Opinion
Record No. 0208-92-2
July 6, 1993
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND ERNEST P. GATES, SR., JUDGE DESIGNATE.
Jody Ann Jacobson, Assistant Public Defender (David J. Johnson, Richmond Public Defender, on briefs), for appellant.
H. Elizabeth Shaffer, Assistant Attorney General (Mary Sue Terry, Attorney General; Margaret Ann B. Walker, Assistant Attorney General, on brief), for appellee.
Present: Judges Coleman, Willis and Elder.
Argued at Richmond, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Calvin Lamont Dewitt appeals from his conviction under Code § 18.2-95 for grand larceny of aluminum cable wire and manhole covers belonging to the City of Richmond. Appellant argues that the evidence presented at his bench trial was insufficient to support his conviction for grand larceny. The Commonwealth asserts, however, that appellant failed properly to preserve his challenge for appeal. For the reasons set forth below, we hold that our review of appellant's assignment of error is barred.
Rule 5A:18 states:
No ruling of the trial court . . . will be considered as a basis for reversal unless the objection was stated together with the grounds therefor at the time of the ruling, except for good cause shown, or to enable the Court of Appeals to attain the ends of justice. A mere statement that the judgment or award is contrary to the law and the evidence is not sufficient to constitute a question to be ruled upon on appeal.
We are unable to determine from the record that the trial court had the opportunity to address and resolve the sufficiency issue. Appellant moved to strike following the Commonwealth's presentation of its case, but that motion was denied. Following the presentation of his own case, appellant neither renewed his motion to strike nor moved to set aside the verdict. Had appellant raised this issue in his closing argument, he could have preserved it for appeal. Campbell v. Commonwealth, 12 Va. App. 476, 478, 481, 405 S.E.2d 1, 1, 3 (1991) (en banc);see also Harris v. Commonwealth, 13 Va. App. 593, 595-96, 413 S.E.2d 354, 355-56 (1992); Klink v. Commonwealth, 12 Va. App. 815, 819-20, 407 S.E.2d 5, 8 (1991). However, the record contains no information about the parties' closing arguments.
Nevertheless, appellant argues that the evidence in this case was "woefully inadequate" and urges us to apply the ends of justice exception of Rule 5A:18 to allow review of the merits of his appeal. As we held in Mounce v. Commonwealth, 4 Va. App. 433, 436, 357 S.E.2d 742, 744 (1987), the ends of justice provision may be used only "when the record affirmatively shows that a miscarriage of justice has occurred, not when it merely shows that a miscarriage might have occurred." InMounce, which involved the sufficiency of the evidence as to the value of an automobile, we held that the circumstantial evidence "[did] not clearly show that a 1978 Monte Carlo automobile in working condition could not have a value of more than $200." 4 Va. App. at 436, 357 S.E.2d at 744. On that basis, we declined to consider the alleged error in the absence of an objection because we could not say that the finding as to value was clearly erroneous. See also Ball v. Commonwealth, 221 Va. 754, 273 S.E.2d 790 (1981) (court reversed conviction for capital murder alleged to have occurred during the commission of a robbery where evidence was uncontradicted that murder occurred during an attempted, but not completed robbery); Ryan v. Commonwealth, 219 Va. 439, 247 S.E.2d 698 (1978) (although Commonwealth failed to prove that entry used to sustain burglary conviction occurred at night, defendant failed to object at trial and court upheld conviction because record showed that burglary could have been committed at night).
The standard to be applied to assignments of error involving issues other than the sufficiency of the evidence is somewhat less stringent. "In those instances, an error may be the basis for reversal, when not objected to, if it is 'clear, substantial and material.'" Campbell v. Commonwealth, 14 Va. App. 988, 997, 421 S.E.2d 652, 657 (1992) (en banc) (Barrow, J., concurring) (quoting Brown v. Commonwealth, 8 Va. App. 126, 132, 380 S.E.2d 8, 11 (1989) (applying exception to review defendant's sentence for crime other than that for which he was convicted)) (applying exception to review jury instruction which failed to include intent to defraud, an essential element of crime charged); see id. at 996-98, 421 S.E.2d at 657-58 (discussing distinction between application of standard in cases challenging sufficiency versus cases involving other types of error).
In this case, the evidence does not "clearly demonstrate" that appellant did not take the wire and manhole covers from the city lot or that the wire and manhole covers he sold to Peck were not those missing items. Because the evidence does not affirmatively disprove either of these elements, the record does not clearly show that a miscarriage of justice occurred. Accordingly, we hold that review of appellant's assignment of error on the merits is barred.
Affirmed.