COURT OF APPEALS OF VIRGINIA 

Present: Judges Coleman, Elder and Senior Judge Cole 

Argued at Salem, Virginia 

CHARLES RICHARD AKERS 

 OPINION BY 

v. Record No. 2675-98-3 JUDGE LARRY G. ELDER 

 FEBRUARY 22, 2000 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY 

A. Dow Owens, Judge Designate 

 Thomas P. Kratman (Kratman, Swindell & 

Crenshaw, on brief), for appellant. 

 Linwood T. Wells, Jr., Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 Charles Richard Akers (appellant) appeals his bench trial 

conviction pursuant to Code § 18.2-53.1 for use of a firearm in 

the commission or attempted commission of a malicious wounding. 

Appellant originally also was charged with malicious wounding in 

violation of Code § 18.2-51 but was convicted of the lesser 

offense of unlawful wounding. On appeal, appellant contends his 

conviction for use of a firearm in the commission of a malicious

wounding was inconsistent with his conviction for unlawful

wounding arising out of the same incident. Conceding the 

inconsistency of the verdicts, the Commonwealth contends under 

Rule 5A:18 that appellant waived his right to contest this 

inconsistency by failing to present this argument to the trial 
judge. In the alternative, it contends the trial court's 

inconsistent verdicts do not constitute reversible error. We hold 

that appellant sufficiently preserved this objection for our 

review and that a trial court's truly inconsistent verdicts 

constitute reversible error on direct appeal. Therefore, we 

reverse and dismiss the challenged firearm conviction.1

I. 

BACKGROUND 

 On January 14, 1998, appellant went to the home of Josh 

Berkheimer to collect money Berkheimer owed him. When appellant 

was unable to collect the money, he became angry and later 

returned to Berkheimer's residence with Donald Teaster. Appellant 

and Teaster donned ski masks and hid in Berkheimer's backyard. 

When Matthew Oliveira, Berkheimer's roommate, exited the house, 

appellant and Teaster attacked him and chased him back into the 

house. Appellant held Oliveira while Teaster sprayed him with 

pepper spray. Teaster had a gun and the men said "they were going 

to kill [Oliveira] or something like that." Oliveira was "very 

afraid." Appellant and Oliveira exchanged several punches and one 

or both of the assailants held Oliveira down and continued to beat 

him, striking him a total of ten to twenty times. Oliveira then 

heard a very loud bang next to his ear, and the men fled. 

 1

 In addition to the unlawful wounding and firearm 

convictions, appellant also was convicted of breaking and 

entering and malicious release of a chemical mixture. On 

appeal, he challenges only the firearm conviction. 

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Oliveira sustained burns to that ear and the side of his head and 

could not hear out of that ear for about a week. He also 

sustained a black eye and a cut across his nose which resulted in 

a scar, and he required three stitches in the back of his head. 

 Detective Glenn Richardson questioned appellant about the 

incident. Appellant admitted his involvement. He originally 

denied knowing Teaster had a gun but later said he knew Teaster 

usually carried a weapon for protection. Appellant said that when 

the gun went off, he realized he had been shot in the foot, and 

the two men left to obtain medical attention. 

 Appellant was charged with breaking and entering, malicious 

release of a chemical mixture, malicious wounding, and "use . . . 

or display [of a firearm] in a threatening manner while committing 

or attempting to commit malicious wounding." 

 In closing argument, the prosecutor argued that the doctrine 

of concert of action permitted appellant to be convicted of the 

firearm and pepper spray charges. Counsel for appellant argued 

that this doctrine was inapplicable to the firearm offense because 

appellant was the victim of the shooting and could not "transfer 

intent to himself." When the trial court referenced the burns the 

victim sustained on his ear, counsel for appellant responded, "if 

it was from the discharge of the weapon . . . [b]ut that would be 

maliciously wounding, not use of a firearm." Counsel for 

appellant also argued that the evidence was insufficient to prove 

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malice for the malicious wounding charge and asked that it be 

reduced to assault and battery. 

 The trial court said it was "convinced beyond a reasonable 

doubt that there was a concert of action and that the evidence is 

sufficient to convict and it's a question of degree and what." It 

then convicted appellant for breaking and entering and malicious 

release of a chemical mixture. It also convicted him for unlawful 

rather than malicious wounding and for "the use, or attempted use 

of a pistol in a threatening manner." (Emphasis added). 

 At the sentencing hearing, counsel for appellant moved to set 

aside the verdict on the firearm charge. When the prosecutor 

noted during argument that the court had reduced the malicious 

wounding charge to unlawful wounding, counsel for appellant agreed 

and reminded the court that "the [firearm] charge was . . . [u]se 

of a firearm to maliciously wound." He also argued the evidence 

was insufficient to prove that the requisite wounding occurred 

from the firearm because appellant was the only person shot and 

the victim's only injury from the firearm was a burn. The trial 

court denied the motion. 

II. 

ANALYSIS 

A. 

PROCEDURAL BAR 

 Rule 5A:18 provides that "[n]o ruling of the trial court 

. . . will be considered as a basis for reversal unless the 

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objection was stated together with the grounds therefor at the 

time of the ruling, except for good cause shown or to enable the 

Court of Appeals to attain the ends of justice." An objection 

presented via a motion to set aside the verdict is sufficiently 

timely to satisfy the rule. See Lee v. Lee, 12 Va. App. 512, 

515, 404 S.E.2d 736, 738 (1991) (en banc). The Commonwealth 

contends that appellant failed to object to the inconsistent 

verdicts in the trial court, thereby failing to preserve the 

issue of inconsistent verdicts for appeal. We disagree. 

 Counsel for appellant challenged the firearm conviction at 

the sentencing hearing by moving the trial court to set it 

aside. The bulk of appellant's argument was based on his 

contention that the evidence was insufficient to establish the 

victim's wounds resulted from the firearm. However, in response 

to the prosecutor's statement that the court had reduced the 

malicious wounding charge to unlawful wounding, counsel for 

appellant agreed and reminded the court that "the [firearm] charge 

was . . . [u]se of a firearm to maliciously wound." (Emphasis 

added). We hold that this exchange, although brief, was 

sufficient to inform the trial court of appellant's belief that 

the convictions for unlawful wounding and use of a firearm in the 

commission of a malicious wounding were inconsistent.2

 2

 Even if we were to hold this exchange insufficient to 

preserve the issue for appeal, we nevertheless would apply the 

ends of justice exception to consider the issue on the merits. 

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B. 

INCONSISTENT CONVICTIONS BY A TRIAL COURT 

 Whether it is error for a trial court to render 

inconsistent verdicts3 is a question of first impression in 

 

Application of the ends of justice exception requires proof 

of an error that was "clear, substantial and material." Brown 

v. Commonwealth, 8 Va. App. 126, 132, 380 S.E.2d 8, 11 (1989). 

The record "must affirmatively show that a miscarriage of 

justice has occurred, not that a miscarriage might have 

occurred." Redman v. Commonwealth, 25 Va. App. 215, 221, 487 

S.E.2d 269, 272 (1997). Application of the ends of justice 

exception is appropriate where "[the accused] was convicted for 

conduct that was not a criminal offense" or "the record . . . 

affirmatively prove[s] that an element of the offense did not 

occur." Id. at 221-22, 487 S.E.2d at 272-73; see Johnson v. 

Commonwealth, 20 Va. App. 547, 553-54, 458 S.E.2d 599, 602 

(1995) (en banc) (holding that trial court has affirmative duty 

properly to instruct jury on elements of offense and that ends 

of justice exception permits defendant to raise issue for first 

time on appeal). 

Here, whether the ends of justice exception would apply is 

inextricably linked to the merits determination. Under 

appellant's theory of the case, the trial court's rendering of 

inconsistent verdicts was reversible error. In essence, he 

argues either (1) that he was convicted for use of a firearm in 

the commission of an unlawful wounding, a non-existent offense, 

or (2) that, by finding him guilty of unlawful rather than 

malicious wounding, the trial court found an element of the 

firearm offense, malicious intent, did not exist. 

As we hold infra, in Section II.B., appellant's bench trial 

conviction for use of a firearm in the commission of a malicious 

wounding after his acquittal for malicious wounding arising out 

of the same incident was inconsistent and constituted reversible 

error. Therefore, it was error that was "clear, substantial and 

material," which would justify our review under the ends of 

justice exception. Brown, 8 Va. App. at 132, 380 S.E.2d at 11. 

3

 Verdicts or convictions are inconsistent when "'the 

essential elements in the count wherein the accused is acquitted 

are identical and necessary to proof of conviction on the guilt 

count.'" State v. Meyer, 832 P.2d 357, 362 (Kan. Ct. App. 1992) 

(citation omitted); see Wolfe v. Commonwealth, 6 Va. App. 640, 

648, 371 S.E.2d 314, 318 (1988) (holding that conviction for 

voluntary manslaughter constituted acquittal on murder charge 

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Virginia. We previously have held that inconsistent verdicts 

rendered by a jury do not constitute reversible error. See, 

e.g., Tyler v. Commonwealth, 21 Va. App. 702, 707-09, 467 S.E.2d 

294, 296-97 (1996). 

"'The most that can be said in such cases is 

that the verdict shows that either in the 

acquittal or the conviction the jury did not 

speak their real conclusions, but that does 

not show that they were not convinced of the 

defendant's guilt. We interpret the 

acquittal as no more than their assumption 

of a power which they had no right to 

exercise, but to which they were disposed 

through lenity.'" . . . [J]uries may reach 

inconsistent verdicts through mistake, 

compromise, or lenity, but in such instances 

it is "unclear whose ox has been gored," the 

government's or the defendant's. For this 

reason and the fact that the government is 

precluded from appealing the acquittal 

verdict, the Court concluded that 

inconsistent verdicts should not provide the 

basis for an appeal by the defendant. 

 

such that conviction for use of firearm in commission of murder 

was "palpabl[y]" inconsistent). Compare Wolfe, 6 Va. App. at 

648, 371 S.E.2d at 318 (acknowledging elemental inconsistency), 

with United States v. Maybury, 274 F.2d 899, 903-04 (2d Cir. 

1960) (applying broader approach to find inconsistency where 

elements of offenses are distinct but evidence proving each 

offense is the same or significantly overlaps, suggesting that 

fact finder interpreted evidence one way in convicting of one 

offense and in an entirely different and inconsistent way in 

acquitting of the other). The evidence here supports 

appellant's argument and the Commonwealth's concession that 

appellant's bench trial convictions for unlawful wounding and 

use of a firearm in the commission of malicious wounding are, in 

fact, elementally inconsistent. See Banner v. Commonwealth, 204 

Va. 640, 645, 133 S.E.2d 305, 309 (1963) (holding that 

conviction for lesser offense of unlawful wounding constitutes 

acquittal for greater offense of malicious wounding arising from 

same conduct). 

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Wolfe v. Commonwealth, 6 Va. App. 640, 647-48, 371 S.E.2d 314, 

318 (1988) (quoting United States v. Powell, 469 U.S. 57, 63, 

65, 66, 105 S. Ct. 471, 475, 477, 477, 83 L. Ed. 2d 461 (1984) 

(quoting Dunn v. United States, 284 U.S. 390, 393, 52 S. Ct. 

189, 190, 76 L. Ed. 2d 356 (1932))). 

 The issue of inconsistent verdicts implicates no 

constitutional guarantee. See id. at 648, 371 S.E.2d at 318. 

Where a jury renders inconsistent verdicts, "a search of the 

trial record in an attempt to reconcile such inconsistency is 

neither appropriate nor required." Id. at 650, 371 S.E.2d at 

319. As long as the evidence supports both verdicts, they "will 

be upheld, despite the apparent inconsistency." Pugliese v. 

Commonwealth, 16 Va. App. 82, 96, 428 S.E.2d 16, 26 (1993). 

 Although we have not previously addressed the issue of 

inconsistent bench trial verdicts, we have commented on the 

issue in dicta on at least two occasions. In Wolfe, 6 Va. App. 

at 650 n.3, 371 S.E.2d at 319 n.3, we noted that nothing in our 

opinion was "intended to address inconsistent verdicts rendered 

by a trial judge in a single criminal trial." Citing Shell v. 

State, 512 A.2d 358 (Md. 1986), we indicated our belief that 

"the principles stated [in Wolfe] are [not] applicable to such 

cases." Wolfe, 6 Va. App. at 650 n.3, 371 S.E.2d at 319 n.3. 

More recently, in Elmore v. Commonwealth, 22 Va. App. 424, 427 

n.1, 470 S.E.2d 588, 589 n.1 (1996), we assumed without deciding 

"that inconsistent verdicts in a bench trial are grounds for 

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reversal in Virginia." We again cited the decision of 

Maryland's highest court in Shell as representative of the 

decisions of other jurisdictions that "the considerations that 

may justify inconsistent jury verdicts do not apply in a bench 

trial." Id. (citing United States v. Maybury, 274 F.2d 899, 903 

(2d Cir. 1960); Shell, 512 A.2d at 363; Haynesworth v. United 

States, 473 A.2d 366, 368 (D.C. 1984)). 

 We now expressly adopt, as applicable to elemental 

inconsistency in bench trial verdicts, the basic rationale 

applied by Maryland's highest court in Shell.4 Shell involved 

facts almost identical in relevant respects to those at issue 

here. Shell was charged, inter alia, with attempted murder and 

use of a handgun in the commission of a "crime of violence," 

defined by statute to include attempted murder. See 512 A.2d at 

359, 361 n.4. The trial court found the defendant's voluntary 

intoxication negated the intent to commit any of the underlying 

"crime[s] of violence" but nevertheless convicted him of use of 

 4

 In Shell, the court noted its prior holding "that 'a trial 

court in a criminal case must, if requested by the accused, 

instruct a jury that an accused cannot be found guilty of use of 

a handgun in the commission of a crime of violence under . . . 

Art. 27, § 36B(d) if found not guilty of a crime of violence as 

defined in . . . Art. 27, § 441(e).'" 512 A.2d at 362 (quoting 

Mack v. State, 479 A.2d 1344 (1984)). We have not previously 

addressed a defendant's entitlement to such an instruction in 

Virginia, see Gray v. Commonwealth, 28 Va. App. 227, 235, 503 

S.E.2d 252, 256 (1998), and we find it unnecessary to do so in 

this opinion. 

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a handgun in the commission of a crime of violence. See id. at 

360. The Maryland Court of Appeals concluded that the 

convictions were inconsistent and that the principles which 

supported affirmance of inconsistent jury verdicts did not apply 

in bench trials. See id. at 362. 

 It observed as follows: 

[C]onvictions based on inconsistent jury 

verdicts are tolerated because of the 

singular role of the jury in the criminal 

justice system. . . . [T]here is a 

"reluctance to interfere with the results of 

unknown jury interplay," at least without 

proof of "actual irregularity." . . . 

[I]nconsistencies may be the product of 

lenity, mistake, or a compromise to reach 

unanimity, and . . . the continual 

correction of such matters would undermine 

the historic role of the jury as arbiter of 

questions put to it. In the present case, 

however, the inconsistent verdicts were 

rendered by a judge, not by a jury. [The 

above rationale] does not justify 

inconsistent verdicts from the trial judge. 

Id. at 362 (citations omitted). Quoting Maybury, 274 F.2d at 

903, 905, the Maryland Court of Appeals further observed: 

"There is no need to permit inconsistency 

. . . so that the judge may reach unanimity 

with himself; on the contrary, he should be 

forbidden this easy method for resolving 

doubts. . . . We do not believe we would 

enhance respect for the law or for the 

courts by recognizing for a judge the same 

right to indulge in 'vagaries' in the 

disposition of criminal charges that, for 

historic reasons, has been granted the jury. 

* * * * * * * 

 We reverse for inconsistency . . . 

because we can have no confidence in a 

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judgment convicting Maybury of one crime 

when the judge, by his acquittal of another, 

appears to have rejected the only evidence 

that would support the conviction here." 

Shell, 512 A.2d at 362-63.5 Under these circumstances, "an 

apparent inconsistency in judgments is more likely the result of 

confusion . . . , [and] there is a danger that the defendant was 

not proved guilty beyond a reasonable doubt . . . ." 

Haynesworth, 473 A.2d at 372.6

 For these reasons, we hold that appellant's bench trial 

conviction for use of a firearm in the commission of a malicious 

 5

 The Maryland Court of Appeals noted its previous ruling 

that "where a trial judge on the record explains an apparent 

inconsistency in the verdicts, and where the explanation shows 

that the trial court's action was 'proper' and that there was no 

'unfairness,' the verdicts would be sustained." 512 A.2d at 363 

(quoting Johnson v. State, 209 A.2d 765, 773 (1965)). We need 

not reach this issue in appellant's case because specific 

findings of fact are not required under Virginia law and the 

trial court gave no explanation for the inconsistent verdicts. 

See also Wolfe, 6 Va. App. at 650, 371 S.E.2d at 319 (stating 

that where a jury renders inconsistent verdicts, "a search of 

the trial record in an attempt to reconcile such inconsistency 

is neither appropriate nor required" (emphasis added)). 

6

 We are cognizant of the ruling of the United States 

Supreme Court in Harris v. Rivera, 454 U.S. 339, 102 S. Ct. 460, 

70 L. Ed. 2d 530 (1981), cited by the Commonwealth, in which the 

Court held that inconsistent verdicts in a nonjury criminal 

trial are constitutional. We take little guidance from Rivera, 

however, because it involved a collateral attack in a habeas 

corpus proceeding under 28 U.S.C. § 2254 based on the argument 

that Rivera's conviction was inconsistent with the acquittal of 

a codefendant. See id. at 341-43, 102 S. Ct. at 462-63. 

Further, the Court stated explicitly that "[t]his case does not 

raise any question concerning the significance that an appellate 

court may attach to an apparent inconsistency in a verdict that 

is subject to review on direct appeal." Id. at 343, 102 S. Ct. 

at 462-63; see also Shell, 512 A.2d at 363 & n.6. 

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wounding after his implied acquittal for malicious wounding 

arising out of the same incident constituted error, and we 

reverse and dismiss the challenged firearm conviction. 

Reversed and dismissed.

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