COURT OF APPEALS OF VIRGINIA
Present: Judges Fran k, Humphreys and Chafin Argued at Chesapeake, Virginia

FRANCIS ANYOKORIT MASIKA OPINION BY v. Record No. 0575-13-1 JUDGE ROBERT P. FRANK MAY 6, 2014 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE John W. Brown, Judge A. Robinson Winn, Deputy Public Defender (Office of the Public Defender, on brief), for appellant. Steven A. Witmer, Senior Assi stant Attorney Ge neral (Mark R. Herring, Attorney General, on brief), for appellee.
Francis Anyokorit Maskia, appellant, was convic ted, in a bench trial, of failure to return leased property in violation of Co de § 18.2-118 an d felony contempt 1 in violation of Code § 18.2-456. On appeal appellant contends that be cause Code § 18.2-118, by its very terms, excludes vehicles from the types of person al property subject to Code § 18. 2-118, the trial court erred in convicting him under that statute. For the reasons stated, we reverse the judgment of the trial court.
BACKGROUND Appellant and Triangle Rental Car (Triangle) entered into a written cont ract for appellant to lease one of Triangle’s vehicles for a single day rent al. Appellant did not re turn the vehicle on the agreed-upon return date. An empl oyee of Triangle unsuccessfully at tempted to contact appellant to seek return of the vehicle. Triangle sent a notice letter to appellant as required by Code

1 The contempt conviction is not before us.PUBLISHED- 2 - § 18.2-118(B). The letter was returned. 2 The vehicle was returned to Triangle approximately two weeks later. The trial court found the evidence sufficient to convict appellant under Code § 18.2-118. This appeal follows.
ANALYSIS Appellant maintains th e trial court erred in convicting hi m under Code § 18 .2-118, as that section specifically excludes vehicles from the provisions of the statute. On appeal, appellant does not contest that he failed to return a rented vehi cle or that the evidence would be insufficient to establish that he violated Code § 18.2-117. Rather, hi s argument is that he did not violate Code § 18.2-118. Appellant conc edes that he never raised that issu e below. He asserts the “ends of justice” exception to Rule 5A :18 permits us to address his assi gnment of error. “The Court of Appeals will no t consider an argument on appe al which was not presented to the trial court.” Ohr ee v. Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998) (citing Jacques v. Commonw ealth, 12 Va. App. 591, 593, 405 S. E.2d 630, 631 (1 991)); see also Rule 5A:18. However, Rule 5A:18 provides for consideration of a ruling by the tr ial court that was not objected to at trial “to enable the Court of Appeals to attain the ends of justice.” Rule 5A:18. “‘The ends of justice exception is narrow and is to be used sparingly’” when an error at trial is “‘clear, substantial and material .’” Redman v. Commonwealth, 25 Va. App. 215, 220-21, 487 S.E.2d 269, 272 (1997) (quoting Brown v. Commo nwealth, 8 Va. App. 126, 132, 380 S.E.2d 8, 10-11 (1989)). “In order to avail oneself of the ex ception, a defendant must affirmatively show that a miscarriage of justice has oc curred, not that a miscarriage might have occurred.” Id. at 221, 487

2 Appellant does not contest that Triangle complied with the notice provisions of the statute.- 3 - S.E.2d at 272 (citing Mounce v. Commonwealth, 4 Va. App. 433, 436, 357 S.E. 2d 742, 744 (1987)). In order to show that a miscarri age of justice has occurred, an appellant must demonstrate more than that the Commonwealth failed to prove an element of the offense. . . . [T]he appellant must demonstrate that he or she was c onvicted for conduct that was not a criminal offense or the record must affirmatively prove that an element of the offense did not occur. Id. at 221-22, 487 S.E.2d at 272- 73 (emphasis in original). In order to avail himself of this exception to 5A:18, the appellant must “‘affirmatively show [that] . . . that the error [was] clear , substantial and material.’” Bazemore v. Commonwealth, 42 Va. App. 203, 219, 590 S.E.2d 602, 610 (2004) (quoting Brown, 8 Va. App. at 132, 380 S.E.2d at 11 (alter ations in original)). Our inquiry, then, is whether “manifest injust ice” occurs when an accused is convicted of conduct excluded from the statute under which he was charged. In order to make that determination, we must delve into the facts of th e case and analyze them in the context of Rule 5A:18. In examining a case for miscarriage of justice, we do not simply review the sufficiency of the evidence under the usual standard, but inst ead determine whether the record contains affirmative evidence of innocence or lack of a criminal offense. Our Supreme Court has limited the “‘[a]pplication of the ends of justice exception [to cases where] the judgment of the trial court was error and applicatio n of the exception is necessary to avoid a grave injustice or the denial of essential righ ts.’” Rowe v. Commonwealth, 277 Va. 495, 503, 675 S.E.2d 161, 165 (2009) (quoting Charles v. Commonwealth, 270 Va. 14, 17, 613 S.E.2d 432, 433 (2005)). The language used by our Supreme Court indicates that there are two dis tinct requirements that [appellant] must meet before we can apply the ends of justice exception: (1) that the trial court erred, a nd (2) that a grave or manifest injustice will occur or the appellan t will be denied essential rights. Brittle v. Commonwealth, 54 Va. App. 505, 512-13, 680 S.E.2d 335, 339 (2009).- 4 - Both requirements are essential, because if a trial error is always considered manifest injustice, Rule 5A:18 would be absorbed into this exception. See Re dman, 25 Va. App. at 221, 487 S.E.2d at 272. In that case, any issue, re gardless of whether it was properly preserved, would be subject to appellate review, and Rule 5A:18 would be meaningless. The burden of establishing a ma nifest injustice is a heavy one, and it rests with the appellant. We have previously held that the appellant must demonstrate more than that the Commonwealth failed to prove an element of the offens e. . . . In order to show that a miscarriage of justice has occurred, . . . the appellant must demonstrate that he or she was c onvicted for conduct that was not a criminal offense or the record must affirmatively prove that an element of the offense did not occur. Brittle, 54 Va. App. at 514, 680 S.E.2d at 340 (citing Redman, 25 Va. App. at 221-22, 487 S.E.2d at 273) (emphasis in original). The non-offense prong of the ends of justice analysis is similar to a legal impossibility analysis. It is clear from our jurisprudence that factual impossibility is not a defense to a crime, but legal impossibility is. Hix v. Commo nwealth, 270 Va. 335, 344, 619 S.E.2d 80, 85 (2005). Legal impossibility occurs when a defendant’s actions would not cons titute a crime, even if they were carried out fully and exactly as he intended. Factual impossibility arises when a defendant’s actions are proscribed by the crimin al law, but the defendant is prevented from bringing about the intended result due to a fact or circumstance unknown to him. See Parham v. Commonwealth, 2 Va. App. 633, 636, 347 S.E.2d 172, 173-74 (1986). “Traditional analysis recognizes legal impossibility as a valid defense but refuses to recognize f actual impossibility.” Id. at 636, 347 S.E.2d at 174 (citing United St ates v. Oviedo, 525 F.2d 881, 883 (5th Cir. 1976)). The Supreme Court of Virg inia was presented with a classic example of legal impossibility in Foster v. Commonwealth, 96 Va. 306, 31 S.E. 503 (1898). In that case, a boy under the age of fourteen was charged with the crime of rape. There was a conclusive presumption under the common law that a child under fourteen l acked the capacity to commit- 5 - rape or to attempt to commit rape, regardless of the facts. Id. at 307, 31 S.E. at 504. The Court concluded that the underage defendant was legally unable to commit the substantive crime or be convicted of the attempt. Id. at 311, 31 S.E. at 505. In Michaels v. Commonw ealth, 32 Va. App. 601, 529 S.E.2d 822 (2000), the appellant was summarily convicted of contempt of court, in violation of Code § 18.2-456(5), for failing to transport an inmate to a mental hospital for an inpatient psychological evaluation. Id. at 603, 529 S.E.2d at 823. The trial court’s continuance order implied that the inmate should go to a mental hospital for a psychological evaluati on, yet the order never directed anyone to take him there. Id. at 605, 529 S.E.2d at 824. The trial court issued an order to show cause to Deputy Michaels to explain why he did not transport the inmate to the mental hospita l. The testimony at the show cause hearing demonstrated that Michaels was ne ver ordered to transport the inmate anywhere and that, in fact, he never transported the inma te anywhere. Id. at 609, 529 S.E.2d at 826. In reversing his conviction, we not ed that Michaels was convicted of a crime that was legally impossible to commit. Bruhn v. Commonwealth, 264 Va. 597, 570 S.E.2d 866 (2002), is helpful to our analysis. In Bruhn, the accused was tried and convicted of gr and larceny. The Supreme Court of Virginia agreed with the reasoning of this Court and f ound the evidence insufficient to prove there was a trespassory taking, concluding that “the Commonwealth is no l onger permitted to sustain an indictment for grand larceny by proving that th e defendant committed embezzlement.” Id. at 601, 570 S.E.2d at 868. In Ball v. Commonwealth, 221 Va. 754, 273 S.E.2d 790 (1981), Ball was convicted of capital murder and sentenced to life in prison. Id. at 755-56, 273 S.E.2d at 790-91. The indictment charged Ball with the willful, deliber ate, and premeditated kil ling of another “in the commission of robbery while armed with a deadly weapon,” in violation of Code § 18.2-31(d).- 6 - Id. at 756, 273 S.E.2d at 791. The Court concluded that “[t]he evidence, construed in the light most favorable to the Commonw ealth, showed that [the victim] was killed during an attempted robbery, rather than in the actual commission of robbery.” Id. at 757, 273 S.E.2d at 792. As a result, “[u]nder the evidence, th e only offense of which Ball c ould properly be convicted was felony murder of the first degr ee under [Code] § 18.2-32.” Id. The Court stated: Under Rule 5:21 [now Rule 5:25] , we do not notice such errors except in those rare instances when it is necessary to enable us to attain the ends of justice. This is one of those instances. Ball has been convicted of a crime of which under the evidence he could not properly be found guilty. Id. at 758-59, 273 S.E.2d at 793. The same is true in this case. As in Br uhn and Ball, appellant was found guilty of a crime where the evidence demonstrated he could not be convicted. The Common wealth cannot sustain a conviction under Code § 18.2-118 when the leased property that was not returned was a motor vehicle. In Bruhn, Bruhn could have been convict ed of embezzlement if properly charged. In Ball, Ball could have been convicted of felony murder if properly charged. Here, appellant could have been convicted of violating Code § 18.2-117 if properly charged. The Commonwealth contends appellant wa s properly convicted under Code § 18.2-118 and that the language of that st atute excluding “property describe d in § 18.2-117” is limited only

to bailed vehicles, etc. The Commonwealth makes a distinction between bailed property (Code § 18.2-117) and leased property (C ode § 18.2-118), but offers no cas e law or other authority to support this argument. Personal property is defined as “any movabl e or intangible thing that is subject to ownership and not classified as real propert y.” Black’s Law Dicti onary 1233 (7th ed. 1999).- 7 - The Commonwealth contends if a vehicle is subject to a bailment, only Code § 18.2-117 applies. Otherwise, Code § 18.2-118 is the appr opriate statute for failure to return leased property. The Commonwealth offers no case law or other authority to support this argument. Under well-established principles, an issue of statutory interpretati on is “‘a pure question of law subject to de novo review.’” Crawford v. Haddock, 270 Va. 524, 528, 621 S.E.2d 127, 129 (2005) (quoting Horner v. Dep’t of Mental H ealth, Mental Retarda tion, & Substance Abuse Servs., 268 Va. 187, 192, 597 S.E.2d 202, 204 (2004)). “When the language of a statute is unambiguous, we are bound by the plain meaning of that language. Furthermore, we must give effect to the legislat ure’s intention as expressed by the language used unless a literal interpretation of the language would result in a manifest absurdity. If a statute is subject to more than one interpretation, we must apply the interpretation that will carry out the legislative inte nt behind the statute.” Kozmina v. Commonwealth, 281 Va. 347, 349-50, 706 S.E.2d 860, 862 (2011) (quoting Conyers v. Martial Arts World of Richmond, Inc., 273 Va. 96, 104, 639 S.E.2d 174, 178 (2007) (citations omitted)). In this case, appellant was charged un der Code § 18.2-118, which states in part: A. Whenever any person is in possession or control of any personal property, by virtue of or su bject to a written lease of such property, except property described in § 18.2-117 , and such person so in possession or control shall, with intent to defraud, sell, secrete, or destroy the property, ordispose of the property for his own use, or fraudulently remove the same from the Commonwealth without the written consent of the lessor thereof, or fail to return such property to the lessor thereof within 30 days after expiration of the lease or rent al property stated in such written lease, he shall be deemed guilty of the larceny thereof. (Emphasis added). Code § 18.2-117 states: If any person comes into the possession as bailee of any animal, aircraft, vehicle, boat or vessel, a nd fail to return the same to the bailor, in accordance with the bailment agreement, he shall be- 8 - deemed guilty of larceny thereof and receive the same punishment, according to the value of the thing stolen, prescribed for the punishment of the larceny of goods and chattels. The failure to return to the bailor such animal, aircraft, vehicle, boat or vessel, within five days from the time the bailee has agreed in writing to return the same shall be prima facie evidence of larceny by such bailee of such animal, aircraft , vehicle, boat or vessel. The Commonwealth’s entire ar gument ignores the laws of statutory interpretation. The property excluded in Code § 18.2-118 is precis ely that personal property listed in Code § 18.2-117, i.e., “any animal, aircraft, vehicle, boat or vessel.” Whether or not that property is subject to a bailment does not alter the nature of the property. A vehicle is a vehicle whether or not it is subject to a bailment. A bailment is si mply a legal relationship between the owner of the property and the person ha ving possession and control. 3 The language of Code § 18.2-118 is clear and unambiguous as to th e property excluded under that statute. Nowhere in Code § 18.2-118 does the statute limit the type of prope rty exempted from the statute based on the legal status or type of possession of that property. Interestingly, a review of our Virginia juri sprudence reveals that cases involving failure to return leased furniture and electronic e quipment are prosecuted under Code § 18.2-118. See Commonwealth v. McNeal, 282 Va. 16, 710 S.E .2d 733 (2011) (leased aluminum brake); McDowell v. Commonwealth, 57 Va. App. 308, 701 S.E.2d 820 (2010) (leased television), reversed on other grounds, 282 Va. 341, 718 S. E.2d 772 (2011); Compton v. Commonwealth, 22 Va. App. 751, 473 S.E.2d 95 (1996) (sawmill equi pment); Miller v. Commonwealth, 7 Va. App.

3 To establish a bailment, there must ordina rily be a delivery by the bailor and an acceptance by the bailee, but it is not necessary to have a formal contract or even an actual meeting of the minds. “Indeed, ‘it is the el ement of lawful possession, however created, and duty to account for the thing as the property of another that creates the bailment, regardless of whether or not such possession is based on contract in the ordinary sense.’” Morris v. Hamilton, 225 Va. 372, 374-75, 302 S.E.2d 51, 52 (1983) (quoti ng K-B Corporation v. Gallagher, 218 Va. 381, 384, 237 S.E.2d 183, 185 (1977)). A bailee must ha ve physical control over the property in question, as well as the intent to exercise that control, in or der to have possession. See K-B Corporation, 218 Va. at 384, 237 S.E.2d at 185.- 9 - 367, 302 S.E.2d 51 (1983) (video machine); Haley v. Commonwealth, No. 1268-12-3, 2013 Va. App. LEXIS 182 (Va. Ct. App. June 11, 2013) (leased television); Be rt v. Commonwealth, No. 1499-10-1, 2011 Va. App. LEXIS 318 (Va. Ct. App. Oct. 18, 2011) (leased television); Byrum v. Commonwealth, N o. 1201-09-1, 2010 Va. App. LEXIS 211 (Va. Ct. App. May 18, 2010) (leased jackhammer). None of these cases involves the failure to return a rental car. In contrast, cases involving failure to retu rn leased vehicles ar e prosecuted under Code § 18.2-117, formerly Code § 18.1-163. See Maye v. Commonwealth, 213 Va. 48, 189 S.E.2d 350 (1972); Reed v. Commonwealth, 62 Va. App. 270, 746 S.E.2d 81 (2013); Ketcham v. Commonwealth, 12 Va. App. 258, 403 S.E.2d 382 (1991); Malash v. Commonwealth, 3 Va. App. 243, 348 S.E.2d 868 (1986). While none of these cases addresses the difference between Code §§ 18.2-117 and -118, it is clear that the failure to return a vehicl e is prosecuted under Code § 18.2-117, and failure to return other property is prosecuted under Code § 18.2-118. We have found no cases that suggest otherwise. We therefore conclude that fa ilure to return a leased vehi cle is within the purview of Code § 18.2-117, not Code § 18.2-118, and that appella nt was convicted under the wrong statute. We thus conclude that based on the facts of this case, it was legally impossible for appellant to violate Code § 18.2-118. A mani fest injustice occurred.
CONCLUSION Appellant was improperly convicted of conduc t not proscribed by the statute under which he was charged. We therefore reverse hi s conviction and dismiss the indictment. Reversed and dismissed.