COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Petty and Senior Ju dge Bumgardner Argued at Richmond, Virginia

JEROME ANTONIO TALLEY MEMORANDUM OPINION * BY v. Record No. 0647-05-2 J UDGE RUDOLPH BUMGARDNER, III JULY 11, 2006 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY Timothy J. Hauler, Judge Aubrey M. Davis, Jr. (Gordon, Dodson, Gordon & Rowlett, on brief), for appellant. Alice T. Armstrong, Assistan t Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

The trial court convicted Jero me Antonio Talley of unlawful wounding upon indictments charging attempted murder. The defendant mainta ins unlawful wounding is not a lesser-included offense of attempted murder and the trial court allowed amendmen t of the indict ments after it pronounced the defendant not guilty of attempted murder. We affirm the convictions. The grand jury indicted the defendant on two counts of atte mpted murder, Code §§ 18.2-26 and 18.2-32, and two counts of the use of a firearm in the commission of attempted murder, Code § 18.2-53.1. At the conc lusion of a bench trial, the trial court found the defendant not guilty of attempted murder bu t guilty of two counts of malicious wo unding and of two counts of use of a firearm in the commission of a felony. The defendant questioned whether malicious wounding was a lesser-included offense of attempted murder and not ed that the Commonwealth had not am ended the indictme nts prior to the

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - court’s findings. The defendant then “ask[ed] th e Court to withdraw its findings” and allow him time to research the matte r. The trial court agreed, withdrew its “entry of findin gs,” and ordered a presentence report. It summarized its rulings, “The Court vacates al l its findings at this time and withholds entry of findings, so there are no findings that are entered.” At a subsequent hearing, th e Commonwealth renewed its argument that the evidence proved attempted murder, but alternatively it moved to amend the indictments to charge malicious wounding. The Commonwealth re presented that unlawful wounding was a lesser-included offense of attempted murder and asked the trial court to co nvict of unlawful wounding if it ruled against the Commonwealth on its fi rst two positions. The defendant replied that the trial court ha d found him not guilty of attempted murder, and then had improperly found him gu ilty of malicious wounding, wh ich is not a le sser-included offense. The defendant continued, “Now the altern ative the Court has is . . . if the Court believes that unlawful wounding is a lesser included offense . . . the Court may be able to find him guilty of unlawful wounding.” The defe ndant argued that the Comm onwealth could not amend the indictments because the court had already made a finding of not guilty of the attemp ted murder charges. He concluded, “[I]f the Court believes they can ma ke a finding of un lawful wounding, then we’ll deal w ith that later.” The trial court ruled that the evidence was insu fficient to prove attemp ted murder and denied the Commonwealth’s motion to amend the indictments to ma licious wounding. It found the defendant guilty of two counts of unlawful wounding and not guilty of the fir earms charges. The Commonwealth objected to the findi ng, but the defendant voiced no objection. The trial court ordered victim impact statements and called the ne xt case. The defendant stated, “Judge, could I – before you start on that case. So to protect all – everything in the case the Comm onwealth does, in fact, appeal, note my excep tions to the Court’s ruli ngs in this case.”- 3 - “[A]n appellate court will not ‘notice error wh ich has been invited by the party seeking to take advantage thereof on app eal.’” McBride v. Commonwealth , 44 Va. App. 526, 529, 605 S.E.2d 773, 774 (2004) (quoting Saunders v. Commonwealth , 211 Va. 399, 400, 177 S.E.2d 637, 638 (1970)). The trial court must be alerted to the precise issue to whic h a party objects. See Neal v. Commonwealth , 15 Va. App. 416, 422-23, 425 S.E.2d 521, 525 (1992). Merely noting an exception to the trial court’s rulings di d not preserve the issue for appeal. We reject the defendant’s asse rtions of error because he inv ited any error that occurred and raised no objection at tr ial to the trial court’s d ecisions. The defendant suggested to the trial court that finding the defendant guilty of unlawful wounding wa s one of its alternativ es. After offering that suggestion, the defendant stat ed that if the court finds him guilty of unlawful wounding, “we’ll deal with that later.” The defendant never raised the claim “later” during the trial. While the defendant contends that the tr ial court erred by amending the i ndictments after finding him not guilty of attempted murder, the record shows th at the court denied the Commonwealth’s motion to amend the indictments to malicious wounding. It also shows the defendant never claimed at trial that the indictments had been amended. Though the Commonwealth concedes on ap peal that unlawful wounding is not a lesser-included offense of attemp ted murder, the defendant invite d the error and is barred from contesting it on appeal. Fisher v. Commonwealth , 236 Va. 403, 41 7, 374 S.E.2d 46 , 54 (1988). Accordingly, we affirm the convictions. Affirmed.