Charles Ray Lewis, III v Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: 	Chief Judge Fitzpatrick, Judges Coleman and Frank
Argued at Salem, Virginia
CHARLES RAY LEWIS, III
MEMORANDUM OPINION* BY
v. 	Record No. 0473-99-3 	JUDGE SAM W. COLEMAN III
APRIL 25, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF MARTINSVILLE
Charles M. Stone, Judge
John W. Swezey for appellant.
Linwood T. Wells, Jr., Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
Charles Ray Lewis, III was convicted in a bench trial of
assault and battery in violation of Code § 18.2-57. 	On appeal,
Lewis argues that the trial court erred in convicting him of the
assault and battery of Rhonda Amos, an unintended third-party,
where the court found that he did not have the necessary intent to
convict him of assault upon Steven Hankins, the primary victim.
We find that the issue was not properly raised before the trial
court and affirm the conviction.

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BACKGROUND
Over the course of the evening, Steven Hankins and the
defendant argued on several occasions when they encountered each
other at different locations in Martinsville. 	The last encounter
occurred at a private party. 	After some time, Hankins decided to
leave the party with Rhonda Amos and Mike Ramey. 	The three got
into Hankins' car, with Hankins driving, Amos in the front center,
and Ramey in the front passenger seat. 	Hankins testified that
Lewis approached the car, banged on the driver's side window,
opened the door, and "threw a punch" that grazed Hankins' forehead
and landed on the bridge of Amos' nose.
Amos testified that Hankins and Lewis argued and struggled,
and, as a result of the struggle, she was struck in the face.
Amos was unaware if Lewis "threw a punch" at Hankins or if the
blow was caused by the struggle.
Lewis testified that Hankins called him over to the car and,
as he approached, Hankins opened the door and attempted to exit
the car. 	Lewis pushed the door closed in an effort to keep
Hankins inside the car. 	Hankins then reached through the window,
grabbing at Lewis, while Lewis was pushing Hankins into the car.
Lewis testified that he was unaware that he struck Amos and stated
that he only struggled with Hankins in an effort to keep him in
the car.

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Lewis was charged with assault and battery of Hankins and
Amos. 	At the close of trial, the court dismissed the charge with
respect to Hankins and found Lewis guilty of assault and battery
of Amos.
ANALYSIS
Lewis argues that his conviction of assault and battery of
Amos is inconsistent with his acquittal of the assault and battery
of Hankins. 	Lewis, conceding that intent to assault may be
transferred to an unintended third-party, argues that because he
was acquitted of the assault and battery of Hankins, the court
necessarily found that he did not possess the requisite intent to
assault Hankins. 	Therefore, Lewis contends that without the
intent to assault Hankins, he could not have transferred the
intent to Amos.
"The burden is upon the appellant to provide us with a record
which substantiates the claim of error. 	In the absence thereof,
we will not consider the point." 	Jenkins v. Winchester Dep't of
Soc. Servs., 12 Va. App. 1178, 1185, 409 S.E.2d 16, 20 (1991)
(citation omitted). 	Where we do not have the benefit of a
transcript of the proceedings, we can consider only that which is
contained in the written statement of facts signed by the trial
judge. 	See id. at 1185, 409 S.E.2d at 20-21. 	"No ruling of the
trial court . . . will be considered as a basis for reversal
unless the objection was stated together with the grounds therefor

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at the time of the ruling, except for good cause shown or to
enable the Court of Appeals to attain the ends of justice." 	Rule
5A:18; see also Mounce v. Commonwealth, 4 Va. App. 433, 434-36,
357 S.E.2d 742, 743-44 (1987).
The main purpose of requiring timely
specific objections is to afford the trial
court an opportunity to rule intelligently
on the issues presented, thus avoiding
unnecessary appeals and reversals. 	In
addition, a specific, contemporaneous
objection gives the opposing party the
opportunity to meet the objection at that
stage of the proceeding.
Weidman v. Babcock, 241 Va. 40, 44, 400 S.E.2d 164, 167 (1991)
(citation omitted).
Here, the record fails to indicate that Lewis argued the
issue at trial that he now seeks to raise on appeal. 	The
statement of facts merely states that:
[u]pon conclusion of all the evidence in the
case and argument of counsel, the Court
dismissed the charges of assault and battery
against Steven Hankins but found the
Defendant guilty of assault and battery upon
Ms. Amos and thereupon set the penalty of
six months in jail. 	It is from that finding
that the appeal is noted.
The issue on appeal, as articulated in Lewis' brief, is whether
the court erred "when it found the defendant guilty of assault
upon an unintended third party victim when, as a matter of fact,
he was not found to have the necessary intent to convict him of
assault upon the primary victim." 	The statement at trial that

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"[i]t is from that finding that the appeal is noted" is simply
insufficient to preserve the issue Lewis now raises.
At oral argument, Lewis asserted that even though "the
issue didn't really arise until the case was concluded," the
issue was nevertheless preserved because he noted an immediate
appeal after the verdicts were announced. 	However, Lewis
conceded that the statement of facts does not reflect that an
objection was made or that the appeal was noted with respect to
the particular issue he raises on appeal. 	Defense counsel
asserted that the omission of any mention with respect to the
particular issue raised was merely a draftsmanship error and
should not be attributed to the defendant. 	To the extent that
Lewis argues that the verdicts are legally or factually
inconsistent, we find that neither argument was preserved below.
Accordingly, Rule 5A:18 bars our consideration of this
claim. 	Moreover, the record does not reflect any reason to
invoke the good cause or ends of justice exceptions to Rule
5A:18. 	We, therefore, affirm Lewis' conviction.
Affirmed.