Although the commonwealth concedes error in defendant’s conviction for use of a firearm to commit burglary, the Court of Appeals affirms defendant’s jury trial convictions for that offense and burglary; defendant failed to preserve his sufficiency of evidence objection and the ends of justice exception of Rule 5A:18 does not apply when two victims saw defendant armed moments after he forced entry into the apartment.
Defendant entered an apartment wearing a mask, abducted two people and committed assault and battery on a family member. Two victims saw defendant with a gun moments after he forced entry into the apartment. Defendant made no objection to the sufficiency of evidence. The jury convicted him of both using a firearm in committing a felony in violation of Va. Code § 18.2-53.1 and armed burglary, a Class 2 felony under Code § 18.2-91.
On appeal, defendant challenges the sufficiency of evidence to support his convictions. The commonwealth concedes there is no record evidence of use or display of a firearm when gaining entry. We agree with defendant that his conviction under § 18.2-53.1 for using a firearm in committing burglary was error. However, we decline to apply the ends of justice exception to Rule 5A:18 to excuse defendant’s failure to make a sufficiency objection below. The rule’s purpose is to give the trial court an opportunity to consider and correct errors. Under Brittle v. Commonwealth, 54 Va. App. 505 (2009), applying the ends of justice exception requires proving either conviction for noncriminal conduct or affirmative proof that an element of the crime did not occur. The two victims’ testimony about seeing defendant armed shortly after he broke in leaves open the possibility that defendant did use or display a firearm when gaining entry.
Blackwell v. Commonwealth (Elder) No. 1690-11-2, Jan. 17, 2012; Henrico Cir. Ct. (Miller) Russell N. Allen for appellant; Jennifer C. Williamson AAG. VLW 012-7-010(UP), 4 pp.