COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Overton and Bumgardner
Argued at Salem, Virginia
ROBERT D. MIMM
MEMORANDUM OPINION * BY
v. Record No. 1054-97-3 JUDGE RUDOLPH BUMGARDNER, III
JUNE 2, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF GRAYSON COUNTY
Willis A. Woods, Judge Designate
Jonathon M. Venzie for appellant.
Jeffrey S. Shapiro, Assistant Attorney
General (Richard Cullen, Attorney General;
Margaret Ann B. Walker, Assistant Attorney
General, on brief), for appellee.
The defendant was charged with assault and battery of his
daughter. A jury convicted him after a trial at which he
appeared pro se. He argues that the trial court erred in holding
him in contempt in front of the jury and in not instructing the
jury on self-defense. Finding no error, we affirm.
The statement of facts only reveals that the defendant was
found in contempt of court in the presence of the jury. After
the jury was out of the courtroom deliberating, the court imposed
a sentence of five days in jail for the contempt. The trial
court later suspended this. The defendant failed to state an
objection to the contempt citation and did not ask the court to
take any corrective action. The record does not provide any
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
indication of what happened to cause the court to cite the
defendant for contempt except that it happened in open court.
In order to be considered on appeal, an objection must be
timely made and the grounds stated with specificity. Rule 5A:18.
To be timely, an objection must be made when the occasion
arises--at the time the evidence is offered or the statement
made. Marlowe v. Commonwealth, 2 Va. App. 619, 621, 347 S.E.2d
167, 168 (1986) (citing Ingram v. Commonwealth, 1 Va. App. 335,
341, 338 S.E.2d 657, 660 (1985)). In order to apply the "ends of
justice" exception the record must show that there has been a
miscarriage of justice. See Mounce v. Commonwealth, 4 Va. App.
433, 436, 357 S.E.2d 742, 744 (1987). If an insufficient record
is furnished, the judgment appealed from will be affirmed. See
White v. Morano, 249 Va. 27, 30, 452 S.E.2d 856, 858 (1995).
The defendant contends that the trial court erred in failing
to give a self-defense instruction to the jury. He did not
preserve this issue for appeal and is therefore barred by Rule
5A:18. Further, the record reveals no evidence that the
defendant was in any fear or danger. The trial judge
specifically ruled that "there was absolutely no evidence on
which to base" a self-defense instruction, and the record fully
supports that ruling. "A defendant is entitled to have the jury
instructed only on those theories of the case that are supported
by the evidence." Frye v. Commonwealth, 231 Va. 370, 388, 345
S.E.2d 267, 280 (1986).
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Finding no error, we affirm.
Affirmed.
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