COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Petty and Senior Judge Bumgardner

Argued at Richmond, Virginia

JULIAN EARL COSELY

MEMORANDUM OPINION* BY

v. Record No. 2478-10-2 JUDGE WILLIAM G. PETTY

NOVEMBER 22, 2011

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY

Harold W. Burgess, Jr., Judge

Sandra L. Ulloa for appellant.

Benjamin H. Katz, Assistant Attorney General (Kenneth T. 

Cuccinelli, II, Attorney General, on brief), for appellee.

Julian Earl Cosely was convicted in a bench trial of forcible sodomy in violation of Code 

§ 18.2-67.1.

1 On appeal, Cosely argues that the Commonwealth presented insufficient evidence

to prove the element of penetration. Cosely admits that he did not preserve this argument in 

accordance with Rule 5A:18, but asks that we invoke the ends of justice exception to the Rule. 

For the foregoing reasons, we conclude that the exception is inapplicable. Thus, we affirm.

Because the parties are fully conversant with the record in this case and this 

memorandum opinion carries no precedential value, we recite below only those facts and 

incidents of the proceedings as are necessary to the parties’ understanding of the disposition of 

this appeal. “On appeal, ‘we review the evidence in the light most favorable to the 

Commonwealth, granting to it all reasonable inferences fairly deducible therefrom.’” Archer v. 

 * Pursuant to Code § 17.1-413, this opinion is not designated for publication.

1 Cosely was also convicted of other sexual crimes that are not the subject of this appeal.
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Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. 

Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987)).

Rule 5A:18 states2: “No ruling of the trial court . . . will be considered as a basis for 

reversal unless the objection was stated together with the grounds therefor at the time of the 

ruling . . . .” “However, Rule 5A:18 permits us to overlook the appellant’s failure to preserve the 

issue and consider the merits of his argument for the first time on appeal if the ends of justice so 

demand.”3 Brittle v. Commonwealth, 54 Va. App. 505, 512, 680 S.E.2d 335, 339 (2009). The 

ends of justice exception is a narrow one “‘to be used sparingly.’” Id. (quoting Pearce v. 

Commonwealth, 53 Va. App. 113, 123, 669 S.E.2d 384, 390 (2008)). Otherwise, Rule 5A:18

would be rendered meaningless. Id. at 513, 680 S.E.2d at 339-40. Thus, an appellant invoking 

the ends of justice exception must show not only that an error occurred below, but must also 

show the occurrence of “a grave or manifest injustice.”4 Id. at 513, 680 S.E.2d at 339. 

Establishing that the evidence was insufficient to prove an element of the offense does not 

establish a grave or manifest injustice. Id. at 514, 680 S.E.2d at 340. Rather, the appellant

“‘must demonstrate that he . . . was convicted for conduct that was not a criminal offense or the 

 2 Effective July 1, 2010, Rule 5A:18 was revised to state that “[n]o ruling of the trial 

court . . . will be considered as a basis for reversal unless an objection was stated with reasonable 

certainty at the time of the ruling . . . .” Because the trial was completed prior to this revision 

taking effect, we will rely on the language of Rule 5A:18 that was then in effect. See Fails v. Va. 

State Bar, 265 Va. 3, 5 n.1, 574 S.E.2d 530, 531 n.1 (2003) (applying the Rule of Court in effect 

at the time of the proceedings below).

3 Rule 5A:18 also permits us to consider an argument for the first time on appeal for 

“good cause.” Because Cosely’s assignment of error asks us to consider only whether to apply 

the ends of justice exception, we do not consider whether the good cause exception applies in 

this appeal. See Rule 5A:12(c) (preventing this Court from considering an issue not presented by 

an assignment of error).

4 Alternatively, a person asking for the application of the ends of justice exception could 

show that he “will be denied essential rights,” rather than the occurrence of a grave or manifest 

injustice. Brittle, 54 Va. App. at 513, 680 S.E.2d at 339. Such a showing is plainly inapplicable 

to Cosely, and thus, we do not evaluate it in this appeal.
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record must affirmatively prove that an element of the offense did not occur.’” Id. (quoting 

Redman v. Commonwealth, 25 Va. App. 215, 221-22, 487 S.E.2d 269, 273 (1997)).

Cosely has failed to demonstrate the applicability of the ends of justice exception in this 

case. He relies exclusively on the fact that the victim did not expressly testify that penetration 

occurred—“an essential element of the crime of sodomy.” Ashby v. Commonwealth, 208 Va. 

443, 444, 158 S.E.2d 657, 658 (1968). The victim testified that Cosely made her “have oral sex 

with him.” When asked to define what she meant by oral sex, the victim said, “He would make 

me put my mouth on his penis.” (Emphasis added). Cosely points to our case law holding that 

this kind of testimony is insufficient to prove penetration in certain contexts. E.g., Ashby, 208 

Va. at 443, 158 S.E.2d at 658 (holding that a young boy’s testimony that he and a friend had 

briefly put their mouths “on” the appellant’s penis was insufficient to prove penetration); see also

Moore v. Commonwealth, 254 Va. 184, 189, 491 S.E.2d 739, 741-42 (1997) (holding that 

contradictory testimony from the victim regarding whether the appellant’s penis was “in” or “on” 

the victim’s vagina placed the evidence in equipoise and therefore made it insufficient to prove 

penetration).

Here, the question before us is not whether the victim’s testimony was sufficient to prove 

penetration, but rather, whether the victim’s testimony affirmatively proved that penetration did 

not occur. Here, the victim did testify that “[Cosely] would make [her] have oral sex with him.” 

It is quite possible that penetration did occur and the victim was simply less than precise in her 

testimony and would have clarified her answer if asked.5

 Accordingly, Cosely has failed to 

demonstrate the kind of grave or manifest injustice required to invoke the ends of justice 

 5 In light of this ambiguous testimony, it also follows that Cosely has not demonstrated 

that his behavior was not a criminal offense—the other prong of the ends of justice exception.
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exception to Rule 5A:18. Since the exception does not apply, Rule 5A:18 bars us from 

considering Cosely’s argument on appeal.

Therefore, we affirm Cosely’s conviction for forcible sodomy.

Affirmed.