Tuesday 19th 

 December, 1995. 

Bobbie L. Cotter, s/k/a 

 Bobby L. Cotter, Appellant, 

 against Record No. 0367-93-2 

 Circuit Court Nos. F212-92 and F213-92 

Commonwealth of Virginia, Appellee. 

Upon a Rehearing En Banc 

 Before Chief Judge Moon, Judges Baker, Benton, Coleman, 

 Willis, Elder, Bray, Fitzpatrick, Annunziata and Overton 

 H. Otis Brown for appellant. 

 Leah A. Darron, Assistant Attorney General 

 (James S. Gilmore, III, Attorney General; 

 Robert B. Beasley, Jr., Assistant Attorney 

 General, on brief), for appellee. 

On December 13, 1994, a panel of this Court affirmed 

appellant's conviction for conspiracy to distribute cocaine and 

reversed his conviction for distribution of cocaine. Cotter v. 

Commonwealth, 19 Va. App. 382, 452 S.E.2d 20 (1994). A rehearing en

banc was granted by this Court and heard on November 16, 1995. This 

case is controlled by McQuinn v. Commonwealth, 20 Va. App. 753, 460 

S.E.2d 624 (1995)(en banc), which was decided subsequent to the panel 

decision. Here, as in McQuinn, appellant moved to strike the evidence 

at the conclusion of the Commonwealth's case but failed to do so at 

the conclusion of all the evidence. Appellants in both cases moved to 

set aside the jury's verdict. In McQuinn the only reason given for 

the motion to set aside the verdict was that the verdict was "contrary 

to the law and the evidence." In the case before us, the court's 
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order stated that the motion to set aside the verdict was made "for 

the reasons stated to the record." The record, however, contains no 

"reasons" for the motion and at oral argument counsel conceded that 

the reason given was that the verdict was contrary to the law and the 

evidence. 

For the foregoing reasons and the reasons stated in McQuinn, 

the opinion previously rendered by a panel of this Court is withdrawn, 

the mandate entered on that date is vacated and the judgment of the 

trial court is affirmed. The appellant shall pay to the Commonwealth 

thirty dollars damages. 

____________________ 

Benton, J., dissenting. 

I do not agree that McQuinn v. Commonwealth, 20 Va. App. 

753, 460 S.E.2d 624 (1995)(en banc), compels the result that the 

majority reaches in this case. That decision addressed the following 

procedural circumstance: 

 At the conclusion of the presentation of 

the Commonwealth's evidence, McQuinn moved 

the trial court to strike the evidence on 

the ground that it was insufficient to prove 

the charges against him. The trial court 

denied that motion and McQuinn presented 

evidence. He did not renew his motion to 

strike at the conclusion of all the 

evidence. 

Id. at 755, 460 S.E.2d at 625. In McQuinn, we held "that by 

presenting evidence, McQuinn waived his motion to strike the evidence 

and that by failing to present the sufficiency issue to the trial 

court in the context of all the evidence, he failed to preserve that 

issue for appeal." Id.

Nothing in this Court's en banc opinion, or in the panel 
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opinion that it overturned, see McQuinn v. Commonwealth, 19 Va. App. 

418, 451 S.E.2d 704 (1994), indicated that McQuinn's counsel made a 

motion to set aside the verdict. Indeed, the panel's opinion was 

clearly based upon the premise that "[a]lthough the defendant did not 

move to strike the prosecution's evidence at the conclusion of his own 

evidence, he did make such a motion at the conclusion of the 

prosecution's evidence." Id. at 420, 451 S.E.2d at 705. Solely upon 

that procedural posture, the panel's majority ruled that "the 

defendant's motion at the conclusion of the Commonwealth's evidence 

was sufficient to preserve the question for review on appeal." Id. 

Furthermore, the opinion dissenting from the panel's decision did not 

refer to a motion to set aside the verdict. The dissent also was 

premised upon "the case in which the defendant did not make a motion 

to strike at the conclusion of all the evidence or did not make a 

motion to set aside the verdict." 19 Va. App. at 431, 451 S.E.2d at 

711. 

Although this Court's en banc decision in McQuinn reversed 

the panel's decision, this Court did not preclude review when the 

sufficiency of the evidence was challenged in a motion to set aside 

the verdict. It stated the following rule: 

 A motion to strike, made at the conclusion 

of the Commonwealth's evidence, addresses 

the sufficiency of proof within the context 

of that evidence. If the accused elects not 

to stand on his motion and presents 

evidence, he thereby creates a new context 

in which the court, if called upon to do so, 

must judge the sufficiency of the evidence. 

 Thus, the original motion to strike is no 

longer applicable because it addresses a 

superseded context. If the accused intends 

to present the issue of sufficiency to the 

trial court at the conclusion of all the 

evidence, he must do so by new or renewed 

motion, made in the context of all the 
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evidence. 
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 McQuinn failed to present the sufficiency 

issue to the trial court in a context upon 

which it could rule and thereby failed to 

preserve that issue for appeal. 

20 Va. App. at 757, 460 S.E.2d at 626. 

The principle is well established in Virginia that a motion 

to set aside a verdict is adequate to challenge the sufficiency of the 

evidence. 

 While a motion to strike is an appropriate 

way of testing the sufficiency of relevant 

evidence to sustain an adverse verdict, it 

is not the only way. It has long been the 

practice in this jurisdiction to test the 

sufficiency of such evidence by a motion to 

set aside the verdict. 

Gabbard v. Knight, 202 Va. 40, 43, 116 S.E.2d 73, 75 (1960). 

The record establishes that at the conclusion of the 

Commonwealth's case, Cotter's counsel made motions to strike both the 

conspiracy charge and the distribution charge.1 After the jury 

returned its verdict, Cotter's counsel again challenged the 

sufficiency of the evidence when he "moved to set aside the jury's 

 

 1The motions in their entirety were as follows: 

 I have a motion. Judge, we move to strike 

both charges because if you look at the 

evidence presented by the Commonwealth, 

there was no sale made by the defendant 

to the informant, sale was made by Betty 

Cotter, not by Bobby Cotter. So, in the 

distribution charge we move to strike on 

those particular grounds. And, on the 

conspiracy charge we move to strike, 

there's been no evidence that the 

defendant ever agreed to sell cocaine to 

anyone including the informant. There 

was talk about 8-ball, but it was never 

shown that the defendant ever used the 

term to mean cocaine. So, we would 

strike both those indictments on those 

grounds. 
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verdict for the reasons stated to the record." The trial judge 

overruled the motion. Thus, this record clearly establishes that the 

issue of the sufficiency of the evidence was renewed for the reasons 

previously stated, was ruled upon by the trial judge, and was 

appropriately preserved for appeal. 

For the reasons set forth in the previous panel decision of 

this case, see Cotter v. Commonwealth, 19 Va. App. 382, 452 S.E.2d 20 

(1994), I would hold that the issues of sufficiency of the evidence 

were properly preserved for appeal, that the evidence supports the 

conviction for conspiring to distribute cocaine, and that the evidence 

did not prove beyond a reasonable doubt that Cotter distributed 

cocaine. 

____________________ 

The trial court shall allow court-appointed counsel for the 

appellant a total fee of $600 for services rendered the appellant on 

this appeal, in addition to counsel's costs and necessary direct outof-pocket expenses. 

The Commonwealth shall recover of the appellant the amount 

paid court-appointed counsel to represent him in this proceeding, 

counsel's costs and necessary direct out-of-pocket expenses, and the 

fees and costs to be assessed by the clerk of this Court and the clerk 

of the trial court. 

This order shall be published and certified to the trial 

court. 
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Costs due the Commonwealth 

 by appellant in Court of 

 Appeals of Virginia: 

 Attorney's fee $600.00 plus costs and expenses 

 Filing fee 25.00 

 A Copy, 

 Teste: 

 Cynthia L. McCoy, Acting Clerk 

 By: 

 

 Deputy Clerk