COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Coleman and Willis 

Argued at Salem, Virginia 

RONALD EUGENE REDMAN 

 OPINION BY 

v. Record No. 1316-96-3 JUDGE SAM W. COLEMAN III 

 JULY 15, 1997 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE 

Clifford R. Weckstein, Judge 

 Wayne D. Inge for appellant. 

 John H. McLees, Jr., Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 Ronald Eugene Redman was convicted in a bench trial for 

being an accessory after the fact to breaking and entering and to 

felony property damage. He contends on appeal that the evidence 

was insufficient to prove two essential elements of the crime. 

Because Redman failed to move to strike the evidence or to set 

aside the verdict on this ground, Rule 5A:18 bars our 

consideration of his insufficient evidence claim. We also find 

no merit in Redman's claim that the trial court erred by 

considering his refusal to consent to a warrantless search of his 

home as proof that he was an accessory after the fact to a 

breaking and entering and felony property damage. Accordingly, 

we affirm the conviction. 

 The initial issue that we decide is the scope of the 

limitation upon the Court of Appeals to consider a trial court 

error to which no contemporaneous objection was made. Rule 5A:18 
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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." The defendant contends 

that his general motion to strike the evidence for insufficiency 

was adequate to preserve the issue for appeal; however, he 

acknowledges that he did not specifically assign as the ground in 

support of his motion to strike that the evidence was 

insufficient to prove either of two essential elements of the 

offense. The defendant does not contend that good cause existed 

for his failing to timely object to the alleged error. Instead, 

he asks this Court to invoke the ends of justice exception and to 

consider the merits of his appeal. 

 In order to invoke the ends of justice exception, we must 

review the record to determine whether a miscarriage of justice 

has occurred. See Johnson v. Commonwealth, 5 Va. App. 529, 532, 

365 S.E.2d 237, 239 (1988). The only witness, Officer Boucher of 

the Roanoke City Police Department, testified that he was 

assisting Officer Engel in searching for Charles Mason Dunlap, 

who was wanted on a burglary charge. After Officer Engel 

obtained burglary and felony property damage warrants for 

Dunlap's arrest, he and Officer Boucher, accompanied by four 

additional officers, went to the defendant's home in an effort to 

locate and arrest Dunlap. As they approached the door, Officer 
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Boucher could see through a window and saw the defendant, Dunlap, 

and another man. When Boucher knocked on the door, Dunlap 

disappeared from sight and someone closed the curtains. When the 

defendant answered the door, Boucher told him they had two arrest 

warrants for Charles Dunlap and asked the defendant to send 

Dunlap out. The defendant responded that Dunlap was not present 

and refused to allow the officers to enter his home without a 

search warrant to search for Dunlap. Officer Boucher went to 

obtain a search warrant while the other officers kept watch at 

the defendant's home. Boucher returned with the warrant and 

again asked the defendant to send Dunlap out. The defendant 

again replied that Dunlap was not present. The officers searched 

the house and found Dunlap secreted in a heating duct in the 

floor. The defendant was charged with being an accessory after 

the fact to burglary and felony property damage. 

 The definition of an accessory after the 

fact is one of ancient origin. "To 

constitute one an accessory after the fact, 

three things are requisite: 1. The felony 

must be completed; 2. He must know that the 

felon is guilty; 3. He must receive, relieve, 

comfort or assist him. It is necessary that 

the accessory have notice, direct or implied, 

at the time he assists or comforts the felon, 

that he has committed a felony." 

Manley v. Commonwealth, 222 Va. 642, 644-45, 283 S.E.2d 207, 208 

(1981) (quoting Wren v. Commonwealth, 67 Va. (26 Gratt.) 952, 956 

(1875)). By definition, a person cannot be an accessory without 

the existence of a principal offender. Although conviction of 

the principal is not a condition precedent to conviction of an 
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accessory, Code § 18.2-21, conviction of an accessory requires 

proof that the crime has been committed by a principal. Snyder 

v. Commonwealth, 202 Va. 1009, 1017, 121 S.E.2d 452, 458 (1961). 

 At trial, the Commonwealth offered no evidence to prove that 

Dunlap had committed the felonies for which the officers had 

obtained arrest warrants. Also, the Commonwealth offered no 

direct evidence that the defendant knew Dunlap had committed the 

crimes. After the Commonwealth rested, the defense counsel made 

a general motion to strike the evidence, stating, 

 I believe what we have here is a case in 

which perhaps one or maybe two counts of 

giving false information to a police officer. 

 I do not believe under the stated facts here 

that we have a situation where Mr. Redman is 

an accessory after the fact to the crime of 

breaking and entering and the felony property 

damage. I also would like to point out to 

the Court that Mr. Redman was fully within 

his rights to refuse to consent to search. 

The trial court overruled the motion to strike. Thereafter, the 

defendant presented no evidence, renewed his motion to strike, 

and relied on counsel's prior argument in support of the motion. 

 The trial court again denied the motion to strike and found the 

defendant guilty. No motion to set aside the verdict was filed. 

 The defendant's motion to strike did not specify in what 

respects the defendant considered the evidence to be insufficient 

to prove that the defendant was an accessory after the fact. 

Thus, the issue of whether the evidence was insufficient to prove 

a particular element of the offense was not properly preserved. 

 Therefore, Rule 5A:18 bars review of the issue unless the ends 
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of justice mandate our consideration of the issue. 

 Under Rule 5A:18, we do not consider trial court error as a 

basis for reversal where no timely objection was made except in 

extraordinary situations to attain the ends of justice. 

 The laudatory purpose behind Rule 5A:18 . . . 

is to require that objections be promptly 

brought to the attention of the trial court 

with sufficient specificity that the alleged 

error can be dealt with and timely addressed 

and corrected when necessary. The rules 

promote orderly and efficient justice and are 

to be strictly enforced except where the 

error has resulted in manifest injustice. 

Brown v. Commonwealth, 8 Va. App. 126, 131, 380 S.E.2d 8, 10 

(1989). Because errors can usually be corrected in the trial 

court, "we will notice error for which there has been no timely 

objection only when necessary to satisfy the ends of justice." 

Id.

 "[T]he ends of justice exception is narrow and is to be used 

sparingly . . . ." Id. at 132, 380 S.E.2d at 10. "[I]t is a 

rare case in which, rather than invoke Rule [5A:18], we rely upon 

the exception and consider an assignment of error not preserved 

at trial . . . ." Jimenez v. Commonwealth, 241 Va. 244, 249, 402 

S.E.2d 678, 680 (1991). 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. Mounce v. Commonwealth, 4 Va. App. 433, 436, 357 

S.E.2d 742, 744 (1987). The trial error must be "clear, 

substantial and material." Brown, 8 Va. App. at 132, 380 S.E.2d 
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at 11. 

 In order to invoke the ends of justice exception when 

sufficiency of the evidence has been raised for the first time on 

appeal, an appellant must do more than show that the Commonwealth 

failed to prove an element or elements of the offense. 

Otherwise, we would be required under the ends of justice 

exception to address the merits of every case where a defendant 

has failed to move to strike the Commonwealth's evidence as being 

insufficient to prove an element of the offense. Such a rule 

would obviate the requirement for making an adequate motion to 

strike or a contemporaneous objection that the evidence was 

insufficient. See Campbell v. Commonwealth, 14 Va. App. 988, 

996-97, 421 S.E.2d 652, 657 (1992) (Barrow, J., concurring). 

This type of broad application of the ends of justice exception 

would undermine the trial court's ability to correct errors in 

the trial court and thereby frustrate the ends of justice, not 

prevent a miscarriage of justice. Further, such an expansion of 

the exception would also encourage trial counsel to stand mute or 

make an inadequate motion to strike, thereby knowingly inviting 

the trial judge to commit error without having a sufficient 

opportunity to rule upon the issue. 

 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. We will not invoke 

the exception if the record suggests that the Commonwealth merely 
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inadvertently or unknowingly failed to adduce adequate proof of 

an element of the offense. In order to show that a miscarriage 

of justice has occurred, thereby invoking the ends of justice 

exception, 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. For example, in Jimenez v. Commonwealth, the 

evidence proved that the defendant received an oral request for 

the return of advance money but no written request was made as 

required by Code § 18.2-200.1. The Supreme Court invoked the 

ends of justice exception to reverse the defendant's conviction, 

finding that because the jury was not instructed that written 

notice was an element of the offense and because the Commonwealth 

failed to prove written notice as an element of the statutory 

offense, the defendant was convicted of a "non-offense." 

Jimenez, 241 Va. at 251, 402 S.E.2d at 681. In other words, the 

defendant was convicted for conduct that was not criminal under 

the statute. 

 In Reed v. Commonwealth, 6 Va. App. 65, 72, 366 S.E.2d 274, 

278 (1988), we invoked the ends of justice exception in a 

criminal trespass case where the uncontroverted evidence proved 

that the defendant had a good faith claim of right to be on the 

property, thereby negating the requisite intent for criminal 

trespass. To have allowed the conviction to stand would have 

been a miscarriage of justice because the evidence affirmatively 
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showed that no crime had been committed. Similarly, in Johnson 

v. Commonwealth, the defendant was convicted of aggravated sexual 

battery even though the Commonwealth's evidence proved that the 

defendant did not use force to accomplish an unlawful touching of 

a fourteen-year-old. We invoked the ends of justice exception to 

Rule 5A:18 to reverse the defendant's conviction because the 

evidence proved that an essential element did not occur. 

Johnson, 5 Va. App. at 534-35, 365 S.E.2d at 240. Thus, in 

Johnson, the evidence proved that the charged offense did not 

occur. 

 In each of these cases, unlike the present case, some factor 

other than the Commonwealth's failure to offer proof on an 

element of the crime required the appellate courts of the 

Commonwealth to disregard the defendant's failure to preserve the 

issue for appeal. In every case in which the ends of justice 

exception has been applied, the Commonwealth's evidence either 

proved that an essential element of the offense had not occurred 

or, as in Jimenez, the defendant was convicted for conduct that 

was not criminal. 

 In this case, although the Commonwealth may have failed to 

prove that Dunlap had committed a burglary and destroyed property 

or that the defendant knew that Dunlap had committed the crimes, 

the evidence did not affirmatively show that a burglary had not 

occurred or that the defendant did not know that Dunlap had 

committed the felony. In fact, the evidence proved that the 
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officers told the defendant that they had felony warrants for 

Dunlap. Accordingly, the evidence proved that the defendant knew 

that Dunlap was charged with a felony at the time he was 

secreting or harboring Dunlap. 

 Although this circumstantial evidence may have given rise to 

an inference that the defendant knew that Dunlap may have 

committed a felony, it was insufficient to prove beyond a 

reasonable doubt that Dunlap had committed a burglary or that the 

defendant knew that Dunlap had committed a burglary. The 

Commonwealth's failure to present sufficient evidence to prove 

these two elements demonstrates only that a miscarriage of 

justice may have occurred, not that a miscarriage of justice did 

occur. Had the defendant made a timely motion to strike the 

evidence, setting forth the specific grounds therefor, the trial 

court would have had the opportunity to address the issue by 

permitting the Commonwealth to reopen and correct the omission, 

if it be such, or to strike the evidence for lack of proof of a 

material element. See Hargraves v. Commonwealth, 219 Va. 604, 

608, 248 S.E.2d 814, 817 (1978). Accordingly, because no 

miscarriage of justice occurred, we will not consider Redman's 

claim that the evidence was insufficient. 

 As to the defendant's contention that he was convicted of 

being an accessory after the fact because he exercised his 

constitutional right under the Fourth Amendment to require a 

warrant to search his home, we find that the claim is without 
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merit. The trial court expressly noted that the defendant had 

the right to refuse to submit to a warrantless search of his home 

and the court did not consider his refusal as evidence in the 

case. However, the right of privacy in one's home does not 

authorize one to harbor a criminal in the privacy of one's home. 

 Accordingly, we affirm the defendant's conviction. 

Affirmed.