder of thought, mood, perception, or orientation that significantly impairs judgment or capacity to recognize reality.” Code §19.2-271.6 (A). Here, the trial court did not abuse its discretion by excluding the proffered report because Stephenson failed to establish that she suffered from a “mental condition” as defined in Code § 19.2-271.6, or that any such mental condition existed at the time of her offenses. At trial, Stephenson argued that the proffered report would have proved “she ha[d] mental health diagnoses that meet the DSM.” The report, however, did not indicate whether any of her prior diagnoses constituted “a disorder of thought, mood, perception, or orientation that significantly impair[ed] [her] judgment or capacity to recognize reality.” See id. (defining “Mental illness”). In addition, although Dr. Lindbeck testified that Stephenson manifested “delusional thinking” when she arrived at the emergency room, he acknowledged that he was not qualified to diagnose Stephenson with a mental illness that existed when the assault occurred. Moreover, he - 11 - concluded that the “effects of multiple medications”—not a mental illness—likely caused her delusions. In sum, Stephenson failed to establish the requisite “underlying mental condition” to admit the report under Code § 19.2-271.6. Accordingly, the trial court’s ruling excluding the report was a proper exercise of judicial discretion.^[7] III. Sufficiency Stephenson argues that the trial court erred in concluding that the evidence proved she intended to harm Chief Martin and Lieutenant Stokes. She contends that her attack “was a manifestation of confusion and delusion” rather than “an intent to inflict harm.” We do not consider this argument because Stephenson failed to preserve it for appellate review under Rule 5A:18. To preserve the question of the sufficiency of the evidence in a jury trial, the defendant must move to strike at the conclusion of all the evidence or move to set aside the verdict. Commonwealth v. Bass, 292 Va. 19, 33 (2016). Moreover, although a defendant may fulfill the requirements of Rule 5A:18 through a motion to strike the evidence, failure to specifically argue that the evidence is insufficient as a matter of law will result in default. See, e.g., Bowling v. Commonwealth, 51 Va. App. 102, 106 (2007) (holding defendant’s failure to challenge the sufficiency of evidence supporting a specific element of the offense at the motion to strike failed to preserve the issue on appeal).