COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Bray and Bumgardner 

Argued at Richmond, Virginia 

DOUGLAS OLGERS 

 MEMORANDUM OPINION* BY 

v. Record No. 0856-99-2 JUDGE RICHARD S. BRAY 

 MAY 9, 2000 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF BRUNSWICK COUNTY 

James F. D'Alton, Judge 

 David B. Hargett (Morrissey & Hershner, 

P.L.C., on brief), for appellant. 

 Marla Graff Decker, 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.

 Douglas Olgers (defendant) was convicted in a bench trial for 

"kill[ing] antlerless deer during closed season," a misdemeanor in 

violation of Code § 29.1-550(i), and possession of a firearm by a 

convicted felon, a violation of Code § 18.2-308.2. He complains 

on appeal that the trial court imposed an impermissible punishment 

for the misdemeanor and challenges the sufficiency of the evidence 

to establish that the firearm was operational. We agree that the 

court improperly sentenced defendant for the game offense and, 

therefore, reverse the order and remand for resentencing. 

However, because defendant raises the specific evidentiary 
challenge to the firearm conviction for the first time on appeal, 

we decline to address the issue and affirm the trial court. 

 The parties are fully conversant with the record, and this 

memorandum opinion recites only those facts necessary to a 

disposition of the appeal. 

I. 

 Based on familiar principles, we view the record "'in the 

light most favorable to the Commonwealth, giving it all 

reasonable inferences fairly deducible therefrom. In so doing, 

we must discard the evidence of the accused in conflict with 

that of the Commonwealth, and regard as true all the credible 

evidence favorable to the Commonwealth . . . .'" Watkins v. 

Commonwealth, 26 Va. App. 335, 348, 404 S.E.2d 856, 866 (1998) 

(citation omitted). 

 On December 18, 1997, James Campbell, a "Special Agent" of 

the Virginia Department of Game and Inland Fisheries, while 

conducting an undercover investigation of unlawful "hunting 

activities," was invited to join defendant, Randall Coleman and 

Kenny Westmoreland in a deer hunt on property owned by 

Westmoreland's family. At the inception of the outing, 

Campbell, Coleman and Westmoreland "got in a line around the 

woods," while defendant noisily "came through the woods," 

"attempt[ing] to drive any deer" into the open area. Although 

defendant's efforts were unsuccessful, he soon emerged "carrying 

. . . an antlerless [doe] deer across his shoulder," which he 

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identified as "one . . . he shot at the night before" with a 

"rifle" borrowed from Coleman. 

 The hunt resumed and, after several hours, defendant tired 

and decided "to take a [deer] stand" and there await passing 

deer. Armed with "Coleman's twelve gauge shotgun," he proceeded 

to "a stand in plain sight" of Campbell, while Coleman "made a 

drive without a weapon." Despite these efforts, however, no 

game was harvested and "no shots were fired" by anyone in the 

party. 

II. 

 Upon convicting defendant for a violation of Code 

§ 29.1-550, the court imposed a sentence of "Incarceration in 

JAIL for a term of: 12 months," suspended upon certain terms 

and conditions. However, the statute provides that a violation 

shall constitute a Class 2 misdemeanor, an offense punishable by 

"confinement in jail for not more than six months and a fine of 

not more than $1,000, either or both." Code § 18.2-11. Thus, 

the disputed sentence clearly exceeded the statutory limitation, 

and we, therefore, must reverse the order and remand for 

resentencing. See Nesbit v. Commonwealth, 15 Va. App. 391, 424 

S.E.2d 239 (1992). 

 Defendant next contends that the evidence was insufficient 

to prove that the weapon that he allegedly possessed was a 

firearm within the intendment of Code § 18.2-308.2. Relying 

upon Jones v. Commonwealth, 16 Va. App. 354, 429 S.E.2d 615 

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(1993), he asserts on brief that the Commonwealth must 

establish, as an element of the offense, that the weapon was 

"operational," "capable of firing bullets." See also Gregory v. 

Commonwealth, 28 Va. App. 393, 504 S.E.2d 886 (1998). However, 

in challenging the sufficiency of the evidence before the trial 

court, defendant addressed only the possession component to the 

crime, rather than the nature and character of the weapon. 

Rule 5A:18 provides that "[n]o 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, except for good 

cause shown or to enable the Court of 

Appeals to attain the ends of justice." 

Redman v. Commonwealth, 25 Va. App. 215, 218, 487 S.E.2d 269, 

271 (1997). Thus, if the argument of an accused before the 

trial court fails to "specify in what respects the . . . 

evidence [is] insufficient to prove" the offense, such issue is 

"not properly preserved" for appeal. Id. at 220, 487 S.E.2d at 

272. Accordingly, we decline to address defendant's contention 

that the evidence failed to prove a firearm, and find that no 

miscarriage of justice supports invocation of the related 

exception to the rule. See generally id. at 221-22, 487 S.E.2d 

at 272-73. 

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 We, therefore, affirm the convictions, but reverse the 

misdemeanor sentencing order and remand for resentencing 

consistent with this opinion. 

 Affirmed, in part,

reversed and 

 remanded, in part.

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