Douglas Olgers v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: May 9, 2000
• Docket: 0856992
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Bray and Bumgardner Argued at Richmond, Virginia

DOUGLAS OLGERS MEMORANDUM OPINION * BY v. Record No. 0856-99-2 JUDGE RICHARD S. BRAY MAY 9, 2000 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF BRUNSWICK COUNTY James F. D'Alton, Judge

David B. Hargett (Morrissey & Hershner, P.L.C., on brief), for appellant.

Marla Graff Decker, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Douglas Olgers (defendant) was convicted in a bench trial for

"kill[ing] antlerless deer during closed season," a misdemeanor in

violation of Code § 29.1-550(i), and possession of a firearm by a

convicted felon, a violation of Code § 18.2-308.2. He complains

on appeal that the trial court imposed an impermissible punishment

for the misdemeanor and challenges the sufficiency of the evidence

to establish that the firearm was operational. We agree that the

court improperly sentenced defendant for the game offense and,

therefore, reverse the order and remand for resentencing.

However, because defendant raises the specific evidentiary

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. challenge to the firearm conviction for the first time on appeal,

we decline to address the issue and affirm the trial court.

The parties are fully conversant with the record, and this

memorandum opinion recites only those facts necessary to a

disposition of the appeal.

I.

Based on familiar principles, we view the record "'in the

light most favorable to the Commonwealth, giving it all

reasonable inferences fairly deducible therefrom. In so doing,

we must discard the evidence of the accused in conflict with

that of the Commonwealth, and regard as true all the credible

evidence favorable to the Commonwealth . . . .'" Watkins v.

Commonwealth, 26 Va. App. 335, 348, 404 S.E.2d 856, 866 (1998)

(citation omitted).

On December 18, 1997, James Campbell, a "Special Agent" of

the Virginia Department of Game and Inland Fisheries, while

conducting an undercover investigation of unlawful "hunting

activities," was invited to join defendant, Randall Coleman and

Kenny Westmoreland in a deer hunt on property owned by

Westmoreland's family. At the inception of the outing,

Campbell, Coleman and Westmoreland "got in a line around the

woods," while defendant noisily "came through the woods,"

"attempt[ing] to drive any deer" into the open area. Although

defendant's efforts were unsuccessful, he soon emerged "carrying

. . . an antlerless [doe] deer across his shoulder," which he

- 2 - identified as "one . . . he shot at the night before" with a

"rifle" borrowed from Coleman.

The hunt resumed and, after several hours, defendant tired

and decided "to take a [deer] stand" and there await passing

deer. Armed with "Coleman's twelve gauge shotgun," he proceeded

to "a stand in plain sight" of Campbell, while Coleman "made a

drive without a weapon." Despite these efforts, however, no

game was harvested and "no shots were fired" by anyone in the

party.

II.

Upon convicting defendant for a violation of Code

§ 29.1-550, the court imposed a sentence of "Incarceration in

JAIL for a term of: 12 months," suspended upon certain terms

and conditions. However, the statute provides that a violation

shall constitute a Class 2 misdemeanor, an offense punishable by

"confinement in jail for not more than six months and a fine of

not more than $1,000, either or both." Code § 18.2-11. Thus,

the disputed sentence clearly exceeded the statutory limitation,

and we, therefore, must reverse the order and remand for

resentencing. See Nesbit v. Commonwealth, 15 Va. App. 391, 424

S.E.2d 239 (1992).

Defendant next contends that the evidence was insufficient

to prove that the weapon that he allegedly possessed was a

firearm within the intendment of Code § 18.2-308.2. Relying

upon Jones v. Commonwealth, 16 Va. App. 354, 429 S.E.2d 615

- 3 - (1993), he asserts on brief that the Commonwealth must

establish, as an element of the offense, that the weapon was

"operational," "capable of firing bullets." See also Gregory v.

Commonwealth, 28 Va. App. 393, 504 S.E.2d 886 (1998). However,

in challenging the sufficiency of the evidence before the trial

court, defendant addressed only the possession component to the

crime, rather than the nature and character of the weapon.

Rule 5A:18 provides that "[n]o 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."

Redman v. Commonwealth, 25 Va. App. 215, 218, 487 S.E.2d 269,

271 (1997). Thus, if the argument of an accused before the

trial court fails to "specify in what respects the . . .

evidence [is] insufficient to prove" the offense, such issue is

"not properly preserved" for appeal. Id. at 220, 487 S.E.2d at

272. Accordingly, we decline to address defendant's contention

that the evidence failed to prove a firearm, and find that no

miscarriage of justice supports invocation of the related

exception to the rule. See generally id. at 221-22, 487 S.E.2d

at 272-73.

- 4 - We, therefore, affirm the convictions, but reverse the

misdemeanor sentencing order and remand for resentencing

consistent with this opinion.

Affirmed, in part, reversed and remanded, in part.

- 5 -