COURT OF APPEALS OF VIRGINIA 

Present: Judges Bray, Annunziata and Senior Judge Hodges 

Argued at Norfolk, Virginia 

CALVIN LEE BLAND 

v. Record No. 2065-94-1 MEMORANDUM OPINION* BY 

 JUDGE ROSEMARIE ANNUNZIATA 

COMMONWEALTH OF VIRGINIA DECEMBER 12, 1995 

 FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS 

Randolph T. West, Judge 

 George B. Pavek III, for appellant. 

 

 Eugene Murphy, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

brief), for appellee. 

 Following a jury trial on August 22, 1994, the appellant, 

Calvin Lee Bland ("Bland"), was convicted of second degree murder 

and the use of a firearm in the commission of a felony. He was 

thereafter sentenced to forty years imprisonment for the murder 

and three years for the firearm offense. On appeal, Bland argues 

(1) that the evidence was insufficient to convict him of second 

degree murder; and (2) that the trial court erred, failing to 

instruct the jury on the elements of involuntary manslaughter. 

 Bland contends for the first time on appeal that his 

conviction was contrary to the evidence. Bland failed to move 

the trial court to strike the evidence either after the 

Commonwealth concluded its case or after Bland concluded his, nor 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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did Bland move the court to set aside the verdict. Accordingly, 

Bland is barred from raising his sufficiency of evidence claim on 

appeal. See Parnell v. Commonwealth, 15 Va. App. 342, 349, 423 

S.E.2d 834, 838-39 (1992); McQuinn v. Commonwealth, 20 Va. App. 

753, 755, 460 S.E.2d 624, 625 (1995). 

 Furthermore, Bland failed to object to the instruction of 

the court which omitted involuntary manslaughter as an 

alternative finding the jury could make. Rule 5A:18 bars this 

Court from reviewing objections which a party fails to make on 

time, when the occasion arises. Marlowe v. Commonwealth, 2 Va. 

App. 619, 621, 347 S.E.2d 167, 168 (1986). 

 Bland urges the Court to apply the ends of justice exception 

to Rule 5A:18 and to consider the issue on appeal despite his 

failure to object. However, the "ends of justice" exception to 

Rule 5A:18 applies only when the record "affirmatively shows that 

a miscarriage of justice has occurred, not when it merely shows 

that a miscarriage might have occurred." Mounce v. Commonwealth, 

4 Va. App. 433, 436, 357 S.E.2d 742, 744 (1987). 

 Here, the jury was properly instructed that malice is the 

state of mind which results in the intentional doing of a 

wrongful act to another without justification and that malice can 

be inferred from the deliberate use of a deadly weapon. The 

evidence is undisputed that Bland shot an unarmed man from close 

range with a high caliber weapon after which he fled the scene 

and hid the murder weapon. As such, even if failing to give an 
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involuntary manslaughter instruction was erroneous, the record 

does not affirmatively show that a miscarriage of justice 

occurred. The evidence was sufficient to convict Bland of second 

degree murder beyond a reasonable doubt. 

 Accordingly, Bland's convictions are affirmed. 

Affirmed.