                      COURT OF APPEALS OF VIRGINIA


Present: Judges Humphreys, Clements and Agee
Argued at Richmond, Virginia


MARGARET COUSINS
                                           MEMORANDUM OPINION * BY
v.   Record No. 1553-01-2                JUDGE ROBERT J. HUMPHREYS
                                               OCTOBER 8, 2002
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                    Margaret P. Spencer, Judge

          Bruce P. Ganey (Chalkley & Witmeyer, L.L.P.,
          on brief), for appellant.

          Stephen R. McCullough, Assistant Attorney
          General (Jerry W. Kilgore, Attorney General,
          on brief), for appellee.


     Margaret Cousins appeals her conviction, after a bench trial,

for assault and battery. 1   Cousins contends the trial court erred

in denying the admission of certain evidence during trial.    For



     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication. Further, because this opinion has
no precedential value, we recite only those facts essential to
our holding.

     1
       Cousins was actually indicted and tried for unlawful
wounding, in violation of Code § 18.2-51. However, after
hearing the evidence, the trial court found Cousins guilty of
the lesser offense of assault and battery, and sentenced her
pursuant to Code § 18.2-57. In reviewing the record before us,
we note that the sentencing order appears to erroneously state
that Cousins was convicted of assault and battery in violation
of Code § 18.2-51, the unlawful wounding statute. We,
therefore, remand this matter solely for the purpose of
correcting the sentencing order to remedy this conflict.
the reasons that follow, we affirm the judgment of the trial court

and remand with instructions to correct the sentencing order as

directed in this opinion.

     Cousins was indicted for unlawfully wounding Charlene Pullin,

her former employee, during an incident which took place on

December 26, 2000 in Pullin's driveway.    The incident left Pullin

with a contusion on her right hip.

     During the trial of April 25, 2001, Cousins' counsel

attempted to introduce, in his cross-examination of Pullin,

evidence concerning an injury Pullin had sustained several weeks

before the December 26, 2000 incident.    The following colloquy

took place:

          [DEFENSE COUNSEL]: And when you were
          painting at her office on December 2nd, you
          had a fall off a ladder, did you not?

          [COMMONWEALTH'S ATTORNEY]: Judge, I have an
          objection to the relevance. This is about
          an injury, an unlawful wounding that
          occurred on December 26 of 2000. He's going
          all the way back to the 2nd.

          THE COURT:   How is this relevant, counsel?

          [DEFENSE COUNSEL]: Your Honor, because we
          would submit to the Court that she was
          injured on that day, received medical
          treatment at a hospital for an injury to her
          right side.

          THE COURT: This isn't a civil action, so
          even if she was injured on that day and
          received treatment in a hospital for an
          injury to her right side, how is that
          relevant to the issue of whether your client
          is guilty of a malicious wounding on
          December 26, 2000?


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          [DEFENSE COUNSEL]: Your Honor, we submit
          some of the injuries she complained about
          could be the same thing that occurred back
          then.

          THE COURT: And, again, how is that relevant
          to the issue of guilt or innocence? It may
          be relevant, if she's found guilty, to the
          issue of restitution or punishment; but how
          is the fact that a person is injured one day
          relevant to the fact as to whether a person
          was injured another day at the hands of
          another party? I am not sure I understand
          your argument.

          [DEFENSE COUNSEL]: Judge, we submit it goes
          to credibility of her testimony here that
          she was injured by this vehicle backing up
          into her and that she had to go to the
          hospital that night and received treatment.
          If she was injured several weeks prior to
          that, it could be the same injury that she's
          complaining of.

          THE COURT:   Overruled.

          [DEFENSE COUNSEL]:   Fine.

Cousins' counsel then ended his questioning on this issue.

     Later in the proceedings, Cousins attempted to introduce

evidence concerning statements Pullin had made to her about

Pullin's criminal record, statements she made immediately prior to

the incident in question, and statements concerning injuries she

had sustained in the recent past.   However, the court sustained

the Commonwealth's objection to the hearsay evidence.

     At the conclusion of the trial, the court convicted Cousins

of the lesser charge of assault and battery, and imposed a fine

and a suspended sentence of 12 months in prison.




                               - 3 -
     On appeal, Cousins first argues that the trial court erred in

refusing to admit the evidence concerning Pullin's alleged injury

which occurred prior to the December 26, 2000 incident.    However,

according to the record, it is clear that the trial court

overruled the Commonwealth's objection to the admission of this

evidence.   Thus, despite her assignment of error on appeal

concerning this matter, the record demonstrates that Cousins was

not aggrieved by the trial court's ruling on this issue.

     Cousins next contends on appeal that the trial court erred in

refusing to admit the hearsay statements made by Pullin.    Cousins

argues in her brief on appeal that the evidence should have been

admitted pursuant to the party-opponent exception to the hearsay

rule, as well as the "present stat[e] of mind and physical

condition exceptions to the Hearsay Rule."   However, we need not

address the merits of Cousins' contentions because the record

demonstrates that Cousins failed to raise these arguments before

the trial court.   Accordingly, these issues are barred from our

consideration pursuant to Rule 5A:18, and we find no reason to

invoke the ends of justice exception to the rule.   See Walton v.

Commonwealth, 24 Va. App. 757, 485 S.E.2d 641 (1997), aff'd, 255

Va. 422, 497 S.E.2d 869 (1998) (holding defendant was precluded

from raising an alternative argument for the first time on

appeal).




                               - 4 -
     Thus, we affirm the judgment of the trial court and remand

for the sole purpose of correcting the sentencing order in

accordance with this opinion.

                                            Affirmed and remanded.




                                - 5 -
