                                    COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Felton, Judges Kelsey and McClanahan
Argued at Salem, Virginia


JERRY LAVAIL STONE
                                                              MEMORANDUM OPINION * BY
v.       Record No. 1570-09-3                              JUDGE ELIZABETH A. McCLANAHAN
                                                                   OCTOBER 26, 2010
COMMONWEALTH OF VIRGINIA


                         FROM THE CIRCUIT COURT OF BLAND COUNTY
                                  Josiah T. Showalter, Jr., Judge

                   M. Keith Blankenship for appellant.

                   Craig W. Stallard, Assistant Attorney General (Kenneth T.
                   Cuccinelli, II, Attorney General, on brief), for appellee.


         The trial court found Jerry Stone guilty of abduction, in violation of Code § 18.2-47, and

use of a firearm during the commission of abduction, in violation of Code § 18.2-53.1. Stone

argues on appeal that the evidence was insufficient to support his convictions because he was

acting in self-defense during his confrontation with the victim, thus negating the element of

abduction that requires the defendant’s conduct to be “without legal justification.” Code

§ 18.2-47(A). Concluding that Stone failed to preserve this argument at trial, we affirm the trial

court.

                                                    I.

         This case arose from a confrontation between Stone and the victim, Mathew Justice,

when Stone discovered Justice sawing a tree with a chain saw on property in which Stone

claimed an ownership interest. Justice was living with his girlfriend in a house located on the


         *
             Pursuant to Code § 17.1-413, this opinion is not designated for publication.
same property, and claimed that he had permission from his girlfriend’s father (Stone’s bother),

who also purportedly owned an interest in the property, to cut the tree.

       Justice testified that while he was bent over sawing the tree, located in a wooded area

behind his house, he heard six or seven gunshots and saw them hitting the ground near his feet.

When Justice looked up, he saw Stone shooting a rifle in Justice’s direction from a distance of

approximately ten to fifteen feet away, causing Justice to fear for his life. Stone then demanded

that Justice “get off the property,” cursed Justice, and forced Justice to leave the area on foot—

refusing to allow Justice to take the tractor that he drove to the site. Stone also told Justice to

leave the chain saw, but Justice kept it because it was not Justice’s saw and he “wasn’t going to

leave it with [Stone] to tear up.” As they walked away, Justice explained, Stone kept the barrel

of his rifle against the back of Justice’s neck. After they walked in that position for about fifty

yards, Justice “felt the gun ease off, [at which time he] took off running and made it to the house

and called the police.” Justice further testified that he heard two more gunshots as he was

running toward his house. 1

       Testifying in his own defense, Stone disputed Justice’s version of the encounter. Stone

stated that, when he first approached Justice, Justice turned around and “motioned to swing” his

chain saw at Stone; Stone fired “a defensive warning shot,” and Justice “lower[ed] the chain

saw.” Stone then told Justice to stop what he was doing and leave the property, and simply

“escorted” Justice toward Justice’s house, without ever pointing his gun at Justice. Stone stated

that he was “fifty or sixty feet or more” behind Justice as he followed Justice out of the woods,

and when Justice “got to the edge of the clearing,” Stone “just let him walk on off.”


       1
          Law enforcement officers also testified for the Commonwealth regarding their four to
five hour search for Stone with a tracking dog over a large wooded area, after responding to
Justice’s call. After following Stone’s movements consisting of several circles, i.e., “double-
backs,” across the wooded property, the officers found Stone lying face down in tall weeds next
to a fence.
                                                -2-
        Stone’s counsel argued at the close of all the evidence that Stone was not guilty of

abducting Justice because Stone did not seize, detain or control him, and “didn’t take him

anywhere.” Stone merely “approached Mr. Justice, told him . . . to leave, just get off the

property, leave. He allowed Mr. Justice to take the chain saw and [Stone then] proceeded to

escort [Justice] down the mountain towards Mr. Justice’s residence . . . .” Stone’s counsel

asserted that Stone did “what any landowner would when they encounter someone cutting down

their trees on . . . some property they owned.” As for Stone firing his gun, his counsel stated,

“when Mr. Justice come [sic] up with the chain saw, it was a reflex action, the gun fired . . . at

Mr. Stone’s feet. [Stone] testified he was never firing at Mr. Justice, . . . [Stone] simply wanted

[Justice] to stop cutting the trees and exit that part of the property . . . .” Under such

circumstances, counsel argued, Stone did not have the specific intent to deprive Justice of his

“personal liberty,” as required for the commission of abduction under Code § 18.2-47(A).

“[T]he only intent Mr. Stone had,” according to counsel, “was to order Mr. Justice off this

property . . . and he proceeded to escort [Justice] off the property.”

        The trial court, as fact finder, expressly credited Justice’s testimony, discredited Stone’s

testimony, and found Stone guilty of abduction and use of a firearm during the commission of

the abduction.

                                                   II.

        Code § 18.2-47(A) provides that

                 [a]ny person who, by force, intimidation or deception, and without
                 legal justification or excuse, seizes, takes, transports, detains or
                 secretes another person with the intent to deprive such other person
                 of his personal liberty or to withhold or conceal him from any
                 person, authority or institution lawfully entitled to his charge, shall
                 be deemed guilty of “abduction.”

(Emphasis added.)



                                                  -3-
       Stone now argues on appeal that the evidence established he was acting in self-defense

during his confrontation with Justice and, therefore, the Commonwealth’s evidence was

insufficient as a matter of law to support his conviction for abduction, and the related firearm

conviction. More specifically, Stone argues that because Justice was “wielding a deadly

weapon,” a chain saw, “and using it in an aggressive fashion, Mr. Stone was entitled to use such

force as was necessary to repel the attack, and was not required to retreat from his [a]ssailant.”

(Emphasis added.) Stone further asserts that “[i]n the face of conduct so brazen and aggressive

[he] would have been legally entitled to kill the ostensible victim.” Stone would thus have us

conclude that his entire conduct was legally justified under Code § 18.2-47(A) because the

evidence established that he was only acting in self-defense. See Taylor v. Commonwealth, 260

Va. 683, 690, 537 S.E.2d 592, 596 (2000) (explaining that under Code § 18.2-47(A) “[t]he word

‘justification’ simply means ‘[a] lawful or sufficient reason for one’s acts or omissions’”

(quoting Black’s Law Dictionary 870 (7th ed. 1999))).

       As explained above, Stone did not argue to the trial court that the evidence showed he

was justified in using force against Justice by acting in self-defense to avoid death or serious

personal injury—such that he actually would have been “entitled to kill [Justice].” See Foster v.

Commonwealth, 13 Va. App. 380, 383, 412 S.E.2d 198, 200 (1991) (“[T]he amount of force

used to defend oneself must not be excessive and must be reasonable in relation to the perceived

threat.” (citation omitted)). Instead, Stone’s counsel argued just the opposite to the trial court in

summation—that Stone used no such force against Justice. Without ever pointing his gun at

Justice, Stone’s counsel asserted, Stone simply approached Justice in order to tell him to “just get

off the property” and then “escorted” Justice down the mountain, from a distance of fifty to sixty

feet behind him, according to Stone. Thus, Stone’s counsel argued, Stone did not seize, detain or

control Justice, nor did he “take [Justice] anywhere.” And that assertion, if true, would have

                                                 -4-
rendered irrelevant any question regarding the “legal justification” of Stone’s actions under Code

§ 18.2-47(A). That is, no finding would have been required as to whether Stone’s conduct was

legally justified if, in fact, he did not engage in the threshold conduct proscribed under the

statute. 2

         Under Rule 5A:18, “[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 cause shown or to enable the Court of Appeals to attain the ends of

justice.” Pursuant to this rule, “[t]his Court ‘will not consider an argument on appeal that was

not presented to the trial court.’” Kolesnikoff v. Commonwealth, 54 Va. App. 396, 402, 679

S.E.2d 559, 562 (2009) (quoting Ohree v. Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d

484, 488 (1998)). To preserve an evidentiary sufficiency argument in a bench trial, “the

defendant must make a motion to strike at the conclusion of all the evidence, present an

appropriate argument in summation, or make a motion to set aside the verdict.” Howard v.

Commonwealth, 21 Va. App. 473, 478, 465 S.E.2d 142, 144 (1995). Either way, the argument

must be specific. Bowling v. Commonwealth, 51 Va. App. 102, 106, 654 S.E.2d 354, 356

(2007); Edwards v. Commonwealth, 41 Va. App. 752, 760, 589 S.E.2d 444, 448 (2003) (en

banc); Mounce v. Commonwealth, 4 Va. App. 433, 435, 357 S.E.2d 742, 744 (1987). Further,

“[m]aking one specific argument on an issue does not preserve a separate legal point on the same

issue.” Edwards, 41 Va. App. at 760, 589 S.E.2d at 448. See Andrews v. Commonwealth, 37

Va. App. 479, 493, 559 S.E.2d 401, 408 (2002) (explaining that the purpose of Rule 5A:18 is “to

ensure that the trial court and opposing party are given the opportunity to intelligently address,


         2
          As a practical matter, given Stone’s testimony, in an effort to preserve a
justification/self-defense argument for appeal Stone would have needed to make inconsistent
arguments to the trial court to the effect that he used no force against Justice, but, if he did, he
did so in self-defense.

                                                  -5-
examine, and resolve issues in the trial court, thus avoiding unnecessary appeals”). Thus, given

that Stone did not argue to the trial court that his conduct was legally justified because he was

acting in self-defense, Stone failed to preserve the argument for appeal.

       Stone argues, in the alternative, that if he did default on his self-defense argument this

Court should apply the “ends of justice” exception to Rule 5A:18 and consider the argument. It

is well settled that the “ends of justice” exception to the rule is “narrow and is to be used

sparingly.” Bazemore v. Commonwealth, 42 Va. App. 203, 219, 590 S.E.2d 602, 609 (2004) (en

banc) (citation and internal quotation marks omitted). As the Virginia Supreme Court recently

reiterated, application of this exception is limited to those cases where “‘the judgment of the trial

court was error and application of the exception is necessary to avoid a grave injustice or the

denial of essential rights.’” Brown v. Commonwealth, 279 Va. 210, 219-20, 688 S.E.2d 185,

190 (2010) (quoting Charles v. Commonwealth, 270 Va. 14, 17, 613 S.E.2d 432, 433 (2005)).

Only in “rare instances” does this occur. Ball v. Commonwealth, 221 Va. 754, 758, 273 S.E.2d

790, 793 (1981).

       Still, Stone contends this case presents facts requiring application of this limited “ends of

justice” exception because he was “‘convicted for conduct that was not a criminal offense’”

(quoting Redman v. Commonwealth, 25 Va. App. 215, 222, 487 S.E.2d 269, 273 (1997)). See

id. at 221-22, 487 S.E.2d at 273 (explaining that “[i]n order to show that a miscarriage of justice

has occurred, thereby invoking the ends of justice exception, the appellant must demonstrate that

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”). In support of this contention,

Stone simply, but erroneously, characterizes the evidence as though it were undisputed that he

acted in self-defense during his confrontation with the victim. The victim’s testimony, which the

trial court credited as it discredited Stone’s testimony, defies any such characterization of the

                                                -6-
evidence. And we do not reweigh the evidence on appeal. Williams v. Commonwealth, 56

Va. App. 638, 642-43, 696 S.E.2d 233, 235 (2010) (“[A]ppellate courts are not permitted to

reweigh the evidence . . . because we have no authority to preside de novo over a second trial.”

(citations and internal quotation marks omitted)). Stone has thus failed to establish any “grave

injustice” or “denial of essential rights” implicated by his convictions. Brown, 279 Va. at

219-20, 688 S.E.2d at 190. Therefore, we will not consider his justification/self-defense

argument under the ends of justice exception to Rule 5A:18.

       For these reasons, we affirm Stone’s convictions.

                                                                                   Affirmed.




                                               -7-
