COURT OF APPEALS OF VIRGINIA 

Present: Judges Frank, 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 Assistant Attorney General (Mark R. 

Herring, Attorney General, on brief), for appellee. 

 Francis Anyokorit Maskia, appellant, was convicted, in a bench trial, of failure to return 

leased property in violation of Code § 18.2-118 and felony contempt1

 in violation of Code 

§ 18.2-456. On appeal appellant contends that because Code § 18.2-118, by its very terms, excludes 

vehicles from the types of personal 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 contract for appellant to 

lease one of Triangle’s vehicles for a single day rental. Appellant did not return the vehicle on the 

agreed-upon return date. An employee of Triangle unsuccessfully attempted 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 
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§ 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 the trial court erred in convicting him 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 vehicle or that the evidence would be insufficient to 

establish that he violated Code § 18.2-117. Rather, his argument is that he did not violate Code 

§ 18.2-118. Appellant concedes that he never raised that issue below. He asserts the “ends of 

justice” exception to Rule 5A:18 permits us to address his assignment of error. 

 “The Court of Appeals will not consider an argument on appeal which was not presented to 

the trial court.” Ohree v. Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998) 

(citing Jacques v. Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d 630, 631 (1991)); see also 

Rule 5A:18. 

 However, Rule 5A:18 provides for consideration of a ruling by the trial 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. Commonwealth, 8 Va. App. 126, 132, 380 S.E.2d 8, 

10-11 (1989)). “In order to avail oneself of the exception, a defendant must affirmatively show that 

a miscarriage of justice has occurred, 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. 
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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 miscarriage 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 convicted 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 (alterations in original)). 

 Our inquiry, then, is whether “manifest injustice” 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 the 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 instead 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 application of the exception is necessary to avoid a 

grave injustice or the denial of essential rights.’” 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 distinct requirements that [appellant] 

must meet before we can apply the ends of justice exception: 

(1) that the trial court erred, and (2) that a grave or manifest 

injustice will occur or the appellant will be denied essential rights. 

Brittle v. Commonwealth, 54 Va. App. 505, 512-13, 680 S.E.2d 335, 339 (2009). 
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 Both requirements are essential, because if a trial error is always considered manifest 

injustice, Rule 5A:18 would be absorbed into this exception. See Redman, 25 Va. App. at 221, 

487 S.E.2d at 272. In that case, any issue, regardless of whether it was properly preserved, 

would be subject to appellate review, and Rule 5A:18 would be meaningless. 

 The burden of establishing a manifest 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 offense. . . . In order to show that 

a miscarriage of justice has occurred, . . . the 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. 

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. Commonwealth, 270 Va. 335, 344, 619 S.E.2d 80, 85 (2005). 

 Legal impossibility occurs when a defendant’s actions would not constitute 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 criminal 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 factual impossibility.” 

Id. at 636, 347 S.E.2d at 174 (citing United States v. Oviedo, 525 F.2d 881, 883 (5th Cir. 1976)). 

 The Supreme Court of Virginia 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 lacked the capacity to commit 
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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. Commonwealth, 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 evaluation, 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 hospital. The testimony at the show 

cause hearing demonstrated that Michaels was never ordered to transport the inmate anywhere 

and that, in fact, he never transported the inmate anywhere. Id. at 609, 529 S.E.2d at 826. In 

reversing his conviction, we noted 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 grand larceny. The Supreme Court of Virginia 

agreed with the reasoning of this Court and found the evidence insufficient to prove there was a 

trespassory taking, concluding that “the Commonwealth is no longer permitted to sustain an 

indictment for grand larceny by proving that the 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, deliberate, and premeditated killing of another “in the 

commission of robbery while armed with a deadly weapon,” in violation of Code § 18.2-31(d). 
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Id. at 756, 273 S.E.2d at 791. The Court concluded that “[t]he evidence, construed in the light 

most favorable to the Commonwealth, 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, the only offense of which Ball could properly be convicted was 

felony murder of the first degree 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 Bruhn and Ball, appellant was found guilty of a crime 

where the evidence demonstrated he could not be convicted. The Commonwealth 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 convicted 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 was properly convicted under Code § 18.2-118 

and that the language of that statute excluding “property described 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 (Code § 18.2-118), but offers no case law or other authority to 

support this argument. 

Personal property is defined as “any movable or intangible thing that is subject to 

ownership and not classified as real property.” Black’s Law Dictionary 1233 (7th ed. 1999). 
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 The Commonwealth contends if a vehicle is subject to a bailment, only Code § 18.2-117 

applies. Otherwise, Code § 18.2-118 is the appropriate 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 interpretation 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 Health, Mental Retardation, & 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 legislature’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 intent 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 under 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 subject 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, or dispose 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 rental 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, and fail to return the same to the 

bailor, in accordance with the bailment agreement, he shall be 
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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 argument ignores the laws of statutory interpretation. The 

property excluded in Code § 18.2-118 is precisely 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 simply a legal relationship between the owner of the 

property and the person having possession and control.3

 The language of Code § 18.2-118 is 

clear and unambiguous as to the property excluded under that statute. Nowhere in Code 

§ 18.2-118 does the statute limit the type of property exempted from the statute based on the 

legal status or type of possession of that property. 

 Interestingly, a review of our Virginia jurisprudence reveals that cases involving failure 

to return leased furniture and electronic equipment 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 equipment); Miller v. Commonwealth, 7 Va. App. 

 3

 To establish a bailment, there must ordinarily 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 element 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) (quoting K-B Corporation v. Gallagher, 218 Va. 

381, 384, 237 S.E.2d 183, 185 (1977)). A bailee must have physical control over the property in 

question, as well as the intent to exercise that control, in order to have possession. See K-B 

Corporation, 218 Va. at 384, 237 S.E.2d at 185. 
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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); Bert v. Commonwealth, 

No. 1499-10-1, 2011 Va. App. LEXIS 318 (Va. Ct. App. Oct. 18, 2011) (leased television); 

Byrum v. Commonwealth, No. 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 return leased vehicles are 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 vehicle 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 failure to return a leased vehicle is within the purview of 

Code § 18.2-117, not Code § 18.2-118, and that appellant 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 manifest injustice occurred. 

CONCLUSION 

 Appellant was improperly convicted of conduct not proscribed by the statute under which 

he was charged. We therefore reverse his conviction and dismiss the indictment. 

Reversed and dismissed.