                               COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Elder and Haley
Argued at Salem, Virginia


MARK EDWARD KIMBERLIN
                                                               MEMORANDUM OPINION* BY
v.     Record No. 2261-03-3                                    JUDGE JAMES W. HALEY, JR.
                                                                     APRIL 12, 2005
COMMONWEALTH OF VIRGINIA


                   FROM THE CIRCUIT COURT OF ALLEGHANY COUNTY
                           Charles H. Smith, Jr., Judge Designate

                 James V. Doss, III, for appellant.

                 Richard B. Smith, Senior Assistant Attorney General (Jerry W.
                 Kilgore, Attorney General, on brief), for appellee.


       Mark Edward Kimberlin (appellant) was convicted of violating Code § 18.2-461 by giving a

false report of a crime to law enforcement officials with the intention of misleading them. On

appeal, appellant challenges the sufficiency of the evidence to support his conviction. He also

contends the trial judge violated the requirements of Rule 5A:8 by signing the Commonwealth’s

proposed statement of facts. Finding no error, we affirm appellant’s conviction.

                                           BACKGROUND

       In a bench trial conducted on August 22, 2003, the trial judge found appellant guilty of the

charged offense and sentenced him to twelve months in jail. On October 14, 2003, appellant filed a

written statement of facts pertaining to his trial. The Commonwealth filed its own statement of facts

on November 5, 2003. By notice filed on November 6, 2003, appellant stated he would present his

statement of facts to the trial judge at a hearing the following day. The trial judge, however, signed


       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
the Commonwealth’s statement of facts on November 21, 2003. In a handwritten notation, the trial

judge stated: “The foregoing ‘Statement of Facts’ is approved pursuant to Rule 5A:8 of the Rules of

Court.” Appellant did not raise any objection in the lower court to the trial judge’s procedure in

adopting the Commonwealth’s statement of facts.

       According to the Commonwealth’s statement of facts, appellant spent a portion of the

evening of January 27 and early morning of January 28, 2003 with Kathy Furlong and her friend

“Shirley.” Upon appellant’s requests, Furlong drove appellant to several locations in and around

Clifton Forge, resulting in unsuccessful attempts to obtain money. The vehicle Furlong drove that

night was a gray Chevrolet Camaro.

       Eventually, Furlong became irritated with appellant’s requests and told him she wanted to

take him home. Appellant became verbally abusive to Furlong. He tried to prevent her from

driving him home by pulling on the emergency brake, nearly causing an accident. When they

reached appellant’s home, Furlong ordered him out of the vehicle. Appellant told her he would “get

her back” and “have the last laugh.”

       At 5:18 a.m. on January 28, 2003, immediately after he arrived home, appellant called the

Clifton Forge Police Department. Appellant identified himself and reported that two women in a

gray Camaro had fired shots at his residence. He also indicated the women possessed cocaine.

       The information appellant provided was broadcast over the police radio. At 5:20 a.m., two

police officers on patrol in Clifton Forge observed a gray Camaro with two female occupants. The

officers stopped the vehicle based upon the radio dispatch they had received. Furlong was driving

the vehicle. The police officers ordered Furlong and the passenger from the vehicle, detained them

at gunpoint, and handcuffed them. The officers searched the two women and Furlong’s vehicle, but

found no firearms, drugs, paraphernalia, or alcohol. The officers released the two women.




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        The police went to appellant’s residence. Tracy Vanness, appellant’s roommate, told the

officers appellant was not home. At trial, Vanness testified he did not hear appellant arrive home on

the night in question, but claimed he heard noises that might have been gunshots.

                                            DISCUSSION

                                                   I.

        Appellant contends the trial court erred in signing the Commonwealth’s statement of

facts without appellant’s agreement or conducting a hearing to resolve the differences in the two

proposed statements of facts. However, the record does not show appellant raised an objection

to the trial judge concerning the judge’s approval of the Commonwealth’s statement of facts.

Although appellant objected in this Court to the trial judge’s procedure in adopting the

Commonwealth’s statement of facts, Rule 5A:18 required appellant to raise an objection to the

trial judge for us to consider the issue on appeal. “No 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.” Rule 5A:18. Accordingly, Rule 5A:18 bars our consideration of

this question on appeal.

                   Although Rule 5A:18 allows exceptions for good cause or to
                meet the ends of justice, appellant does not argue that we should
                invoke these exceptions. See e.g., Redman v. Commonwealth, 25
                Va. App. 215, 221, 487 S.E.2d 269, 272 (1997) (“In order to avail
                oneself of the exception, a defendant must affirmatively show that a
                miscarriage of justice has occurred, not that a miscarriage might
                have occurred.” (emphasis added)). We will not consider, sua
                sponte, a “miscarriage of justice” argument under Rule 5A:18.

Edwards v. Commonwealth, 41 Va. App. 752, 761, 589 S.E.2d 444, 448 (2003) (en banc).

        Furthermore, “[t]he judge’s signature on a . . . written statement, without more, shall

constitute his certification that the procedural requirements of this Rule 5A:8 have been

satisfied.” Rule 5A:8(d). The trial judge signed the Commonwealth’s written statement of facts

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and noted that all requirements of Rule 5A:8 had been satisfied. Accordingly, we refer to the

Commonwealth’s statement of facts signed by the judge in this appeal.

                                                   II.

       Pursuant to Code § 18.2-461(i), it is a Class 1 misdemeanor “to knowingly give a false

report as to the commission of any crime to any law-enforcement official with intent to mislead.”

Admitting he made the call to the police regarding the gray Camaro, appellant contends he did

not do so with the intent to mislead the police.

       “On appeal, ‘we review the evidence in the light most favorable to the Commonwealth,

granting to it all reasonable inferences fairly deducible therefrom.’” Archer v. Commonwealth,

26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (citation omitted).

               “Intent is a state of mind that may be proved by an accused’s acts
               or by his statements and that may be shown by circumstantial
               evidence.” The specific intent to commit [a crime] may be inferred
               from the conduct of the accused if such intent flows naturally from
               the conduct proven. Where the conduct of the accused under the
               circumstances involved points with reasonable certainty to a
               specific intent to commit [the crime], the intent element is
               established.

Wilson v. Commonwealth, 249 Va. 95, 101, 452 S.E.2d 669, 673-74 (1995) (citations omitted).

       Appellant rode with Furlong in the gray Camaro for an extended period of time on the

night in question. Having tired of appellant’s repeated requests for her to drive him to various

locations, Furlong told appellant she wanted to take him home. Appellant was verbally abusive

to Furlong and tried to prevent her from driving to his residence. Once they reached appellant’s

residence, appellant told Furlong he would “get her back.” Appellant immediately called the

police. He reported two women had shot at his residence from a gray Camaro and that the

women possessed cocaine. Stopped by the police within minutes of appellant’s call, Furlong and

her passenger possessed neither firearms nor drugs.




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       Viewed in the light most favorable to the Commonwealth, the evidence proved appellant,

following through on his threat to retaliate against Furlong, made a false report of shots fired by

two women in a gray Camaro. Appellant’s words and actions evince his intent to mislead the

police and cause them to stop Furlong’s vehicle. Thus, the evidence was sufficient to prove

beyond a reasonable doubt that appellant was guilty of the charged offense.

                                          CONCLUSION

       For the foregoing reasons, appellant’s conviction is affirmed.

                                                                                     Affirmed.




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