PRESENT: All the Justices 

RICHARD GORDON FINDLAY 

 OPINION BY 

v. Record No. 130409 JUSTICE WILLIAM C. MIMS 

 January 10, 2014 

COMMONWEALTH OF VIRGINIA 

FROM THE COURT OF APPEALS OF VIRGINIA 

In this appeal, we consider whether the Court of Appeals 

of Virginia erred in holding that the appellant, Richard Gordon 

Findlay (“Findlay”), failed to comply with the assignment of 

error requirements of Rule 5A:12(c) in his petition for appeal. 

I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW 

Findlay was convicted of five counts of possession of 

child pornography in violation of Code § 18.2-374.1:1. He 

appealed his convictions to the Court of Appeals of Virginia 

(“Court of Appeals”). In his petition for appeal, Findlay’s 

sole assignment of error was that the trial court erred in 

failing to suppress the evidence seized from his computer. 

Specifically, Findlay stated his assignment of error as 

follows: 

The Petitioner/Appellant assigns as error the trial 

court’s denial of his Motion to Suppress all of the 

seized videos that came from the defendant’s 

computer, and his computer hard drive, and all 

derivatives thereof. 

Immediately following the assignment of error, Findlay provided 

an exact reference to the page of the suppression hearing 

transcript where the alleged error was preserved. The argument 
2

section of Findlay’s petition elaborated on the basis of his 

challenge to the trial court’s ruling on the suppression 

motion; namely, that his consent to the scan, search, and 

seizure of his computer was not knowing and voluntary. 

 The Commonwealth’s attorney filed a brief in opposition to 

Findlay’s petition for appeal, in which he asserted that the 

trial court properly denied Findlay’s motion to suppress. The 

Commonwealth’s attorney’s first and primary argument was that 

Findlay knowingly and voluntarily consented to the search of 

his computer, and therefore the search was valid under the 

Fourth Amendment. 

 In a per curiam order, a judge of the Court of Appeals 

declined to address the Fourth Amendment question, ruling 

instead, sua sponte, that Findlay’s assignment of error was 

insufficient under Rule 5A:12(c). The per curiam order held 

that the assignment of error “fail[ed] to list any specific 

error in the rulings below. Instead, it is no more than a base 

assertion that the award is contrary to law, and Rule 

5A:12(c)(1)(ii) makes clear that this is not sufficient to 

constitute a proper assignment of error.” 

Findlay timely filed a demand for review by a three-judge 

panel. The panel similarly found that Findlay’s assignment of 

error “fail[ed] to list any specific error in the rulings 

below.” By order entered February 5, 2013, the panel dismissed 
3

Findlay’s petition for appeal for failure to comply with Rule 

5A:12(c).1 This appeal followed. 

II. ANALYSIS 

We review questions of law de novo. See Stevens v. 

Commonwealth, 283 Va. 296, 302, 720 S.E.2d 80, 82 (2012). “A 

lower court’s interpretation of the Rules of this Court, like 

its interpretation of a statute, presents a question of law 

that we review de novo.” LaCava v. Commonwealth, 283 Va. 465, 

469-70, 722 S.E.2d 838, 840 (2012) (collecting cases). 

Rule 5A:12(c) sets out the requirements for petitions for 

appeal filed in the Court of Appeals. It states in relevant 

part: 

(1) Assignments of Error. . . . Under a heading 

entitled “Assignments of Error,” the petition shall 

list, clearly and concisely and without extraneous 

argument, the specific errors in the rulings below 

upon which the party intends to rely. 

Rule 5A:12(c)(1). Subsection (ii) of that paragraph of the 

Rule goes on to state that 

[a]n assignment of error which does not address the 

findings or rulings in the trial court or other 

tribunal from which an appeal is taken, or which 

merely states that the judgment or award is contrary 

to the law and the evidence is not sufficient. If 

the assignments of error are insufficient or 

otherwise fail to comply with the requirements of 

 1

 The per curiam order stated that the petition for appeal 

was “denied,” while the three-judge panel’s subsequent order 

stated that the petition was “dismissed.” Although this 

distinction is immaterial to our resolution of the case, the 

correct disposition was dismissal. See Rule 5A:12(c). 
4

this Rule, the petition for appeal shall be 

dismissed.2

Rule 5A:12(c)(1)(ii). 

Thus, litigants are required to identify with specificity 

the error committed by the trial court. We have adhered to 

this mandatory rule with good reason: 

The purpose of assignments of error is to point out 

the errors with reasonable certainty in order to 

direct this court and opposing counsel to the points 

on which [the] appellant intends to ask a reversal of 

the judgment, and to limit discussion to these 

points. Without such assignments, [the] appellee 

would be unable to prepare an effective brief in 

opposition to the granting of an appeal, to determine 

the material portions of the record to designate for 

printing, to assure himself of the correctness of the 

record while it is in the clerk’s office, or to file, 

in civil cases, assignments of cross-error. 

Harlow v. Commonwealth, 195 Va. 269, 271-72, 77 S.E.2d 851, 853 

(1953); see also Friedline v. Commonwealth, 265 Va. 273, 278, 

576 S.E.2d 491, 494 (2003). Consequently, it is the duty of an 

appellant’s counsel “to ‘lay his finger on the error’ in his 

[assignment of error],” Carroll v. Commonwealth, 280 Va. 641, 

649, 701 S.E.2d 414, 418 (2010) (quoting First Nat’l Bank of 

 2

 We note that Rule 5A:12(c) was significantly amended in 

July 2010. Prior to amendment, the language of former Rule 

5A:12(c), as well as this Court’s counterpart, Rule 5:17(c), 

contained no mention of dismissal for failure to comply with 

its requirements. By prescribing dismissal of the appeal, Rule 

5A:12(c) now “establishe[s] that the inclusion of sufficient 

assignments of error is a mandatory procedural requirement and 

that the failure to comply with this requirement deprives the 

Court of its active jurisdiction to consider the appeal.” 

Davis v. Commonwealth, 282 Va. 339, 339, 717 S.E.2d 796, 796-97 

(2011). 
5

Richmond v. William R. Trigg Co., 106 Va. 327, 342, 56 S.E. 

158, 163 (1907)), and not to invite an appellate court “to 

delve into the record and winnow the chaff from the wheat.” 

Loughran v. Kincheloe, 160 Va. 292, 298, 168 S.E. 362, 364 

(1933). 

 We are of the opinion that Findlay’s assignment of error 

complies with the requirement of specificity imposed by Rule 

5A:12(c)(1) and by precedent. Contrary to the Court of 

Appeals’ ruling, Findlay’s assignment of error goes beyond the 

bare-bones allegations prohibited by Rule 5A:12(c)(1)(ii). 

Findlay does not merely allege that his convictions are 

contrary to the law. Likewise, he does not state generally 

that the evidence is insufficient. Rather, Findlay points to a 

specific preliminary ruling of the trial court – the trial 

court’s denial of his motion to suppress – that he believes to 

be in error. Such specificity adequately puts the court and 

opposing counsel on notice as to “what points [appellant]’s 

counsel intends to ask a reversal of the judgment or decree” 

and prevents them from having to “hunt through the record for 

every conceivable error which the court below may have 

committed.” First Nat’l Bank of Richmond, 106 Va. at 341, 56 

S.E. at 163 (citation and internal quotation marks omitted). 

 The sufficiency of Findlay’s assignment of error is 

further evidenced by the fact that the Commonwealth’s attorney 
6

clearly understood the issues on appeal well enough to prepare 

a focused brief in opposition to Findlay’s petition. 

The Commonwealth now argues that Findlay must go one step 

further and state within his assignment of error precisely why

it was error for the trial court to deny the motion to 

suppress. In other words, the Commonwealth suggests that Rule 

5A:12(c)(1) demands the inclusion of a “because” clause or its 

equivalent in each assignment of error. We disagree. In many 

instances, such a requirement would be impossible to satisfy, 

as trial judges do not always state the specific reasons for 

their rulings, even when requested to do so. When the reasons 

for a trial court’s ruling are known, requiring a “because” 

clause in each assignment of error would create an unnecessary 

procedural trap that may bar appellate review of meritorious 

claims. Where, as here, the assignment of error identifies a 

particular preliminary ruling of the trial court, as opposed to 

broadly criticizing the trial court’s judgment as being 

contrary to the law, it is sufficiently detailed to warrant 

consideration on the merits. 

We are guided by our recent decision in Amin v. County of 

Henrico, 286 Va. 231, 233, 749 S.E.2d 169, 169 (2013). In that 

case, the appellant included in his petition for appeal to the 

Court of Appeals a single assignment of error, which simply 

stated, “[t]he trial court erred in denying the motion to 
7

suppress.” In a later brief to the Court of Appeals, Amin 

added an additional assignment of error arguing that the trial 

court’s conviction order was void ab initio. We acknowledged 

that “the Court of Appeals was correct in its holding that an 

appellate court must have acquired appellate jurisdiction 

before it can hear a challenge to a lower court or agency’s 

actions, including a challenge that a lower court’s order is 

void ab initio.” Id. at 236, 749 S.E.2d at 171. However, we 

held that, while “[a] litigant’s failure to include any 

sufficient assignment[] of error in a petition for appeal can 

deprive th[e] Court of active jurisdiction to consider the 

appeal[,]” Amin’s petition for appeal “included one proper

assignment of error. . . . Consequently, the Court of Appeals 

had acquired active jurisdiction over Amin’s appeal.” Id.

(emphasis added). Thus, while the sufficiency of Amin’s 

initial assignment of error was not the focus of our review in 

Amin, we necessarily concluded that the assignment of error, 

which was similar to Findlay’s, was adequately detailed to 

satisfy Rule 5A:12(c)(1) and to give the Court of Appeals 

active jurisdiction over the appeal. 

In fact, this Court has repeatedly reviewed assignments of 

error stated with comparable detail to Findlay’s assignment of 

error. See, e.g., Branham v. Commonwealth, 283 Va. 273, 720 

S.E.2d 74 (2012) (appellant’s granted assignment of error 
8

asserted that “[t]he Court of Appeals erred when it held that 

the trial court properly admitted the evidence obtained as a 

result of the search of Mr. Branham’s person and vehicle.”); 

Pettaway v. Commonwealth, 2010 Va. LEXIS 157, at *1 (Apr. 8, 

2010) (granting an assignment of error stating that “[t]he 

Court of Appeals erred in affirming the trial court’s decision 

not to suppress the evidence at the conclusion of the Motion to 

Suppress hearing on December 12, 2007.”); Ward v. Commonwealth, 

273 Va. 211, 639 S.E.2d 269 (2007) (appellant’s assignment of 

error stated: “[t]he Court of Appeals erred in affirming the 

trial court’s failure to grant the Appellant’s motion to 

suppress the evidence.”); Dixon v. Commonwealth, 270 Va. 34, 

613 S.E.2d 398 (2005) (appellant’s assignment of error claimed 

that “[t]he trial court erred and abused its discretion by not 

suppressing statement of defendant.”).3

 3

 Although the Commonwealth did not specifically argue that 

the assignments of error were insufficient in these cases, we 

routinely decline to review insufficient assignments of error 

sua sponte. See, e.g., Paugh v. Henrico Area Mental Health & 

Developmental Servs., 286 Va. 85, 87 n.1, 743 S.E.2d 277, 278 

n.1 (2013); Davis v. Commonwealth, 282 Va. 339, 339, 717 S.E.2d 

796, 796-97 (2011); Conyers v. Martial Arts World of Richmond, 

Inc., 273 Va. 96, 104 n.4, 639 S.E.2d 174, 177 n.4 (2007). In 

fact, the Court is now required to do so in some instances, as 

the 2010 amendment to Rule 5:17(c)(1) “established that the 

inclusion of sufficient assignments of error is a mandatory 

procedural requirement and . . . failure to comply with this 

requirement deprives this Court of its active jurisdiction to 

consider the appeal.” Davis, 282 Va. at 339, 717 S.E.2d at 

796-97. 
9

Accordingly, we hold that Findlay’s assignment of error is 

sufficiently detailed to satisfy the requirements of Rule 

5A:12(c)(1).4

III. CONCLUSION 

For the foregoing reasons, we will reverse the judgment of 

the Court of Appeals and remand with directions to review the 

petition for appeal on the merits. 

Reversed and remanded. 

JUSTICE POWELL, with whom JUSTICE McCLANAHAN joins, dissenting. 

 Both Rule 5A:12(c)(1) and Rule 5:17(c)(1) require that an 

assignment of error list “the specific errors in the rulings 

below.” (Emphasis added.) The majority, however, relying on 

5A:12(c)(1)(ii), holds that it is sufficient for the assignment 

of error to merely list the specific rulings below that a party 

believes were in error. In other words, because Findlay 

identified the specific ruling, he no longer needs to identify 

the specific error in that ruling. As this holding runs 

counter to the plain language of both Rule 5A:12(c)(1) and Rule 

5:17(c)(1), I must respectfully dissent. 

 4

 Because we conclude that Findlay’s assignment of error 

satisfies Rule 5A:12(c), we need not address whether Findlay 

should have been given an opportunity to amend his petition 

before dismissal of the appeal. 
10

 The majority correctly points out, “litigants are required 

to identify with specificity the error committed by the trial 

court.” The majority subsequently relies on the portion of the 

rule that requires the assignments of error “address the 

findings or rulings in the trial court or other tribunal from 

which an appeal is taken.” Rule 5A:12(c)(1)(ii). The flaw in 

this approach is that the portion of the Rule that the majority 

relies upon only identifies what actions may be the proper 

subject of an appeal: the “findings or rulings” of a “trial 

court or other tribunal.” The majority neglects the remainder 

of Rule 5A:12(c)(1)(ii), which states that “[i]f the 

assignments of error are insufficient or otherwise fail to 

comply with the requirements of this Rule, the petition for 

appeal shall be dismissed.” (Emphasis added). Admittedly, 

Findlay’s assignment of error does identify a ruling of the 

trial court he believes was in error. However, his assignment 

of error fails to identify with any specificity what, if 

anything, in the ruling is erroneous, as required by Rule 

5A:12(c)(1).*

 *

 It is further worth noting that there are many reasons 

why a motion to suppress may be granted, meaning that there are 

an equal number of reasons why the trial court’s denial of the 

motion may be in error. Indeed, in the present case, the trial 

court noted Findlay’s exception to the denial of the motion to 

suppress “for each of the reasons [counsel] articulated.” 

Without more, we have no idea what those articulated reasons 

were or which reason(s) Findlay relies upon in his assignment 
11

“An assignment of errors is in the nature 

of a pleading, and in the court of last 

resort it performs the same office as a 

declaration or complaint in a court of 

original jurisdiction. The object of an 

assignment of error is to point out the 

specific errors claimed to have been 

committed by the court below in order to 

enable the reviewing court and opposing 

counsel to see on what points plaintiff’s 

counsel intends to ask a reversal of the 

judgment or decree, and to limit discussion 

to those points.” 

First Nat’l Bank of Richmond v. William R. Trigg Co., 106 Va. 

327, 341, 56 S.E. 158, 163 (1907) (quoting 2 Cyc. Law & 

Procedure, 980) (emphasis added). In other words, it is 

incumbent on the party appealing to “lay his finger on the 

error.” Id. at 342, 56 S.E. at 163. 

 We have further explained that the purpose of assignments 

of error is not to merely identify where in the record the 

error occurred or what ruling was erroneous. Rather, 

 

of error. This illuminates the very reason why assignments of 

error must identify with specificity the error in the ruling, 

not just the ruling itself. 

 Contrary to the majority opinion, requiring an 

appellant to state the reasons why the ruling was in error has 

nothing to do with the reasons a trial court may or may not 

give for its rulings. In taking the position that such a 

requirement would “create an unnecessary procedural trap that 

may bar appellate review of meritorious claims,” the majority 

ignores Rule 5A:18 and Rule 5:25. Both Rule 5A:18 and Rule 

5:25 limit an appellant to the arguments raised before the 

trial court. Thus, the requirement that an appellant state the 

reasons why a ruling was in error is necessarily limited to 

those reasons the appellant has raised before the lower court, 

not the rationale given by the lower court in making its ruling 

as the majority claims. 
12

“[t]he purpose of assignments of error is 

point out the errors with reasonable 

certainty in order to direct [the] court 

and opposing counsel to the points on which 

appellant intends to ask a reversal of the 

judgment, and to limit discussion to these 

points.” 

Yeatts v. Murray, 249 Va. 285, 290, 455 S.E.2d 18, 21 (1995) 

(quoting Harlow v. Commonwealth, 195 Va. 269, 271-72, 77 S.E.2d 

851, 853 (1953)). See also Chesapeake Hosp. Auth. v. 

Commonwealth, 262 Va. 551, 557 n.2, 554 S.E.2d 55, 57 n.2 

(2001) (finding an assignment of error was inadequate where 

“[n]o one reading the . . . assignment of error could possibly 

know” the nature of the argument actually raised); Lamb v. 

Commonwealth, 141 Va. 481, 489, 126 S.E. 3, 5 (1925) (holding 

the Court will not consider an argument where the assignment of 

error fails to identify the nature of the error); Orr v. 

Pennington, 93 Va. 268, 269-70, 24 S.E. 928, 928 (1896) 

(holding that a proper assignment of error identifies the 

errors “clearly and distinctly . . . so that the opposite party 

may know what questions are to be raised in the appellate 

court”). 

 Furthermore, the majority’s reliance on the fact that the 

Commonwealth was able “to prepare a focused brief in opposition 

to Findlay’s petition” is flawed. This fact would further 

evidence the sufficiency of Findlay’s assignment of error if

the assignment of error was the only information included in 
13

Findlay’s petition for appeal. However, as the majority notes, 

Findlay’s petition for appeal included an argument section, 

which was what the Commonwealth addressed in its brief in 

opposition. The fact that sufficient argument accompanied an 

insufficient assignment of error does not cure the defect in 

the assignment of error. Indeed, if this were the standard, 

then there would be no need for assignments of error, as the 

parties and the Court could rely entirely on the argument 

presented in the petition. Moreover, both Rule 5A:12 and Rule 

5:17 must be applied consistently in all cases without resort 

to an analysis of the accompanying argument in the petition. 

 The majority’s reliance on our recent holding in Amin v. 

County of Henrico, 286 Va. 231, 749 S.E.2d 169 (2013), is 

misplaced. Notably, the issue before this Court was whether, 

having acquired jurisdiction by granting a petition for appeal, 

the Court of Appeals had jurisdiction to consider an assignment 

of error that was not raised in the underlying petition but 

attacked an underlying order as void ab initio. Id. at 236, 

749 S.E.2d at 191. The sufficiency of the assignment of error 

presented to the Court of Appeals was never before us. Indeed, 

we never even needed to address the sufficiency of that 

assignment of error, as the issue was waived because there was 

no argument that the Court of Appeals had not properly acquired 

active jurisdiction over the appeal. See Board of Supervisors 
14

v. Board of Zoning Appeals, 271 Va. 336, 347, 626 S.E.2d 374, 

381 (2006) (holding that jurisdictional elements other than 

subject matter jurisdiction are “subject to waiver if not 

properly raised”). Accordingly, our approval of the assignment 

of error was merely obiter dicta. See Harmon v. Peery, 145 Va. 

578, 583, 134 S.E. 701, 702 (1926) (“Obiter dicta are such 

opinions uttered by the way, not upon the point or question 

pending, . . . as if turning aside . . . from the main topic of 

the case to collateral subjects.” (citations and internal 

quotation marks omitted)). 

 Similarly, the Commonwealth never raised an argument 

regarding the sufficiency of the assignments of error in any of 

the additional cases cited by the majority. Thus, we did not 

“review” any of the assignments of error; we addressed the 

issues raised. In each of those cases, the Commonwealth did 

not object to the assignments of error and, as such, the issue 

was never before us. See Board of Supervisors, 271 Va. at 347, 

626 S.E.2d at 381. Indeed, an argument could be made that, 

absent a specific challenge from the Commonwealth in the Court 

of Appeals, the sufficiency of those assignments of error 

became the law of the case and, therefore, could not be 

questioned on appeal to this Court. See Exxon Mobil Corp. v. 

Minton, 285 Va. 115, 128 n.1, 737 S.E.2d 16, 26 n.1 
15

(2012)(quoting Hilton v. Fayen, 196 Va. 860, 867, 86 S.E.2d 40, 

43 (1955)). 

 In my opinion, Findlay’s assignment of error fails to 

identify how the trial court’s denial of his motion to dismiss 

was erroneous. Rule 5A:12(c)(1) requires a party to list “the 

specific errors in the rulings below upon which the party 

intends to rely” and not just the specific rulings upon which 

the party intends to rely. (Emphasis added.) Accordingly, I 

would affirm the Court of Appeals’ decision to dismiss 

Findlay’s petition for appeal.