Defendant is not entitled to have her bench trial conviction for misdemeanor child neglect reversed, the Court of Appeals says; defendant as a matter of trial strategy did not object to reduction of the charges and cannot bring this case within the “ends of justice” exception to Rule 5A:18.
In July 2010, defendant was charged with felony child neglect under Va. Code § 18.2-371.1. The case was tried in August. The trial court denied defendant’s motions to strike for insufficient evidence of criminal negligence and indicated it would order a presentence report. In December, following arguments, the trial court ruled that the evidence warranted a finding of misdemeanor child neglect under § 18.2-371 not felony. Defendant did not object to the reduction in charges or sufficiency of evidence for misdemeanor child neglect.
On appeal, defendant argues this court should apply the ends of justice exception to Rule 5A:18 to consider her arguments that misdemeanor child neglect is not a lesser included offense of felony child neglect and insufficiency of evidence for misdemeanor child neglect. We decline to apply the ends of justice exception because defendant has not met her heavy burden of proof under our cases: affirmative evidence of innocence or lack of an element of the offense similar to legal impossibility must be shown. Edwards v. Commonwealth, 41 Va.App. 752 (2003), requires that an objection based on an offense not being a lesser included offense of the crime charged must be preserved like other nonjurisdictional objections for appeal. Defendant elected as a matter of trial strategy to refrain from objecting to the reduction in charges to avoid the risk of conviction on the felony charge. She has not shown she was convicted for noncriminal conduct, that some element of the offense did not occur, grave injustice of denial of essential rights.
McKinnon v. Commonwealth (Huff) No. 0044-11-1, Nov. 29, 2011; Portsmouth Cir. Ct. (Morrison) Gregory K. Matthews for appellant; Virginia B. Theisen, Sr. AAG 011-7-368(UP), 6 pp.