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COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Bumgardner and Frank
Argued at Chesapeake, Virginia
Record No. 0363-03-1
ROBERT JASPER YOUNG
COMMONWEALTH OF VIRGINIA
JUDGE ROBERT P. FRANK
NOVEMBER 12, 2003
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Christopher W. Hutton, Judge
Charles E. Haden for appellant.
Kathleen B. Martin, Assistant Attorney General (Jerry W.
Attorney General, on brief), for appellee.
Robert Jasper Young (appellant), was convicted in a jury trial
of robbery, in violation of
Code ? 18.2-58, use of a firearm in the commission of robbery,
in violation of Code ? 18.2-53.1,
and wearing a mask in public, in violation of Code ? 18.2-422.
On appeal, he contends the evidence
was not sufficient to convict him of these offenses.
Specifically, he challenges the victim’s
identification of him as the robber. For the reasons stated, we
affirm the convictions.
Appellant concedes trial counsel did not preserve the issue of
sufficiency at trial, but asks
that we invoke the "ends of justice" exception to Rule
5A:18 and consider the issue.
We find this
exception does not apply here.
"The Court of Appeals will not consider an argument on
which was not presented to the trial court." Ohree v.
Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488
(1998) (citing Jacques v. Commonwealth, 12 Va. App. 591, 593,
405 S.E.2d 630, 631, (1991)); see also Rule 5A:18.
However, Rule 5A:18 provides for consideration of a ruling by
trial court that was not objected to at trial "to enable
the Court of
Appeals to attain the ends of justice." Rule 5A:18. "‘The
justice exception is narrow and is to be used sparingly’"
error at trial is "‘clear, substantial and material.’"
Commonwealth, 25 Va. App. 215, 220-21, 487 S.E.2d 269, 272
(1997) (quoting Brown v. Commonwealth, 8 Va. App. 126, 132,
380 S.E.2d 8, 10-11 (1989)). "In order to avail oneself of
exception, a defendant must affirmatively show that a
of justice has occurred, not that a miscarriage might have
occurred." Id. at 221, 487 S.E.2d at 272 (citing Mounce v.
Commonwealth, 4 Va. App. 433, 436, 357 S.E.2d 742, 744
["]In order to show that a miscarriage of justice has
appellant must demonstrate more than that the Commonwealth
failed to prove an element of the offense. . . . The
demonstrate that he or she was convicted for conduct that was
a criminal offense or the record must affirmatively prove that
element of the offense did not occur.["] Id. at 221-22, 487
272-73 (emphasis in original).
Michaels v. Commonwealth, 32 Va. App. 601, 607-08, 529 S.E.2d
822, 825-26 (2000).
Appellant contends the evidence was not sufficient to prove he
committed the crimes
because the victim testified she could not "be one hundred
percent sure" that appellant was the
masked robber. He does not maintain, nor do we find, any element
of the offenses was disproved
by the evidence nor that the conduct of the perpetrator did not
constitute a crime. He argues,
simply, the identification was not strong enough to prove that
he was the perpetrator.
The Commonwealth’s evidence does not fail to identify
appellant as the perpetrator. In fact,
the victim at one point testified she was "positive"
appellant was the robber. Therefore, the record
includes evidence linking appellant to these crimes. The record
does not "affirmatively prove"
appellant did not commit the offenses. Thus, we conclude no
manifest injustice occurred.
Appellant did not preserve the issue of sufficiency for appeal.
As no exception allows our
review of this issue, we affirm the judgment of the trial court.
Code ? 17.1-413, this opinion is not designated for publication.
appellant moved to strike the evidence at the conclusion of the Commonwealth’s
case, he did not renew the motion after presenting his case.
When a defendant elects to present
evidence on his behalf, he waives the right to stand on his
motion to strike the evidence made at
the conclusion of the Commonwealth’s case. Spangler v.
Commonwealth, 188 Va. 436, 50
S.E.2d 265 (1948). Appellant also failed to preserve the
sufficiency issue in a motion to set aside
the verdict. See McGee v. Commonwealth, 4 Va. App. 317, 357
S.E.2d 738 (1987).