COURT OF APPEALS OF VIRGINIA

Present: Judg es Benton, Bray and Bumgardner Argued at Rich mond, Virginia

DOUGLAS OLGERS MEMORANDUM OPINION * BY v. Record No. 0856-99-2 JUDGE RICHAR D S. BRAY MAY 9, 2000 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF BRUNSWICK COUNTY James F. D'Alton, Judge David B. Hargett (M orrissey & 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 de er during closed seas on," a misdemeanor in violation of Code § 29 .1-550(i), and possessi on of a fi rearm by a convicted felo n, a violation of Code § 18.2-308.2. He complains on appeal that the tr ial court impose d an impermissi ble punishment for the misdemeano r and challenges the sufficiency of the evidence to establish that the firearm was oper ational. We agree that the court improper ly sentenced defe ndant for the game offense and, therefore, reverse the order an d remand for re sentencing. However, because defe ndant raises the sp ecific evidentiarychallenge to the firear m conviction for the fi rst time on appeal, we decline to addres s the issue an d affirm the trial court. The parties ar e fully conversa nt with the re cord, and this memorandum opinion re cites only those fa cts necess ary 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

- 2 -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
- 3 -(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.

- 4 -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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