                                             Tuesday        10th

           June, 1997.



Ponto Prince Arnold, s/k/a
 Ponto Prinze Arnold,
          Appellant,

against       Record Nos. 1301-96-2 and 1302-96-2
              Circuit Court Nos. 95-300-1, 95-300-2 and 95-431-1,
                95-431-2 and 95-431-4
Commonwealth of Virginia,
          Appellee.


          From the Circuit Court of the City of Charlottesville



           It appears to the Court that a copy of this Court's May 20,

1997 opinion was not properly mailed by the clerk's office to the

court-appointed counsel for the appellant, as required by Rule 5A:29.

Accordingly, in order not to prejudice appellant's right to seek

further review of that decision, the opinion rendered on May 20, 1997

is withdrawn and the mandate entered on that date is vacated.

Accordingly, the opinion and mandate shall be reissued bearing the

date of June 10, 1997.


                             A Copy,

                                 Teste:

                                           Cynthia L. McCoy, Clerk

                                 By:

                                           Deputy Clerk
                     COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Moon, Judge Coleman and Senior Judge Cole
Argued at Richmond, Virginia


PONTO PRINCE ARNOLD, S/K/A
 PONTO PRINZE ARNOLD
                                           MEMORANDUM OPINION *
v.   Record No. 1301-96-2                BY JUDGE MARVIN F. COLE
                                              JUNE 10, 1997
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE
                    David F. Berry, Judge Designate
             J. Lloyd Snook, III (Snook & Haughey, P.C.,
             on brief), for appellant.

             John K. Byrum, Jr., Assistant Attorney
             General (James S. Gilmore, III, Attorney
             General, on brief), for appellee.



     Ponto Prince Arnold (appellant) was convicted in a jury

trial of maliciously causing bodily injury and using a firearm in

committing or attempting to commit malicious bodily injury.

Appellant contends for the first time on appeal that his

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

bodily injury was error because there is no such crime.     Because

appellant made no objection at trial, he urges the Court to apply

the "ends of justice" exception to Rule 5A:18.      For the reasons

that follow, we affirm.

                                 FACTS

     Around 1:00 a.m., appellant walked to the driver's side of

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Shaun Bates' parked car, and pointed a loaded gun at Bates, who

was seated behind the steering wheel.      Pointing the gun at Bates'

head, appellant repeatedly ordered Bates to get out of the car.

Bates put his car in gear, pushed the gun, and drove away.        As

Bates fled, the gun fired.   Bates "saw flashes come past [his]

eyes," and he felt "a burning sensation."

     Dr. Steven McAlpine testified that Bates came to the

hospital emergency room the day after the shooting "with a

concern that [he] had some bullet fragments."      He examined Bates

and found none.   He testified that Bates suffered "a burn on his

cheek" that had produced "a scab" and "an abrasion on his wrist."

Dr. McAlpine opined that Bates' injuries appeared to be flash

burns caused by the discharge of the gun.      The scab indicated

"that the skin had to be broken and fluid leaking out."

(Emphasis added.)

     Before the presentation of evidence and based upon

representations of counsel, the trial judge stated, "We don't

have a breaking of the skin and the tracking of a bullet."

During arraignment, the indictment was amended from using a

firearm "while committing or attempting to commit malicious

wounding" to using a firearm "while committing or attempting to

commit malicious bodily injury."       At the conclusion of the

evidence, the trial judge instructed the jury, without objection,

that it must find that "the use was while committing or

attempting to commit malicious bodily injury."



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                             APPLICABLE LAW

     "To avail himself of the [ends of justice exception] the

defendant has to affirmatively show [that] 'a miscarriage of

justice [has] occurred, not . . . that a miscarriage might have

occurred' [and it] requires that the error be clear, substantial

and material."      Brown v. Commonwealth, 8 Va. App. 126, 132, 380

S.E.2d 8, 11 (1989) (quoting Mounce v. Commonwealth, 4 Va. App.

433, 436, 357 S.E.2d 742, 744 (1987)).
          If any person maliciously shoot, stab, cut,
          or wound any person or by any means cause him
          bodily injury, with the intent to maim,
          disfigure, disable, or kill, he shall, except
          where it is otherwise provided, be guilty of
          a Class 3 felony. If such act be done
          unlawfully but not maliciously, with the
          intent aforesaid, the offender shall be
          guilty of a Class 6 felony.

Code § 18.2-51.
          It shall be unlawful for any person to use or
          attempt to use any pistol, shotgun, rifle, or
          other firearm or display such weapon in a
          threatening manner while committing or
          attempting to commit . . . malicious wounding
          as defined in [Code] § 18.2-51 . . . .


Code § 18.2-53.1.

     "The purpose of Code § 18.2-53.1 is to deter violent

criminal conduct."      Creasy v. Commonwealth, 9 Va. App. 470, 473,

389 S.E.2d 316, 318 (1990) (citing In re Commonwealth, 229 Va.

159, 162, 326 S.E.2d 695, 697 (1985)).        "[T]he General Assembly,

in adopting [Code § 18.2-53.1] intended to discourage the use of

a firearm at any time during the course of the specified criminal

endeavors."   Id.



                                    3
     "We will not construe a penal statute in a manner that

requires us to disregard the clear and obvious meaning of the

statute.    '[T]he plain, obvious, and rational meaning of a

statute is always to be preferred to any curious, narrow, or

strained construction.'"    Bunn v. Commonwealth, 21 Va. App. 593,

598, 466 S.E.2d 744, 746 (1996) (citations omitted).
          [It is true] that a statute "penal in nature
          . . . must be strictly construed and any
          ambiguity or reasonable doubt as to its
          meaning must be resolved in [defendant's]
          favor." However, "that rule of construction
          does not abrogate the well recognized canon
          that a statute . . . should be read and
          applied so as to accord with the purpose
          intended and attain the objects desired if
          that may be accomplished without doing harm
          to its language. Any construction that has
          the effect of impairing the purpose of the
          enactment or which frustrates, thwarts or
          defeats its objects should be avoided."

Gilliam v. Commonwealth, 21 Va. App. 519, 525, 465 S.E.2d 592,

595 (1996) (citations omitted).

     An instruction, given without objection, becomes the law of

the case.    See Medical Ctr. Hosps. v. Sharpless, 229 Va. 496,

498, 331 S.E.2d 405, 406 (1985) (holding that questionable jury

instruction defining hospital's duty became law of the case after

party failed to object).    See also Norfolk & Portsmouth R.R. v.

Barker, 221 Va. 924, 928, 275 S.E.2d 613, 615 (1981) (holding

that instruction imposing greater duty than required became law

of the case after no objection made).

                         DISCUSSION/ANALYSIS

     Because the jury instructions became the law of the case, we



                                  4
look to see whether the malicious bodily injury resulting from

appellant's actions violated Code § 18.2-53.1.   The evidence

proved that appellant pointed a loaded firearm at Bates' head.

Bates tried to flee, and the gun fired close to Bates' face.

When the gun fired, Bates' skin broke and he suffered a facial

injury.

     Whether termed a "bodily injury" or a "wounding," clearly,

appellant's actions, the means used by him to inflict the injury,

and the resulting injury are subjects with which Code § 18.2-53.1

is intended to deal.   In fact, notwithstanding the trial judge's

initial conclusion that there was no breaking of the skin, the

evidence proved that the victim's bodily injuries were wounds,

both of which were caused by appellant's use and discharge of his

firearm.   Therefore, the bodily injury committed by appellant was

a "malicious wounding as defined in [Code] § 18.2-51."
     Because there was sufficient record evidence to support

appellant's conviction under the law of the case, and because the

offense was one of the required underlying offenses enumerated in

Code § 18.2-53.1, appellant has failed to affirmatively show that

a miscarriage of justice has occurred.   Therefore, we need not

apply the ends of justice exception to Rule 5A:18.   Accordingly,

appellant's conviction is affirmed.

                                         Affirmed.




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