                     COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Coleman and Bumgardner
Argued at Salem, Virginia


ALBERT LEWIS FOWLER, III
                                      MEMORANDUM OPINION * BY
v.       Record No. 2116-98-3   CHIEF JUDGE JOHANNA L. FITZPATRICK
                                        SEPTEMBER 28, 1999
COMMONWEALTH OF VIRGINIA


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

             Mark T. Williams (Williams, Morrison, Light
             and Moreau, on brief), for appellant.

             Eugene Murphy, Assistant Attorney General
             (Mark L. Earley, Attorney General, on
             brief), for appellee.


     Following a bench trial on a charge of unlawful wounding,

in violation of Code § 18.2-51, Albert Lewis Fowler, III

(appellant) was convicted of the reckless handling of a firearm,

in violation of Code § 18.2-56.1. 1   On appeal, appellant contends

the trial court erred in finding him guilty of the reckless

handling of a firearm because it is not a lesser-included

offense of unlawful wounding.    Because we conclude that

appellant did not properly preserve this argument under Rule

5A:18, appellant's conviction is affirmed.


     *
       Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
     1
       Appellant also pled guilty to possession of a firearm by a
convicted felon, which is not the subject of this appeal.
                                  I.

      Under familiar principles of appellate review, we examine

the evidence in the light most favorable to the Commonwealth,

the prevailing party below, granting to it all reasonable

inferences fairly deducible therefrom.    See Juares v.

Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997).

So viewed, the evidence established that on May 2, 1998,

appellant and the victim were involved in an argument at

appellant's home.    The two had been drinking and taking drugs.

During the course of the argument, appellant brandished a gun,

fired it twice and hit the victim in the groin.   Although no

bullet was found in the victim's body, medical evidence

established that the victim's injuries were caused by a gunshot

wound or other trauma.   Appellant admitted at trial that he had

taken out his gun and shot twice towards the ground.

     Appellant was initially indicted for malicious wounding, in

violation of Code § 18.2-51.   Prior to arraignment, the

Commonwealth agreed that the charge would encompass no more than

unlawful wounding.   Accordingly, the trial court amended the

indictment, charging appellant with unlawful wounding.     After

the presentation of evidence by both parties, the trial judge

convicted appellant of the reckless handling of a firearm, in

violation of Code § 18.2-56.1.    Appellant's counsel did not




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object to the trial court's ruling at that time or any time

before sentencing.

                                II.

     Appellant contends that having been charged with unlawful

wounding, the trial court could not convict him of the reckless

handling of a firearm because the latter is not a

lesser-included offense of the former charge.    The reckless

handling of a firearm is not a lesser-included offense of

unlawful wounding.   However, we conclude that appellant is

barred from challenging his conviction on appeal because he

failed to make any objection to this finding at trial and in

fact agreed with the disposition.

     Rule 5A:18 provides:

          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. A mere statement that the judgment
          or award is contrary to the law and the
          evidence is not sufficient to constitute a
          question to be ruled upon on appeal.

     "The primary function of Rule 5A:18 is to alert the trial

judge to possible error so that the judge may consider the issue

intelligently and take any corrective actions necessary to avoid

unnecessary appeals, reversals and mistrials."    Martin v.

Commonwealth, 13 Va. App. 524, 530, 414 S.E.2d 401, 404 (1992).



                               - 3 -
"A matter not in dispute before the trial court will not be

considered for the first time on appeal."       Connelly v.

Commonwealth, 14 Va. App. 888, 891, 420 S.E.2d 244, 246 (1992).

     In the present case, appellant does not challenge the

sufficiency of the evidence to convict him of the reckless

handling of a firearm, but argues that the conviction may not

stand because it was not a lesser-included offense of unlawful

wounding.    If appellant had timely objected to this finding, the

trial court could have reevaluated its decision and found

appellant guilty of the greater offense, unlawful wounding, or

the proper lesser-included offense of assault and battery.      At

trial appellant acquiesced in this erroneous finding.

Consequently, he is barred from raising this issue on appeal.

     Additionally, while this Court will notice error for which

there has been no timely objection when necessary to satisfy the

ends of justice, see Brown v. Commonwealth, 8 Va. App. 126, 131,

380 S.E.2d 8, 10 (1989), the record must "affirmatively [show]

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

miscarriage might have occurred."       Mounce v. Commonwealth, 4 Va.

App. 433, 436, 357 S.E.2d 742, 744 (1987) (emphasis in

original).   Our review of the record discloses no miscarriage of

justice in the instant case, and the evidence clearly

established the necessary factual basis for the reckless




                                - 4 -
handling of a firearm.   See Jimenez v. Commonwealth, 241 Va.

244, 249, 402 S.E.2d 678, 680 (1991).

     Accordingly, the judgment of the trial court is affirmed.

                                                        Affirmed.




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