                     COURT OF APPEALS OF VIRGINIA


Present: Judges Baker, Willis and Overton
Argued at Norfolk, Virginia


KENNETH NEIL BARNETT
                                         MEMORANDUM OPINION * BY
v.           Record No. 2622-95-1         JUDGE JOSEPH E. BAKER
                                            SEPTEMBER 24, 1996
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
                        Robert P. Frank, Judge
            R. L. Shrecengost for appellant.

            Leah A. Darron, Assistant Attorney General
            (James S. Gilmore, III, Attorney General, on
            brief), for appellee.



     Kenneth Neil Barnett (defendant) was convicted of assault

and battery, a violation of Code § 18.2-57, on an indictment

charging felony child abuse.    He complains on appeal that the

misdemeanor is not a lesser-included offense of the felony

originally subject of the indictment.    Finding no error, we

affirm the conviction.

     The parties are fully conversant with the record, and we

recite only those facts necessary to a disposition of this

appeal.

     Upon well established principles, we view the evidence in

the light most favorable to the Commonwealth.       Martin v.

Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).

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

designated for publication.
On June 3, 1995, Jay Michael Kerivan, then three years of age,

was entrusted to defendant's care for several days by the child's

mother, Jennifer Miller.   When Jay was returned to Miller, she

noted numerous bruises about his body.   The child was immediately

taken to the hospital, and his injuries were determined to be

consistent with abuse.   Defendant subsequently admitted to

"los[ing] his temper," "smacking" and "slapp[ing]" the child in

the face, hitting him in the stomach "about six times,"

"pinch[ing] his nose, and "grabb[ing] him by his neck." 1

     At the conclusion of the Commonwealth's evidence, defendant

moved the trial court to "reduc[e]" the "felony abuse to assault

and battery," arguing that the Commonwealth had failed to

establish conduct "so gross, wanton and culpable as to show a

reckless disregard for human life," a necessary element of the

offense.   See Code § 18.2-371.1(B).   Defendant's motion prompted

the following colloquy between the court and his counsel.
     The Court:     Are you suggesting that there's a lessor
                    [sic] included offense?

     Counsel:        Yes, I would suggest that there is. If not,
                     we would certainly have no--quite frankly, we
                     would have no objection at this point to
                     amend the charge and plead guilty to assault
                     and battery, waive any defense that might
                     come from to eliminate the Court--the Appeals

     1
      Defendant was indicted for a "willful act or omission in

the care of the child . . . so gross, wanton and culpable as to

show a reckless disregard for the life of Jay Michael Kerivan" in

violation of Code § 18.2-371.1(B).




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                     Court finding that it's not lessor [sic]
                     included.

     The Court:     Well, my question to you is are you
                    suggesting that assault and battery is a
                    lessor [sic] included in this offense?

     Counsel:       I believe that it's implicit in that charge.

     The Court:     All right, sir. I'm going to grant your
                    motion. What this man did was reprehensible
                    of a three-year-old child who was
                    defenseless. . . . The evidence before me
                    does not indicate that there's a reckless
                    disregard for human life; clearly there's a
                    willful act of assault and battery.
(Emphasis added).


     Nevertheless, defendant later requested the court to "set

aside the conviction of assault and battery," contending that the

offense is not "lesser included . . . in the abuse or neglect

charged in the indictment."   The trial court denied this motion

and defendant appeals.

     It is well established that a "'defendant, having agreed

upon the action taken by the trial court, should not be allowed

to assume an inconsistent position.'"   Manns v. Commonwealth, 13

Va. App. 677, 679, 414 S.E.2d 613, 615 (1992) (citation omitted).

"'No litigant, even a defendant in a criminal case, will be

permitted to approbate and reprobate--to invite error . . . and

then to take advantage of the situation created by his own

wrong.'"   Id. at 680, 414 S.E.2d at 615 (citation omitted).

     Moreover, assuming, without deciding, that assault and

battery is not lesser included within the indicted offense, the

order of conviction in this instance clearly reflects that the



                               - 3 -
court "reduce[d] the . . . indictment to [a]ssault and [b]attery"

on defendant's motion.   Code § 19.2-231 provides that "if there

shall appear to be any variance between the allegations therein

and the evidence offered in proof thereof, the court may permit

amendment of such indictment . . . at any time before the jury

returns a verdict or the court finds the accused guilty or not

guilty, provided the amendment does not change the nature or

character of the offense charged." 2   Any objection to

deficiencies in arraignment on the amended indictment was not

presented to the trial court and, therefore, is not before this

Court on appeal.   See Rule 5A:18; Jacques v. Commonwealth, 12 Va.

App. 591, 593, 405 S.E.2d 630, 631 (1991).

     Accordingly, we affirm defendant's conviction.

                                               Affirmed.




     2
      Defendant concedes that the Commonwealth's evidence was

sufficient to prove assault and battery.



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