                       COURT OF APPEALS OF VIRGINIA


Present: Judges Frank, Humphreys and Senior Judge Overton
Argued at Chesapeake, Virginia


MARVIN D. DADE
                                           MEMORANDUM OPINION * BY
v.   Record No. 2042-02-1                   JUDGE ROBERT P. FRANK
                                                JUNE 24, 2003
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
                      Von L. Piersall, Jr., Judge

            Felipita Athanas (Public Defender Commission,
            on briefs), for appellant.

            Paul C. Galanides, Assistant Attorney General
            (Jerry W. Kilgore, Attorney General, on
            brief), for appellee.


     Marvin D. Dade (appellant) was convicted in a jury trial of

abduction with the intent to defile, in violation of Code

§ 18.2-48; animate object sexual penetration, in violation of Code

§ 18.2-67.2; and taking indecent liberties with a minor, in

violation of Code § 18.2-370.   On appeal, he challenges only the

abduction conviction, contending the abduction was incidental to

the animate object sexual penetration offense and not a separate

offense.   For the reasons stated, we affirm the conviction.




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

        KM, age 12, testified that on May 22, 2001 she was living in

Portsmouth with her mother, two sisters, and appellant, who was

her mother's boyfriend.    On that evening, her mother left home for

work.    KM stayed at home with her sisters and appellant.    Around

1:00 or 2:00 a.m., KM was in the bathroom and heard appellant

calling to her to bring him water.

        She went into her mother's bedroom, turned on the light, and

saw appellant sitting on the bed.    KM noticed a glass of water

already sitting on the table.    She mentioned the water to

appellant and said, "I'm going back to bed."

        At that point, appellant grabbed her by her left arm, and she

fell on the bed.    When asked why she did not run away when

appellant grabbed her, KM responded, "He was too strong."      After

turning off the lights, he lay down on top of her and started

pulling down her shorts and her panties.    He then pulled his own

pants down.    She heard a zipper and "automatically knew he was

taking off his pants."    She then felt his hand in her "private

parts."    She testified it felt like a sharp fingernail.    He took

his finger out of her vagina and began touching his penis.

        On cross-examination, KM testified she told the police that

she woke up in her own bedroom and appellant was standing over

her.    She also told the police that appellant ejaculated on her,

not the bedspread.



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     After the conclusion of the Commonwealth's case-in-chief,

appellant moved to strike the evidence, arguing KM's testimony was

inconsistent and not credible.    After appellant presented his

case, he failed to renew his motion to strike.

                              ANALYSIS

     Appellant concedes he did not raise the issue of "incidental

abduction" at trial.   Therefore, we must determine whether the

"ends of justice exception" to Rule 5A:18 applies.

          "The Court of Appeals will not consider an
          argument on appeal which was not presented
          to the trial court." Ohree v. Commonwealth,
          26 Va. App. 299, 308, 494 S.E.2d 484, 488
          (1998) (citing Jacques v. Commonwealth, 12
          Va. App. 591, 593, 405 S.E.2d 630, 631
          (1991)); see also Rule 5A:18.

          However, Rule 5A:18 provides for
          consideration of a ruling by the trial court
          that was not objected to at trial "to enable
          the Court of Appeals to attain the ends of
          justice." Rule 5A:18. "'The ends of
          justice exception is narrow and is to be
          used sparingly'" when an error at trial is
          "'clear, substantial and material.'" Redman
          v. Commonwealth, 25 Va. App. 215, 220-21,
          487 S.E.2d 269, 272 (1997) (quoting Brown v.
          Commonwealth, 8 Va. App. 126, 132, 380
          S.E.2d 8, 10-11 (1989)). "In order to avail
          oneself of the exception, a defendant must
          affirmatively show that a miscarriage of
          justice has occurred, not that a miscarriage
          might have occurred." Id. at 221, 487
          S.E.2d at 272 (citing Mounce v.
          Commonwealth, 4 Va. App. 433, 436, 357
          S.E.2d 742, 744 (1987)).

          In order to show that a miscarriage of
          justice has occurred, an appellant must
          demonstrate more than that the Commonwealth
          failed to prove an element of the offense
          . . . . The appellant must demonstrate that

                                 - 3 -
          he or she was convicted for conduct that was
          not a criminal offense or the record must
          affirmatively prove that an element of the
          offense did not occur.

          Id. at 221-22, 487 S.E.2d at 272-73
          (emphasis in original).

Michaels v. Commonwealth, 32 Va. App. 601, 607-08, 529 S.E.2d

822, 825-26 (2000).

     Appellant contends he did not abduct KM, since the

detention was not separate and apart from, but was merely

incidental to, the restraint employed in the indecent liberties

and object sexual penetration offenses.   Thus, he concludes, the

ends of justice exception in Rule 5A:18 applies, and we should

consider his sufficiency argument.    We disagree.

     Appellant is correct in his general statement of the law.

          A defendant may be convicted of abduction in
          addition to "another crime involving
          restraint of the victim, both growing out of
          a continuing course of conduct, . . . only
          when the detention committed in the act of
          abduction is separate and apart from, and
          not merely incidental to, the restraint
          employed in the commission of the other
          crime." Brown v. Commonwealth, 230 Va. 310,
          314, 337 S.E.2d 711, 713-14 (1985).

Powell v. Commonwealth, 261 Va. 512, 540-41, 522 S.E.2d 344, 361

(2001).

     Appellant cites Brown v. Commonwealth, 230 Va. 310, 337

S.E.2d 711 (1985), to support his position.   To the contrary,

the facts in Brown support the conviction.    In Brown, the

appellant entered victim's car, struck her, threatened her and



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then drove to a secluded location, where the sexual assault took

place.   Id. at 312, 337 S.E.2d at 712.   The Supreme Court found

"the detention underlying the abduction conviction was not the

kind of restraint that is inherent in the act of rape."     Id. at

314, 337 S.E.2d at 714.

     Appellant argues, "[t]he only evidence of restraint was

that [appellant] laid [sic] on top of [KM]."   Appellant ignores

KM's testimony that appellant grabbed her as she tried to leave

the room.    Appellant also ignores the testimony that appellant

tricked KM into leaving the bathroom and into entering his

bedroom by asking for water.    See Kent v. Commonwealth, 165 Va.

840, 183 S.E. 177 (1935) (defendant induced victim to accompany

him in his car with the promise he would re-pay victim for an

outstanding debt).    Neither of these acts was "inherent in" the

commission of object sexual penetration or indecent liberties.

In fact, both the grabbing and the inducement occurred prior to

these other crimes, which occurred on the bed.   Clearly, the

record includes evidence to support all the elements of the

crime of abduction.

     Appellant argues Reed v. Commonwealth, 6 Va. App. 65, 366

S.E.2d 274 (1988), allows this Court to apply the ends of

justice exception to Rule 5A:18 in the case of sufficiency

arguments.    Although the Court did apply the exception and

overturn Reed's conviction for trespassing, the facts in Reed

are substantially different than the facts before this Court.

                                - 5 -
Reed argued he had not committed the crime because the

uncontradicted evidence proved he believed he had a legitimate

claim to remain on the property.    Id. at 69-70, 366 S.E.2d at

277.   In other words, the evidence affirmatively proved an

element of the crime, intent, did not exist.   Here, appellant

does not argue no detention of the victim occurred, only that

the detention was incidental to another crime.      Appellant admits

abduction is an "inherent element" in at least one of the sexual

abuse charges.   He does not contend, nor do we find, that an

element of abduction was disproved by the evidence.     Instead, he

contends the detention was insufficient to rise to a level the

element inherent in a sexual assault.   This argument clearly

does not parallel the analysis in Reed.

       Essentially, appellant argues sufficiency on appeal.    Thus,

we conclude no manifest injustice occurred.

       We affirm the judgment of the trial court.

                                                            Affirmed.




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