COURT OF APPEALS OF VIRGINIA 

Present: Judges Frank, Petty and Senior Judge Bumgardner 

Argued at Richmond, Virginia 

JEROME ANTONIO TALLEY 

 MEMORANDUM OPINION*

 BY 

v. Record No. 0647-05-2 JUDGE 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, Assistant Attorney General (Robert F. 

McDonnell, Attorney General, on brief), for appellee. 

The trial court convicted Jerome Antonio Talley of unlawful wounding upon indictments 

charging attempted murder. The defendant maintains unlawful wounding is not a lesser-included 

offense of attempted murder and the trial court allowed amendment of the indictments after it 

pronounced the defendant not guilty of attempted murder. We affirm the convictions. 

 The grand jury indicted the defendant on two counts of attempted 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 conclusion of a bench trial, the trial court found the defendant not guilty of 

attempted murder but guilty of two counts of malicious wounding 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 noted that the Commonwealth had not amended the indictments prior to the 

 *

 Pursuant to Code § 17.1-413, this opinion is not designated for publication. 
 - 2 - 

court’s findings. The defendant then “ask[ed] the Court to withdraw its findings” and allow him 

time to research the matter. The trial court agreed, withdrew its “entry of findings,” and ordered a 

presentence report. It summarized its rulings, “The Court vacates all its findings at this time and 

withholds entry of findings, so there are no findings that are entered.” 

 At a subsequent hearing, the Commonwealth renewed its argument that the evidence proved 

attempted murder, but alternatively it moved to amend the indictments to charge malicious 

wounding. The Commonwealth represented that unlawful wounding was a lesser-included offense 

of attempted murder and asked the trial court to convict of unlawful wounding if it ruled against the 

Commonwealth on its first two positions. 

 The defendant replied that the trial court had found him not guilty of attempted murder, and 

then had improperly found him guilty of malicious wounding, which is not a lesser-included 

offense. The defendant continued, “Now the alternative 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 defendant argued that the Commonwealth could not amend the 

indictments because the court had already made a finding of not guilty of the attempted murder 

charges. He concluded, “[I]f the Court believes they can make a finding of unlawful wounding, 

then we’ll deal with that later.” 

 The trial court ruled that the evidence was insufficient to prove attempted murder and denied 

the Commonwealth’s motion to amend the indictments to malicious wounding. It found the 

defendant guilty of two counts of unlawful wounding and not guilty of the firearms charges. The 

Commonwealth objected to the finding, but the defendant voiced no objection. The trial court 

ordered victim impact statements and called the next case. The defendant stated, “Judge, could I – 

before you start on that case. So to protect all – everything in the case the Commonwealth does, in 

fact, appeal, note my exceptions to the Court’s rulings in this case.” 
 - 3 - 

“[A]n appellate court will not ‘notice error which has been invited by the party seeking to 

take advantage thereof on appeal.’” 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 which 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 did not preserve the issue for appeal. 

 We reject the defendant’s assertions of error because he invited any error that occurred and 

raised no objection at trial to the trial court’s decisions. The defendant suggested to the trial court 

that finding the defendant guilty of unlawful wounding was one of its alternatives. After offering 

that suggestion, the defendant stated 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 trial court erred by amending the indictments after finding him not 

guilty of attempted murder, the record shows that 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 appeal that unlawful wounding is not a 

lesser-included offense of attempted murder, the defendant invited the error and is barred from 

contesting it on appeal. Fisher v. Commonwealth, 236 Va. 403, 417, 374 S.E.2d 46, 54 (1988). 

Accordingly, we affirm the convictions. 

 Affirmed.