Anthony Montrey Wooten, etc v Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: 	Chief Judge Moon, Judge Elder and
Senior Judge Cole
Argued at Richmond, Virginia
ANTHONY MONTREY WOOTEN, S/K/A
ANTOINE M. WOOTEN
v. 	Record No. 	2424-93-2 	MEMORANDUM OPINION* BY
CHIEF JUDGE NORMAN K. MOON
COMMONWEALTH OF VIRGINIA 	JUNE 13, 1995
FROM THE CIRCUIT COURT OF HENRICO COUNTY
George F. Tidey, Judge
John M. Wright, Jr. (Downs & Wright, on
brief), for appellant.
Margaret Ann B. Walker, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Anthony Montrey Wooten appeals his convictions of robbery
and use of a firearm in the commission of a robbery. 	On appeal,
Wooten contends that the indictment charging him with robbery of
"U.S. currency" was fatally defective because the evidence
indicated that the only item taken from the victim was a jacket.
Wooten also challenges the sufficiency of the Commonwealth's
evidence to convict him. 	Because Wooten did not raise these
issues before the trial court, he is barred from now raising them
on appeal. 	Accordingly, we affirm his convictions.
"Rule 5A:18 and its companion Rule 5:25 are strictly
enforced. . . . [And], [s]pecifically the Supreme Court has held
that a challenge to the sufficiency of the Commonwealth's
*Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

- 2 -
evidence is waived if not raised with some specificity in the
trial court." 	Mounce v. Commonwealth, 4 Va. App. 433, 435, 357
S.E.2d 742, 744 (1987). 	Only where a miscarriage of justice has
clearly occurred do "the ends of justice" require this Court to
consider an issue for the first time on appeal. 	Id. 	And "the
`ends of justice' provision may be used when the record
affirmatively shows that a miscarriage of justice has occurred,
not when it merely shows that a miscarriage might have occurred."
Id. at 436, 357 S.E.2d at 744.
Assuming, but not deciding, that the evidence did not prove
robbery of currency as alleged in the indictments and, therefore,
that the indictments were fatally defective, Rule 5A:18 bars our
consideration of this argument on appeal. 	The evidence supported
the defendant's conviction of robbery of the victim's jacket.
The record does not reveal whether the jacket contained a wallet
or loose currency. 	Nonetheless, the defendant failed at any time
during the trial to raise this issue. 	Because we are unable to
say upon this record that the jacket taken from the victim could
not have contained money, we cannot hold that the "evidence
clearly demonstrated that [Wooten] could not have been guilty and
a miscarriage of justice surely ha[s] occurred." 	Id.
For the above-stated reason, neither will we consider
Wooten's contention that the evidence was insufficient to sustain
his convictions, regardless of the indictment's alleged flaw.
Affirmed.