                     COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Clements and Senior Judge Coleman
Argued at Richmond, Virginia


JOHN E. WOODWARD
                                            MEMORANDUM OPINION * BY
v.   Record No. 2792-00-2                JUDGE JEAN HARRISON CLEMENTS
                                                 JULY 30, 2002
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                      Robert W. Duling, Judge

          William T. Linka (Boatwright & Linka, on
          brief), for appellant.

          Donald E. Jeffrey, III, Assistant Attorney
          General (Randolph A. Beales, Attorney
          General, on brief), for appellee.


     John E. Woodward was indicted for first degree murder, in

violation of Code § 18.2-32, and convicted in a jury trial of

second degree murder, in violation of Code § 18.2-32.    On appeal,

he contends the trial court erred in refusing to grant his

proffered instruction on manslaughter.    Finding appellate review

procedurally barred, we affirm Woodward's conviction.

     As the parties are fully conversant with the record in this

case and because this memorandum opinion carries no precedential

value, this opinion recites only those facts and incidents of the

proceedings as necessary to the parties' understanding of the

disposition of this appeal.


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     Dr. Deborah Kay, Assistant Chief Medical Examiner for the

Commonwealth, qualified at trial as an expert witness in the

field of forensic pathology.   She testified that the cause of the

victim's death was "multiple skull fractures that were the result

of a blunt trauma."   Woodward's counsel cross-examined Dr. Kay

extensively regarding the condition of the decedent's heart,

suggesting that the victim passed out or died as a result of an

arrhythmia or heart attack and sustained the skull fractures from

the resulting fall or collapse.    However, when asked whether the

head wounds were consistent with someone falling after losing

consciousness because of arrhythmia, Dr. Kay testified, "I don't

think that it's likely that injuries on multiple sides of the head

are a result of a single fall typically of arrhythmia."

     At the conclusion of the Commonwealth's evidence, Woodward

moved to strike the charge of first degree murder, arguing the

evidence failed to prove premeditation.   After the trial court

denied the motion, Woodward rested and renewed his motion to

strike, making no new arguments.

     The Commonwealth offered Instruction No. 13 on the elements

of proof of first degree murder and the lesser-included offense of

second degree murder.   Woodward objected to the instruction, again

arguing there was an absence of evidence of premeditation

necessary to elevate the crime to first degree murder.    Woodward's

counsel then added:   "And if the jury has a problem that there is

malice, Judge, then we have a manslaughter case.   And I would

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suggest to the Court that a manslaughter instruction is . . .

proper, as well."   In response to the Commonwealth's claim that

there was no evidence to support a manslaughter jury instruction,

Woodward's counsel solely stated, "It's an accidental killing,

Judge."   The trial judge overruled Woodward's objection and

granted Instruction No. 13, ruling, in part, that "the only

alternative even suggested by the defense is that [the victim]

fell as a result of a heart attack."

     Woodward then tendered three proposed instructions, each of

which the trial court refused to grant:

                         INSTRUCTION NO. A

                The difference between murder and
           manslaughter is malice. When malice is
           present, the killing is murder. When it is
           absent, the killing can be no more than
           manslaughter.

                         INSTRUCTION NO. C

                You shall find the defendant not guilty
           of murder or voluntary manslaughter if you
           believe from the evidence that he struck the
           deceased without intent to kill her or do her
           great bodily harm.

                         INSTRUCTION NO. D

                The Commonwealth must prove beyond a
           reasonable doubt that the death of Barbara
           Richardson was not as the result of an
           accident. If after consideration of all the
           evidence you have a reasonable doubt whether
           the death of Barbara Richardson was as the
           result of an accident or was an intentional
           act, then you shall find the defendant not
           guilty.



                               - 3 -
     Woodward contends, on appeal, that the trial court erred when

it refused to give an instruction on manslaughter.    Specifically,

he argues, the court erred in refusing to give his proffered

Instruction No. A. 1

         "'We are bound by the principle that the accused is

entitled, on request, to have the jury instructed on a lesser

included offense that is supported by more than a "scintilla of

evidence" in the record.'"    Marsh v. Commonwealth, 32 Va. App.

669, 679-80, 530 S.E.2d 425, 430 (2000) (quoting Bunn v.

Commonwealth, 21 Va. App. 593, 599, 466 S.E.2d 744, 746 (1996)

(emphasis added)).

     Here, Woodward requested a "manslaughter instruction" at

trial solely on the ground that the killing was "accidental."

While "an accidental homicide, contrary to the intention of the

parties, occurring during the performance of an unlawful, but not

felonious, act or during the improper performance of a lawful act"

constitutes involuntary manslaughter, Bolyard v. Commonwealth, 11

Va. App. 274, 276, 397 S.E.2d 894, 895-96 (1990), Woodward did not

articulate to the trial court that he was seeking an instruction

on involuntary manslaughter.    Indeed, he proffered Instruction No.


     1
       Woodward makes no assertion, on appeal, that the trial
court's refusal to give his proffered Instruction No. C, regarding
unintended killing, or Instruction No. D, regarding accidental
death, was error. Thus, the propriety of the refusal of those
instructions is not before us. See Rule 5A:12(c); Cruz v.
Commonwealth, 12 Va. App. 661, 664 n.1, 406 S.E.2d 406, 407 n.1
(1991) (noting that only those questions presented in the petition
for appeal will be considered on appeal).

                                 - 4 -
C, which refers to "voluntary manslaughter," and he proffered no

instruction that addressed involuntary manslaughter.   We also note

that Woodward's brief on appeal does not address the issue of

involuntary manslaughter and that Woodward conceded at oral

argument in this appeal that he was seeking an instruction to the

jury on voluntary manslaughter.

     Voluntary manslaughter is an intentional killing committed

upon sudden passion or reasonable provocation or in mutual combat.

King v. Commonwealth, 4 Va. (2 Va. Cas.) 78 (1817).    However,

Woodward made no argument to the trial court that the subject

killing was committed upon sudden passion or reasonable

provocation or in mutual combat.   We "will not consider an

argument on appeal which was not presented to the trial court."

Rule 5A:18; Ohree v. Commonwealth, 26 Va. App. 299, 308, 494

S.E.2d 484, 488 (1988).

     For these reasons, we are procedurally barred from

considering the present issue on appeal.   Furthermore, our review

of the record in this case does not reveal any reason to invoke

the "good cause" or "ends of justice" exceptions to Rule 5A:18.

     Accordingly, we affirm Woodward's conviction.

                                                          Affirmed.




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