Epps v. Com.

510 S.E.2d 279 (1999) 29 Va. App. 169 Mark Evans EPPS, Appellant, v. COMMONWEALTH of Virginia, Appellee. Record No. 0665-97-2. Court of Appeals of Virginia. February 9, 1999. Anthony G. Spencer (Morchower, Luxton & Whaley, on briefs), Richmond, for appellant. H. Elizabeth Shaffer, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee. Before: FITZPATRICK, C.J., BENTON, COLEMAN, WILLIS, ELDER, BRAY, ANNUNZIATA, BUMGARDNER and LEMONS, JJ., and OVERTON,[*] Senior Judge. UPON A REHEARING EN BANC A divided panel of this Court affirmed the judgment of the trial court. See Epps v. Commonwealth, 28 Va.App. 58, 502 S.E.2d 140 (1998). We stayed the mandate of that decision and granted rehearing en banc. Upon rehearing en banc, the judgment of the trial court is affirmed without opinion by an evenly divided Court. Accordingly, the opinion previously rendered by a panel of this Court on July 21, 1998 is withdrawn and the mandate entered on that date is vacated. Chief Judge Fitzpatrick, Judges Benton, Coleman, Bray and Annunziata voted to reverse the judgment of the trial court. Judges Willis, Elder, Overton, Bumgardner and Lemons voted to affirm said judgment. This order shall be published and certified to the trial court. NOTES [*] Judge Overton participated in the hearing and decision of this case prior to the effective date of his retirement on January 31, 1999 and thereafter by his designation as senior judge pursuant to Code § 17.1-401, recodifying Code § 17-116.01:1.