COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Coleman and Bumgardner
Argued at Salem, Virginia
ALBERT LEWIS FOWLER, III
MEMORANDUM OPINION * BY
v. Record No. 2116-98-3 CHIEF JUDGE JOHANNA L. FITZPATRICK
SEPTEMBER 28, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
James F. Ingram, Judge
Mark T. Williams (Williams, Morrison, Light
and Moreau, on brief), for appellant.
Eugene Murphy, Assistant Attorney General
(Mark L. Earley, Attorney General, on
brief), for appellee.
Following a bench trial on a charge of unlawful wounding,
in violation of Code § 18.2-51, Albert Lewis Fowler, III
(appellant) was convicted of the reckless handling of a firearm,
in violation of Code § 18.2-56.1. 1 On appeal, appellant contends
the trial court erred in finding him guilty of the reckless
handling of a firearm because it is not a lesser-included
offense of unlawful wounding. Because we conclude that
appellant did not properly preserve this argument under Rule
5A:18, appellant's conviction is affirmed.
*
Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
1
Appellant also pled guilty to possession of a firearm by a
convicted felon, which is not the subject of this appeal.
I.
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 May 2, 1998,
appellant and the victim were involved in an argument at
appellant's home. The two had been drinking and taking drugs.
During the course of the argument, appellant brandished a gun,
fired it twice and hit the victim in the groin. Although no
bullet was found in the victim's body, medical evidence
established that the victim's injuries were caused by a gunshot
wound or other trauma. Appellant admitted at trial that he had
taken out his gun and shot twice towards the ground.
Appellant was initially indicted for malicious wounding, in
violation of Code § 18.2-51. Prior to arraignment, the
Commonwealth agreed that the charge would encompass no more than
unlawful wounding. Accordingly, the trial court amended the
indictment, charging appellant with unlawful wounding. After
the presentation of evidence by both parties, the trial judge
convicted appellant of the reckless handling of a firearm, in
violation of Code § 18.2-56.1. Appellant's counsel did not
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object to the trial court's ruling at that time or any time
before sentencing.
II.
Appellant contends that having been charged with unlawful
wounding, the trial court could not convict him of the reckless
handling of a firearm because the latter is not a
lesser-included offense of the former charge. The reckless
handling of a firearm is not a lesser-included offense of
unlawful wounding. However, we conclude that appellant is
barred from challenging his conviction on appeal because he
failed to make any objection to this finding at trial and in
fact agreed with the disposition.
Rule 5A:18 provides:
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.
"The primary function of Rule 5A:18 is to alert the trial
judge to possible error so that the judge may consider the issue
intelligently and take any corrective actions necessary to avoid
unnecessary appeals, reversals and mistrials." Martin v.
Commonwealth, 13 Va. App. 524, 530, 414 S.E.2d 401, 404 (1992).
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"A matter not in dispute before the trial court will not be
considered for the first time on appeal." Connelly v.
Commonwealth, 14 Va. App. 888, 891, 420 S.E.2d 244, 246 (1992).
In the present case, appellant does not challenge the
sufficiency of the evidence to convict him of the reckless
handling of a firearm, but argues that the conviction may not
stand because it was not a lesser-included offense of unlawful
wounding. If appellant had timely objected to this finding, the
trial court could have reevaluated its decision and found
appellant guilty of the greater offense, unlawful wounding, or
the proper lesser-included offense of assault and battery. At
trial appellant acquiesced in this erroneous finding.
Consequently, he is barred from raising this issue on appeal.
Additionally, while this Court will notice error for which
there has been no timely objection when necessary to satisfy the
ends of justice, see Brown v. Commonwealth, 8 Va. App. 126, 131,
380 S.E.2d 8, 10 (1989), the record must "affirmatively [show]
that a miscarriage of justice has occurred, not . . . that a
miscarriage might have occurred." Mounce v. Commonwealth, 4 Va.
App. 433, 436, 357 S.E.2d 742, 744 (1987) (emphasis in
original). Our review of the record discloses no miscarriage of
justice in the instant case, and the evidence clearly
established the necessary factual basis for the reckless
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handling of a firearm. See Jimenez v. Commonwealth, 241 Va.
244, 249, 402 S.E.2d 678, 680 (1991).
Accordingly, the judgment of the trial court is affirmed.
Affirmed.
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Albert Lewis Fowler, III v. Commonwealth of VA
Combined Opinion