                   COURT OF APPEALS OF VIRGINIA


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


CHAD ROBERT SHAFFER
                                          MEMORANDUM OPINION * BY
v.   Record No. 0735-01-3                  JUDGE LARRY G. ELDER
                                              DECEMBER 4, 2001
COMMONWEALTH OF VIRGINIA


             FROM THE CIRCUIT COURT OF FRANKLIN COUNTY
                  William N. Alexander, II, Judge

          Melissa W. Friedman (Anthony F. Anderson, on
          brief), for appellant.

          Jennifer R. Franklin, Assistant Attorney
          General (Randolph A. Beales, Attorney General,
          on brief), for appellee.


     Chad Robert Shaffer (appellant) appeals from his bench trial

conviction for attempted carnal knowledge in violation of Code

§§ 18.2-26 and 18.2-63. 1   On appeal, he contends the evidence was

insufficient to support his conviction or, in the alternative,

that his conviction for attempted carnal knowledge simultaneously

with his conviction for object sexual penetration in violation of



     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     1
       Appellant also was convicted for object sexual penetration
in violation of Code § 18.2-67.2. In his petition for appeal,
appellant challenged the trial court's denial of his motion for a
new trial based on after-discovered evidence related to that
offense, but he conceded the sufficiency of the evidence to
support that conviction. We denied his petition for appeal as to
that conviction and consider it only indirectly in this appeal.
Code § 18.2-67.2 constituted double jeopardy.    The Commonwealth

contends this appeal is barred by Rule 5A:18 because appellant

failed to raise these issues in the trial court.   The record

confirms that appellant failed to raise these issues in the trial

court, and the ends of justice exception to Rule 5A:18 does not

support our consideration of these claimed errors on the merits.

Therefore, we affirm appellant's conviction.

     Pursuant to Rule 5A:18, this Court will not consider

allegations of trial court error as a basis for reversal where

appellant failed to register a timely objection, except for good

cause shown or to attain the ends of justice.    Rule 5A:18 applies

to both constitutional and non-constitutional error.    See Deal v.

Commonwealth, 15 Va. App. 157, 161, 421 S.E.2d 897, 900 (1992).

Where an appellant makes a general objection to the sufficiency

of the evidence that "[does] not specify in what respects

[appellant] considered the evidence to be insufficient to prove

[the charged offense,] . . . the issue of whether the evidence

was insufficient to prove a particular [unmentioned] element of

the offense [is] not properly preserved."   Redman v.

Commonwealth, 25 Va. App. 215, 220, 487 S.E.2d 269, 272 (1997).

     Here, appellant's motion to strike and closing argument

challenged only the credibility of the victim.   Appellant did not

contend the victim's testimony, if believed, was insufficient to

support a finding of intent to engage in one of the acts

proscribed by Code § 18.2-63, "sexual intercourse, cunnilingus,

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fellatio, anallingus, anal intercourse, [or] animate [or]

inanimate object sexual penetration."   He also did not contend

that evidence of the completed crime of animate object sexual

penetration could not be used to support his conviction for the

attempted carnal knowledge offense.    Finally, he did not contend

that use of evidence of the same act of object sexual penetration

to support both convictions would constitute double jeopardy.

     Nor does the ends of justice exception require us to

consider these issues on appeal.   To invoke the ends of justice

exception, the record must "affirmatively show[] that a

miscarriage of justice has occurred, not . . . merely . . . that

a miscarriage [of justice] might have occurred."    Mounce v.

Commonwealth, 4 Va. App. 433, 436, 357 S.E.2d 742, 744 (1987).

To satisfy this burden, an appellant must show "more than that

the Commonwealth failed to prove an element of the offense

. . . .   [T]he appellant must demonstrate that he or she 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."   Redman, 25 Va. App. at 221-22, 487 S.E.2d at

272-73.

     In this case, although appellant moved to strike, he failed

to specifically assert that the evidence was insufficient to

prove a particular element of the offense, i.e., an intent to

engage in "sexual intercourse, cunnilingus, fellatio, anallingus,

anal intercourse, [or] animate [or] inanimate object sexual

                               - 3 -
penetration."   Even assuming the evidence of the completed act of

object sexual penetration would not support the conviction for

attempted carnal knowledge, the evidence does not disprove that

appellant acted with some other proscribed intent.    For example,

the evidence did not prove appellant did not act with an intent

to engage in "sexual intercourse, cunnilingus, fellatio,

anallingus, anal intercourse, [or] . . . inanimate object sexual

penetration."   It also did not prove appellant did not act with

an intent to commit an additional act of animate object sexual

penetration beyond the completed act which supported his separate

conviction for object penetration in violation of Code

§ 18.2-67.2.    Thus, the evidence does not prove that an element

of the offense did not occur, and the ends of justice exception

does not apply. 2

     For these reasons, we hold that appellant failed to preserve

his claims of error for appeal and that the ends of justice

exception to Rule 5A:18 does not support our consideration of the

claimed errors.     Therefore, we affirm the challenged conviction.

                                                           Affirmed.



     2
       Because the record does not establish that the attempted
carnal knowledge conviction was based on an intent to commit the
completed act upon which the object sexual penetration conviction
was based, we need not consider appellant's double jeopardy claim
under the ends of justice exception. See Coleman v.
Commonwealth, 261 Va. 196, 200, 539 S.E.2d 732, 734 (2001) ("In
the prosecution for two crimes in the same trial, the double
jeopardy defense does not apply unless . . . the defendant is
twice punished for one criminal act . . . ." (emphasis added)).

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