                     COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Bray and Clements
Argued at Alexandria, Virginia


SCOTT ERIC SUMMERS
                                           MEMORANDUM OPINION * BY
v.   Record No. 2522-99-4               JUDGE JEAN HARRISON CLEMENTS
                                                APRIL 17, 2001
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF STAFFORD COUNTY
                    Ann Hunter Simpson, Judge

          Joseph W. Kaestner (Kaestner, Pitney & Jones,
          P.C., on brief), for appellant.

          Leah A. Darron, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellee.


     Scott Eric Summers was tried by jury and convicted of driving

after having been declared an habitual offender in violation of

Code § 46.2-357(B)(1) and driving on a suspended license, second

or subsequent offense, in violation of Code § 46.2-301.   On

appeal, he contends the trial court erred (1) in rejecting his

claim that the driving on a suspended license charge should be

stricken on the basis that, as a matter of sound statutory

construction, he no longer had a suspended operator's license when

the offense occurred because it had been extinguished by the

revocation of his license when he was determined to be an habitual


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
offender and (2) in refusing to instruct the jury on the defense

of others.    For the reasons that follow, we affirm the

convictions.

     As the parties are fully conversant with the record in this

case and because this memorandum opinion carries no precedential

value, this opinion recites only those facts necessary to a

disposition of this appeal.

                   A.    DRIVING ON SUSPENDED LICENSE

     Summers first contends on appeal that the trial court erred

in denying his motion to strike the driving on a suspended

license charge.    He could not, he claims, properly be convicted

of driving on a suspended license because, having been declared

an habitual offender, his previously suspended operator's

license had been revoked and, thus, was not extant at the time

the charged offenses occurred.      Under established rules of

statutory construction, an operator's license cannot, he argues,

be both suspended and revoked at the same time.         As defined in

Code § 46.2-100, 1 the revocation of a license, unlike a


     1
         Code § 46.2-100 reads, in pertinent part, as follows:

                  "Revoke" or "revocation" means that the
             document or privilege revoked is not subject
             to renewal or restoration except through
             reapplication after the expiration of the
             period of revocation.

              *      *       *      *      *      *         *

                  "Suspend" or "suspension" means that
             the document or privilege suspended has been

                                  - 2 -
suspension, extinguishes the license, he asserts.   Thus, his

argument continues, "[a] suspended operator's license is

terminated when it is revoked."    Hence, because a previously

suspended license no longer exists once it has been revoked, it

is impossible under Virginia law, Summers concludes, to convict

a person declared an habitual offender of driving on a suspended

license.   The statutory definitions of "suspension" and

"revocation" clearly express such a legislative intent, he

avers.

     The Commonwealth contends that, because Summers did not

make the same argument at trial that he makes here, his argument

regarding the driving on a suspended license charge is

procedurally barred.   We agree.

     An appellate court will not consider an argument on appeal

that is different from the argument presented to the trial

court, even if it relates to the same issue.    See Rule 5A:18;

Buck v. Commonwealth, 247 Va. 449, 452-53, 443 S.E.2d 414, 416

(1994); Ohree v. Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d

484, 488 (1998).   The purpose of this 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 and reversals.    Lee v.


           temporarily withdrawn, but may be reinstated
           following the period of suspension unless it
           has expired prior to the end of the period
           of suspension.

                               - 3 -
Lee, 12 Va. App. 512, 514, 404 S.E.2d 736, 737 (1991) (en banc);

Kaufman v. Kaufman, 12 Va. App. 1200, 1204, 409 S.E.2d 1, 3-4

(1991).

        Here, Summers did not make the same argument before the

trial court that he makes before us.        Nothing in Summers's

argument at trial, which was limited to his claim that the driving

on a suspended license charge should be stricken under the

"doctrine of merger," gave the court or the Commonwealth the

opportunity to consider and address the argument he presents to

us. 2       At no point at trial did he raise his present claim that the

driving on a suspended license charge should, as a matter of

statutory construction, be stricken on the basis of the

definitions of "revocation" and "suspension."

        Thus, Summers's failure to raise this argument before the

trial court precludes him from raising it for the first time

before us on appeal.        Moreover, the record does not reflect any

reason to invoke the good cause or ends of justice exceptions to

Rule 5A:18.        Hence, our consideration of this assignment of error

is procedurally barred.




        2
       Indeed, Summers argued at trial in support of his "merger
doctrine" claim, that driving on a suspended license is a
lesser-included offense of driving after having been declared an
habitual offender. On appeal, however, having abandoned his
"merger" argument, Summers concedes that driving on a suspended
license is not a lesser-included offense of driving after having
been declared an habitual offender.


                                    - 4 -
                   B.    DEFENSE OF OTHERS INSTRUCTION

        Summers also contends that the trial court erred in refusing

to instruct the jury on the "defense of others" defense.      He

argues that the evidence adduced at trial supported such an

instruction and that the jury should have been given the

opportunity to consider whether he operated a motor vehicle in the

reasonable belief that he was doing so in the defense of others.

        "On appeal, when the issue is a refused jury instruction, we

view the evidence in the light most favorable to the proponent of

the instruction."       Lynn v. Commonwealth, 27 Va. App. 336, 344, 499

S.E.2d 1, 4-5 (1998), aff'd, 257 Va. 239, 514 S.E.2d 147 (1999).

"A party is entitled to have the jury instructed according to the

law favorable to his or her theory of the case if evidence in the

record supports it."       Foster v. Commonwealth, 13 Va. App. 380,

383, 412 S.E.2d 198, 200 (1991).

        In this case, the record plainly does not support the giving

of a defense of others instruction to the jury.      The defense of

others defense applies when a person justifiably uses force to

defend another person.       See id. at 385-86, 412 S.E.2d at 201-02.

Here, even when viewed in the light most favorable to Summers's

theory of what occurred, there is no evidence in the record that

Summers used force to protect or defend Michael Shaffer or Jay

Beck.    Nor did any of the offenses he was charged with relate to

his using force.    Summers merely drove Shaffer from the scene of

the confrontation.       Thus, Summers was not entitled to assert a

                                   - 5 -
claim of defense of others.   Hence, the trial judge did not err in

refusing to instruct the jury on that defense.

     Accordingly, we affirm Summers's convictions.

                                                         Affirmed.




                               - 6 -
