ends of justice exception in Virginia

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

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

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

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)).

2026“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 Brown v. Commonwealth, 8 Va. App. 126, 132 (1989)).

2026“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 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)).

2026Commonwealth v. Bass, 292 Va. 19, 29 (2016); see - 26 - also Gordon v. Commonwealth, 61 Va. App. 682, 685-86 (2013) (finding application of the ends- of-justice exception “fully justified” to reverse a “void sentence” that exceeded the statutory limit).

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)).

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)).

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

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)).

2026This case does not result in the imposition of more actual time to serve than the original sentence imposed by the circuit court, as occurred in Charles v. Commonwealth, 270 Va. 14, 20 (2005),16 nor does the time to serve exceed the statutory 16 According to the majority opinion, “under Charles, when a court disregards a statutory cap such as that in Code § 19.2-306.1, consideration of the ends of justice exception is not precluded.” However, in Charles, the Supreme Court decided to invoke the ends of justice exception because “the trial court added five months incarceration to Charles’ origin

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).

2026See West v. Commonwealth, 43 Va. App. 327, 339 (2004) (holding—in a case in which the defendant failed to timely raise a double jeopardy argument—that “[e]rror alone, even a violation of constitutional principles, is not sufficient to warrant application of the ends of justice exception to Rule 5A:18”).

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)).

2025The Commonwealth contends that “this portion of Suazo-Jiminez’s argument . . . is procedurally defaulted pursuant to Rule 5A:18.” The Commonwealth argues that Suazo-Jiminez’s arguments to the trial court “exclusively focused on the admissibility of the Prince William County abuse against Z.S.” Rule 5A:18 states, “No 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 applies

2025Under the ends-of-justice exception, Meredith “must affirmatively show that a miscarriage of justice has occurred, not that a miscarriage might have occurred.” See Conley v. Commonwealth, 74 Va. App. 658 , 683 (2022) (quoting Holt v. Commonwealth, 66 Va. App. 199, 210 (2016) (en -6- banc)); see also Cornell v. Commonwealth, 76 Va. App. 17 , 30 (2022) (framing the test as requiring consideration of “whether there is error” as the appellant contends and “whether the failure to apply the [exception] would result in a grave injustice” (quoting Williams v. Commonwealth, 294 Va. 25, 27-28 (2017))).

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

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).

2026Fetzer nonetheless asks this Court on brief to reach his first assignment of error by applying the ends of justice exception to Rule 5A:18.4 He argues “that the error is apparent on the record and consideration of the issues will ‘attain the ends of justice.’” More specifically, he claims that “the Commonwealth was entirely uncorroborated and failed to exclude the reasonable hypothesis of innocence that [L.B.] simply made up the allegations against Donald Fetzer” and that “the Commonwealth’s evidence was insufficient to prove beyond a reasonable doubt that Fetzer ever engaged in any inappropri

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)).

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).

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).

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)).

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 .

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

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.

2026Affirmed. application of the ends of justice exception only in the presence of a showing of “actual harm.” To the contrary, our case law unambiguously shows that certain procedures are “so crucial that a court’s failure to adhere to them constitutes error that is clear, substantial and material even in the absence of affirmative proof of error in the result.” Herring v. Herring, 33 Va. App. 281, 287 (2000).

2026Affirmed. application of the ends of justice exception only in the presence of a showing of “actual harm.” To the contrary, our case law unambiguously shows that certain procedures are “so crucial that a court’s failure to adhere to them constitutes error that is clear, substantial and material even in the absence of affirmative proof of error in the result.” Herring v. Herring, 33 Va. App. 281, 287 (2000).

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)).

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 ).9 Hanks has failed to carry his burden of proving a manifest injustice in this case, as he fails to demonstrate that he was convicted for a non-offense or that an element of the offense did not occ

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)).

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).

2026Fetzer nonetheless asks this Court on brief to reach his first assignment of error by applying the ends of justice exception to Rule 5A:18.4 He argues “that the error is apparent on the record and consideration of the issues will ‘attain the ends of justice.’” More specifically, he claims that “the Commonwealth was entirely uncorroborated and failed to exclude the reasonable hypothesis of innocence that [L.B.] simply made up the allegations against Donald Fetzer” and that “the Commonwealth’s evidence was insufficient to prove beyond a reasonable doubt that Fetzer ever engaged in any inappropri

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)).

2026Herrin concedes that his sufficiency arguments were not presented to the trial court but asks this Court to excuse his default under 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.” Cornell v. Commonwealth, 76 Va. App. 17 , 31 (2022) (quoting Conley v. Commonwealth, 74 Va. App. 658 , 682 (2022)).

2026“The purpose of th[e] contemporaneous objection requirement [in Rule 5A:18] is to allow the trial court a fair opportunity to resolve the issue at trial, thereby preventing unnecessary appeals and retrials.” Hogle v. Commonwealth, 75 Va. App. 743 , 755 (2022) (alterations in original) (quoting Creamer v. Commonwealth, 64 Va. App. 185, 195 (2015)). “‘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,