Opinion
Record No. 0122-93-1
Decided: July 19, 1994
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON, John D. Gray, Judge
Affirmed.
David B. Olson for appellant.
Margaret Ann B. Walker, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Present: Chief Judge Moon, Judges Coleman and Fitzpatrick
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Tyrone Lamont Lea, Sr., (appellant) appeals his conviction of possession of marijuana with intent to distribute in violation of Code Sec. 18.2-248.1. He contends that the evidence is insufficient to prove an intent to distribute. Because we find that appellant is procedurally barred from raising this issue, the judgment of the trial court is affirmed.
"[A] challenge to the sufficiency of the Commonwealth's evidence is waived if not raised with some specificity in the trial court." Mounce v. Commonwealth, 4 Va. App. 433, 435, 357 S.E.2d 742, 744 (1987); Rule 5A:18. At the close of the Commonwealth's case, appellant stated that he "had no motions at [that] time." At the close of all the evidence, appellant failed to address the intent issue. We will not consider an argument on appeal which was not presented to the trial court. Jacques v. Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d 630, 631 (1991). Accordingly, Rule 5A:18 bars our consideration of this question on appeal. Moreover, the record does not reflect any reason to invoke the good cause or ends of justice exceptions to Rule 5A:18.
Upon examination of the record, we raised, sua sponte, the application of the double jeopardy clause to the case at bar and permitted counsel to address this issue at oral argument. For the reasons that follow, we conclude that appellant waived any claim of double jeopardy in this case. The procedural history of this case reveals that appellant was charged with misdemeanor possession of less than a half-ounce of marijuana with intent to distribute. See Code Sec. 18.2-248.1. In the general district court, appellant was found guilty of the lesser included offense of simple possession. On appeal to the circuit court, appellant was arraigned on the "misdemeanor of possession of marijuana with intent to distribute," and convicted. No objection was made to the arraignment on the greater offense, nor did appellant raise the obvious double jeopardy violation. See Buck v. City of Danville, 213 Va. 387, 388, 192 S.E.2d 758, 759 (1972) (holding when a defendant is put in jeopardy for an offense in general district court, a conviction there for a lesser included offense is tantamount to an acquittal of the greater offense).
Appellant also failed to raise the double jeopardy issue in his petition for appeal to this Court. Rule 5A:12 provides that "[t]he petition for appeal shall contain the questions presented. . . . Only questions presented in the petition for appeal will be noticed by the Court of Appeals." Rule 5A:12(c) (emphasis added). Accordingly, we conclude that appellant waived his double jeopardy claim in the trial court, and failed to preserve this issue for appeal.
Affirmed.