Opinion
Record No. 2578-00-2.
November 13, 2001.
Appeal from the Circuit Court of the City of Richmond, Thomas N. Nance, Judge.
Gregory W. Franklin, Assistant Public Defender, for appellant.
Susan Harris, Assistant Attorney General (Randolph A. Beales, Attorney General), for appellee.
Present: Chief Judge Fitzpatrick, Judges Bumgardner and Humphreys.
MEMORANDUM OPINION
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Frank Clifton King, Jr. (appellant) was convicted in a jury trial of maliciously shooting within an occupied dwelling, in violation of Code § 18.2-279. The sole issue on appeal is whether the Commonwealth proved the allegation in the indictment that appellant shot at or threw a missile at or against an occupied dwelling. For the following reasons, we affirm appellant's conviction.
Appellant was also convicted of first-degree murder, use of a firearm in the commission of murder, robbery, and use of a firearm in the commission of robbery. However, those convictions are not the subject of this appeal.
I. BACKGROUND
Under familiar principles of appellate review, we examine the evidence in the light most favorable to the Commonwealth, the prevailing party below, granting to it all reasonable inferences fairly deducible therefrom. See Juares v. Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997). So viewed, the evidence established that on March 3, 2000, appellant was living with his aunt and his uncle, Donald Lee King. Appellant and Antonio Harris (Harris) formulated a plan to rob Donald Lee King. Danny Bailey (Bailey), a friend, was visiting the home at about 8:00 p.m. when Harris came through the front door brandishing two handguns. At Harris' instruction, both men got on the floor. Appellant entered from his bedroom with a shotgun in his hand. He demanded money from his uncle and then fired at him. Bailey jumped up from the floor and escaped through the front door. Harris fired several shots, and appellant fired one shot through the window with the shotgun at Bailey. Donald Lee King was killed, and Bailey was wounded by the gunfire.
In appellant's motion to strike the evidence, he argued as follows:
The Commonwealth has not proved that, Judge. The language specific to the indictment contemplates throwing a missile at or shooting a missile at a dwelling. That language contemplates further, shooting from outside into a dwelling. The Commonwealth has not proved that. It hasn't met the language that they set out in the indictment.
The indictment against him stated that appellant, "did feloniously, unlawfully and maliciously shoot at or throw a missile at or against an occupied building or dwelling house located at 1220 N. 36th Street, thereby putting the lives of the occupants in peril. Virginia Code Section § 18.2-279".
The trial court denied the motion.
At the conclusion of the evidence, the trial court gave the following instruction without objection:
The defendant is charged with the crime of shooting within an occupied dwelling. The Commonwealth must prove beyond a reasonable doubt each of the following elements of that crime: (1) that the defendant shot within a building occupied by Donald Lee King and Danny Bailey; and (2) that the life or lives of such person may have been put in peril; and (3) that the act was done with malice.
A verdict form following the language of the instruction was also given with no objection. The jury found appellant guilty, stating, "We, the jury, find the defendant guilty of maliciously shooting within an occupied dwelling as charged in the indictment." The trial court polled the jury, and the jury indicated that this was their verdict. No objection was made at any time to the form of the instructions or the verdict. Appellant was convicted and sentenced to ten years, with five years suspended, for the offense.
II. WAIVER
"Under Rule 5A:18, we do not consider trial court error as a basis for reversal where no timely objection was made except in extraordinary situations to attain the ends of justice." Redman v. Commonwealth, 25 Va. App. 215, 220, 487 S.E.2d 269, 272 (1997).
The laudatory purpose behind Rule 5A:18 . . . is to require that objections be promptly brought to the attention of the trial court with sufficient specificity that the alleged error can be dealt with and timely addressed and corrected when necessary. The rules promote orderly and efficient justice and are to be strictly enforced except where the error has resulted in manifest injustice.
Brown v. Commonwealth, 8 Va. App. 126, 131, 380 S.E.2d 8, 10 (1989).
"[T]he ends of justice exception is narrow and it is to be used sparingly. . . ." Id. at 132, 380 S.E.2d at 11. "[I]t is a rare case in which, rather than invoke Rule [5A:18], we rely upon the exception and consider an assignment of error not preserved at trial to enable this Court to attain the ends of justice." Jimenez v. Commonwealth, 241 Va. 244, 249, 402 S.E.2d 678, 680 (1991) (internal citations omitted).
"Thus, the 'ends of justice provision' may be used when the record affirmatively shows that a miscarriage of justice has occurred, not when it merely shows that a miscarriage might have occurred." Mounce v. Commonwealth, 4 Va. App. 433, 436, 357 S.E.2d 742, 744 (1987). The trial court error must be "clear, substantial and material." Brown, 8 Va. App. at 132, 380 S.E.2d at 11.
In order to show that a miscarriage of justice has occurred, an appellant must demonstrate that the Commonwealth failed to prove an element of the offense. We will not invoke the exception if the record suggests that the Commonwealth merely inadvertently or unknowingly failed to adduce adequate proof of an element of an offense. In order to show that a miscarriage has occurred, thereby invoking the ends of justice exception, the appellant must demonstrate that he or she was convicted for conduct that was not a criminal offense or the record must affirmatively prove that an element of the offense did not occur.
Redman, 25 Va. App. at 221-22, 487 S.E.2d at 272-73.
"It is well settled that instructions given without objection become the law of the case and thereby bind the parties in the trial court and this Court on review." Owens-Illinois v. Thomas Baker Real Estate, 237 Va. 649, 652, 379 S.E.2d 344, 346 (1989). "The instruction, given without objection, was the law of the case . . . and we will analyze the case on appeal as it was tried below." Medical Center Hospital v. Sharpless, 229 Va. 496, 498, 331 S.E.2d 405, 406 (1985).
In the instant case, appellant had notice of the crime and statute under which he was charged. Before the trial court and counsel considered the proposed jury instructions, appellant made a motion to strike on the specific ground that the Commonwealth failed to prove the offense listed in the indictment. However, when the court and counsel considered the instructions, no objection to the definition of the offense was noted, nor was any noted when the trial court instructed the jury. Further, appellant made no objection to the verdict form, which tracked the language of the instruction, either when it was given or returned by the jury.
"An objection made at trial on one ground does not preserve for appeal a contention on a different ground." Clark v. Commonwealth, 30 Va. App. 406, 411, 517 S.E.2d 260, 262 (1999). Appellant's agreement to the instructions operated as a waiver of his earlier objection to the language of the indictment. The instructions became the law of the case and bound both sides. Additionally, "[a] defendant, having agreed upon the action taken by the trial court, should not be allowed to assume an inconsistent position. No litigant, even a defendant in a criminal case, will be permitted to approbate and reprobate — to invite error . . . and then to take advantage of the situation created by his own wrong."Batts v. Commonwealth, 30 Va. App. 1, 11, 515 S.E.2d 307, 312 (1999) (quoting Manns v. Commonwealth, 13 Va. App. 677, 679-80, 414 S.E.2d 613, 615 (1992)).
No circumstances exist in the record which justify invoking the ends of justice exception. Appellant had notice of the charged crime, and the evidence was sufficient to show a violation of the statute. Appellant shot within the house at Donald Lee King and fired a shot at Bailey as he tried to flee. Appellant's actions clearly constitute a criminal offense under the statute. Accordingly, because no miscarriage of justice occurred, we will not consider appellant's claim that the Commonwealth failed to prove the allegation in the indictment.
Affirmed.