                    COURT OF APPEALS OF VIRGINIA


Present: Judges Annunziata, Bumgardner and Frank
Argued at Salem, Virginia


DALLAS MONROE BAUGUESS, S/K/A
 DALLAS MONROE BAUGESS
                                          MEMORANDUM OPINION * BY
v.   Record No. 0585-00-3               JUDGE ROSEMARIE ANNUNZIATA
                                             FEBRUARY 13, 2001
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
                      James F. Ingram, Judge

          S. Jane Chittom, Appellate Defender (Elwood
          Earl Sanders, Jr.; Public Defender
          Commission, on brief), for appellant.

          Virginia B. Theisen, Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellee.


     Appellant, Dallas Monroe Bauguess, was convicted in a bench

trial for driving after being adjudged an habitual offender,

second offense, in violation of Code § 46.2-357 and driving

while intoxicated, fourth offense, in violation of Code

§ 18.2-266.    He was sentenced to serve two years in prison on

each charge.   He contends on appeal that, because the evidence

placed him in the driver's seat of a stationary vehicle with the

ignition engaged, the trial court erred in denying the motion to

strike the Commonwealth's evidence in support of both charges.

For the reasons stated in this opinion, we affirm.

     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
        On appeal we view the evidence in the light most favorable

to the Commonwealth, the party prevailing below, together with

all reasonable inferences that may be drawn from such evidence.

Cressell v. Commonwealth, 32 Va. App. 744, 763-64, 531 S.E.2d 1,

10 (2000).    On August 27, 1999, Officer William Chaney of the

Danville Police Department observed Bauguess sitting behind the

wheel of a motor vehicle in a roadway, at a stop sign on Edmonds

Street, in the City of Danville.    Chaney knew that Bauguess was

prohibited from driving, so he stationed his patrol car parallel

to Bauguess' vehicle and asked him to turn off the ignition;

Bauguess complied.    The vehicle was also occupied by another

individual sitting in the front passenger seat.    After Chaney

parked his patrol car behind Bauguess' vehicle, he approached

the driver's window.    Chaney smelled alcohol on Bauguess, and

discerned that his eyes were bloodshot and that he was unsteady

on his feet.

        After Bauguess performed field sobriety tests

unsatisfactorily, Chaney arrested Bauguess and administered a

breath test at 11:50 p.m.    The latter test revealed that

Bauguess' blood alcohol content exceeded the legal limit of

.08%.    Bauguess denied he was intoxicated, stating variously

that he only had drunk one beer seven hours earlier and that he

had had two 32-ounce malt liquors since 4:40 p.m. on the date in

question.    His motions to strike the evidence on the ground that

the vehicle was stationary and remained stationary were made

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after the Commonwealth's case-in-chief and after all the

evidence was submitted and were both denied.

                             ANALYSIS

                        Procedural Default

     In order to preserve an issue of sufficiency of the

evidence in a bench trial, the defendant must move to strike the

evidence at the conclusion of all the evidence, make a specific

argument in his summation to the court, or present a specific

and timely motion to set aside the verdict.    Rule 5A:18;

Campbell v. Commonwealth, 12 Va. App. 476, 478-81, 405 S.E.2d 1,

1-3 (1991) (en banc); McGee v. Commonwealth, 4 Va. App. 317,

321-22, 357 S.E.2d 738, 739-40 (1987).   The same grounds in

support of a claim of insufficiency must be presented to the

trial court and appellate court.   Taylor v. Commonwealth, 21 Va.

App. 557, 565-66, 466 S.E.2d 118, 122 (1996).

     In the instant case, Bauguess made a motion to strike the

evidence following the close of the Commonwealth's

case-in-chief.   He argued that the Commonwealth failed to

establish a prima facie case for both offenses on the ground

that the officer testified that Bauguess' vehicle was stationary

and that he did not witness Bauguess turn off the ignition.

Bauguess then testified.   At the conclusion of all the evidence,

Bauguess renewed his motion to strike, making the following

argument:



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            Again, the question is, from the
            officer . . . the conflict in the evidence
            as to whether the car was running or not
            running . . . the officer indicates he felt
            that it was, and that my client was behind
            the wheel. My client indicates at the time,
            the keys weren't even in the car. . . .
            [I]f you choose to believe [the officer],
            does his description of what he saw, for
            purposes of an habitual offender operation
            of a vehicle, rise to the statutory level in
            the case law? I concede that for purposes
            of the DUI, it very well may, but at the
            moment my mind draws a blank as to whether
            it really rises, for purposes of habitual
            offender charges.

(Emphasis added).   Bauguess failed to raise before the trial

court the argument he makes here.   Specifically, he did not

argue that to convict him of violating Code § 46.2-357, the

Commonwealth was required to prove that he was "driving" or

"moving the vehicle down the highway by its own power," because

when the legislature recodified the habitual offender statute in

1989, it substituted the word "drive" for the word "operate."

We therefore find the issue was not properly preserved for

appeal.    Rule 5A:18.

     We further find that the "ends of justice" exception to the

requirement under Rule 5A:18 that a proper objection be made to

a claimed error at the trial level does not apply.   "[T]he ends

of justice exception is narrow and is to be used sparingly

. . . ."    Brown v. Commonwealth, 8 Va. App. 126, 132, 380 S.E.2d

8, 11 (1989).   The exception applies only "when the record

affirmatively shows that a miscarriage of justice has occurred,


                                - 4 -
not when it merely shows that a miscarriage might have

occurred."    Mounce v. Commonwealth, 4 Va. App. 433, 436, 357

S.E.2d 742, 744 (1987) (emphasis in original).

     Even under Bauguess' claimed construction of Code

§ 46.2-357 and its use of the term "drive" rather than

"operate," it is clear his conduct was in violation of the

statute.   When Officer Chaney encountered Bauguess, he was

behind the wheel of a vehicle stopped in the roadway at the

intersection of two streets, at a stop sign, with the motor

running.   When Officer Chaney asked Bauguess to turn off the car

engine, he did so.   From this evidence, the fact finder

reasonably could conclude that Bauguess drove the vehicle to

that location.    Lyons v. City of Petersburg, 221 Va. 10, 12-13,

266 S.E.2d 880, 881-82 (1980); Propst v. Commonwealth, 24 Va.

App. 791, 793, 485 S.E.2d 657, 659 (1997).

     Finally, Bauguess conceded during argument at trial that

the evidence was sufficient to prove the driving while

intoxicated charge; therefore, he did not preserve this issue

for appeal.    Cottee v. Commonwealth, 31 Va. App. 546, 559-60,

525 S.E.2d 25, 31-32 (2000) (appellate review barred where

defendant conceded issue at trial level); Lester v.

Commonwealth, 30 Va. App. 495, 506, 518 S.E.2d 318, 323 (1999).

His convictions are affirmed.

                                                           Affirmed.



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