Commonwealth v. Bass, 292 Va. 19

Bass was indicted for two completed robberies and one attempted robbery arising from a September 2, 2013 home invasion; the grand jury transposed victims’ first names in the indictments compared to the warrants.
At trial the Commonwealth’s evidence showed Bass accompanied a masked gunman, took Videll Smith’s wallet, and the jury convicted Bass of robbery of Videll Smith (matching the evidence and jury instructions), though the indictment had alleged attempted robbery of Videll and robbery of Irving.
Bass did not object at trial to the variance between the indictments and the proof and acquiesced to jury instructions that conformed to the evidence rather than the indictments.
On appeal the Court of Appeals applied the "ends of justice" exception to Rule 5A:18, reversed the robbery conviction for a fatal variance, and remanded for retrial on no greater than attempted robbery.
The Commonwealth appealed to the Supreme Court of Virginia, which reviewed whether the Court of Appeals misapplied the ends of justice exception and whether it erred in declining to address Bass’s sufficiency-of-the-evidence claim.

Issue	Plaintiff's Argument (Commonwealth)	Defendant's Argument (Bass)	Held
Whether a fatal variance between indictment and proof warrants appellate review under the ends of justice exception to Rule 5A:18	The ends of justice exception should not apply because the sentence was within statutory maximum and no grave injustice resulted; Henson controls	The variance resulted in conviction of a more serious crime than indicted and warrants application of the exception and reversal	The Court held the Court of Appeals erred: a fatal variance existed but the ends of justice exception was not warranted because no grave injustice occurred; conviction stands as rendered by trial court
Whether the Court of Appeals erred by remanding for retrial on a lesser charge without addressing sufficiency of the evidence	The Court of Appeals should have considered the sufficiency question because reversal for variance does not bar retrial and sufficiency might independently sustain the conviction	The eyewitness testimony was inherently incredible; the evidence was insufficient to support robbery (argument was not preserved at trial)	The Court held the Court of Appeals erred to omit the sufficiency issue but also held Bass failed to preserve the sufficiency challenge, so the Court did not reach its merits

Henson v. Commonwealth, 208 Va. 120 (refused to apply ends of justice where defendant identified no prejudice from variance)
Legette v. Commonwealth, 33 Va. App. 221 (Court of Appeals applied ends of justice where sentence exceeded statutory maximum for indicted offense)
Ferguson v. Commonwealth, 51 Va. App. 427 (followed Legette to correct void sentence exceeding statutory maximum)
Gardner v. Commonwealth, 262 Va. 18 (definition and consequences of fatal variance)
Charles v. Commonwealth, 270 Va. 14 (explaining narrow contours of ends of justice exception)
Gheorghiu v. Commonwealth, 280 Va. 678 (discussion of when ends of justice applies)
Maxwell v. Commonwealth, 287 Va. 258 (contemporaneous-objection rule and review standard)
Montana v. Hall, 481 U.S. 400 (retrial permitted after reversal for defect in charging instrument)