COURT OF APPEALS OF VIRGINIA
Present: Chief Judg e Huff, Judge Decker and Senior Judge Clements Argued at Chesapeake, Virginia

JAYVON LARTAY BASS MEMORANDUM OPINION * v. Record No. 1442-14-2 JUDGE JEAN HARRISON CLEMENTS JULY 7, 2015 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Clarence N. Jenk ins, Jr., Judge Joan J. Burroughs (Law Offices of Sara M. Gaborik, on brief), for appellant. Rosemary V. Bourne, Senior A ssistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication. In a jury trial, Jayvon Lart ay Bass (appellant) was convicted of robbery of Videll Smith (Smith). Appellant contends his conviction shou ld be reversed because the indictment charged him with only attempted robbery of Smith. Appe llant also challenges the sufficiency of the evidence to sustain his conviction of robbery. We agree that a ppellant’s conviction of robbery on the indictment charging attempted robbery wa s erroneous. Accordingly, we reverse that conviction and remand for a new trial on attempte d robbery. Having reache d that conclusion, we need not consider whether the evidence was sufficient to support the robbery conviction.
BACKGROUND In the general district court, appellant was charged with crimes he allegedly committed against Smith, Freddie Brown, and Irving Smith (Irving) during a home invasion that occurred on September 2, 2013. Two of the charges, which we re certified to the gra nd jury, were robberyUNPUBLISHED- 2 - of Smith and attempted robbery of Irving. Howe ver, the grand jury indicted appellant for attempted robbery of Smith and robb ery of Irving. At the beginning of appellant’s jury trial, he was arraigned on the indictments, and he pled not guilty. At the conclusion of the evidence, the trial court instructed the jury th at it could find appellant guilty of robbery of Smith or not guilty of that offense. The jury also was instructed that it could find appellant guilty of robbery of Brown, attempted robbery of Irving, using a firear m in the commission of the two robberies, and using a firearm in the attempted robbery of Irving. The jury found appellant guilty of robbery of Smith, but could not reach a verdict regarding th e other offenses. The trial court sentenced appellant, in accordance with the jury’s verdict, to ten years for robbery. In the trial court, appellant did not object that he had been convicted of robbery in error upon an indictment that charged him with only attempted robbery.
ANALYSIS “No ruling of the trial court . . . will be considered as a basis for reversal unless an objection was stated with reasona ble certainty at the time of the ruling, except for good cause shown or to enable the Court of Appeals to attain the ends of ju stice.” Rule 5A:18. Appellant admits that he did not argue in the trial court that he was erroneously convicted of robbery upon an indictment charging attempted robbery. However, he asks this Court to invoke the ends of justice exception to Rule 5A:18 and consider the issue on appeal. “In orde r to avail oneself of the [ends of justice] exception [to Rule 5A:18] , a defendant must affirmatively show that a miscarriage of justice has occu rred . . . .” Redman v. Co mmonwealth, 25 Va. App. 215, 221, 487 S.E.2d 269, 272 (1997). As our Supreme Court has state d, application of the ends of justice exception “requires a determination not only that there was error . . . but also that application of the exception is necessary to avoid a grave injus tice.” Charles v. Co mmonwealth, 270 Va. 14, 20, 613 S.E.2d 432, 434 (2005). This occurs only in “rare- 3 - instances.” Ball v. Commonwealth, 221 Va. 754, 758, 273 S.E.2d 790, 793 (1981). Lacey v. Commonwealth, 54 Va. App. 32, 46, 675 S.E.2d 846, 853 (2009). The Commonwealth relies primarily upon Henson v. Commonwealth, 208 Va. 120, 155 S.E.2d 346 (1967), in support of its argument that th e ends of justice exception should not apply in this instance. In Henson, the defendant wa s tried on an indictment that charged only attempted robbery. See id. at 122, 155 S.E.2d at 347. The defendant was found guilty by the trial court of robbery. See id. at 123, 155 S.E.2d at 348. Prior to senten cing, the trial court realized the error and invited de fense counsel to move to set as ide the verdict because of the variance. Counsel chose not to do so. See i d. at 123-24, 155 S.E.2d at 348. Defense counsel did not complain of the error until the direct appeal , in which he requested that the case be remanded for sentencing for attempted robbery or, in the alte rnative, for a new trial on the indictment. See id. at 124, 155 S.E.2d at 349. The Supreme Cour t of Virginia affirmed the conviction for robbery, finding it was not void, but voidable. See id. at 124, 155 S.E.2d at 349. The Court declined to apply the ends of justice exception to its contemporaneous objec tion rule. See id. at 125-26, 155 S.E.2d at 349-50. Discussing its prio r decision in Cunningham v. Hayes, 204 Va. 851, 134 S.E.2d 271 (1964), the Court opined: When we pointed out in Haye s that a conviction could be attacked on a direct appeal because of variance between indictment and verdict, we had in mind an appeal to correct an error made by the trial court. In this case the trial court committed no error. The court invited Henson’s counsel to make a motion to set aside the verdict because of variance from the indictment, but counsel refused to make the motion. The court made no erroneous ruling; it had no motion to rule on. Henson, 208 Va. at 125, 155 S.E.2d at 349. In Legette v. Commonwealth, 33 Va. App. 221, 532 S.E.2d 353 (2000), the defendant was indicted for unlawful wounding, a nd he pled not guilty to that o ffense. At the conclusion of- 4 - the case, however, the trial cour t stated it found the defendant guilty of malicious wounding. See id. at 223, 532 S.E.2d at 354. The conviction orde r stated that the defendant was guilty as charged in the indictment. The trial court senten ced the defendant to six years with four years suspended. See id. At no time in the trial co urt did the defendant object to the pronouncement of guilt for malicious wounding or to the senten cing for malicious wounding. When raised for the first time on appeal, this Court applied the ends of justice excepti on to Rule 5A:18 to consider the issue. See id. at 225, 532 S.E.2d at 355. This Court found that “Henson does not control here. Unlike Henson, the error in this case was not revealed during the trial. Appellant did not refuse an opportunity to correct the def ect.” Id. at 227, 532 S.E.2d at 356. We reversed the defendant’s sentence for malicious w ounding and remanded for resentencing on unlawful wounding, stating: In this case, appellant fa iled to timely object to the conviction of malicious w ounding and there was a common misunderstanding of all involved as to the offense charged, but we cannot escape the reality that ap pellant was sentenced for a higher offense than that with which he was charged. He was indicted for unlawful wounding, pled not guilty to unlawful wounding, and was found guilty of unlawful wounding. Id. at 228, 532 S.E.2d at 356. In Ferguson v. Common wealth, 51 Va. App. 427, 434, 658 S.E.2d 692, 696 (2008) ( en banc ), the defendant was convicted of unlawfu l wounding upon an indictment that charged unlawful wounding, despite the trial court’s oral pronouncement of guilt of malicious wounding. Nonetheless, the trial court sentenced the defendant in excess of the statutory maximum for unlawful wounding. See id. The defense raised no objection to the error in the trial court. Applying our holding in Legette, we considered the issue on appeal and remanded the matter for resentencing in accordance with his convict ion for unlawful wounding. See id. at 437, 658 S.E.2d at 697.- 5 - In the present case, the variance between the indictment for attempted robbery and conviction for robbery apparently went unnoticed in the trial court. Thus, this is not a situation as in Henson where the error was brought to the a ttention of defense counse l, but he decided not to request relief from the trial court. We are bound to apply our hol dings in Legette and Ferguson and invoke the ends of just ice exception in this instance. “Robbery is defined at common law as “‘the taking, with intent to steal, of the personal property of another, from his pe rson or in his presence, agai nst his will, by violence or intimidation.”’” Brown v. Commonwealt h, 24 Va. App. 292, 295, 482 S.E.2d 75, 77 (1997) ( en banc ) (quoting Beard v. Commonwealth, 19 Va. App. 359, 361-62, 451 S.E.2d 698, 699-700 (1994)). By contrast, “[a]n attempt is an ‘unfin ished crime, composed of . . . the intent to commit the crime and the doing of some direct ac t toward its consummation, but falling short of the accomplishment of the ultimate design.’” Id. (quoting Johnson v. Commonwealth, 209 Va. 291, 293, 163 S.E.2d 570, 573 (1968)). Where the maximum sentence for robbery is life, see Code § 18.2-58, attempted robbery is a Class 4 fe lony punishable with a maximum of ten years of imprisonment, see Code §§ 18.2-10(d) and 18.2-26. “An indictment is a written accusation of a crim e and is intended to inform the accused of the nature and cause of the accusation against him.” Hairston v. Commonwealth, 2 Va. App. 211, 213, 343 S.E.2d 355, 357 (1986). “‘The accused cannot be convicted unless the evidence brings him within the offense charged in his indi ctment . . . . [T]he indictment must charge the very offense for which a conviction is asked.’” Scott v. Commonwealth, 49 Va. App. 68, 73, 636 S.E.2d 893, 895 (2006) (quoting Williams v. Commonwealth, 8 Va. App. 336, 341, 381 S.E.2d 361, 364 (1989)). “‘When a defendant is convicte d of charges not included in the indictment, [either expressly or as a lesser included offense,] . . . per se reversible e rror [has occurred],’ and- 6 - no showing of actual prejudice is required.” Id. at 74, 636 S.E.2d at 896 (quoting United States v. Fletcher, 74 F.3d 49, 53 (4th Cir. 1996)). Appellant was indicted and arraigned for a ttempted robbery. The completed offense of robbery was not charged in the i ndictment. Thus, appellant was convicted of a crime not charged in the indictment, and we must reverse the conviction. Similarly, in Hummer v. Commonwealt h, 122 Va. 826, 827, 94 S.E. 157, 157 (1917), the defendants were indicted for unlawful wounding but convicted of the greater offense of malicious wounding. The Supreme Court of Virgin ia found that the appropriate remedy was to reverse the malicious wounding convictions and re mand for a new trial upon charges of unlawful wounding. See id. at 830, 94 S.E. at 158. Accord ingly, we reverse appellant’s conviction for robbery and remand for a retrial upon a ch arge no greater than attempted robbery. In light of our conclusion that appellant’s robbery conviction must be reversed, we need not consider the question of whether the evid ence was sufficient to sustain the conviction.
CONCLUSION For the foregoing reasons, we reverse appe llant’s conviction and remand for retrial in accordance with this opinion, if th e Commonwealth be so advised. Reversed and remanded.