                                               COURT OF APPEALS OF VIRGINIA


              Present: Chief Judge Decker, Judges Petty and Huff
              Argued at Richmond, Virginia
UNPUBLISHED




              JAQUAN MARKEL BLAND
                                                                              MEMORANDUM OPINION* BY
              v.       Record No. 1145-18-2                                      JUDGE GLEN A. HUFF
                                                                                  SEPTEMBER 24, 2019
              COMMONWEALTH OF VIRGINIA


                                     FROM THE CIRCUIT COURT OF CAROLINE COUNTY
                                                  Sarah L. Deneke, Judge

                                 Maureen L. White for appellant.

                                 Matthew P. Dullaghan, Senior Assistant Attorney General
                                 (Mark R. Herring, Attorney General, on brief), for appellee.


                       Jaquan Markel Bland (“appellant”) appeals his conviction for unlawfully shooting at an

              occupied vehicle in violation of Code § 18.2-154. Appellant was initially charged with

              possession of a firearm by someone previously convicted of a violent felony and two counts of

              maliciously shooting at an occupied vehicle. After a bench trial, the Circuit Court of Caroline

              County struck one count of maliciously shooting at an occupied vehicle, convicted appellant of

              the lesser-included offense of unlawfully shooting at an occupied vehicle on the other count, and

              convicted appellant on the possession of a firearm charge.1 The trial court sentenced appellant to

              the mandatory minimum of five years’ imprisonment on the possession charge and to five years

              with four suspended on the unlawful shooting charge.




                       *
                           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                       1
                           Appellant’s does not challenge his conviction for possession of a firearm by a violent
              felon.
       Appellant argues on appeal that the trial court erred by convicting appellant of unlawfully

shooting at a vehicle despite finding that the he did not know the vehicle was occupied. Because

appellant failed to present this argument to the trial court in connection with the court’s

conviction on the lesser-included charge of unlawfully shooting into an occupied vehicle, this

Court holds the argument is waived under Rule 5A:18 and affirms.

                                        I. BACKGROUND

       “This Court considers ‘the evidence presented at trial in the light most favorable to the

Commonwealth, the prevailing party below.’” Hawkins v. Commonwealth, 64 Va. App. 650,

652 (2015) (quoting Bolden v. Commonwealth, 275 Va. 144, 148 (2008)). So viewed the

evidence is as follows:

       Late at night on June 22, 2017, Ashley Samuels drove her friend, Lashiva Budd, to the

Heritage Pines apartment complex. She drove her 2006 Jeep Liberty. Samuels’s two-year-old

twin girls were sleeping in the back in their car seats. The rear windows of the Jeep were tinted

and rolled up, making it difficult for anyone to see inside.

       Shortly after they arrived, Budd started fighting two other women who were there.

Samuels got involved trying to break up the fight. Appellant also intervened in the fight. Budd

threw a forty-ounce beer bottle at appellant and struck him in the head, leaving a gash.

Appellant then pulled out a gun and fired at least twice: Once in the air and once at Samuels’s

Jeep. At least one round hit the Jeep, flattening a tire and damaging one door. When questioned

by police, appellant admitted to the shooting but stated he did not know that the children were in

the Jeep.

       At the conclusion of the Commonwealth’s case in chief, appellant moved to strike the

evidence. He argued that the witnesses’ testimony was not credible because it was inconsistent

with what they had reported immediately after the event. He also argued that it was too dark for

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anyone to see into the vehicle through the tinted windows to know the children were in the

vehicle. Before ruling on the motion to strike, the trial court asked if the evidence showed

appellant knew the children were in the vehicle to establish malice:

               [L]et’s talk for just a minute about malice -- malicious shooting. I
               mean, is there any testimony that -- well, this is not really the place
               for it, I guess. My question is does the Commonwealth believe
               that there is evidence presented that the defendant knew there were
               children in that car or that anyone was in that car for that matter?

The Commonwealth acknowledged there was no evidence appellant knew the vehicle was

occupied but argued knowledge was not required by the statute:

               No, and I don’t think the Code requires that. I had the same
               question. I looked at the Code to see if there was a requirement of
               knowledge or mens rea that folks were in the vehicle, and there
               does not appear to be any cases that I found.

With the Commonwealth’s consent, the court then struck one of the malicious shooting counts,

but denied the motion to strike for the other count and the possession of a firearm charge.

       Appellant presented no evidence. In renewing his motion to strike, he argued that his

lack of knowledge that the children were in the vehicle made it impossible for him to form the

requisite malice to support a conviction for maliciously shooting at an occupied vehicle:

               Because if he believe[d] that vehicle [wa]s unoccupied and he’s
               unaware of occupants of the vehicle, that then that would go to eat
               away at this idea that he maliciously pointed a firearm . . . at this
               vehicle and fired knowing that there were individuals in that
               vehicle.

       The trial court denied the renewed motion to strike. After closing argument on the

merits, however, the trial court concluded the Commonwealth had not established that appellant

had acted with malice. It convicted him of the lesser-included offense of unlawfully shooting at

an occupied vehicle.

                      With regard to the charge of maliciously shooting into a
               vehicle, I don’t have any question that you did not know there
               were children in the vehicle. There’s nothing to indicate that, you

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                 know, anybody was yelling “look out for the kids” or that you had
                 any way of seeing in there. . . . But, I don’t believe for one second
                 from the evidence that I’ve heard here today that you were trying
                 to hurt those children or anybody else.

        The trial court also convicted him of being in possession of a firearm after having been

convicted of a violent felony. This appeal followed.

                                           II. ANALYSIS

        Rule 5A:18 provides that “No ruling of the trial court . . . will be considered as a basis for

reversal unless an objection was stated with reasonable certainty at the time of the ruling, except

for good cause shown or . . . to attain the ends of justice.” In order to preserve an issue for

appeal, “an objection must be timely made and the grounds stated with specificity.” McDuffie v.

Commonwealth, 49 Va. App. 170, 177 (2006) (quoting Marlowe v. Commonwealth, 2 Va. App.

619, 621 (1986)). “Not just any objection will do. It must be both specific and timely—so that

the trial judge would know the particular point being made in time to do something about it.”

Bass v. Commonwealth, 70 Va. App. 522, 538 (2019) (quoting Roadcap v. Commonwealth, 50

Va. App. 732, 741 (2007)). “Making one specific argument on an issue does not preserve a

separate legal point on the same issue for review.” Edwards v. Commonwealth, 41 Va. App.

752, 760 (2003) (en banc).

        Appellant claims the trial court erred in convicting him of unlawfully shooting at an

occupied vehicle because he did not know or have reason to know that the vehicle was occupied.

He argues that is a necessary element of the crime of unlawfully shooting at an occupied vehicle.

He argues his lack of knowledge is established by the trial court’s finding that he “did not know

there were children in the vehicle. There’s nothing to indicate that, you know, anybody was

yelling ‘look out for the kids’ or that you had any way of seeing in there.” He argues that he

preserved this issue because he discussed it in his second motion to strike and because the trial

court raised it itself.
                                                 -4-
       Although the trial court raising an issue sua sponte can serve to preserve the issue, White

v. Commonwealth, 21 Va. App. 710, 719-20 (1996), the issue the trial court raised in this case,

and the argument appellant made below, is not the same argument appellant makes in this Court.

In the trial court, appellant and the trial court discussed whether malice could be established

without knowledge that the vehicle was occupied. The trial court ruled in favor of appellant on

that issue when it convicted him of the lesser-included offense of unlawfully shooting at an

occupied vehicle. All the discussion regarding appellant’s lack of knowledge of the children’s

presence happened before the trial court decided the Commonwealth had failed to establish

malice. Neither appellant nor the trial court below discussed whether knowledge that the vehicle

was occupied is necessary to satisfy the general intent of the lesser-included offense of

unlawfully shooting at an occupied vehicle. Because the issue raised in the trial court differs

from the issue appellant presents in this appeal, appellant has failed to preserve his argument,

and this Court affirms.2

                                       III. CONCLUSION

       Appellant did not make the same argument in the trial court that he makes before this

Court. Here he argues knowledge that a vehicle is occupied is necessary to satisfy the general

intent requirement of unlawfully shooting at an occupied vehicle. In the trial court, he argued

that the Commonwealth had failed to prove he maliciously shot at an occupied vehicle because

malice could not be established without knowledge that the children were in the vehicle.

Therefore, his argument is waived under Rule 5A:18, and this Court affirms.

                                                                                            Affirmed.



       2
         At oral argument, appellant requested that this Court apply the ends of justice exception.
Appellant is required, however, to raise the ends of justice exception to Rule 5A:18 in his briefs,
or this Court will not consider it. Stokes v. Commonwealth, 61 Va. App. 388, 397 (2013).

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