COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Huff, Judges Beales and Decker Argued at Salem, Virginia

JAMES CLIFFORD TILLEY MEMORANDUM OPINION * BY v. Record No . 0207-17-3 JUDGE MARLA GRAFF DECKER OCTOBER 16, 2018 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF PATRICK COUNTY David A. Melesco, J udge Designate Heath L. Sabin (The Law Office of Heath L. Sabin, on brief), for appellant. Victoria Johnson, Assistant At torney General ( Mark R. Herring , Attorney General, on brief), for appellee.
James Clifford Tilley appeals his conviction for the misdemeano r offense of contributing to the delinquency of a minor in vi olation of Code § 18.2-371(i). On appeal, he contends that the evidence was insuffici ent to support his conviction because it did not prove that he abandoned the children. The Commonwealth asser ts that the appellant did not present this specific challenge in the trial court and, accordingly, that he failed to preserve it for appeal. Upon our rev iew of the record, we agree with the Commonwealth. Consequently, we do not reach the merits of this appeal, and applying Rule 5A:18, we affirm the appellant’s conviction. 1

* Pursuant to Code § 17.1-413, this op inion is not designated fo r publication.

1 In light of this holding, we do notconsider the Commonwealth’ s merit arguments.UNPUBLISHED- 2 - I. BACKGROUND 2 The appellant was indicted for “unlawfully and willfully contri but[ing] to, encourag[ing], or caus[ing] any act, omission, or condition that rendered J.D. and/or R.D., minors less than 18 years of age, abused or neglect ed as defined in [Code] § 16.1-2 28, in violation of [Code] §§ 18.2-371(i), 18.2-11.” The appellan t also was indicted for two additional counts of contributing to the delinquency of a minor, as well as for two counts of aggravated sexual battery, and one count each of forci ble sodomy and taking indec ent liberties with a minor. He was convicted of the sexual o ffenses and one count of contribut ing to the delinquency of a minor. Only the misdemeanor convi ction for contri buting to the delinquency of a minor is before the Court on appeal. At the appellant’s bench trial , the evidence established that as of March 18, 2016, the date of the instant offense, the appe llant, who was seventy-six year s old, lived with his nephew, the nephew’s wife, and the wife’s th ree children. The children wer e R.D., an eleven-year-old girl; her brother, J.D., who was abouta year younger than R.D.; and another brother, who was about two years older than R.D. Regarding the events of Mar ch 18, 2016, J.D. testified that the appellant left the three children at a restaurant withoutgiving them any reason for doi ng so. At some point after the appellant left them, the child ren “ran around in the parking lo t looking for [the appellant’s] truck, and it was not there.” They then went into other stores in the shopping center “trying to find a phone to call” the appellant. Eve ntually an adult at one of th e stores “help[ed them].” J.D. testified that the appellant “cam e back” as a result of their p hone call to him.

2 In reviewing a challenge to the sufficiency of t he evidence on appeal, the appellate court considers “the evidence and all reasonable inferences fairly de ducible therefrom in the light most favorable to the Commonwealt h.” Molina v. Commonwealth, 272 Va . 666, 675, 636 S.E.2d 470, 475 (2006) (quoting Ward v. Commonwealth, 264 Va. 648, 654, 570 S.E.2d 827, 831 (2002)).- 3 - Buddy Dollarhite, manager of a gr ocery store in the shopping ce nter, testified that a cashier alerted him that some ch ildren in the store were being “a little rambunctious.” The three children were playing with an e mpty shopping cart, and Dollarhi te “heard something break.” He also “thought they may have tak en something.” The children tol d Dollarhite that they were alone in the store. He kept them i n the office for about half an hou r while attempting to “track down . . . who they were with.” Accordin g to Dollarhite, the oldest child “went out” and “tr[ied] to find their uncle [who] brought them over there.” Dollarhite fu rther stated that “[n]o one called the store” but that the childre n’s uncle eventually “c[a]me ins ide” to retrieve them. Dollarhite testified that these events occu rred “during winter time,” when it “was still fairly cold” and got “dark early.” The appellant testified and deni ed the allegations supporting t he instant charge of contributing to the delinquency of a minor. He admitted drivin g the children to the shopping center that day, stating that he took them to the Family Dollar store in the same shopping center as the Little Caesar’s at the request of their mother. Accordi ng to the appellant, at about 5:30 or 6:00 p.m., he told the children that he would wait for them in his truck. He said that he instructed them to return to hi s truck when they finished spend ing their money and that if he had “dozed off,” they should wake him up to go home. The appellant further claimed that he awoke just as the Family Dollar store was closing and that the employee who was turning out the lights told him t he children had gone to the grocery store. He said he the n went to the grocery store and f ound the children but that they ran away and hid from him. He further claimed that he asked one of the checkout clerks to get the manager to help find them. Acco rding to the appellant, he had to have a bowel movement and did not “like to use bathrooms outside of the home.” Consequen tly, he told the clerk, “I need to go somewhere and do something real bad,” and he then left to go home to use the bathroom. The- 4 - appellant testified that when he was finished, he called the st ore and “told the manager” that he was on his way back to pick up the children. He said that if t he grocery store manager “said no one ever called about the childre n,” the manager’s statement wa s incorrect. The appellant insisted that he placed such a call to the grocery store. The appellant also denied committing the sexual offenses for w hich he was on trial. He gave testimony about the circumsta nces surrounding those offens es that was directly contradicted by the Commonwealth’s witnesses, as well as its re corded audio and video evidence. At the close of the Commonwea lth’s case-in-chief, the appellan t made a motion to strike the evidence. The judge asked the prosecutor which misdemeanor s she thought the Commonwealth had proved. She replie d that two theories support ed the contributing charges. One theory was that the appellan t allegedly “g[ave] the kids co ntrolled substances.” The second theory was that he abused or ne glected the children by abandoni ng them. The judge replied that the only misdemeanor that he w ould allow to “go forward . . . i nvolv[ed] the store.” The appellant did not renew his motion to strike at the close of his own evidence. Following closing arguments, the court found the appellant guil ty of two counts of aggravated sexual battery and one count eac h of sodomy, indecent liberties , and contributing to the delinquency of a minor by mean s of abuse or neglect. In doing so, the judge noted the inconsistencies in the testim ony of the appellant, as “balanced against the very straightforward testimony of the little boy” and the video evidence of the sexu al offenses. The judge did not articulate the specific legal theory under which he found the a ppellant guilty of contributing to the delinquency of a minor.- 5 - Following the preparation of a pr esentence report, the court s entenced the appellant to incarceration for twelv e months for the c ontributing conviction , with all of that time suspended. 3
II. ANALYSIS The appellant challenges the su fficiency of the evidence to sup port his conviction for violating Code § 18.2-371(i) by “un lawfully and willfully contr ibut[ing] to, encourag[ing], or caus[ing] any act, omission, or cond ition that rendered [minors ] J.D. and/or R.D. . . . abused or neglected as defined in [Code ] § 16.1-228.” For purposes of a prosecution under Code § 18.2-371, a child may be “abused o r neglected as defined in § 16.1-228” in any one of six different ways. 4 As the appellant concedes, the only definitions relevant to t his appeal involve whether the appellant “abandon[ed ]” the children in his care or was “unreasonabl[y] absen[t]” from them. See Code § 16.1-228(3), (5). 5 The appellant specifically argue s that the evidence failed to e stablish that he abused or neglected the children because it did not prove abandonment and the prosecutor did not argue that he was unreasonably absent . He adds that the judge limite d the manner of proof by referencing only abandonment. A ccordingly, he suggests that th e evidence fails to support his conviction. The Commonwealth ass erts that the appellant did no t argue in the trial court that his act of leaving the child ren at the store fa iled to establish ab use or neglect by abandonment or

3 The court sentenced the appellan t to life in pris on for forcib le sodomy, ten years in prison for each of the two counts of aggravated sexual battery, and twelve months in jail for indecent liberties. It suspended all the time except the life sentence.

4 At the time of the appellant’s offense, the definition of abus e or neglect included six different categories of behav ior. See 2015 Va. Acts chs. 502, 503. Since that time, the statute has been amended to add a seventhcategory to t he definition. See 2016 Va. Acts ch. 631.

5 The appellant does not dispute hi s status as a “person respons ible for [the children’s] care” or a “person standing in loco p arentis” as used in these definitions. See Code § 16.1-228(3), (5).- 6 - unreasonable absence. Consequent ly, the Commonwealth contends that he did not properly preserve this argum ent for appeal. Rule 5A:18 provides in pertine nt part that “[n]o ruling of the trial court . . . will be considered as a basis for reve rsal unless an objection was stat ed with reasonable certainty at the time of the ruling, except fo r good cause shown or to enable th e Court of Appeals to attain the ends of justice.” Additionally, “ [n]ot just any objection will do.” Thomas v. Commonwealth, 44 Va. App. 741, 750, 607 S.E.2d 738, 742, adopted on reh’g en ban c, 45 Va. App. 811, 613 S.E.2d 870 (2005). The “laudatory purpose” of the rule “is to require that objections be promptly brought to the attention of the t rial court with sufficient spe cificity that the alleged error can be dealt with and timely addressed and corrected when necessary” s o as to avoid needless appeals and retrials. Brooks v. Commonwealth, 61 Va. App. 576, 581, 73 9 S.E.2d 224, 226-27 (2013) ( en banc ) (quoting Redman v. Comm onwealth, 25 Va. App. 215, 220, 487 S. E.2d 269, 272 (1997)). Under the rule, “[a] general argument or abstract reference to the law is not sufficient to preserve an issue.” Edwards v. Commonwealth, 41 Va. App. 752, 760, 589 S.E.2d 444, 448 (2003) ( en banc ), aff’d by unpub’d order, No. 040019 (Va. Oct. 15, 2004). Als o, “[m]aking one specific argument on an issue does not preserve a separate lega l point on the same issue for [appellate] review.” Johns on v. Commonwealth, 58 Va. App. 625, 637, 712 S.E.2d 751, 757 (2011) (quoting Edwards, 41 Va . App. at 760, 589 S.E.2d at 448) ; see Buck v. Commonwealth, 247 Va. 449, 452-53, 443 S.E.2d 414, 416 (1994). Instead, Rule 5A:18 requires a litigant to articulate an objection with speci ficity “so that the trial jud ge . . . know[s] the particular point being made in time to do something about it.” Thomas, 44 Va. A pp. at 750, 607 S.E.2d at 742 (emphasis added); see Edwards, 41 Va. App. at 760, 589 S.E.2d a t 448. In that same regard, “a specific, contemporaneous objec tion gives the opposing party th e opportunity to meet the- 7 - objection at that stage of the proceeding.” Scialdone v. Commo nwealth, 279 Va. 422, 437, 689 S.E.2d 716, 724 (2010) (quoting Weidman v. Babcock, 241 Va. 40, 44, 400 S.E.2d 164, 167 (1991)). At trial, the appellant argued onl y generally that the evidence was insufficient to prove “contributing.” At the close of t he Commonwealth’s case-in-chi ef, the appellant made a motion to strike the evidence. However , he noted that his argument onthe contributing charge was “pretty slim at this point” b ecause “[i]f you take the [C]ommon wealth’s evidence in[] a light that is favorable, as you are supposed t o at this point, evidence is that [the appellant] left them at a store for no apparent reason.” B y making this ar gument, the ap pellant conceded that unless he presented evidence proving, to the satisfaction of the trial co urt, a justifiable reason for leaving the children at the store, the e vidence was sufficient to prove the offense of contributing to the delinquency of a minor. He did not argue that the act of leavi ng the children in th e store failed to prove abuse or neglect generall y. He also did not argue that the evidence failed to prove abandonment or unreasonable abse nce, the two potentially applic able ways that abuse or neglect may be established in this case . Beyond a brief reference to a bandonment made by the prosecutor, neither the parties nor the court discussed the par ticular elements that the Commonwealth was required to prove. The appellant presented eviden ce in his defense. At the close of all the evidence, regarding the instant misdemea nor, the Commonwealth again asser ted its theory that the “contributing or misdemeanor child neglect” charge was “for aba ndoning the children” at the store. She then recited the evid ence relevant to the offense. The appellant argued in response that the evidence was insuffici ent to prove “contributing,” poi nting to his own testimony as support. He argued that although he did not make “a wise decis ion to leave” the children at the store, he left to go home to use th e bathroom when the children “wouldn’t come to him.” The- 8 - appellant noted the ages of t he children as including “one teen ager and some larger-sized kids who clearly [are] not going to liste n to [the appellant] anyway ,” as opposed to “three, four, five, six year olds.” 6 He did not argue that the incrim inating evidence, taken at fa ce value, was insufficient as a matter of law to permit “any rational trier o f fact” to find the now-challenged element of abandonment, or any othe r form of abuse and neglect, “beyond a reasonable doubt.” See Kelly v. Commonw ealth, 41 Va. App. 250, 257, 584 S.E.2d 444 , 447 (2003) ( en banc ) (quoting Jackson v. Virgini a, 443 U.S. 307, 319 (1979)). Inste ad, he argued merely that his leaving the children alone was reasonable under the circumstanc es as he had portrayed them , a claim that clearly extended only t o the question o f his credibi lity. He offered no argument relating to the elements of the offense or the definition of ab andonment or unreasonable absence. 7 Consequently, the appellant faile d to preserve for appeal his claim that his behavior, viewed in the light most favor able to the Commonwealth, did not constitute abandonment or any other type of abuse or neglect a s required to prove that he was guilty of contrib uting to the delinquency of a minor. 8

6 The indictment did not charge t he appellant with contributing to the delinquency of the teenager. Instead, it named onl y eleven-year-old R.D. and her younger brother, J.D.

7 At oral argument, the appellant’s counsel candidly admitted th at the focus of his attention was necessarily the felony offenses and that the Comm onwealth’s Rule 5A:18 argument was difficult to refute . The Court appreciates the pr ofessionalism displayed by counsel. It “embodies the ethi cal duties expected of” a member of the Bar and “is held in high esteem.” See, e.g., Nimety v. C ommonwealth, 66 Va. App. 432, 4 36 n.3, 786 S.E.2d 835, 837 n.3 (2016).

8 The appellant, who did not file a reply brief, does not assert that either of the exceptions to Rule 5A:18 apply, and this C ourt will not raise those except ions sua sponte . See Edwards, 41 Va. App. at 761, 589 S.E.2d at 448, c ited with approval in Jone s v. Commonwealth, 293 Va. 29, 39 n.5, 795 S.E.2d 705, 710 n.5 (declining to apply sua sponte the “good cause” or “ends of justice” exceptions to Rule 5:25, the Supreme Court of Virginiacounterpart to Rule 5A:18), cert. denied, 138 S. Ct. 81 (2017).- 9 - III. CONCLUSION We hold under Rule 5A:18 that the appellant failed to preserve his challenge to the sufficiency of the evidence to support his conviction. Accordi ngly, we affirm the appellant’s conviction without reaching the m erits of his claim. We remand the case solely for the correction of a cleri cal error in the convict ion and sentencing orders. 9
Affirmed and remanded.

9 The conviction and sentencing orde rs, while properly citing th e code section proscribing the offense of contributing t o the delinquency of a minor, both erroneously state that the appellant was convicted of “[c] hild [a]buse/[n]eglect” rather t han contributing to the delinquency of a minor by means of “[a]buse/[n]eglect.” Conseque ntly, we remand solely for corre ction of the clerical error in the convict ion and sentencing orders. Se e Code § 8.01-428(B); Howell v. Commonwealth, 274 Va. 737, 739 n.*, 742, 652 S.E.2d 107, 108 n. *, 109 (2007); Tatum v. Commonwealth, 17 Va. App. 585, 592-93, 440 S.E.2d 133, 138 (199 4).