COURT OF APPEALS OF VIRGINIA

Present: Judges Beales, Chaney and Senior Judge Annunziata

JOHN FRANCIS GRIMES

MEMORANDUM OPINION*

v. Record No. 1486-22-4 PER CURIAM

SEPTEMBER 19, 2023

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY

David Bernhard, Judge

(Peter D. Greenspun; Liza Greenspun Yang; Greenspun Shapiro PC, 

on briefs), for appellant.

(Jason S. Miyares, Attorney General; Lindsay M. Brooker, Assistant 

Attorney General, on brief), for appellee.

Following a jury trial, John Francis Grimes was convicted of three counts of taking custodial 

indecent liberties with a minor, in violation of Code § 18.2-370.1. He challenges the sufficiency of 

the evidence to prove that he maintained a “custodial” or “supervisory” relationship with the victim 

at the time of the offenses. After examining the briefs and record in this case, the panel

unanimously holds that oral argument is unnecessary because “the appeal is wholly without merit.” 

Code § 17.1-403(ii)(a); Rule 5A:27(a). The trial court’s judgment is affirmed.

BACKGROUND

On appeal, we recite the facts “in the ‘light most favorable’ to the Commonwealth, the 

prevailing party in the trial court.” Hammer v. Commonwealth, 74 Va. App. 225, 231 (2022) 

(quoting Commonwealth v. Cady, 300 Va. 325, 329 (2021)). Doing so requires us to “discard the 

evidence of the accused in conflict with that of the Commonwealth, and regard as true all the 

* This opinion is not designated for publication. See Code § 17.1-413(A).

UNPUBLISHED
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credible evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom.” 

Cady, 300 Va. at 329 (quoting Commonwealth v. Perkins, 295 Va. 323, 324 (2018)).

N.A. was 16 years old when she met Officer Grimes in July 2019 while participating in the 

Fairfax County Police Department’s Explorers Program. N.A. accompanied Grimes on four 

“ride-alongs” between July and December 2019, each of which lasted approximately ten hours. 

Eventually, N.A. and Grimes spent time together outside the program, meeting at the gym and 

sharing meals. Grimes and N.A. exchanged phone numbers and began texting each other daily. 

They also communicated through social media and phone calls. Over time, the relationship became 

sexual. Grimes met N.A. at a home where she was dog-sitting and engaged in vaginal and oral sex 

with her. On another occasion, N.A. and Grimes had sexual intercourse at his home.

On December 5, 2019, Grimes was interviewed as part of an employment application for a 

position with the FBI. When Grimes was asked whether he had committed any “serious crimes,” he 

disclosed that he had recently developed “a close friendship . . . with a 16-year-old girl . . . he had 

met with the police cadet program.” He denied any sexual activity but admitted that he was 

attracted to the girl and that they had kissed. Grimes’s wife knew that he exchanged texts with the 

girl, but she did not know about the kiss. When the FBI interviewed N.A., she initially corroborated 

Grimes’s claim that they had only kissed; nevertheless, the FBI turned the matter over to the Fairfax 

County Police Department for investigation. In February 2021, N.A. changed her account and told 

the police about the sexual nature of her relationship with Grimes. At trial, Grimes denied engaging 

in any sexual acts with N.A. beyond a single kiss that N.A. initiated.

At the conclusion of the evidence, Grimes moved to strike, asserting that the evidence failed 

to establish that the alleged offenses occurred in Fairfax County or that N.A. was “not 

emancipated.” In the alternative, Grimes argued that the evidence proved only a single offense, not 

three. The trial court denied the motion and submitted the case to the jury. The jury convicted 
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Grimes of three offenses of custodial indecent liberties, and the trial court sentenced Grimes to 

incarceration for 15 years, with 13 years and 5 months suspended. This appeal followed.

ANALYSIS

Code § 18.2-370.1 prohibits, in pertinent part, certain sexual acts by a “person 18 years of 

age or older who . . . maintains a custodial or supervisory relationship over a child under the age of 

18 and is not legally married to such child and such child is not emancipated.” Grimes contends 

that the evidence was insufficient to support his convictions because it failed to prove that he 

maintained a custodial or supervisory relationship over N.A. In his motions to strike at trial, 

however, Grimes challenged the sufficiency of the evidence on wholly different grounds, focusing 

on whether the evidence proved that (i) N.A. was not emancipated; (ii) the offenses occurred in 

Fairfax County; and (iii) Grimes committed three offenses.

“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. “Procedural-default 

principles require that the argument asserted on appeal be the same as the contemporaneous 

argument at trial.” Bethea v. Commonwealth, 297 Va. 730, 743 (2019). “[N]either an appellant 

nor an appellate court should ‘put a different twist on a question that is at odds with the question 

presented to the trial court.’” Id. at 744 (quoting Commonwealth v. Shifflett, 257 Va. 34, 44 

(1999)).

In a jury trial, the defendant preserves his objections to the 

sufficiency of the evidence in a motion to strike at the conclusion 

of the Commonwealth’s case if he elects to not introduce evidence 

of his own, or in a motion to strike at the conclusion of all the 

evidence or a motion to set aside the verdict if he does elect to 

introduce evidence of his own.

Commonwealth v. Bass, 292 Va. 19, 33 (2016); see also Sabol v. Commonwealth, 37 Va. App. 9, 

20 (2001) (same). Plainly, Grimes never argued to the trial court that the evidence failed to 
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prove that he was in a “custodial” or “supervisory” relationship with the victim or, if so, that he 

“maintained” such a relationship at the time of the offenses. Accordingly, because Grimes did not 

afford the trial court the opportunity to rule on the arguments he presents on appeal, this Court 

cannot reach these arguments.

“Although Rule 5A:18 contains exceptions for good cause or to meet the ends of justice,”

Grimes does not invoke these exceptions in his opening brief, and “we will not invoke them sua 

sponte.” Williams v. Commonwealth, 57 Va. App. 341, 347 (2010). In response to the 

Commonwealth’s assertion that he waived his sufficiency arguments, Grimes contends in his 

reply brief “[t]o the extent that this Court feels there was not a sufficient objection to the sufficiency 

of the evidence, the application of Rule 5A:18 allows this appeal to be considered.” He then quotes 

the entire text of Rule 5A:18. Grimes does not explicitly invoke either of Rule 5A:18’s exceptions; 

nor does he offer any argument supporting their application. To warrant application of an exception 

in Rule 5A:18, “a defendant must affirmatively show that a miscarriage of justice has occurred, not 

that a miscarriage might have occurred.” Edwards v. Commonwealth, 41 Va. App. 752, 761 (2003) 

(en banc) (quoting Redman v. Commonwealth, 25 Va. App. 215, 221 (1997)).

Even if Grimes invoked an exception in Rule 5A:18 by quoting it, he waived application 

of such an exception by raising it for the first time in his reply brief. Palmer v. Atlantic Coast

Pipeline, LLC, 293 Va. 573, 580 (2017) (holding that an argument raised for the first time in 

reply brief was waived); Whitley v. Commonwealth, 223 Va. 66, 79 n.2 (1982) (declining to 

consider “a non-jurisdictional question raised for the first time in a reply brief filed in this 

Court”); Jeter v. Commonwealth, 44 Va. App. 733, 740-41 (2005) (holding that arguments 

cannot be developed for the first time in a reply brief or at oral argument). Therefore, we cannot 

reach the sufficiency arguments Grimes raised on appeal.
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CONCLUSION

For the foregoing reasons, this Court affirms the trial court’s judgment.

Affirmed.