                                          COURT OF APPEALS OF VIRGINIA


            Present: Judges Frank, Humphreys and Chafin
PUBLISHED


            Argued at Chesapeake, Virginia


            FRANCIS ANYOKORIT MASIKA
                                                                                        OPINION BY
            v.     Record No. 0575-13-1                                            JUDGE ROBERT P. FRANK
                                                                                        MAY 6, 2014
            COMMONWEALTH OF VIRGINIA


                             FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
                                             John W. Brown, Judge

                            A. Robinson Winn, Deputy Public Defender (Office of the Public
                            Defender, on brief), for appellant.

                            Steven A. Witmer, Senior Assistant Attorney General (Mark R.
                            Herring, Attorney General, on brief), for appellee.


                   Francis Anyokorit Maskia, appellant, was convicted, in a bench trial, of failure to return

            leased property in violation of Code § 18.2-118 and felony contempt1 in violation of Code

            § 18.2-456. On appeal appellant contends that because Code § 18.2-118, by its very terms, excludes

            vehicles from the types of personal property subject to Code § 18.2-118, the trial court erred in

            convicting him under that statute. For the reasons stated, we reverse the judgment of the trial court.

                                                      BACKGROUND

                   Appellant and Triangle Rental Car (Triangle) entered into a written contract for appellant to

            lease one of Triangle’s vehicles for a single day rental. Appellant did not return the vehicle on the

            agreed-upon return date. An employee of Triangle unsuccessfully attempted to contact appellant to

            seek return of the vehicle. Triangle sent a notice letter to appellant as required by Code




                   1
                       The contempt conviction is not before us.
§ 18.2-118(B). The letter was returned.2 The vehicle was returned to Triangle approximately two

weeks later.

           The trial court found the evidence sufficient to convict appellant under Code § 18.2-118.

           This appeal follows.

                                                ANALYSIS

           Appellant maintains the trial court erred in convicting him under Code § 18.2-118, as that

section specifically excludes vehicles from the provisions of the statute. On appeal, appellant does

not contest that he failed to return a rented vehicle or that the evidence would be insufficient to

establish that he violated Code § 18.2-117. Rather, his argument is that he did not violate Code

§ 18.2-118. Appellant concedes that he never raised that issue below. He asserts the “ends of

justice” exception to Rule 5A:18 permits us to address his assignment of error.

           “The Court of Appeals will not consider an argument on appeal which was not presented to

the trial court.” Ohree v. Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998)

(citing Jacques v. Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d 630, 631 (1991)); see also

Rule 5A:18.

           However, Rule 5A:18 provides for consideration of a ruling by the trial court that was not

objected to at trial “to enable the Court of Appeals to attain the ends of justice.” Rule 5A:18.

“‘The ends of justice exception is narrow and is to be used sparingly’” when an error at trial is

“‘clear, substantial and material.’” Redman v. Commonwealth, 25 Va. App. 215, 220-21, 487

S.E.2d 269, 272 (1997) (quoting Brown v. Commonwealth, 8 Va. App. 126, 132, 380 S.E.2d 8,

10-11 (1989)). “In order to avail oneself of the exception, a defendant must affirmatively show that

a miscarriage of justice has occurred, not that a miscarriage might have occurred.” Id. at 221, 487



           2
               Appellant does not contest that Triangle complied with the notice provisions of the
statute.
                                                    -2-
S.E.2d at 272 (citing Mounce v. Commonwealth, 4 Va. App. 433, 436, 357 S.E.2d 742, 744

(1987)).

                In order to show that a miscarriage of justice has occurred, an
                appellant must demonstrate more than that the Commonwealth
                failed to prove an element of the offense. . . . [T]he appellant must
                demonstrate that he or she was convicted for conduct that was not
                a criminal offense or the record must affirmatively prove that an
                element of the offense did not occur.

Id. at 221-22, 487 S.E.2d at 272-73 (emphasis in original).

         In order to avail himself of this exception to 5A:18, the appellant must “‘affirmatively

show [that] . . . that the error [was] clear, substantial and material.’” Bazemore v.

Commonwealth, 42 Va. App. 203, 219, 590 S.E.2d 602, 610 (2004) (quoting Brown, 8 Va. App.

at 132, 380 S.E.2d at 11 (alterations in original)).

         Our inquiry, then, is whether “manifest injustice” occurs when an accused is convicted of

conduct excluded from the statute under which he was charged. In order to make that

determination, we must delve into the facts of the case and analyze them in the context of Rule

5A:18.

         In examining a case for miscarriage of justice, we do not simply review the sufficiency of

the evidence under the usual standard, but instead determine whether the record contains

affirmative evidence of innocence or lack of a criminal offense.

                Our Supreme Court has limited the “‘[a]pplication of the ends of
                justice exception [to cases where] the judgment of the trial court
                was error and application of the exception is necessary to avoid a
                grave injustice or the denial of essential rights.’” Rowe v.
                Commonwealth, 277 Va. 495, 503, 675 S.E.2d 161, 165 (2009)
                (quoting Charles v. Commonwealth, 270 Va. 14, 17, 613 S.E.2d
                432, 433 (2005)). The language used by our Supreme Court
                indicates that there are two distinct requirements that [appellant]
                must meet before we can apply the ends of justice exception:
                (1) that the trial court erred, and (2) that a grave or manifest
                injustice will occur or the appellant will be denied essential rights.

Brittle v. Commonwealth, 54 Va. App. 505, 512-13, 680 S.E.2d 335, 339 (2009).

                                                 -3-
       Both requirements are essential, because if a trial error is always considered manifest

injustice, Rule 5A:18 would be absorbed into this exception. See Redman, 25 Va. App. at 221,

487 S.E.2d at 272. In that case, any issue, regardless of whether it was properly preserved,

would be subject to appellate review, and Rule 5A:18 would be meaningless.

                       The burden of establishing a manifest injustice is a heavy
               one, and it rests with the appellant. We have previously held that
               the appellant must demonstrate more than that the Commonwealth
               failed to prove an element of the offense. . . . In order to show that
               a miscarriage of justice has occurred, . . . the appellant must
               demonstrate that he or she was convicted for conduct that was not
               a criminal offense or the record must affirmatively prove that an
               element of the offense did not occur.

Brittle, 54 Va. App. at 514, 680 S.E.2d at 340 (citing Redman, 25 Va. App. at 221-22, 487

S.E.2d at 273) (emphasis in original).

       The non-offense prong of the ends of justice analysis is similar to a legal impossibility

analysis. It is clear from our jurisprudence that factual impossibility is not a defense to a crime,

but legal impossibility is. Hix v. Commonwealth, 270 Va. 335, 344, 619 S.E.2d 80, 85 (2005).

       Legal impossibility occurs when a defendant’s actions would not constitute a crime, even

if they were carried out fully and exactly as he intended. Factual impossibility arises when a

defendant’s actions are proscribed by the criminal law, but the defendant is prevented from

bringing about the intended result due to a fact or circumstance unknown to him. See Parham v.

Commonwealth, 2 Va. App. 633, 636, 347 S.E.2d 172, 173-74 (1986). “Traditional analysis

recognizes legal impossibility as a valid defense but refuses to recognize factual impossibility.”

Id. at 636, 347 S.E.2d at 174 (citing United States v. Oviedo, 525 F.2d 881, 883 (5th Cir. 1976)).

       The Supreme Court of Virginia was presented with a classic example of legal

impossibility in Foster v. Commonwealth, 96 Va. 306, 31 S.E. 503 (1898). In that case, a boy

under the age of fourteen was charged with the crime of rape. There was a conclusive

presumption under the common law that a child under fourteen lacked the capacity to commit
                                                -4-
rape or to attempt to commit rape, regardless of the facts. Id. at 307, 31 S.E. at 504. The Court

concluded that the underage defendant was legally unable to commit the substantive crime or be

convicted of the attempt. Id. at 311, 31 S.E. at 505.

       In Michaels v. Commonwealth, 32 Va. App. 601, 529 S.E.2d 822 (2000), the appellant

was summarily convicted of contempt of court, in violation of Code § 18.2-456(5), for failing to

transport an inmate to a mental hospital for an inpatient psychological evaluation. Id. at 603, 529

S.E.2d at 823. The trial court’s continuance order implied that the inmate should go to a mental

hospital for a psychological evaluation, yet the order never directed anyone to take him there. Id.

at 605, 529 S.E.2d at 824. The trial court issued an order to show cause to Deputy Michaels to

explain why he did not transport the inmate to the mental hospital. The testimony at the show

cause hearing demonstrated that Michaels was never ordered to transport the inmate anywhere

and that, in fact, he never transported the inmate anywhere. Id. at 609, 529 S.E.2d at 826. In

reversing his conviction, we noted that Michaels was convicted of a crime that was legally

impossible to commit.

       Bruhn v. Commonwealth, 264 Va. 597, 570 S.E.2d 866 (2002), is helpful to our analysis.

In Bruhn, the accused was tried and convicted of grand larceny. The Supreme Court of Virginia

agreed with the reasoning of this Court and found the evidence insufficient to prove there was a

trespassory taking, concluding that “the Commonwealth is no longer permitted to sustain an

indictment for grand larceny by proving that the defendant committed embezzlement.” Id. at

601, 570 S.E.2d at 868.

       In Ball v. Commonwealth, 221 Va. 754, 273 S.E.2d 790 (1981), Ball was convicted of

capital murder and sentenced to life in prison. Id. at 755-56, 273 S.E.2d at 790-91. The

indictment charged Ball with the willful, deliberate, and premeditated killing of another “in the

commission of robbery while armed with a deadly weapon,” in violation of Code § 18.2-31(d).

                                               -5-
Id. at 756, 273 S.E.2d at 791. The Court concluded that “[t]he evidence, construed in the light

most favorable to the Commonwealth, showed that [the victim] was killed during an attempted

robbery, rather than in the actual commission of robbery.” Id. at 757, 273 S.E.2d at 792. As a

result, “[u]nder the evidence, the only offense of which Ball could properly be convicted was

felony murder of the first degree under [Code] § 18.2-32.” Id.

       The Court stated:

               Under Rule 5:21 [now Rule 5:25], we do not notice such errors
               except in those rare instances when it is necessary to enable us to
               attain the ends of justice. This is one of those instances. Ball has
               been convicted of a crime of which under the evidence he could
               not properly be found guilty.

Id. at 758-59, 273 S.E.2d at 793.

       The same is true in this case. As in Bruhn and Ball, appellant was found guilty of a crime

where the evidence demonstrated he could not be convicted. The Commonwealth cannot sustain

a conviction under Code § 18.2-118 when the leased property that was not returned was a motor

vehicle. In Bruhn, Bruhn could have been convicted of embezzlement if properly charged. In

Ball, Ball could have been convicted of felony murder if properly charged. Here, appellant could

have been convicted of violating Code § 18.2-117 if properly charged.

       The Commonwealth contends appellant was properly convicted under Code § 18.2-118

and that the language of that statute excluding “property described in § 18.2-117” is limited only

to bailed vehicles, etc. The Commonwealth makes a distinction between bailed property (Code

§ 18.2-117) and leased property (Code § 18.2-118), but offers no case law or other authority to

support this argument.

       Personal property is defined as “any movable or intangible thing that is subject to

ownership and not classified as real property.” Black’s Law Dictionary 1233 (7th ed. 1999).




                                               -6-
       The Commonwealth contends if a vehicle is subject to a bailment, only Code § 18.2-117

applies. Otherwise, Code § 18.2-118 is the appropriate statute for failure to return leased

property. The Commonwealth offers no case law or other authority to support this argument.

       Under well-established principles, an issue of statutory interpretation is “‘a pure question

of law subject to de novo review.’” Crawford v. Haddock, 270 Va. 524, 528, 621 S.E.2d 127,

129 (2005) (quoting Horner v. Dep’t of Mental Health, Mental Retardation, & Substance Abuse

Servs., 268 Va. 187, 192, 597 S.E.2d 202, 204 (2004)).

                       “When the language of a statute is unambiguous, we are
               bound by the plain meaning of that language. Furthermore, we
               must give effect to the legislature’s intention as expressed by the
               language used unless a literal interpretation of the language would
               result in a manifest absurdity. If a statute is subject to more than
               one interpretation, we must apply the interpretation that will carry
               out the legislative intent behind the statute.”

Kozmina v. Commonwealth, 281 Va. 347, 349-50, 706 S.E.2d 860, 862 (2011) (quoting Conyers

v. Martial Arts World of Richmond, Inc., 273 Va. 96, 104, 639 S.E.2d 174, 178 (2007) (citations

omitted)).

       In this case, appellant was charged under Code § 18.2-118, which states in part:

               A. Whenever any person is in possession or control of any
               personal property, by virtue of or subject to a written lease of such
               property, except property described in § 18.2-117, and such person
               so in possession or control shall, with intent to defraud, sell,
               secrete, or destroy the property, or dispose of the property for his
               own use, or fraudulently remove the same from the
               Commonwealth without the written consent of the lessor thereof,
               or fail to return such property to the lessor thereof within 30 days
               after expiration of the lease or rental property stated in such written
               lease, he shall be deemed guilty of the larceny thereof.

(Emphasis added).

       Code § 18.2-117 states:

               If any person comes into the possession as bailee of any animal,
               aircraft, vehicle, boat or vessel, and fail to return the same to the
               bailor, in accordance with the bailment agreement, he shall be
                                                -7-
               deemed guilty of larceny thereof and receive the same punishment,
               according to the value of the thing stolen, prescribed for the
               punishment of the larceny of goods and chattels. The failure to
               return to the bailor such animal, aircraft, vehicle, boat or vessel,
               within five days from the time the bailee has agreed in writing to
               return the same shall be prima facie evidence of larceny by such
               bailee of such animal, aircraft, vehicle, boat or vessel.

       The Commonwealth’s entire argument ignores the laws of statutory interpretation. The

property excluded in Code § 18.2-118 is precisely that personal property listed in Code

§ 18.2-117, i.e., “any animal, aircraft, vehicle, boat or vessel.” Whether or not that property is

subject to a bailment does not alter the nature of the property. A vehicle is a vehicle whether or

not it is subject to a bailment. A bailment is simply a legal relationship between the owner of the

property and the person having possession and control.3 The language of Code § 18.2-118 is

clear and unambiguous as to the property excluded under that statute. Nowhere in Code

§ 18.2-118 does the statute limit the type of property exempted from the statute based on the

legal status or type of possession of that property.

       Interestingly, a review of our Virginia jurisprudence reveals that cases involving failure

to return leased furniture and electronic equipment are prosecuted under Code § 18.2-118. See

Commonwealth v. McNeal, 282 Va. 16, 710 S.E.2d 733 (2011) (leased aluminum brake);

McDowell v. Commonwealth, 57 Va. App. 308, 701 S.E.2d 820 (2010) (leased television),

reversed on other grounds, 282 Va. 341, 718 S.E.2d 772 (2011); Compton v. Commonwealth, 22

Va. App. 751, 473 S.E.2d 95 (1996) (sawmill equipment); Miller v. Commonwealth, 7 Va. App.


       3
         To establish a bailment, there must ordinarily be a delivery by the bailor and an
acceptance by the bailee, but it is not necessary to have a formal contract or even an actual
meeting of the minds. “Indeed, ‘it is the element of lawful possession, however created, and
duty to account for the thing as the property of another that creates the bailment, regardless of
whether or not such possession is based on contract in the ordinary sense.’” Morris v. Hamilton,
225 Va. 372, 374-75, 302 S.E.2d 51, 52 (1983) (quoting K-B Corporation v. Gallagher, 218 Va.
381, 384, 237 S.E.2d 183, 185 (1977)). A bailee must have physical control over the property in
question, as well as the intent to exercise that control, in order to have possession. See K-B
Corporation, 218 Va. at 384, 237 S.E.2d at 185.
                                                  -8-
367, 302 S.E.2d 51 (1983) (video machine); Haley v. Commonwealth, No. 1268-12-3, 2013

Va. App. LEXIS 182 (Va. Ct. App. June 11, 2013) (leased television); Bert v. Commonwealth,

No. 1499-10-1, 2011 Va. App. LEXIS 318 (Va. Ct. App. Oct. 18, 2011) (leased television);

Byrum v. Commonwealth, No. 1201-09-1, 2010 Va. App. LEXIS 211 (Va. Ct. App. May 18,

2010) (leased jackhammer). None of these cases involves the failure to return a rental car.

       In contrast, cases involving failure to return leased vehicles are prosecuted under Code

§ 18.2-117, formerly Code § 18.1-163. See Maye v. Commonwealth, 213 Va. 48, 189 S.E.2d

350 (1972); Reed v. Commonwealth, 62 Va. App. 270, 746 S.E.2d 81 (2013); Ketcham v.

Commonwealth, 12 Va. App. 258, 403 S.E.2d 382 (1991); Malash v. Commonwealth, 3

Va. App. 243, 348 S.E.2d 868 (1986).

       While none of these cases addresses the difference between Code §§ 18.2-117 and -118,

it is clear that the failure to return a vehicle is prosecuted under Code § 18.2-117, and failure to

return other property is prosecuted under Code § 18.2-118. We have found no cases that suggest

otherwise.

       We therefore conclude that failure to return a leased vehicle is within the purview of

Code § 18.2-117, not Code § 18.2-118, and that appellant was convicted under the wrong statute.

We thus conclude that based on the facts of this case, it was legally impossible for appellant to

violate Code § 18.2-118. A manifest injustice occurred.

                                          CONCLUSION

       Appellant was improperly convicted of conduct not proscribed by the statute under which

he was charged. We therefore reverse his conviction and dismiss the indictment.

                                                                            Reversed and dismissed.




                                                 -9-
