Osburne Wynn, etc v. Commonwealth ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Willis and Bray
Argued at Norfolk, Virginia
OSBURNE WYNN, JR., s/k/a
OSBORNE WYNN, JR.
v. Record No. 0914-94-1 MEMORANDUM OPINION * BY
JUDGE RICHARD S. BRAY
COMMONWEALTH OF VIRGINIA JULY 25, 1995
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
Russell I. Townsend, Jr., Judge
James B. Melton for appellant.
Eugene Murphy, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Osburne Wynn, Jr. (defendant) was convicted by jury of
distribution of an imitation controlled substance in violation of
Code § 18.2-248. Defendant complains on appeal that the
Commonwealth's evidence was insufficient to prove that the
offending substance was "subject to abuse," "sold for
substantially more than its reasonable over-the-counter price,"
and "imitate[d] a controlled substance." However, these issues
were not properly presented to the trial court and will not be
considered on appeal. We, therefore, affirm the conviction.
The parties are fully conversant with the record in this
case, and we recite only those facts necessary to explain our
holding.
It is well established that, "[o]n appeal, a ruling of a
trial court cannot be a basis for reversal unless an objection is
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
stated 'together with the grounds therefor at the time of the
ruling, except for good cause shown or to enable the Court of
Appeals to attain the ends of justice.'" Campbell v.
Commonwealth, 12 Va. App. 476, 480, 405 S.E.2d 1, 2 (1991) (en
banc) (quoting Rule 5A:18). Arguments not presented to the trial
court will not be entertained on appeal. Jacques v.
Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d 630, 631 (1991).
"'A mere statement that the judgment . . . is contrary to the law
and the evidence is not sufficient to constitute a question to be
ruled upon on appeal.'" Hogan v. Commonwealth, 5 Va. App. 36,
45, 360 S.E.2d 371, 376 (1987) (citation omitted).
At the conclusion of the Commonwealth's case, defendant
moved the court to strike its evidence, arguing only that
defendant had not been sufficiently identified as the offender.
After the jury returned its verdict, defendant moved "to dismiss"
because the "finding" was "contrary to the evidence" and the
sentence excessive. Neither motion embraced those issues raised
1
by defendant on appeal. Therefore, finding no justification for
the "ends of justice" exception to Rule 5A:18, we are precluded
from now considering defendant's arguments. See Mounce v.
Commonwealth, 4 Va. App. 433, 435-36, 357 S.E.2d 742, 744 (1987).
Affirmed.
1
Although the record reflects mention by the Commonwealth to
the trial court of former Code § 18.2-247(B) and related remarks
by defendant's counsel, that statute was inapplicable to these
proceedings, and the exchange occurred after sentencing, during
the trial court's consideration of an appeal bond.
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