ends of justice exception in Virginia

2026Nonetheless, he asks us to invoke the ends of justice exception. “‘The ends of justice exception is narrow and is to be used sparingly,’ and applies only in the extraordinary situation where a miscarriage of justice has occurred.” Holt v. Commonwealth, 66 Va. App. 199, 209 (2016) (en banc) (quoting Redman v. Commonwealth, 25 Va. App. 215, 220 (1997)).

2026Observing this, he asks this Court to consider his argument under the ends of justice exception to Rule 5A:18. “‘The ends of justice exception is narrow and is to be used sparingly,’ and applies only in the extraordinary situation where a miscarriage of justice has occurred.” Holt v. Commonwealth, 66 Va. App. 199, 209 (2016) (en banc) (quoting Redman v. Commonwealth, 25 Va. App. 215, 220-21 (1997)).

2026“The ends of justice exception is narrow and is to be used sparingly.” Conley v. Commonwealth, 74 Va. App. 658 , 682 (2022) (quoting Holt v. Commonwealth, 66 Va. App. 199, 209 (2016) (en banc)).

2026Nonetheless, he asks us to invoke the ends of justice exception. “‘The ends of justice exception is narrow and is to be used sparingly,’ and applies only in the extraordinary situation where a miscarriage of justice has occurred.” Holt v. Commonwealth, 66 Va. App. 199, 209 (2016) (en banc) (quoting Redman v. Commonwealth, 25 Va. App. 215, 220 (1997)).

2025Application of the ends of justice exception is appropriate only when an error is “clear, substantial, and material.” Brown v. Commonwealth, 8 Va. App. 126, 132 (1989).

2025Application of the ends of justice exception requires proof of an error that was “clear, substantial and material.” Brown v. Commonwealth, 8 Va. App. 126, 132 (1989).

2026Whether to apply the ends of justice exception involves two questions: “(1) whether there is error as contended by the appellant; and (2) whether the failure to apply the ends of justice provision would result in a grave injustice.” Commonwealth v. Bass, 292 Va. 19, 27 (2016) (quoting Gheorghiu v. Commonwealth, 280 Va. 678, 689 (2010)).

2025Whether to apply the ends of justice exception involves two questions: “(1) whether there is error as contended by the appellant; and (2) whether the failure to apply the ends -5- of justice provision would result in a grave injustice.” Commonwealth v. Bass, 292 Va. 19, 27 (2016) (quoting Gheorghiu v. Commonwealth, 280 Va. 678, 689 (2010)).

2026Whether to apply the ends of justice exception involves two questions: “(1) whether there is error as contended by the appellant; and (2) whether the failure to apply the ends of justice provision would result in a grave injustice.” Commonwealth v. Bass, 292 Va. 19, 27 (2016) (quoting Gheorghiu v. Commonwealth, 280 Va. 678, 689 (2010)).

2025“Whether to apply the ends of justice exception involves two questions: ‘(1) whether there is error as contended by the appellant; and (2) whether the failure to apply the ends of justice provision would result in a grave injustice.’” Id. at 682-83 (quoting Commonwealth v. Bass, 292 Va. 19, 27 (2016)). “[T]o avail oneself of the exception, a defendant must affirmatively show that a -8- miscarriage of justice has occurred, not that a miscarriage might have occurred.” Cornell, 76 Va. App. at 31 (quoting Redman v. Commonwealth, 25 Va. App. 215, 221 (1997)).

2026“Virginia courts applying the ends-of-justice exception require a defendant to present not only a winning argument on appeal but also one demonstrating that the trial court’s error results in a ‘grave injustice’ or a wholly inexcusable ‘denial of essential rights.’” Winslow v. Commonwealth, 62 Va. App. 539, 546-47 (2013) (quoting Brittle, 54 Va. App. at 513 ).

2026Without conceding that he did not raise the argument below, Perry asks us to invoke the ends of justice exception. “‘The ends of justice exception is narrow and is to be used sparingly,’ and applies only in the extraordinary situation where a miscarriage of justice has occurred.” Holt v. Commonwealth, 66 Va. App. 199, 209 (2016) (quoting Redman v. Commonwealth, 25 Va. App. 215, 220-21 (1997)). “[W]hen an appellant raises a sufficiency of the evidence argument for the first time on appeal, the standard is higher than whether the evidence was insufficient.” Id. at 210 (alteration in original) (q

2023“Application of the ends of justice exception requires proof of an error that was ‘clear, substantial and material.’” West v. Commonwealth, 43 Va. App. 327, 338 (2004) (quoting Herring v. Herring, 33 Va. App. 281, 287 (2000)). “[T]he ‘ends of justice’ provision may be used when the record affirmatively shows that a miscarriage of justice has occurred, not when it merely shows that a miscarriage might have occurred.” Mounce v. Commonwealth, 4 Va. App. 433, 436 (1987).

2021In other words, the party relying on the ends of justice exception “must affirmatively show that a miscarriage of justice has occurred, not that a miscarriage of justice might have occurred.” Redman v. Commonwealth, 25 Va. App. 215, 221 (1997) (emphasis added) (citing Mounce v. Commonwealth, 4 Va. App. 433, 436 (1987)).

2026The ends of justice exception to Rule 5A:18 permits review of unpreserved arguments in narrow circumstances, when the record shows that doing so is “necessary to avoid a grave injustice or the denial of essential rights.” Mohamed v. Commonwealth, 56 Va. App. 95, 102 (2010) (quoting Charles v. Commonwealth, 270 Va. 14, 17 (2005)).

2026See Rawls v. Commonwealth, 278 Va. 213 , 221 (2009) (applying the ends of justice exception to reverse a sentence that was void ab initio); Charles, 270 Va. at 20 (applying the exception to reverse a voidable revocation of probation sentence).

2026He concedes that he did not comply with the 9 See, e.g., Pereira v. Commonwealth, 83 Va. App. 431 (2025) (Fifth Amendment); Perry v. Commonwealth, 58 Va. App. 655 (2011) (Sixth Amendment); West v. Commonwealth, 43 Va. App. 327 (2004) (double jeopardy); Ohree v. Commonwealth, 26 Va. App. 299 (1998) (equal protection); Cottrell v. Commonwealth, 12 Va. App. 570 (1991) (arbitrary revocation). -8- contemporaneous objection requirement of Rule 5A:18 but asks us to apply the ends of justice exception.

2026“Error alone, even a violation of constitutional principles, is not sufficient to warrant application of the ends of justice exception.” West v. Commonwealth, 43 Va. App. 327, 339 (2004).

2025As to appellant’s ends of justice argument, Rule 5A:18 provides that “[n]o ruling of the trial court . . . will be considered as a basis for reversal unless an objection was stated with reasonable certainty at the time of the ruling, except for good cause shown or to enable this Court to attain the ends of justice.” The ends of justice exception “is narrow and is to be used sparingly,” Perry v. Commonwealth, 58 Va. App. 655, 667 (2011) (quoting Bazemore v. Commonwealth, 42 Va. App. 203, 219 (2004) (en banc)), and has only been applied “in very limited circumstances” such as where the record es

2024See Bazemore v. Commonwealth, 42 Va. App. 203, 219 (2004) (en banc) (stating that the Court need not “always apply the ends of justice exception in cases involving faulty jury -6- instructions to which no objection was noted below—even where such faulty instructions improperly stated the elements of an offense,” and declining to apply the exception).

2026In urging this Court to apply the ends of justice exception, the Davises rely on a principle sometimes applied in criminal cases: “when a principle of law is vital to a defendant in a criminal case, a trial court has an affirmative duty properly to instruct a jury about the matter.” Johnson v. Commonwealth, 20 Va. App. 547, 553-54 (1995) (quoting Jimenez v. Commonwealth, 241 Va. 244, 250 (1991)).

2025Thomas v. Commonwealth, 56 Va. App. 1, 5 (2010).3 3 See also Ali v. Commonwealth, 280 Va. 665, 671 (2010) (applying the ends of justice exception where appellant was convicted of both robbery and larceny but there was no evidence of asportation without force and thus “an element of one of the crimes of which [he] was convicted did not occur”); Jimenez v. Commonwealth, 241 Va. 244, 251 (1991) (applying the exception where there was no evidence presented to support “a material element of the offense charged,” the statutory requirement of written notice by certified mail); Ball v. Commonwealth, -

2025Rule 5A:18 provides, in relevant part, that “[n]o ruling of the trial court . . . will be considered as a basis for reversal unless an objection was stated with reasonable certainty at the time of the ruling, except for good cause shown or to enable this Court to attain the ends of justice.” In determining whether the ends of justice exception applies, this Court considers: “(1) whether there is error as contended by the appellant; and (2) whether the failure to apply the ends of justice provision would result in a grave injustice.” Williams v. Commonwealth, 294 Va. 25, 27-28 (2017). “[I]n app

2025Based on our finding that the trial court did not err in imposing a 15-year period of good behavior to begin December 1, 2023, the ends of justice exception is inapplicable here.3 See Williams, 294 Va. at 27 . 2 Though Coyle had amassed two additional convictions between his original convictions in 2020 and the revocation hearing in December 2023 at issue here, the probation revocation order that Coyle challenges did not specify which of the six separate sentences were revoked in whole or in part or their periods of suspension.

2025See Toghill v. Commonwealth, 289 Va. 220 , 226 (2015) (“apply[ing] [the ‘good cause’ exception] sua sponte as has been done with the ends of justice exception” (citing Ball v. Commonwealth, 221 Va. 754, 758-59 (1981); Cooper v. Commonwealth, 205 Va. 883, 889-90 (1965))).

2018For example, the Supreme Court has employed the ends of justice exception where: the record establishes that an element of the crime did not occur, Ali v. Commonwealth, 280 Va. 665 , [671], 701 S.E.2d 64 , [68] (2010) . . .; a conviction [was] based on a void sentence, Charles [v. Commonwealth], 270 Va. [14,] 20, 613 S.E.2d [432,] 435 [(2005)]; conviction of a non-offense, Jiminez v. Commonwealth, 241 Va. 244, 249-50 , 402 S.E.2d 678, 680 (1991); and a capital murder conviction where the evidence was insufficient to support an instruction, Ball v. Commonwealth, 221 Va. 754, 758 , 273 S.E.2d 79

2026“Virginia courts applying the ends-of-justice exception require a defendant to present not only a winning argument on appeal but also one demonstrating that the trial court’s error results in a ‘grave injustice’ or a wholly inexcusable ‘denial of essential rights.’” Winslow v. Commonwealth, 62 Va. App. 539, 546-47 (2013) (quoting Brittle, 54 Va. App. at 513 ).

2025“Virginia courts applying the ends-of-justice exception require a defendant to present not only a winning argument on appeal but also one demonstrating that the trial court’s error results in a ‘grave injustice’ or a wholly inexcusable ‘denial of essential rights.’” Winslow v. Commonwealth, 62 Va. App. 539, 546-47 (2013) (quoting Brittle, 54 Va. App. at 513 ).

2025Thus, advancing “one specific argument on an issue does not preserve a separate legal point on the same issue for review.” Id. (quoting Edwards v. Commonwealth, 41 Va. App. 752, 760 (2003) (en banc)). “‘The ends of justice exception is narrow and is to be used sparingly,’ and applies only in the extraordinary situation where a miscarriage of justice has occurred.” Cornell v. Commonwealth, 76 Va. App. 17 , 31 (2022) (quoting Conley v. Commonwealth, 74 Va. App. 658 , 682 (2022)).

2016The father has not asked this Court to apply the ends-of-justice exception to Rule 5A:18 as a reason to reverse the trial court’s ruling, and we will not consider that very limited exception sua -7- sponte.5 See Edwards v. Commonwealth, 41 Va. App. 752, 761 , 589 S.E.2d 444, 448 (2003) (en banc), aff’d by unpub’d order, No. 040019 (Va. Oct. 15, 2004).

2025We disagree. - 19 - The ends of justice exception permits this Court to review an appellant’s arguments despite the lack of a contemporaneous objection below when “necessary to avoid a grave injustice or the denial of essential rights.” Rowe v. Commonwealth, 277 Va. 495, 503 (2009) (quoting Charles v. Commonwealth, 270 Va. 14, 17 (2005)).

2024Because the purpose of the approbate and reprobate doctrine is to prevent a defendant from “‘tak[ing] advantage of the situation created by his own wrong,’” the ends of justice exception does not apply when a defendant “invite[s] the error of which he complain[s].” Rowe, 277 Va. at 502 -03 (quoting Cangiano v. LSH Bldg.

2025When considering the ends-of-justice exception, we examine whether there has been a “‘grave injustice’ or a wholly inexcusable ‘denial of essential rights.’” Id. at 546-47 (quoting Brittle v. Commonwealth, 54 Va. App. 505, 513 (2009)).

2025When considering the ends-of-justice exception, we examine whether there has been a “‘grave injustice’ or a wholly inexcusable ‘denial of essential rights.’” Id. at 546-47 (quoting Brittle v. Commonwealth, 54 Va. App. 505, 513 (2009)).

2026“Where the record does not affirmatively establish error, [the Court] cannot invoke the ends of justice exception to Rule 5A:18.” Smith v. Commonwealth, 59 Va. App. 710, 724 (2012).

2026“Where the record does not affirmatively establish error, we cannot invoke the ends of justice exception to Rule 5A:18.” Smith v. Commonwealth, 59 Va. App. 710, 724 (2012).

2023The ends of justice exception is “narrow and . . . to be used sparingly.” Brittle v. Commonwealth, 54 Va. App. 505, 512 (2009) (quoting Pearce v. Commonwealth, 53 Va. App. 113, 123 (2008)).

2022Waiver Finally, Walters argues that the trial court erred in considering his criminal record at sentencing because it was “never offered or admitted into evidence.” He acknowledges that he did not preserve this argument but asks that we consider it under the ends of justice exception to Rule 5A:18.3 “The ‘ends of justice’ exception to Rule 5A:18 is ‘narrow and is to be used sparingly.’” Pearce v. Commonwealth, 53 Va. App. 113, 123 (2008) (quoting Bazemore v. Commonwealth, 42 Va. App. 203, 219 (2004) (en banc)).

2026He nevertheless asks this Court to consider the claim under the ends-of-justice exception.7 The ends-of-justice exception is “narrow” and “is to be used” only when the alleged error is “clear, substantial and material.” Merritt v. Commonwealth, 69 Va. App. 452, 460 (2018) (quoting Masika v. Commonwealth, 63 Va. App. 330, 333 (2014)).

2025We have explained that “[t]he non-offense prong of the ends of justice analysis is similar to a legal impossibility analysis.” Id. at 335 .

2024In Campbell v. Commonwealth, 14 Va. App. 988 (1992) (en banc), aff’d on other grounds, 246 Va. 174 (1993), this Court, in a 4-1-4 decision, relied on the holding in Jimenez to invoke the ends of justice exception to Rule 5A:18 because the error in a jury instruction allowed the defendant to be convicted “for otherwise innocent behavior.” Id. at 995-96.

2024Cf. Jimenez v. Commonwealth, 241 Va. 244, 251 (1991) (holding that the ends-of-justice exception applied because defendant’s 4 “Although not binding precedent, unpublished opinions can be cited and considered for their persuasive value.” Otey v. Commonwealth, 61 Va. App. 346, 350 (2012); Rule 5A:1(f). - 14 - trial counsel failed to object to a jury instruction that omitted a material element of the offense charged, which resulted in defendant being convicted of a non-offense); Campbell v. Commonwealth, 14 Va. App. 988, 994 (1992) (finding that the ends-of-justice exception applied because the

2025Consequently, before applying the ends-of-justice exception the Court must “determine whether the record contains affirmative evidence of innocence or lack of a criminal offense.” Id. (quoting Flanagan v. Commonwealth, 58 Va. App. 681, 695 (2011)).

2024“The ends of justice exception to Rule 5A:18 is narrow and is to be used sparingly.” Flanagan v. Commonwealth, 58 Va. App. 681, 694 (2011) (quoting Copeland v. Commonwealth, 42 Va. App. 424, 442 (2004)).

2025See generally Herring v. Herring, 33 Va. App. 281, 288-89 (2000) (applying the ends of justice exception because the child support order “does not expressly determine the presumptive amount of support due or fully explain the basis for deviating from that amount” and so “does not provide an adequate basis for future modifications of support”).

2023However, she contends that we should -4- consider this argument on appeal under the ends-of-justice exception to Rule 5A:18 based on this Court’s decision in Herring v. Herring, 33 Va. App. 281 (2000).

2025Thomas v. Commonwealth, 56 Va. App. 1, 5 (2010).3 3 See also Ali v. Commonwealth, 280 Va. 665, 671 (2010) (applying the ends of justice exception where appellant was convicted of both robbery and larceny but there was no evidence of asportation without force and thus “an element of one of the crimes of which [he] was convicted did not occur”); Jimenez v. Commonwealth, 241 Va. 244, 251 (1991) (applying the exception where there was no evidence presented to support “a material element of the offense charged,” the statutory requirement of written notice by certified mail); Ball v. Commonwealth, -

2023To show a miscarriage of justice, “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.” Holt, 66 Va. App. at 210 (emphasis added) (quoting Redman v. Commonwealth, 25 Va. App. 215, 222 (1997)); see also Ali v. Commonwealth, 280 Va. 665, 670-71 (2010) (holding that the ends of justice exception applies when the defendant was convicted of larceny, but the evidence failed to show asportation—a necessary element—and the defendant affirmatively proved that no aspor

2026He nevertheless asks this Court to consider the claim under the ends-of-justice exception.7 The ends-of-justice exception is “narrow” and “is to be used” only when the alleged error is “clear, substantial and material.” Merritt v. Commonwealth, 69 Va. App. 452, 460 (2018) (quoting Masika v. Commonwealth, 63 Va. App. 330, 333 (2014)).

2025Rule 5A:18 “contains an exception that allows us to reach issues on appeal that were not raised below ‘for good cause shown or to enable the Court of Appeals to attain the ends of justice.’” Merritt v. Commonwealth, 69 Va. App. 452, 459-60 (2018); see also Rule 5A:18. “‘The ends of justice exception is narrow and is to be used sparingly,’ and applies only in the extraordinary situation where a miscarriage of justice has occurred.” Cornell v. Commonwealth, 76 Va. App. 17 , 31 (2022) (quoting Conley v. Commonwealth, 74 Va. App. 658 , 682 (2022)).

2026In order “to show that a miscarriage of justice has occurred, thereby invoking the ends of justice exception, 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.” Quyen Vinh Phan Le v. Commonwealth, 65 Va. App. 66, 74 (2015) (quoting Redman, 25 Va. App. at 221-22 ).

2025In order “to show that a miscarriage of justice has occurred, thereby invoking the ends of justice exception, 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.” Quyen Vinh Phan Le v. Commonwealth, 65 Va. App. 66, 74 (2015) (quoting Redman, 25 Va. App. at 221-22 ).3 Miles argues only that the ends of justice exception applies because the two witnesses at trial that identified Miles as an assailant were not credible. “[L]ack of proof is not affirmative eviden

2009Appellant did not request that we invoke the ends of justice exception to Rule 5A:18, and “[tjhis Court will not consider, sua sponte, an ends-of-justice argument under Rule 5A:18.” Widdifield v. Commonwealth, 43 Va.App. 559, 564 , 600 S.E.2d 159,162 (2004) (en banc).

2009Appellant did not request that we invoke the ends of justice exception to Rule 5A:18, and “[tjhis Court will not consider, sua sponte, an ends-of-justice argument under Rule 5A:18.” Widdifield v. Commonwealth, 43 Va.App. 559, 564 , 600 S.E.2d 159,162 (2004) (en banc).

2014“To invoke the ends of justice exception to Rule 5A:18, the record must ‘affirmatively show[] that a miscarriage of justice has occurred, not . . . merely . . . that a miscarriage might have occurred.’” Marshall v. Commonwealth, 26 Va. App. 627, 636 , 496 S.E.2d 120, 125 (1998) (quoting Mounce v. Commonwealth, 4 Va. App. 433, 436 , 357 S.E.2d 742, 744 (1987) (emphasis in the original)).

2014“To invoke the ends of justice exception to Rule 5A:18, the record must ‘affirmatively show[] that a miscarriage of justice has occurred, not . . . merely . . . that a miscarriage might have occurred.’” Marshall v. Commonwealth, 26 Va. App. 627, 636 , 496 S.E.2d 120, 125 (1998) (quoting Mounce v. Commonwealth, 4 Va. App. 433, 436 , 357 S.E.2d 742, 744 (1987) (emphasis in the original)).

2026The exception is “narrow and is to be used sparingly.” Bell v. Commonwealth, 81 Va. App. 616 , 628 (2024) (quoting Melick v. Commonwealth, 69 Va. App. 122, 146 (2018)).

2025But appellant asks this -7- Court to consider his argument under Rule 5A:18’s “ends of justice” exception. “‘The ends of justice exception is narrow and is to be used sparingly,’ and applies only in the extraordinary situation where a miscarriage of justice has occurred.” Cornell v. Commonwealth, 76 Va. App. 17 , 31 (2022) (quoting Conley v. Commonwealth, 74 Va. App. 658 , 682 (2022)). “[A]n inquiry preceding [the exception’s] application involves two questions: ‘(1) whether there is error as contended by the appellant; and (2) whether the failure to apply the ends of justice provision would r

2026He concedes that he did not comply with the 9 See, e.g., Pereira v. Commonwealth, 83 Va. App. 431 (2025) (Fifth Amendment); Perry v. Commonwealth, 58 Va. App. 655 (2011) (Sixth Amendment); West v. Commonwealth, 43 Va. App. 327 (2004) (double jeopardy); Ohree v. Commonwealth, 26 Va. App. 299 (1998) (equal protection); Cottrell v. Commonwealth, 12 Va. App. 570 (1991) (arbitrary revocation). -8- contemporaneous objection requirement of Rule 5A:18 but asks us to apply the ends of justice exception.

2022Alternatively, appellant asks this Court to apply the ends of justice exception. -4- Rule 5A:18 provides that “[n]o ruling of the trial court . . . will be considered as a basis for reversal unless an objection was stated with reasonable certainty at the time of the ruling, except for good cause shown or to enable this Court to attain the ends of justice.” Accordingly, “this Court ‘will not consider an argument on appeal [that] was not presented to the trial court.’” Farnsworth v. Commonwealth, 43 Va. App. 490, 500 (2004) (quoting Ohree v. Commonwealth, 26 Va. App. 299, 308 (1998)).