COURT OF APPEALS OF VIRGINIA

Present: Judges Al ston, Chafin and Senior Judge Haley Argued at Fredericksburg, Virginia

NATHANIEL HOWARD MOONE, III MEMORANDUM OPINION * BY v. Record No . 1750-16-4 JUDGE JAMES W. HALEY, JR. NOVEMBER 14, 2017 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF ARLINGTON COUNTY Louise M. DiMatteo, Judge Harry A. Dennis, III (Dennis, S tewart & Krischer, PLLC, on br ief), for appellant. Victoria Johnson, Assistant At torney General ( Mark R. Herring , Attorney General, on brief), for appellee.

Nathaniel Howard Moone, III (“appellant”) was convicted of att empted robbery by a jury. On appeal, he contends that the evidence was insu fficient to su pport his conviction because it failed to prove that the attempted robbery was accomplished by force o r intimidation. Because appellant did not raise this specific sufficiency of the evidence argumen t through either a motion to strike or a motion to set aside the verdict, we conclude that he has failed to preserve it for appeal. “When considering on appeal the s ufficiency of the evidence pr esented below, we ‘presume the judgment of the tri al court to be co rrect’ and rev erse only if the trial court’s decision is ‘plainly wrong or w ithout evidence to support it.’” Kelly v. Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) ( en banc ) (quoting Davis v. Commonwealth, 39 Va. App. 96, 99, 570 S.E.2d 875, 876-77 (2002)). “On appeal, w e review the evidence in the light most favorable to the Com monwealth, granti ng to it all re asonable inferences fairly

* Pursuant to Code § 17.1-413, this op inion is not designated fo r publication.UNPUBLISHED- 2 - deducible therefrom.” We lls v. Commonwealth, 65 Va. App. 722, 725, 781 S.E.2d 362, 364 (2016) (quoting Martin v. C ommonwealth, 4 Va. App. 438, 443, 35 8 S.E.2d 415, 418 (1987)). So viewed, the evidence proved t hat, on the afternoon of Decemb er 15, 2015, appellant entered a bank wearing a blue cap, black j acket, and wool gloves. His fa ce was covered by a surgical mask, and he was carrying a backpack. The teller attempted to engage him in conversation, but when he did not respond, the telle r concluded he was “physicall y challenged” or “unable to hear [her].” Eventually, appellant passed a not e to the teller. The note s tated, “teller, both drawers, 60

seconds.” When the teller di d not immediately read the note, a ppellant told her, “Keep quiet, it’s a robbery.” The teller testified that she was “pretty shaken” by appellant’s statement and dropped her key while attemp ting to open one of her cash drawer s. When she stood up after retrieving the key, appellant ha d gone. A video of the entire encounter was viewed by the jury. On appeal, appellant argues that t he note and his brief stateme nt were insufficient to prove that he attempted to acco mplish the robbery by “force or intimidation.” He contends that “nothing in [his] actions was designed to put [the teller] in f ear of bodily harm,” as he did not make any threatening gestures or threaten to harm her if she fa iled to comply with his demands. Citing Adeniran v. Commonwealth, 63 Va. App. 617, 761 S.E.2d 78 2 (2014), and Bivens v. Commonwealth, 19 Va. App. 750, 454 S.E.2d 741 (1995), he mainta ins that the teller’s fear was “incidental” to the attempted robbe ry itself, in contrast to fe ar or intimidation 1 created by appellant’s words or conduct.

1 As we reiterated in Press ley v. Commonwealth, 54 Va. App. 380, 679 S.E.2d 551 (2009):

“Intimidation is defined as ‘unl awful coercion; extortion; dure ss; putting in fear.’ ‘To take or a ttempt to take, “by intimidatio n” means willfully to take, or attempt to take, by putting in fear of bodily harm.’ Intimidation resul ts when the words or conduct o f- 3 - At trial, the sole argument pres ented to the trial court in sup port of appellant’s motion to

strike the evidence was that t he evidence failed to prove appel lant was the perpe trator. Appellant did not argue that the evidence failed to prove force or intimi dation. While appellant argued the lack of evidence proving force or intimidation in his closing a rgument to the jury, “in a jury trial, the closing argument is addresse d to the jury, no t the trial ju dge, and does not require the trial judge to rule on the evidence as a matter of law. Only a motio n to strike the evidence accomplishes that objective in a jury trial.” Campbell v. Comm onwealth, 12 Va. App. 476, 481, 405 S.E.2d 1, 3 (1991) ( en banc ). Pursuant to Rule 5A:18, we “will not consider an argument on ap peal [that] was not presented to the trial court. ” Ohree v. Commonwealth, 26 Va. A pp. 299, 308, 494 S.E.2d 484, 488 (1998). Under this rule, a specific argum ent must be made to the trial court at the appropriate time, or t he allegation of error will not be considered on appeal. A general a rgument or an abstract refere nce to the law is not sufficient to preserve an issue. Making one specific argument on an issue does not preserve a separate lega l point on the same issue for review. Edwards v. Commonwealth, 41 Va. App. 752, 760, 589 S.E.2d 444, 448 (2003) ( en banc ). Thus, presenting one argument to the t rial court on the sufficiency o f the evidence does not preserve all

the accused exercise such domination and control over the victi m as to overcome the victim’s mind and overbear the victim’s will , placing the victim in f ear of bodily harm.” Id. at 385, 679 S.E.2d at 554 (quo ting Anderson v. Commonwealth , 52 Va. App. 501, 507, 664 S.E.2d 514, 517 (2008)). “Threats of violence or bodily harm a re not an indispensable ingredient of intimidation. It is only necessary that the victim actually be put in fear of bodily harm by the willful conduct or words of the accused.” Id. at 386, 679 S.E. 2d at 554 (quoting Harris v. Commonwealth, 3 Va. App. 519, 521, 351 S.E.2d 356, 357 (1986)). “Where the defendant’s conduct amounts to intimidation or ‘ is reasonably calculated to produce fear ,’ and is concomitant with a taking, the evi dence is sufficient to suppor t a conviction for robbery.” Id. (emphasis in origin al) (quoting United States v. Amos, 566 F.2d 899, 901 (4th Cir. 1977)) (other citation omitted).- 4 - sufficiency of the evidence arguments on appeal. See Clark v. Commonwealth, 30 Va. App. 406, 411-12, 517 S.E.2d 260, 262 (1999). The same specific arg ument presented on appeal must

have been raised at trial befo re it may be considered by this C ourt. See Buck v. Commonwealth, 247 Va. 449, 452-53, 443 S.E.2d 414, 417 (1994) (applying Rule 5A:18 where appellant failed to raise the same arguments to the trial court); Floyd v. Commonwe alth, 219 Va. 575, 584, 249 S.E.2d 171, 176 (1978) (same). “The pur pose of the rule is to ‘afford the trial court an opportunity to rule intelligentl y on the issues presented, thus avoiding unnecessary appeals and

reversals.’” Scialdone v. Commonwealth, 279 Va. 422, 437, 689 S.E.2d 716, 724 (2010) (quoting Weidman v. Babcock, 241 Va. 40, 44, 400 S.E.2d 164, 16 7 (1991)). “Although Rule 5A:18 contains e xceptions for good cause or to meet the ends of justice, appellant does not argue these exceptions and we will not invok e them sua sponte .” Williams v. Commonwealth, 57 Va. App. 341, 347, 702 S.E.2d 260, 263 (2010). Accordingly, we hold that appe llant is barred by Rule 5A:18 fr om raising this issue for the first time on appeal.

Affirmed.