FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE. David F. Berry, Judge Designate. Circuit Court Nos. 95-300-1, 95-300-2 and 95-431-1, 95-431-2 and 95-431-4.
J. Lloyd Snook, III (Snook & Haughey, P.C., on brief), for appellant.
John K. Byrum, Jr., Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Present: Chief Judge Moon, Judge Coleman and Senior Judge Cole.
MEMORANDUM OPINION [*]
MARVIN F. COLE,
Ponto Prince Arnold (appellant) was convicted in a jury trial of maliciously causing bodily injury and using a firearm in committing or attempting to commit malicious bodily injury. Appellant contends for the first time on appeal that his conviction for use of a firearm in the commission of a malicious bodily injury was error because there is no such crime. Because appellant made no objection at trial, he urges the Court to apply the " ends of justice" exception to Rule 5A:18. For the reasons that follow, we affirm.
Around 1:00 a.m., appellant walked to the driver's side of Shaun Bates' parked car, and pointed a loaded gun at Bates, who was seated behind the steering wheel. Pointing the gun at Bates' head, appellant repeatedly ordered Bates to get out of the car. Bates put his car in gear, pushed the gun, and drove away. As Bates fled, the gun fired. Bates " saw flashes come past [his] eyes, " and he felt " a burning sensation."
Dr. Steven McAlpine testified that Bates came to the hospital emergency room the day after the shooting " with a concern that [he] had some bullet fragments." He examined Bates and found none. He testified that Bates suffered " a burn on his cheek" that had produced " a scab" and " an abrasion on his wrist." Dr. McAlpine opined that Bates' injuries appeared to be flash burns caused by the discharge of the gun. The scab indicated " that the skin had to be broken and fluid leaking out." (Emphasis added.)
Before the presentation of evidence and based upon representations of counsel, the trial judge stated, " We don't have a breaking of the skin and the tracking of a bullet." During arraignment, the indictment was amended from using a firearm " while committing or attempting to commit malicious wounding" to using a firearm " while committing or attempting to commit malicious bodily injury." At the conclusion of the evidence, the trial judge instructed the jury, without objection, that it must find that " the use was while committing or attempting to commit malicious bodily injury."
" To avail himself of the [ends of justice exception] the defendant has to affirmatively show [that] 'a miscarriage of justice [has] occurred, not . . . that a miscarriage might have occurred' [and it] requires that the error be clear, substantial and material." Brown v. Commonwealth, 8 Va.App. 126, 132, 380 S.E.2d 8, 11 (1989) (quoting Mounce v. Commonwealth, 4 Va.App. 433, 436, 357 S.E.2d 742, 744 (1987)).
If any person maliciously shoot, stab, cut, or wound any person or by any means cause him bodily injury, with the intent to maim, disfigure, disable, or kill, he shall, except where it is otherwise provided, be guilty of a Class 3 felony. If such act be done unlawfully but not maliciously, ...