Chad Robert Shaffer v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Bumgardner
Argued at Salem, Virginia
CHAD ROBERT SHAFFER
MEMORANDUM OPINION * BY
v. Record No. 0735-01-3 JUDGE LARRY G. ELDER
DECEMBER 4, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FRANKLIN COUNTY
William N. Alexander, II, Judge
Melissa W. Friedman (Anthony F. Anderson, on
brief), for appellant.
Jennifer R. Franklin, Assistant Attorney
General (Randolph A. Beales, Attorney General,
on brief), for appellee.
Chad Robert Shaffer (appellant) appeals from his bench trial
conviction for attempted carnal knowledge in violation of Code
§§ 18.2-26 and 18.2-63. 1 On appeal, he contends the evidence was
insufficient to support his conviction or, in the alternative,
that his conviction for attempted carnal knowledge simultaneously
with his conviction for object sexual penetration in violation of
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
1
Appellant also was convicted for object sexual penetration
in violation of Code § 18.2-67.2. In his petition for appeal,
appellant challenged the trial court's denial of his motion for a
new trial based on after-discovered evidence related to that
offense, but he conceded the sufficiency of the evidence to
support that conviction. We denied his petition for appeal as to
that conviction and consider it only indirectly in this appeal.
Code § 18.2-67.2 constituted double jeopardy. The Commonwealth
contends this appeal is barred by Rule 5A:18 because appellant
failed to raise these issues in the trial court. The record
confirms that appellant failed to raise these issues in the trial
court, and the ends of justice exception to Rule 5A:18 does not
support our consideration of these claimed errors on the merits.
Therefore, we affirm appellant's conviction.
Pursuant to Rule 5A:18, this Court will not consider
allegations of trial court error as a basis for reversal where
appellant failed to register a timely objection, except for good
cause shown or to attain the ends of justice. Rule 5A:18 applies
to both constitutional and non-constitutional error. See Deal v.
Commonwealth, 15 Va. App. 157, 161, 421 S.E.2d 897, 900 (1992).
Where an appellant makes a general objection to the sufficiency
of the evidence that "[does] not specify in what respects
[appellant] considered the evidence to be insufficient to prove
[the charged offense,] . . . the issue of whether the evidence
was insufficient to prove a particular [unmentioned] element of
the offense [is] not properly preserved." Redman v.
Commonwealth, 25 Va. App. 215, 220, 487 S.E.2d 269, 272 (1997).
Here, appellant's motion to strike and closing argument
challenged only the credibility of the victim. Appellant did not
contend the victim's testimony, if believed, was insufficient to
support a finding of intent to engage in one of the acts
proscribed by Code § 18.2-63, "sexual intercourse, cunnilingus,
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fellatio, anallingus, anal intercourse, [or] animate [or]
inanimate object sexual penetration." He also did not contend
that evidence of the completed crime of animate object sexual
penetration could not be used to support his conviction for the
attempted carnal knowledge offense. Finally, he did not contend
that use of evidence of the same act of object sexual penetration
to support both convictions would constitute double jeopardy.
Nor does the ends of justice exception require us to
consider these issues on appeal. To invoke the ends of justice
exception, the record must "affirmatively show[] that a
miscarriage of justice has occurred, not . . . merely . . . that
a miscarriage [of justice] might have occurred." Mounce v.
Commonwealth, 4 Va. App. 433, 436, 357 S.E.2d 742, 744 (1987).
To satisfy this burden, an appellant must show "more than that
the Commonwealth failed to prove an element of the offense
. . . . [T]he appellant must demonstrate that he or she was
convicted for conduct that was not a criminal offense[,] or the
record must affirmatively prove that an element of the offense
did not occur." Redman, 25 Va. App. at 221-22, 487 S.E.2d at
272-73.
In this case, although appellant moved to strike, he failed
to specifically assert that the evidence was insufficient to
prove a particular element of the offense, i.e., an intent to
engage in "sexual intercourse, cunnilingus, fellatio, anallingus,
anal intercourse, [or] animate [or] inanimate object sexual
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penetration." Even assuming the evidence of the completed act of
object sexual penetration would not support the conviction for
attempted carnal knowledge, the evidence does not disprove that
appellant acted with some other proscribed intent. For example,
the evidence did not prove appellant did not act with an intent
to engage in "sexual intercourse, cunnilingus, fellatio,
anallingus, anal intercourse, [or] . . . inanimate object sexual
penetration." It also did not prove appellant did not act with
an intent to commit an additional act of animate object sexual
penetration beyond the completed act which supported his separate
conviction for object penetration in violation of Code
§ 18.2-67.2. Thus, the evidence does not prove that an element
of the offense did not occur, and the ends of justice exception
does not apply. 2
For these reasons, we hold that appellant failed to preserve
his claims of error for appeal and that the ends of justice
exception to Rule 5A:18 does not support our consideration of the
claimed errors. Therefore, we affirm the challenged conviction.
Affirmed.
2
Because the record does not establish that the attempted
carnal knowledge conviction was based on an intent to commit the
completed act upon which the object sexual penetration conviction
was based, we need not consider appellant's double jeopardy claim
under the ends of justice exception. See Coleman v.
Commonwealth, 261 Va. 196, 200, 539 S.E.2d 732, 734 (2001) ("In
the prosecution for two crimes in the same trial, the double
jeopardy defense does not apply unless . . . the defendant is
twice punished for one criminal act . . . ." (emphasis added)).
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