COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Coleman and Bumgardner 

Argued at Salem, Virginia 

ALBERT LEWIS FOWLER, III 

 MEMORANDUM OPINION* BY 

v. Record No. 2116-98-3 CHIEF JUDGE JOHANNA L. FITZPATRICK 

 SEPTEMBER 28, 1999 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE 

James F. Ingram, Judge 

 Mark T. Williams (Williams, Morrison, Light 

and Moreau, on brief), for appellant. 

 Eugene Murphy, Assistant Attorney General 

(Mark L. Earley, Attorney General, on 

brief), for appellee. 

 Following a bench trial on a charge of unlawful wounding, 

in violation of Code § 18.2-51, Albert Lewis Fowler, III 

(appellant) was convicted of the reckless handling of a firearm, 

in violation of Code § 18.2-56.1.1 On appeal, appellant contends 

the trial court erred in finding him guilty of the reckless 

handling of a firearm because it is not a lesser-included 

offense of unlawful wounding. Because we conclude that 

appellant did not properly preserve this argument under Rule 

5A:18, appellant's conviction is affirmed. 

 

 * Pursuant to Code § 17.1-413, recodifying Code 

§ 17-116.010, this opinion is not designated for publication. 

1

 Appellant also pled guilty to possession of a firearm by a 

convicted felon, which is not the subject of this appeal. 
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I. 

 Under familiar principles of appellate review, we examine 

the evidence in the light most favorable to the Commonwealth, 

the prevailing party below, granting to it all reasonable 

inferences fairly deducible therefrom. See Juares v. 

Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997). 

So viewed, the evidence established that on May 2, 1998, 

appellant and the victim were involved in an argument at 

appellant's home. The two had been drinking and taking drugs. 

During the course of the argument, appellant brandished a gun, 

fired it twice and hit the victim in the groin. Although no 

bullet was found in the victim's body, medical evidence 

established that the victim's injuries were caused by a gunshot 

wound or other trauma. Appellant admitted at trial that he had 

taken out his gun and shot twice towards the ground. 

 Appellant was initially indicted for malicious wounding, in 

violation of Code § 18.2-51. Prior to arraignment, the 

Commonwealth agreed that the charge would encompass no more than 

unlawful wounding. Accordingly, the trial court amended the 

indictment, charging appellant with unlawful wounding. After 

the presentation of evidence by both parties, the trial judge 

convicted appellant of the reckless handling of a firearm, in 

violation of Code § 18.2-56.1. Appellant's counsel did not 
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object to the trial court's ruling at that time or any time 

before sentencing. 

II. 

 Appellant contends that having been charged with unlawful 

wounding, the trial court could not convict him of the reckless 

handling of a firearm because the latter is not a 

lesser-included offense of the former charge. The reckless 

handling of a firearm is not a lesser-included offense of 

unlawful wounding. However, we conclude that appellant is 

barred from challenging his conviction on appeal because he 

failed to make any objection to this finding at trial and in 

fact agreed with the disposition. 

 Rule 5A:18 provides: 

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, 

except for good cause shown or to enable the 

Court of Appeals to attain the ends of 

justice. A mere statement that the judgment 

or award is contrary to the law and the 

evidence is not sufficient to constitute a 

question to be ruled upon on appeal. 

 "The primary function of Rule 5A:18 is to alert the trial 

judge to possible error so that the judge may consider the issue 

intelligently and take any corrective actions necessary to avoid 

unnecessary appeals, reversals and mistrials." Martin v. 

Commonwealth, 13 Va. App. 524, 530, 414 S.E.2d 401, 404 (1992). 
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"A matter not in dispute before the trial court will not be 

considered for the first time on appeal." Connelly v. 

Commonwealth, 14 Va. App. 888, 891, 420 S.E.2d 244, 246 (1992). 

 In the present case, appellant does not challenge the 

sufficiency of the evidence to convict him of the reckless 

handling of a firearm, but argues that the conviction may not 

stand because it was not a lesser-included offense of unlawful 

wounding. If appellant had timely objected to this finding, the 

trial court could have reevaluated its decision and found 

appellant guilty of the greater offense, unlawful wounding, or 

the proper lesser-included offense of assault and battery. At 

trial appellant acquiesced in this erroneous finding. 

Consequently, he is barred from raising this issue on appeal. 

 Additionally, while this Court will notice error for which 

there has been no timely objection when necessary to satisfy the 

ends of justice, see Brown v. Commonwealth, 8 Va. App. 126, 131, 

380 S.E.2d 8, 10 (1989), the record 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) (emphasis in 

original). Our review of the record discloses no miscarriage of 

justice in the instant case, and the evidence clearly 

established the necessary factual basis for the reckless 
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handling of a firearm. See Jimenez v. Commonwealth, 241 Va. 

244, 249, 402 S.E.2d 678, 680 (1991). 

 Accordingly, the judgment of the trial court is affirmed. 

 Affirmed.