COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges McClanahan and Haley Argued at Salem, Virginia

FRANK EDWARD OSBORNE MEMORANDUM OPINION * BY v. Record No. 2358-04-3 J UDGE JAMES W. HALEY, JR. OCTOBER 4, 2005 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF CAMPBELL COUNTY J. Samuel Johnston, Jr., Judge Thomas S. Leebrick (Thomas S. Leebrick, P.C., on brief), for appellant. Donald E. Jeffrey, III, Assistan t Attorney General (Judith Williams Jagdmann, Attorney General, on brief), for appellee.
Frank Edward Osborne raises the following issues arising from hi s September 8, 2004 probation hearing: (1) whether the trial court erre d in allowing the testimony of a witness, Tiffany Dearing, over appellant’s objection as to relevance; (2) whether the trial court erred in failing to exclude Tiffany Dearing from the evidentiary hearing; and (3) wh ether the trial court erred in refusing to grant a con tinuance to the appellant.
I. Frank Edward Osborne was co nvicted of abductio n and assault and ba ttery on August 20, 2003 in the Campbell C ounty Circuit Court. Appe llant was sentenced to te n years on the abduction charge and twelve months on the assault and battery charge. The sentences were to run concurrently with all but six mont hs on each count susp ended. Appellant was placed on supervised

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - probation for three years and ordere d to be of good behavior for te n years following his release from incarceration. Appellant was released from incarceration on October 7, 2003 . Five days later, October 12th, appellant was arrested and ch arged with abduction an d wearing a mask in p ublic in the City of Lynchburg. Based solely on this incident, the Campbell Count y Circuit Court issued a capias for Osborne for violation of his probation and go od behavior terms from the August 20, 2003 convictions. Appellant pled guilty to the charge s of abduction and wearin g a mask in public on August 16, 2004 in the City of Lynchburg Circuit Court. A hearing on the pr obation violation was held on Se ptember 8, 2004 in the Campbell County Circuit Court. Prior to any opening statem ent or testimony and without objection, the trial judge read into the record a hand written letter from the appellant to the court asking for leniency. The letter states, in pertinent part, Your honor I didn’t do anything to this young woman whom the charges are from. She wi ll even tell you that, I never touched her . . . the reason I took a plea bargain of 3 yrs. was because I felt it would be in my best interest, because I felt like I was going to be judged on my past, and not now. After the reading of th e letter, appellant’s co unsel requested the witnesses be separated and remain outside the courtr oom. The Commonwealth asked the c ourt to allow Ms. Tiffany Dearing, the victim of the C ity of Lynchburg abduction, to remain in the courtroom. The tr ial judge allowed Ms. Dearing to remain over opposi ng counsel’s objection. The trial court concluded that Ms. Dearing was a “victim” under Code § 19.2-11.01(B) and thus exempt pursuant to Code § 19.2-265.01 from the exclusionary provisions of Code § 19.2-265.1. 1

1 Those statutes read, in pertinent part: “‘ victim ’ means (i) a person who has suffered physical, psychological, or economic harm as a dire ct result of the commission of a felony . . . .” Code § 19.2-11.01(B). “[A]ny victim as defined in § 19.2-11.01 may remain in the courtroom and shall not be excluded unless th e court determines, in its discre tion, the presence of the victim would impair the conduct of a fair trial.” Code § 19.2-265.01.- 3 - Appellant’s counsel thereafter objected to the proceeding and asked for a continuance. Counsel stated the reason for the continuance was “violation of my client’s due process under the 5th and 14th Amendment.” Counsel a dded, “I am not prepared to try an abduction tria l. I’m trying – I’m prepared to try a trial regard ing whether or not my client violat ed the terms of his probation.” The judge overruled the mo tion for continuance. Appellant’s counsel also objecte d to the testimony of Tiffany De aring on releva nce grounds. Counsel stated that he had not represented appell ant on the charges in Ly nchburg and was therefore unprepared to cross-examine Ms. Dearing. Coun sel also stated that her testimony violated appellant’s due process rights because she was not excluded fro m the courtroom. The judge overruled the objections. The trial court heard testimony from Robert Bliss, appe llant’s probation officer, and Ms. Dearing. Mr. Bliss testified that , during an October 8, 2003 proba tion meeting, the day following Osborne’s release from incarceration, Osborne as ked him whether or not he could possess “a throwing star or shooting star” an d a sword. Bliss responded that he could “absolutely not” possess either. During the meeti ng, Osborne adm itted to maintaining a sword co llection, and B liss told him to “get rid of the swords now.” Ms. Dearing, the Commonwealth’s witness in the Lynchburg incident, testified that appellant had told her “that he could rape or kill [h er] or do whatever he wanted to do with [her].” Ms. Dearing stated that wh ile telling her this, Osborn e had a “long, long swor d” in his hand that he

In the trial of every criminal case, the court . . . shall upon the motion . . . [of] any defendant, require the exclusion of every witness to be called . . . . Additionally, any victim as defined in § 19.2-11.01 who is to be called as a witness shall be exempt from the rule of this section as a matter of law unless, in accordance with the provisions of § 19.2- 265.01, his exclusion is otherwise required. Code § 19.2-265.1.- 4 - placed across her stomach. Ms. Dearing was instruct ed by Osborne to walk with him around the neighborhood until he allowed her to go into a fr iend’s house with the understanding that she would come to his house after she “was done doing whatever [she ] had to do.” During the entire exchange, Osborne was wearing a mask. The trial court re-imposed the ten-year susp ended sentence from th e earlier convictions. The judge noted, “I was disturbed by your bizarre conduct, your fascinatio n with the Orient, the knives, the Ninji, the mask . . . you violate[d] the law once again with this Ninji fascination, the mask, the black outfit, the sword. ” By order dated November 22, 2004, the trial court suspended three years of the sentence.
II. Initially, we note the fo llowing relating to probation revo cation hearings: Both the United States Supreme Court and this Court have previously indicated probation re vocation hearings are not a stage of criminal prosecution and theref ore a probationer is not entitled to the same due process protecti ons afforded a defendant in a criminal prosecution. Specifica lly, the United States Supreme Court has stated that in revocat ion hearings “formal procedures and rules of evidence are not empl oyed,” and that the process of revocation hearings “should be flexible enough to consider evidence . . . that would not be ad missible in an adversary criminal trial.” Gurley v. Commonwealth , 34 Va. App. 166, 172, 538 S.E.2d 361, 363-64 (2000) (quoting Davis v. Commonwealth , 12 Va. App. 81, 84, 402 S.E.2d 684, 686 (1991) (add itional citation s omitted)). Here, appellant objected to the relevanc e of the testimony of Ms. Dearing, the Commonwealth’s witness in th e subsequent Lynchburg crime. While it is true, as this Court held in Alsberry v. Commonwealth , 39 Va. App. 314, 320-21, 572 S.E.2d 522, 525 (2002), that “upon revocation of the suspended sentence, the defendant is punished in accordance with a previously imposed sentence[,] not for the conduct promp ting the revocation[,] but for his commission of- 5 - the original crime,” it does not follow that evidence concerning the circumstances of that conduct is not relevant. Code § 19.2-306 authorizes a court to revoke a suspended sentence “for any cause the court deems sufficient.” But, as th e Virginia Supreme Court has noted: The cause deemed by the court to be sufficient for revoking a suspension must be a reasonable ca use. The sufficiency of the evidence to sustain an order of revocation “is a matter within the sound discretion of the trial court. Its finding of f act and judgment thereon are reversible only upon a clear showing of abuse of such discretion.” The discretion require d is a judicial discretion, the exercise of which “implies consci entious judgment, not arbitrary action

. ” Hamilton v. Commonwealth , 217 Va. 325, 327, 228 S.E.2d 555, 556 (1976) (citations omitted). See also Peyton v. Commonwealth , 268 Va. 503, 508, 604 S.E.2d 17, 19-20 (2004). Here, the cause that the court identified in revoking appellant’s suspen ded sentences was the City of Lynchburg abduction and mask wearing charges. Th e defendant, in his letter, stated: “I didn’t do anything to this young woman.” Thus, it foll ows that testimony from the eyewitness to those circumstances is clearly relevant to the trial court’s determination of if and how much of appellant’s suspended sentences it would be re asonable and just to re voke. “‘Evidence is relevant if it has any logical tendency, however sli ght, to establish a fact at issue in the case.’” Byrd v. Commonwealth , 30 Va. App. 371, 375, 517 S.E.2d 243, 245 (1999) (quoting Utz v. Commonwealth , 28 Va. App. 411, 419, 505 S.E.2d 380, 384 (1998)). Accordingly, we hold the testimony of Ms. Dearing was relevant a nd admissible in the revocation proceeding. 2
III. In our view it is not necessa ry to decide whether or not the witness here involved was a “victim” under Code §§ 19.2-265.01 and 19.2-11.01(B), and thus not subject to the exception of

2 During oral argument, appellant’s counsel conceded the relevan ce of Ms. Dearing’s testimony. Nevertheless, we address that issue.- 6 - the exclusionary rule of Code § 19.2-265.1. Even assuming arguendo that she was subject to the exclusionary rule, her presence in th e court constituted harmless error. “The ‘purpose of excluding the witnesses from the courtroom is, of course, to deprive a later witness of the opportunity of shaping his testimony to correspond to that of an earlier one.’” Bennett v. Commonwealth , 236 Va. 448, 465, 374 S.E.2d 303, 314 (1988) (citation omitted). Ms. Dearing testified that Osborne, while he brandished a “long, long sword,” stated “that he could rape or kill me or do whatever he wanted to do with me.” Such an admission was not contained in the appellant’s letter to th e trial court. In fact, the letter only contained a blanket denial of the entire incident. The only other witnes s who testified for the Commonwealth was, as noted above, Robert Bliss, the defendant’ s probation officer. His testimony did no t even address the Lynchburg incident, other than noting that Osbo rne had pled guilty on Au gust 16, 2004 in that jurisdiction. Thus, Ms. Dearing could not have “shap[ed] [her] testimony to correspond” to the contents of the letter or the testimony of the probation officer. Id. The purpose of excluding witn esses was not violated, and any error, if present at all, was harmless. Code § 8.01-678 states: When it plainly appears from the record and the evidence given at the trial that the parties have had a fair trial on the merits and substantial justice has been reach ed, no judgment shall be arrested or reversed: . . . For any other de fect, imperfection, or omission in the record, or for any error committed on the trial. Additionally, the Virginia Suprem e Court has held that “a review ing court must decide whether the alleged error substantially infl uenced the [judge]. If it did not , the error is harmless.” Rose v. Commonwealth , 270 Va. 3, 11-12, 613 S.E.2d 454, 458-59 (2005) (citation omitted). See also McCary v. Commonwealth , 36 Va. App. 27, 40, 548 S.E.2d 239, 245 (2001). As this Court has held, An error is harmless (1) if “other evidence of guilt is ‘so overwhelming and the error so insignificant by comparison that the- 7 - error could not have affected th e verdict,’” or, “even if the evidence of the defendant’s guilt is not overwhelming, [(2)] if the evidence admitted in error was merely cumulative of other, undisputed evidence.” McLean v. Commonwealth , 32 Va. App. 200, 211, 527 S.E.2d 443, 448-49 (2000) (quoting Ferguson v. Commonwealth , 16 Va. App. 9, 12, 427 S.E.2d 442, 444-45 (1993) (additional citation omitted)). Here, Osborne pled guilty to abduction and w earing a mask in public in the City of Lynchburg prior to the revocation hear ing. Ms. Dearing’s pr esence and testimony provided details from that event bu t was not the sole basis for the trial court’s decision. The trial judge specifically noted that he remembered Osborne’s fascination with swords and “Ninji” culture that was described by Mr. Bliss, the prob ation officer. Thus, Ms. Dearing’s presence and testimony was merely cumulative given the ove rwhelming evidence of Osborne’s probation violation, and any erro r, if present at all, was harmless. Appellant also argues on app eal that the judge erred by read ing the letter in the presence of all witnesses. Appellant’s counsel did not ob ject to this reading. In addition, appellant’s counsel did not move to exclude witnesses until af ter the judge read appella nt’s letter into the record. Thus, appellant’s counsel did not make a timely objection to the lett er being read in the witnesses’ presence. “The Court of Appeals wi ll 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); Rule 5A:18. Additionally, we find that appellant’s due pr ocess rights were not violated. Appellant was allowed to cross-examine both of the Commonw ealth’s witnesses, which he did. Appellant was given proper notice of the proc eedings and the opportunity to pres ent evidence on his behalf. Those opportunities are sufficient to afford appellan t the requisite due proce ss protections in this proceeding. See Black v. Romano , 471 U.S. 606, 612-13 (1985); Code § 53.1-170.- 8 - IV. Appellant asserts that the trial court erre d in not granting a continuance because his counsel was not prepared to cross-examine Ms. Dearing and was not familiar with the circumstances of the Lynchburg charges. Appell ant cites no authority su pporting this claim, and we find none either. Appellant’s counsel does state, however, that, despite his unfamiliarity with the Lynchburg charges, he is “prepared to try a tr ial regarding whether or not [his] client violated the terms of his probatio n.” But, we note, it was the Lynchburg charges which were the sole basis of the issuance of the capia s which led to the probation hear ing. Accordingly, we find that the trial judge did not abuse his discretion in denying the motion for a continuance.
V. For the foregoing reasons, we affirm. Affirmed.