VIRGINIA:

In the Supreme Court of Virginia held at the Supreme Court Building in the 

City of Richmond on Thursday the 19th day of October, 2023.

Present: All the Justices

Heath Nicholas Moison, Appellant,

against Record No. 220536

Court of Appeals No. 1038-21-1

Commonwealth of Virginia, Appellee.

 Upon an appeal from a judgment 

rendered by the Court of Appeals of 

Virginia.

Upon consideration of the record, briefs, and argument of counsel, for the reasons set 

forth below, this Court affirms the judgment of the Court of Appeals; however, this Court 

vacates the portion of the Court of Appeals’ opinion deciding that witness Laurie Lee’s proffered 

testimony provided Heath Nicholas Moison (“Moison”) with an alibi.

I. BACKGROUND

Moison was convicted of three counts of aggravated sexual battery by a parent under 

Code § 18.2-67.3 and four counts of taking indecent liberties with a child under Code § 18.2-

370.1. Moison’s two minor daughters, K.M. and B.M., alleged that, over a nine year period, 

Moison inappropriately touched them during weekend visitation. B.M. testified that Moison 

would “rub [her] back underneath [her] shirt,” “mess with [her] breasts,” “put his mouth on [her 

breasts],” “rub [her] stomach,” and “try to stick his hands in [her] pants” at night while she was 

asleep, causing her to wake up. Moison would stop and leave when B.M. “turned over” in bed to 

face a different direction. Moison engaged in similar behavior with K.M., starting when she was 

around eight or nine years old. K.M. testified that Moison touched her breasts, stomach, and 

vagina at night when she was asleep, causing her to wake up. 
2

The catalyst for Moison’s convictions occurred on November 4, 2018.1 Moison and his 

daughters attended a party hosted by his friend, Laurie Lee (“Lee”), on the night of November 3, 

2018. The girls slept on a pair of couches in Lee’s living room while the adults remained 

outside, “sitting around the fire smoking and drinking.” Around 5 a.m. on November 4, 2018, 

B.M. woke up to Moison “laying down on the ground next to [her] and rubbing [her] back.” 

Moison “tried to go inside [her] pants,” but B.M. turned away. Moison unsuccessfully tried to 

turn B.M. back around before stopping. B.M. then saw Moison move over to K.M. and put his 

hands under her blanket. K.M. testified she, B.M., and Moison slept in Lee’s living room. K.M. 

woke up at “maybe three or four o’clock in the morning” with Moison’s hand on her side and 

breast. K.M. tried to move on the couch to stop Moison. When her efforts were unsuccessful, 

she got up to go to the bathroom to make Moison stop. 

Following this incident, B.M. wrote her mother a letter the next day stating that “since 

she was little,” Moison would “sexually touch [her]” and K.M. during their weekend visits with 

Moison. B.M. explained that she had waited to disclose Moison’s touching because she was 

afraid her mother would not believe her, but gained the courage when she saw Moison touching 

K.M. K.M. later testified she had not told anyone about the touching because she was afraid of 

“what would happen if [she] did tell” and that she would not be believed. 

At trial, Moison called Lee to testify in his defense. Lee confirmed that Moison and his 

daughters had attended her party on November 3, 2018, and subsequently spent the night in her 

home. Lee testified that K.M. and B.M. went into the living room to sleep around 3 a.m. on 

November 4, 2018. Moison’s counsel then asked Lee what time she and Moison went inside.2

 

The Commonwealth objected, arguing that Lee’s testimony would serve as an alibi for Moison, 

who had not provided the Commonwealth with notice of any alibi witnesses or testimony. 

Moison’s counsel responded that, “[Moison was] at the same place the girls were. Alibi is if he’s 

somewhere else is my understanding, and he’s right there with everybody else. The girls 

testified he was there.” Moison’s counsel then explained that she had not disclosed Lee’s 

testimony before trial because Lee had not been available “until about a week” before trial, “if 

1 This incident falls outside of the dates charged within the indictments. However, K.M. 

and B.M. came forward as a result of this incident.

2 Lee’s proffered testimony would have been that she and Moison remained outside until 

6 a.m. before going into the house and watching a movie together until the girls woke for the day 

shortly thereafter.
3

this [testimony] is an alibi.” Moison never argued that the evidence was meant to impeach the 

girls. The trial court sustained the objection. 

Moison appealed to the Court of Appeals, which affirmed his convictions in an 

unpublished opinion. The court defined alibi as a defense based on the physical impossibility of

committing a crime. Moison v. Commonwealth, Record No. 1038-21-1, 2022 WL 3031134, at 

*4-5 (Va. Ct. App. Aug. 2, 2022). Therefore, the Court of Appeals held that Lee’s proffered 

testimony served as an alibi because it placed Moison outside of the room where the offenses 

occurred, thus making it physically impossible for Moison to have committed the offenses. Id. at 

*5. The court concluded that, under Rule 3A:11(d)(2), Moison was obligated to notify the 

Commonwealth of his alibi testimony. Id. at 10.

II. ANALYSIS

“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.” Rule 5A:18, see also

Rule 5:25. This Rule “afford[s] the trial judge an opportunity to rule intelligently on objections.” 

Maxwell v. Commonwealth, 287 Va. 258, 264-65 (2014). When making an objection, “the 

parties must inform the [trial] court of the precise points of objection in the minds of counsel,” 

and make the objection “at a point in the proceeding when the trial court is in a position . . . to 

consider the asserted error [and] rectify the effect of the asserted error.” Id. at 265 (internal 

quotation omitted). “On appeal, though taking the same general position as in the trial court, an 

appellant may not rely on reasons which could have been but were not raised for the benefit of 

the lower court.” West Alexandria Props., Inc. v. First Va. Mortg. & Real Estate Inv. Tr., 221 

Va. 134, 138 (1980); see also Floyd v. Commonwealth, 219 Va. 575, 584 (1978) (holding that 

this Court will not consider an argument that differs from the specific argument presented to the 

trial court, even if it relates to the same general issue).

Moison stated his sole assignment of error as follows:

The Court of Appeals erred in affirming the trial court’s barring the Defendant from 

presenting relevant and material testimony on grounds that the evidence was alibi 

evidence which had not been properly disclosed to the Commonwealth in advance of trial 

pursuant to Rule 3A:11(d)(2) of the Rules of the Supreme Court of Virginia because such 

testimony did not constitute evidence of alibi but rather was offered to impeach by 

contradiction the testimony of the two alleged victims. 
4

(Emphasis added).3 Moison’s use of “because” in his assignment of error operates as a 

subordinating conjunction4 that links the assigned error to the admission of Lee’s testimony as 

impeachment evidence, not alibi evidence. As drafted, the syntax of the assignment of error 

cabins the error that this Court can consider to only whether the trial court erred by not admitting 

Lee’s testimony as impeachment evidence.

This interpretation may seem narrow, but it is consistent with this Court’s oft-repeated 

maxim that “[t]he purpose of assignments of error is to 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 (1995) (quoting Harlow v. Commonwealth, 195 Va. 269, 271–72 

(1953)). Moison’s trial counsel never argued that Lee’s testimony was offered to impeach the 

victims, a fact conceded by counsel at oral argument.5 Because Moison has waived his 

challenge that the proffered testimony was offered for impeachment, the Court of Appeals erred 

in ruling on the merits of this issue.

Accordingly, the Court vacates that portion of the Court of Appeals’ opinion deciding 

that Lee’s proffered testimony provided Moison with an alibi. The Court, however, affirms the 

Court of Appeals’ judgment upholding Moison’s conviction. As a result, the final order of the 

trial court remains, undisturbed.

This order shall be published in the Virginia Reports and certified to the Court of Appeals 

of Virginia and the Circuit Court of the City of Norfolk. 

 A Copy,

 Teste:

Clerk

3 This assignment of error mirrors the second assignment of error that Moison argued in 

the Court of Appeals.

4 This principle has often been recognized by this Court. See, e.g., AlBritton v. 

Commonwealth, 299 Va. 392, 412 (2021).

5 The Court of Appeals agreed that Moison raised the issue of impeachment for the first 

time on appeal, but nevertheless addressed his assignment of error. Moison at *9, n. 2.