                       COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Willis and Annunziata
Argued at Richmond, Virginia


CHARLES NATHANIEL ROSS
                                            MEMORANDUM OPINION * BY
v.             Record No. 0068-97-2      JUDGE JERE M. H. WILLIS, JR.
                                              DECEMBER 23, 1997
COMMONWEALTH OF VIRGINIA


                FROM THE CIRCUIT COURT OF BUCKINGHAM COUNTY
                          Timothy J. Hauler, Judge
               Robert H. Gray, Jr., for appellant.

               Marla Graff Decker, Assistant Attorney
               General (Richard Cullen, Attorney General;
               John K. Byrum, Jr., Assistant Attorney
               General, on brief), for appellee.



        1.    Ross invokes proof that he knew the vehicle was occupied

only as an element of malice for purposes of the instruction on

murder.      He acknowledges that such proof was not required to

prove manslaughter.      Because Ross was not convicted of murder,

but was convicted of manslaughter, his contention that the murder

instruction was deficient is moot.

        2.    Because Ross did not present his double-jeopardy

contention to the trial court and did not preserve that

contention properly for appeal, we will not consider it.         Rule

5A:18.       The record in this case presents no reason for us to

invoke the ends of justice exception to the application of that

rule.

        *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
The judgment of the trial court is affirmed.

                                               Affirmed.




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