                   COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Bray and Frank
Argued at Chesapeake, Virginia


MOSES VERNON SIMPKINS
                                           MEMORANDUM OPINION ∗ BY
v.   Record No. 1086-00-1                   JUDGE RICHARD S. BRAY
                                                MARCH 13, 2001
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                  Junius P. Fulton, III, Judge

          (Michael F. Fasanaro, Jr.; Abrons, Fasanaro &
          Sceviour, P.L.L.C., on brief), for appellant.
          Appellant submitting on brief.

          Donald E. Jeffrey, III, Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellee.


     Moses Vernon Simpkins (defendant) was convicted in a bench

trial for possession of a concealed weapon in violation of Code

§ 18.2-308.   On appeal, he complains the trial court erroneously

overruled his motion to strike the evidence at the conclusion of

the Commonwealth's case.    However, because defendant failed to

renew the motion after testifying on his own behalf, we decline to

consider the merits of the appeal.

     The parties are fully conversant with the record, and this

memorandum opinion recites only those facts necessary to a

disposition of the appeal.


     ∗
       Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
                                I.

     At trial, the Commonwealth presented the testimony of the

arresting officers, offered the offending weapon into evidence

and rested.   Defendant then "move[d] to strike and ask[ed] the

[c]ourt to make a determination if the weapon [fell] within the

purview of the statute."   Finding the weapon was "in fact, a

bowie knife," proscribed by Code § 18.2-308, the court overruled

the motion.   Defendant then presented evidence in his defense

and rested, without renewing a motion to strike or thereafter

moving the court to set aside the judgment of guilty.

                                II.

     "It is well settled . . . that when a defendant elects to

present evidence on his behalf, he waives the right to stand on

his motion to strike the evidence made at the conclusion of the

Commonwealth's case."   White v. Commonwealth, 3 Va. App. 231,

233, 348 S.E.2d 866, 868 (1986).     This principle recognizes

that, when "an accused elects not to stand on his motion and

presents evidence, he thereby creates a new context in which the

court, if called upon to do so, must judge the sufficiency of

the evidence.   Thus, the original motion to strike is no longer

applicable because it addresses a superseded context."     McQuinn

v. Commonwealth, 20 Va. App. 753, 757, 460 S.E.2d 624, 626

(1995).

     Accordingly, by presenting evidence following his initial

motion to strike, defendant clearly waived reliance upon such

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motion to challenge the sufficiency of the evidence, and we will

not address his related assignment of error, absent "good cause

shown to enable [us] to attain the ends of justice."   Rule

5A:18.    To invoke the ends of justice exception, defendant "must

demonstrate that he . . . 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," circumstances neither

asserted by defendant nor present on the instant record.      Redman

v. Commonwealth, 25 Va. App. 215, 221-22, 487 S.E.2d 269, 273

(1997).

     Thus, we affirm the conviction.

                                                    Affirmed.




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