                       COURT OF APPEALS OF VIRGINIA


Present: Judges Bumgardner, Clements and Senior Judge Bray*
Argued at Chesapeake, Virginia


JAMES W. WATERS, JR.
                                                OPINION BY
v.   Record No. 2053-01-1              JUDGE JEAN HARRISON CLEMENTS
                                           SEPTEMBER 24, 2002
COMMONWEALTH OF VIRGINIA


       FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                    Thomas S. Shadrick, Judge

          David P. Bogardus (L. Dickerson Bragg;
          Duncan R. St. Clair, III & Associates, P.C.,
          on brief), for appellant.

          John H. McLees, Senior Assistant Attorney
          General (Randolph A. Beales, Attorney
          General, on brief), for appellee.


     James W. Waters, Jr., was convicted in a jury trial of first

degree murder, in violation of Code § 18.2-32, conspiracy to

commit malicious wounding, in violation of Code § 18.2-22,

attempted malicious wounding, in violation of Code § 18.2-51, and

two counts of use of a firearm in the commission of a felony, in

violation of Code § 18.2-53.1.   Appealing those convictions,

Waters contends the trial court erred (1) in refusing to grant his

proposed jury instruction on the defense of accidental killing and

(2) in failing to instruct the jury that parole had been abolished

in Virginia. Finding no error, we affirm Waters' convictions.
_________________
     * Judge Bray participated in the hearing and decision of
this case prior to the effective date of his retirement on
September 1, 2002 and thereafter by his designation as a senior
judge pursuant to Code § 17.1-401.
                             I.   BACKGROUND

       The evidence in this case involved two related shooting

incidents that took place in the City of Virginia Beach on the

night of January 25, 1997.    The first incident involved a

"drive-by" shooting in the Magic Hollow subdivision, during which

Waters, who was driving around with two other people, fired his

handgun at a man who was sitting at a street corner.     Based on

that incident, Waters was charged with and convicted of conspiracy

to commit malicious wounding, attempted malicious wounding, and

use of a firearm in the commission of attempted malicious

wounding.

       The second incident involved the fatal shooting of Timothy

Wheaton in the Landstown Meadows subdivision.     Following the first

shooting incident, Waters and his cohorts drove to a different

area of the city to look for Ian Zinn.      Apparently, Waters

suspected that Zinn had been involved two days earlier in an

altercation with a friend of Waters.      Waters and his companions

first drove to a house where Waters believed Zinn's car was

parked.   When no one answered his knock on the door of the house,

Waters used the butt of his pistol to smash the windshield of a

car parked outside the house.

       A short while later, Waters and his companions were driving

through the subdivision when they observed three young men walking

up the street.   Waters told the driver to pull up to the young

men.   Waters, who was the passenger in the front seat, asked them

                                  - 2 -
if they knew Zinn.    When they said they did not, Waters asked one

of the young men, Wheaton, if he was Zinn.      When Wheaton responded

that he was not Zinn, Waters pulled out his handgun and, pointing

it at Wheaton, said, "If you're fucking lying to me, I'll kill

you."    Two seconds later, Waters abruptly fired the gun, hitting

Wheaton in the chest from three feet away.      The shot was fatal.

        Immediately following the shooting, one of Wheaton's

companions heard laughter coming from inside the car occupied by

Waters and his cohorts.    As Waters and his cohorts drove away, one

of Waters' cohorts asked him why he had shot Wheaton.      Waters

replied that he knew the person he had shot was Zinn.      Waters

later told other friends that he had done the shooting and bragged

about having committed a shooting that was "all over the news."

        Waters testified in his own defense at trial.    He claimed

that his intention in pulling the gun on Wheaton and his

companions was only to scare them.       He said he pointed the gun off

to the side, rather than directly at the young men.      He "was

lowering the pistol at the time," he testified, when he "just

touched the trigger and it went off, and [Wheaton] was right in

the way."    "I didn't mean to shoot him or nothing," Waters added.

"It was pure accident, because there shouldn't have been no

shooting at all."

        The Commonwealth offered two finding instructions pertaining

to the killing, one on first degree murder alone and the other on

first degree murder and lesser included offenses.       The trial court

                                 - 3 -
judge declined the first instruction, stating that there was "more

than a scintilla of evidence to support [the] lesser included

offenses [of] . . . second degree murder[] and killing during an

unlawful act not a felony."   Specifically, the trial judge noted:

          [I]f there is evidence to the effect that the
          defendant . . . says that he just intended to
          scare this person by threatening him with a
          gun — that would technically be an assault —
          and he was killed when the gun went off
          during this threat; and so there is some
          evidence to support that theory.

     Consequently, the trial judge granted the Commonwealth's

second finding instruction, which read:

                        Instruction No. 15

               The defendant is charged with the crime
          of first degree murder. The Commonwealth
          must prove beyond a reasonable doubt each of
          the following elements of that crime:

               1. That the defendant killed Timothy
          Wheaton; and

               2.   That the killing was malicious; and

               3. That the killing was willful,
          deliberate and premeditated.

               If you find from the evidence that the
          Commonwealth has proved beyond a reasonable
          doubt each of the above elements of the
          offense as charged, then you shall find the
          defendant guilty of first degree murder.

               If you find from the evidence that the
          Commonwealth has proved beyond a reasonable
          doubt each of the first two elements of the
          offense as charged but you do not find beyond
          a reasonable doubt that the killing was
          willful, deliberate and premeditated, then
          you shall find the defendant guilty of second
          degree murder.

                               - 4 -
               If you find that the Commonwealth has
          failed to prove beyond a reasonable doubt
          that the killing was malicious but that the
          Commonwealth has proved beyond a reasonable
          doubt that the defendant killed Timothy
          Wheaton and further:

               1. That the killing was during the
          commission of an unlawful act, not a felony,
          then you shall find the defendant guilty of
          voluntary manslaughter.

               If you find that the Commonwealth has
          failed to prove beyond a reasonable doubt any
          of the above offenses, then you shall find
          the defendant not guilty.

Waters did not object to this instruction. 1

     The trial court also gave the following instructions:

                        Instruction No. 18

               In order for the killing to amount to
          murder in the second degree, although it is
          not necessary for the Commonwealth to prove
          willfulness, deliberation and premeditation,
          it is incumbent upon the Commonwealth to
          prove that the defendant acted with malice,
          and unless you believe from the evidence
          beyond a reasonable doubt that the defendant
          did act with malice, you cannot find the
          defendant guilty of second degree murder.

                        Instruction No. 19

               Malice is that state of mind which
          results in the intentional doing of a
          wrongful act to another without legal excuse
          or justification, at a time when the mind of

     1
       The Commonwealth acknowledges that the granted instruction
incorrectly identified the latter lesser included offense as
voluntary, rather than involuntary, manslaughter. Waters argues
that "this error is, on its face, significant enough to warrant
a resentencing." However, because Waters did not raise this
issue at trial, we will not consider it for the first time here.
See Rule 5A:18.


                               - 5 -
            the actor is under the control of reason.
            Malice may result from any unlawful or
            unjustifiable motive including anger, hatred
            or revenge. Malice may be inferred from any
            deliberate willful and cruel act against
            another, however sudden.

     Waters proffered a jury instruction on the defense of

accidental killing, which read:

                          ACCIDENTAL KILLING

                        Instruction No. ____

                 Where the defense is that the killing
            was an accident, the defendant is not
            required to prove this fact. The burden is
            on the Commonwealth to prove beyond a
            reasonable doubt that the killing was not
            accidental. If after considering all the
            evidence you have a reasonable doubt whether
            the killing was accidental or intentional,
            then you shall find the defendant not guilty.

The trial court judge refused this instruction, stating that it

did not "fit the facts in this case."   "It's either a killing

during an unlawful act or a higher offense," the judge added.

     In the penalty phase of the trial, Waters did not request

that the jury be advised that parole had been abolished in

Virginia.   Nor did the jury inquire about the possibility of

parole.

               II.   INSTRUCTION ON ACCIDENTAL KILLING

     On appeal, Waters contends the trial court erred in refusing

to grant his proposed jury instruction on accidental killing,

which, he maintains, was warranted by the evidence.      Accordingly,

he argues, his convictions should be reversed.


                                - 6 -
     In reviewing the trial court's rejection of the proffered

jury instruction on the defense of accidental killing, we view the

evidence in the light most favorable to Waters.   See Boone v.

Commonwealth, 14 Va. App. 130, 131, 415 S.E.2d 250, 251 (1992)

(holding that, "[a]lthough the Commonwealth prevailed at trial,

the appropriate standard of review requires that we view the

evidence with respect to the refused instruction in the light

most favorable to the defendant").

     At the outset, we note that Waters' contention regarding the

refusal of his proposed jury instruction on the defense of

accidental killing relates only to his convictions of first degree

murder and use of a firearm in the commission of murder.   Thus, if

upheld, that contention would not affect his convictions of

conspiracy to commit malicious wounding, attempted malicious

wounding, and use of a firearm in the commission of attempted

malicious wounding.

     Moreover, our review of the record convinces us that Waters'

contention is without merit.   As the Commonwealth acknowledges,

Waters' proposed jury instruction on accidental killing would have

correctly informed the jury that it was the Commonwealth's burden

to prove the killing was not an accident, rather than Waters'

burden to prove the killing was an accident.   However, as the

Commonwealth also points out, that aspect of Waters' proposed

instruction was adequately presented in other jury instructions

given by the trial court.   In giving "Instruction No. 15," the

                               - 7 -
court informed the jury that, to prove first degree murder, the

Commonwealth had to prove beyond a reasonable doubt that "the

killing was malicious; and . . . [t]hat the killing was willful,

deliberate and premeditated."   In giving the same instruction, the

trial court also told the jury that, to prove second degree

murder, the Commonwealth had to prove that "the killing was

malicious."   In giving "Instruction No. 18," the trial court

emphasized that, to prove second degree murder, the Commonwealth

had "to prove that the defendant acted with malice."   "Malice,"

the court told the jury in "Instruction No. 19," "is that state of

mind which results in the intentional doing of a wrongful act to

another without legal excuse or justification."   (Emphasis added.)

A court does not err in refusing a proffered jury instruction if

the principles of law addressed in that instruction are adequately

presented in other instructions.   Graham v. Commonwealth, 31

Va. App. 662, 674, 525 S.E.2d 567, 573 (2000).

     In addition, to the extent the proffered instruction would

have told the jury that, "[i]f after considering all the evidence

you have a reasonable doubt whether the killing was accidental or

intentional, then you shall find the defendant not guilty," the

instruction was, as the trial court ruled, inapposite under the

facts of this case.   The evidence upon which Waters relies to

support his proffered instruction comes from his own testimony.

He is bound by that testimony on appeal.   See Delawder v.

Commonwealth, 214 Va. 55, 57, 196 S.E.2d 913, 915 (1973) (holding

                                - 8 -
that "the defendant is bound by what he said on the witness

stand").    Waters testified that the shooting occurred accidentally

in an incident where he deliberately brandished a handgun in the

presence of the victim and two others for the purpose of scaring

them.    Such an action by Waters was, at the very least, a

misdemeanor assault, as the trial court recognized, see Merritt v.

Commonwealth, 164 Va. 653, 658-59, 180 S.E. 395, 397-98 (1935);

see also Code § 18.2-56.1, or a misdemeanor of reckless handling

of a firearm, see Code § 18.2-56.1.      Thus, the killing was, as the

trial court reasoned, "either a killing during an unlawful act or

a higher offense."

        Accordingly, even if the killing had been an accident, as

Waters testified, it is clear from Waters' own testimony that the

killing occurred in the course of his commission of a misdemeanor.

An accidental killing committed in the course of an unlawful,

nonfelonious act constitutes involuntary manslaughter.     See, e.g.,

Dowden v. Commonwealth, 260 Va. 459, 470, 536 S.E.2d 437, 443

(2000).    Thus, Waters' proffered jury instruction, which required

an outright acquittal if the jury had a reasonable doubt as to

whether the killing was intentional, was improper under the facts

of this case.

        We hold, therefore, that the trial court did not err in

refusing Waters' proffered jury instruction.




                                 - 9 -
                     III.     INSTRUCTION ON PAROLE

     Waters also contends on appeal that the trial court erred in

not advising the jury that parole had been abolished in Virginia.

The trial court, he argues, had an affirmative duty under the

Supreme Court's ruling in Fishback v. Commonwealth, 260 Va. 104,

532 S.E.2d 629 (2000), to instruct the jury on the abolition of

parole in this case.

     In Fishback, the Supreme Court held that "juries shall be

instructed on the abolition of parole for non-capital felony

offenses committed on or after January 1, 1995, and that this new

rule of criminal procedure is limited to cases not yet final on

June 9, 2000." 2   Id. at 115-16, 532 S.E.2d at 634.   Unlike the

circumstances of this case, however, in Fishback, the defendant

proffered an instruction on the abolition of parole in Virginia,

which the trial court refused, and the jury asked during its

deliberations on sentencing about the possibility of parole.        Id.

at 109, 532 S.E.2d at 630.      In response to the jury's inquiry, the

trial court instructed the jury members that they were not to

concern themselves with "what may happen afterwards."     Id. at 110,

532 S.E.2d at 631.    Fishback did object to the court's instruction

and did not renew his request for an instruction regarding the

abolition of parole.    Id.


     2
       Although Waters' trial occurred in 1997, Waters' direct
appeal had not been completed prior to the Supreme Court's
decision in Fishback. The Commonwealth, therefore, does not
contest Waters' entitlement to raise this issue on appeal.

                                  - 10 -
     Thus, as the Supreme Court noted in Jerman v. Commonwealth,

263 Va. 88, 92-93, 556 S.E.2d 754, 757 (2002),

           the circuit court in Fishback had the
           opportunity to consider during trial whether
           to instruct the jury on the recent statutory
           changes concerning parole. Although the
           instructions that the defendant proffered
           did not accurately reflect the statutory
           changes, we nevertheless concluded that the
           circuit court was required to correct the
           instructions and give them in their accurate
           form.

     The Supreme Court further explained in Jerman that its

decision in Fishback was based on the established rule that

           "'the trial court is not required to amend or
           correct an erroneous instruction, but . . .
           when the principle of law is materially vital
           to a defendant in a criminal case, it is
           reversible error for the trial court to
           refuse a defective instruction instead of
           correcting it and giving it in the proper
           form.'"

Id. at 93, 556 S.E.2d at 757 (quoting Fishback, 260 Va. at 117,

532 S.E.2d at 635 (quoting Whaley v. Commonwealth, 214 Va. 353,

355-56, 200 S.E.2d 556, 558 (1973))).   Indeed, the Supreme Court

stated in Fishback that, under the new rule established therein,

"the task of the trial courts will require only that instructions

with regard to the abolition of parole be tailored to the facts of

a particular case."   260 Va. at 116, 532 S.E.2d at 634 (emphasis

added).   "In contrast," the Supreme Court noted in Jerman, "a

circuit court ordinarily does not have the affirmative duty to

give a jury instruction on a particular legal principle when a

criminal defendant fails to request that the jury be instructed on

                               - 11 -
that principle."   263 Va. at 93, 556 S.E.2d at 757.   "We have,"

the Supreme Court added, "regularly applied this rule in criminal

cases."   Id.   Citing Rule 5:25, the Court also noted that it has

"repeatedly . . . refused to consider challenges to jury

instructions for the first time on appeal."     Id. at 94, 556 S.E.2d

at 757.

     In Jerman, the defendant did not request a jury instruction

on the abolition of parole or object to the trial court's

instruction, in response to the jury's inquiry during

deliberations about the possibility of parole, that the members of

the jury should not concern themselves "with what comes

afterwards."    Id. at 90, 556 S.E.2d at 755.   The Supreme Court

held that, because the defendant failed to timely object to the

trial court's instruction, his challenge to the lack of a jury

instruction on the abolition of parole was procedurally barred

under Rule 5:25.   Id. at 94, 556 S.E.2d at 757.

     We find that, while Jerman and the present case are factually

distinct in that the jury in the instant case did not inquire as

to the possibility of parole and thus received no instruction

thereon, the principles espoused in Jerman, as set forth above,

control the resolution of the case before us.     Rule 5:25's

counterpart in this Court is Rule 5A:18, which provides that

"[n]o ruling of the trial court . . . will be considered as a

basis for reversal unless the objection was stated together with

the grounds therefor at the time of the ruling, except for good

                                - 12 -
cause shown or to enable the Court of Appeals to attain the ends

of justice."   "The purpose of the rule is to ensure that the

trial court and opposing party are given the opportunity to

intelligently address, examine, and resolve issues in the trial

court, thus avoiding unnecessary appeals."    Andrews v.

Commonwealth, 37 Va. App. 479, 493, 559 S.E.2d 401, 408 (2002).

Consequently, we "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).

     Here, it is clear that the trial court had no opportunity to

consider during trial the issue of whether it was proper to

instruct the jury on the abolition of parole in Virginia.    Be it

for tactical purposes or other reasons, Waters did not request an

instruction on the abolition of parole.   See Manetta v.

Commonwealth, 231 Va. 123, 127-28 n.2, 340 S.E.2d 828, 830 n.2

(1986) (noting that, although defendant was entitled to an

instruction, the trial judge was not required to give it sua

sponte as defendant may not have sought it for sound tactical

reasons).   Likewise, no evidence or argument placed the issue of

parole before the jury, and the jury did not inquire about the

possibility of parole or the effects of parole on any sentence

that it might impose or otherwise evidence a need for instruction

on parole in fulfilling its sentencing responsibilities.

Furthermore, the record reveals that, during the sentencing phase

of the trial, the trial court instructed the jury, without

                               - 13 -
objection by Waters, solely on the statutory parameters of

punishment for each offense.   It offered no instruction on the

issue of parole.

     We hold, therefore, that, because the trial court never had

the opportunity to consider whether the jury should be instructed

on the abolition of parole, we are barred by Rule 5A:18 from

considering the issue of whether the trial court erred in not

instructing the jury on the abolition of parole.   Moreover, our

review of the record in this case reveals no reason to invoke the

"good cause" or "ends of justice" exceptions to Rule 5A:18.

     Accordingly, we affirm Waters' convictions.

                                                          Affirmed.




                               - 14 -
