                  COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Coleman and Frank
Argued at Salem, Virginia


CHARLES RAY LEWIS, III
                                           MEMORANDUM OPINION * BY
v.   Record No. 0473-99-3                 JUDGE SAM W. COLEMAN III
                                                APRIL 25, 2000
COMMONWEALTH OF VIRGINIA


        FROM THE CIRCUIT COURT OF THE CITY OF MARTINSVILLE
                      Charles M. Stone, Judge

          John W. Swezey for appellant.

          Linwood T. Wells, Jr., Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellee.


      Charles Ray Lewis, III was convicted in a bench trial of

assault and battery in violation of Code § 18.2-57.   On appeal,

Lewis argues that the trial court erred in convicting him of the

assault and battery of Rhonda Amos, an unintended third-party,

where the court found that he did not have the necessary intent to

convict him of assault upon Steven Hankins, the primary victim.

We find that the issue was not properly raised before the trial

court and affirm the conviction.




     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
                               BACKGROUND

     Over the course of the evening, Steven Hankins and the

defendant argued on several occasions when they encountered each

other at different locations in Martinsville.     The last encounter

occurred at a private party.    After some time, Hankins decided to

leave the party with Rhonda Amos and Mike Ramey.     The three got

into Hankins' car, with Hankins driving, Amos in the front center,

and Ramey in the front passenger seat.      Hankins testified that

Lewis approached the car, banged on the driver's side window,

opened the door, and "threw a punch" that grazed Hankins' forehead

and landed on the bridge of Amos' nose.

     Amos testified that Hankins and Lewis argued and struggled,

and, as a result of the struggle, she was struck in the face.

Amos was unaware if Lewis "threw a punch" at Hankins or if the

blow was caused by the struggle.

     Lewis testified that Hankins called him over to the car and,

as he approached, Hankins opened the door and attempted to exit

the car.   Lewis pushed the door closed in an effort to keep

Hankins inside the car.   Hankins then reached through the window,

grabbing at Lewis, while Lewis was pushing Hankins into the car.

Lewis testified that he was unaware that he struck Amos and stated

that he only struggled with Hankins in an effort to keep him in

the car.




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        Lewis was charged with assault and battery of Hankins and

Amos.    At the close of trial, the court dismissed the charge with

respect to Hankins and found Lewis guilty of assault and battery

of Amos.

                                ANALYSIS

        Lewis argues that his conviction of assault and battery of

Amos is inconsistent with his acquittal of the assault and battery

of Hankins.    Lewis, conceding that intent to assault may be

transferred to an unintended third-party, argues that because he

was acquitted of the assault and battery of Hankins, the court

necessarily found that he did not possess the requisite intent to

assault Hankins.    Therefore, Lewis contends that without the

intent to assault Hankins, he could not have transferred the

intent to Amos.

        "The burden is upon the appellant to provide us with a record

which substantiates the claim of error.    In the absence thereof,

we will not consider the point."    Jenkins v. Winchester Dep't of

Soc. Servs., 12 Va. App. 1178, 1185, 409 S.E.2d 16, 20 (1991)

(citation omitted).    Where we do not have the benefit of a

transcript of the proceedings, we can consider only that which is

contained in the written statement of facts signed by the trial

judge.    See id. at 1185, 409 S.E.2d at 20-21.   "No ruling of the

trial court . . . will be considered as a basis for reversal

unless the objection was stated together with the grounds therefor


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at the time of the ruling, except for good cause shown or to

enable the Court of Appeals to attain the ends of justice."    Rule

5A:18; see also Mounce v. Commonwealth, 4 Va. App. 433, 434-36,

357 S.E.2d 742, 743-44 (1987).

          The main purpose of requiring timely
          specific objections is to afford the trial
          court an opportunity to rule intelligently
          on the issues presented, thus avoiding
          unnecessary appeals and reversals. In
          addition, a specific, contemporaneous
          objection gives the opposing party the
          opportunity to meet the objection at that
          stage of the proceeding.

Weidman v. Babcock, 241 Va. 40, 44, 400 S.E.2d 164, 167 (1991)

(citation omitted).

     Here, the record fails to indicate that Lewis argued the

issue at trial that he now seeks to raise on appeal.   The

statement of facts merely states that:

          [u]pon conclusion of all the evidence in the
          case and argument of counsel, the Court
          dismissed the charges of assault and battery
          against Steven Hankins but found the
          Defendant guilty of assault and battery upon
          Ms. Amos and thereupon set the penalty of
          six months in jail. It is from that finding
          that the appeal is noted.

The issue on appeal, as articulated in Lewis' brief, is whether

the court erred "when it found the defendant guilty of assault

upon an unintended third party victim when, as a matter of fact,

he was not found to have the necessary intent to convict him of

assault upon the primary victim."    The statement at trial that




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"[i]t is from that finding that the appeal is noted" is simply

insufficient to preserve the issue Lewis now raises.

     At oral argument, Lewis asserted that even though "the

issue didn't really arise until the case was concluded," the

issue was nevertheless preserved because he noted an immediate

appeal after the verdicts were announced.    However, Lewis

conceded that the statement of facts does not reflect that an

objection was made or that the appeal was noted with respect to

the particular issue he raises on appeal.    Defense counsel

asserted that the omission of any mention with respect to the

particular issue raised was merely a draftsmanship error and

should not be attributed to the defendant.   To the extent that

Lewis argues that the verdicts are legally or factually

inconsistent, we find that neither argument was preserved below.

     Accordingly, Rule 5A:18 bars our consideration of this

claim.   Moreover, the record does not reflect any reason to

invoke the good cause or ends of justice exceptions to Rule

5A:18.   We, therefore, affirm Lewis' conviction.

                                                          Affirmed.




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