                    COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Bumgardner and Senior Judge Coleman
Argued at Richmond, Virginia


THOMAS A. CHILTON, JR., S/K/A
 THOMAS ARTHUR CHILTON, JR.
                                          MEMORANDUM OPINION * BY
v.   Record No. 0442-00-2               JUDGE JAMES W. BENTON, JR.
                                             AUGUST 28, 2001
COMMONWEALTH OF VIRGINIA


             FROM THE CIRCUIT COURT OF HANOVER COUNTY
                     John R. Alderman, Judge

           Matthew P. Geary (Hairfield & Morton, PLC, on
           briefs), for appellant.

           Donald E. Jeffrey, III, Assistant Attorney
           General (Mark L. Earley, Attorney General;
           Amy L. Marshall, Assistant Attorney General,
           on brief), for appellee.


     A jury convicted Thomas A. Chilton, Jr. of robbery, use of a

firearm in the commission of a robbery, and entering a banking

house armed with a deadly weapon with the intent to commit

larceny of money.   He contends (1) that all the convictions

should be reversed because the judge gave the jury an erroneous

instruction and (2) that the evidence was insufficient to

support the conviction for use of a firearm in the commission of

robbery.   We reverse the conviction for the use of a firearm in




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
the commission of a robbery, and we affirm the other two

convictions.

                                   I.

     A teller at a bank in Hanover County testified that Chilton

entered the bank and requested change for a $100 bill.     After

she had given him the change, he demanded that she give him "all

the money."     The teller testified that she noticed an object

lying on the counter that "appeared to be a gun."     The teller

identified Commonwealth's Exhibit Number 4 as the weapon she

saw, and she said Chilton's hand was on the weapon in such a

manner that caused her to believe she was seeing the barrel of

the gun.   She gave Chilton approximately $300, including several

marked "bait" bills.

     Another bank employee saw a blue car departing the bank and

recorded the license number.     Later that day, a police officer

saw Chilton sitting in a blue car and arrested him for a

narcotics violation.     When the officer called in the license

number, he learned that that car might have been involved in a

bank robbery.    The officer searched Chilton and found $260 in

various denominations, which included the "bait" bills.     The

officer also found the weapon identified as Commonwealth's

Exhibit Number 4.      On cross-examination, the officer testified

as follows regarding the weapon:

           Q:    [Y]ou didn't find any real guns?

           A:    No.

                                  - 2 -
          Q: How did you determine that this was not
          a real gun?

          A:   I looked at it.

          Q: Okay, so you physically took it out of
          the sheathing and found that it was a knife
          that actually retracts and just happens to
          have a handle which looks like a gun handle?

          A:   Yes, sir.

          Q: But you don't see anything, other than
          wood here, when it's inside the sheathing,
          do you?

          A:   No, just a pistol grip.

          Q:   Okay.

          A:   And metal.

          Q:   You don't see any barrel of any sort?

          A:   No, sir.

     Chilton testified and denied that he robbed the bank.      He

admitted, however, that he told the police he robbed the bank.

He testified that when he sought change for the $100 bill, the

teller misinterpreted his intent.    He said he did not ask for

the money that she gave him.     Although he testified that he was

disoriented and confused and could not remember what happened to

him between the time he left the bank and his arrest, he

admitted changing his clothes and shaving his mustache after

leaving the bank because he didn't want to be arrested.    He

testified that the knife the officer found on him had a "pistol

grip."




                                 - 3 -
     The jury convicted Chilton of all three charges.      The trial

judge imposed the jury's recommended sentences of five, three,

and twenty years for robbery, use of a firearm in a robbery, and

armed bank robbery, respectively.

                                  II.

     Chilton contends that the trial judge erred in giving one

of the jury instructions and that, therefore, all three of his

convictions must be reversed.    The instruction stated:   "Where a

victim reasonably perceived a threat or intimidation by a

firearm, it is not necessary that the object in question was in

fact a firearm."   The Commonwealth contends that Rule 5A:18 bars

our consideration of this issue.

     When the trial judge reviewed the proposed instructions

with the attorneys, Chilton's trial counsel said of this

instruction, "I prefer not to have it, Judge, but I think the

case law is clear, he's entitled to have it."    Chilton's trial

attorney's statement fails to fulfill the contemporaneous

objection requirement of Rule 5A:18.     Marlowe v. Commonwealth, 2

Va. App. 619, 621, 347 S.E.2d 167, 168 (1986) (holding that to

preserve an issue for appeal the grounds for an objection must

be "stated with specificity").

     Moreover, the record does not support application of the

Rule's exception "for good cause" or "to attain the ends of

justice."   In a prosecution for robbery, "a victim's perception

that the assailant was armed is sufficient to establish the

                                 - 4 -
necessary element of violence or intimidation."      Yarborough v.

Commonwealth, 247 Va. 215, 219 n.2, 441 S.E.2d 342, 344 n.2

(1994).   The phrase "threat or intimidation" mentioned in the

instruction is germane to the elements of robbery and could be

considered by the jury for the purpose of determining Chilton's

guilt or innocence on that charge.      For robbery, the real nature

of the alleged weapon is not important, only the intimidation

suffered by the victim.   Thus, the instruction was relevant to

the robbery issue before the jury.      Chilton's trial attorney did

not offer a limiting instruction as to the other issues.

                                III.

     Chilton also contends that the evidence was insufficient to

convict him of using a firearm during a felony because the

evidence proved only that he had a knife during the robbery.

Again, the Commonwealth contends that Rule 5A:18 bars an appeal

on this issue.

     The record establishes, however, that Chilton raised this

precise issue in a motion to set aside the verdict.     In a

similar case, McGee v. Commonwealth, 4 Va. App. 317, 357 S.E.2d

738 (1987), we addressed a situation in which a defendant filed

a timely motion to set aside the verdict under Rule 3A:15(b).

We noted that the defendant raised specific objections to the

sufficiency of the evidence, and we held that the motion was

adequate to allow us to consider those issues on appeal.       Id. at

321-22, 357 S.E.2d at 739-40.   Indeed, we have specifically held

                                - 5 -
that "[a] proper motion to set aside a verdict will preserve for

appeal a sufficiency of the evidence question."    Brown v.

Commonwealth, 8 Va. App. 474, 480, 382 S.E.2d 296, 300 (1989).

     The Commonwealth argues that Chilton's motion does not

comply with Rule 5A:18 because the trial judge failed to rule on

it and because it was not filed through Chilton's attorney.

Although "the record [in McGee did] not indicate whether the

trial judge ruled on the motion," 4 Va. App. at 321, 357 S.E.2d

at 740, we addressed the merits of the appeal.    Moreover, the

record in this case indicates that the Commonwealth replied to

the motion and the trial judge was aware of the motion.    At a

hearing on April 3, 2000, the trial judge replaced Chilton's

appointed attorney and said:   "[W]ith respect to the other

matters, I think I am deprived of jurisdiction, the notice of

appeal having been made, so I am unable to rule on any of those

motions, and in any event, wouldn't do so without the

participation of counsel."   Those comments manifest the trial

judge's erroneous impression that he lacked jurisdiction over

the case.   The judge did not enter final judgment in this case

until May 22, 2000, more than a month after the hearing.

Although the jury returned its verdict and sentence on February

15, 2000, "'[t]here is a distinction between the rendition of a

judgment and the entry of a judgment.'"   Wagner v. Shird, 257

Va. 584, 587, 514 S.E.2d 613, 615 (1999) (citation omitted).



                               - 6 -
The judge retained jurisdiction until twenty-one days after the

entry of the final judgment.   Rule 1:1.

     Chilton's pro se filing of this motion does not render it

ineffectual in raising the sufficiency issue before the trial

judge.    In the same motion, Chilton asked for a new attorney to

be appointed.   Although Chilton's attorney's actions are binding

on him, Taylor v. Illinois, 484 U.S. 400, 417-18 (1988), and, as

an indigent, Chilton could not discharge his court-appointed

attorney at will, Kinard v. Commonwealth, 16 Va. App. 524, 526,

431 S.E.2d 84, 85 (1993), he petitioned the trial judge for a

new attorney and in so doing moved to set aside the verdict.

The evidence at the final hearing indicated that Chilton and his

appointed attorney had such serious differences that the trial

judge appointed a new attorney.   In such a circumstance, the pro

se motion sufficiently fulfilled the requirement of Rule 5A:18

that the matter be addressed to the trial judge.

     Furthermore, the ends of justice exception applies to

obviate the need for a contemporaneous objection in this case.

In order for an accused to take advantage of this exception, the

accused must show affirmatively that a miscarriage of justice

has occurred, not that a miscarriage might have occurred.

Mounce v. Commonwealth, 4 Va. App. 433, 436, 357 S.E.2d 742, 744

(1987).   Specifically, when challenging the sufficiency of the

evidence in this manner, the accused "must demonstrate that he

or she was convicted for conduct that was not a criminal offense

                                - 7 -
or the record must affirmatively prove than an element of the

offense did not occur."    Redman v. Commonwealth, 25 Va. App.

215, 222, 487 S.E.2d 269, 273 (1997).

     An accused "may not be convicted for the use of a firearm

under Code § 18.2-53.1 unless the evidence discloses beyond a

reasonable doubt that the object used to cause the victim to

reasonably believe it was, in fact, a firearm."    Sprouse v.

Commonwealth, 19 Va. App. 548, 551-52, 453 S.E.2d 303, 306

(1995).   In this case, the Commonwealth relied on the testimony

of the teller to prove the existence of the firearm.    The teller

identified the knife recovered from Chilton as the weapon she

saw when he robbed her.    Counsel for the Commonwealth conceded

at oral argument that this testimony was "not helpful" on this

issue.    The Commonwealth asks us to speculate, however, that

Chilton had another weapon, a firearm, which he discarded after

leaving the bank but before the police officer discovered him.

The evidence in the record established that Chilton had a knife

that looked like a gun when he committed the robbery.   In other

words, "the evidence proved that the charged offense did not

occur."    Redman, 25 Va. App. at 222, 487 S.E.2d at 273.   We will

not speculate otherwise.   Thus, we hold that the bar of Rule

5A:18 does not apply and that the evidence, viewed in the light

most favorable to the Commonwealth, proved Chilton did not use a

firearm during the commission of the robbery.



                                - 8 -
                               IV.

     For these reasons, we reverse the conviction for use of a

firearm in the commission of a robbery in violation of Code

§ 18.2-53.1, and we affirm the convictions of robbery and of

entering a banking house armed with a deadly weapon with the

intent to commit larceny of money.

                                      Affirmed in part and
                                      reversed in part.




                              - 9 -
