COURT OF APPEALS OF VIRGINIA
Present: Judges Petty, Beales and AtLee Argued at Richmond, Virginia

RASHID HAKIM HOLMAN MEMORANDUM OPINION * BY v. Record No. 1919-16-2 JUDGE RICHARD Y. ATLEE, JR. APRIL 17, 2018 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Gregory L. Rupe, Judge Lauren P. Whitley, Deputy Public Defender, for appellant. Aaron J. Campbell, Assistant Attorney General (Mark R. Herrin g, Attorney General, on br ief), for appellee.
Following a bench trial, a judge of the Circuit Court of the Ci ty of Richmond (“trial court”) found appellant Rashid Hakim Holman guilty of violating his probation. It revoked his suspended sentences, and reimpos ed three years, with all but ni ne months suspended. On appeal, Holman argues the trial court erred in: (1) c onsidering facts from a previous criminal proceeding where no facts from that case we re introduced in his probation revocation hearing; and (2) admitting hearsay statements from a probation violation rep ort, violating Holman’s right to confrontation. For the fo llowing reasons, we affirm.
I. B ACKGROUND “[W]e view the evidence, and all inferences reasonably drawn fr om it, in the light most favorable to the Commonwealth. ‘ It is our duty to affirm the t rial court’s judgment unless that judgment is plainly wrong or wit hout evidence to support it.’” Reid v. Commonwealth, 65

* Pursuant to Code § 17.1-413, this op inion is not designated fo r publication.UNPUBLISHED- 2 - Va. App. 745, 753, 781 S.E.2d 373, 377 (2016) (citation omitted ) (quoting Muhammad v. Commonwealth, 269 Va. 451, 536, 619 S.E.2d 16, 65 (2005)). So viewed, the evidence is as follows: In 2014, Holman was convicted of statutory burglary and possess ion of marijuana. He received a sentence of ten year s and twelve months in prison, w ith nine years and ten months suspended. Later that year, he w as convicted of domestic assau lt and battery, third offense, and was sentenced to five years in p rison, with four years suspende d. He was placed on supervised probation for all offenses. In 2016, Holman was charged with g rand larceny. The trial court issued a capias, alleging that this new charge violated the goo d behavior condition of Holman’s suspended sentence. 1 Holman’s probation officer file d a probation violation report with the trial court. The report detailed sev eral violations of the condition s of Holman’s supervised probation, including Holman’s new felony cha rge, failing to report his Apr il 2016 arrest for that crime within three days to his proba tion officer, missing a scheduled visit with his probation officer in August 2016, and his failure to request and obtain permission t o change his residence four times between October 2015 and September 2016. The revocation hearing, as well as the trial for the new larce ny charge, were set for the same day in October 2016. At the conclusion of the larceny tri al, the trial court found Holman not guilty of that offense. The judge noted that he was “95 pe rcent sure” of H olman’s guilt, but acquitted Holman on the new larcen y charge because he was not s ure the evidence proved guilt beyond a reasonable doubt. He e xplained: “There’s enough of s light inconsistencies to create some pause on my part. I don' t want you thinking you’re not gu ilty. I think you’re guilty, but not enough to feel comfortable to find you guilty beyond a reas onable doubt.”

1 The probation violation report ci ted Holman’s violation of his statutory burglary and marijuana convictions, but the c apias only references the domes tic assault and battery conviction.- 3 - The trial court then turned to t he revocation matter. Holman r equested a continuance because he contested the allegations in the probation violation report, and the probation officer was not available to testify. The trial court granted the requ est and re-scheduled the revocation hearing for the following m onth. Although the trial judge agre ed to continue the revocation hearing to secure the presen ce of the probation officer, he exp ressed some skepticism as to why it was necessary, observing: “Y ou[] guys aren’t following. Re vocation proceeding, hearsay of every kind is admissible.” He also told defense counsel, “I ho pe you realize and explained to your client that I’m certainl y going to consider what I heard i n this thing in the course of this revocation.” When the parties returned for t he revocation hearing, Holman’s probation officer, Hunter Reed, testified. Reed took over Ho lman’s supervision in July 2 016. He authored the major violation report; however, he r elied on another probation offic er’s case notes for events that took place prior to July 2016, as he only had direct knowledge of ev ents that took place after he assumed supervision. At the c onclusion of Reed’s testimony, de fense counsel objected to “anything in the probation viola tion [report], confrontation cl ause, that Mr. Reed doesn’t have personal knowledge of.” The tri al court responded, “Denied. I ’m admitting it. It is hearsay. It is admissible.” The followi ng exchange took place between defe nse counsel and the trial court: [DEFENSE COUNSEL]: Your H onor, I’m not saying that the hearsay— THE COURT: I understand. [DEFENSE COUNSEL]: Thank you, Your Honor. THE COURT: Maybe one of these days you will get the folks up the food chain to buy that argum ent. Right now, I don’t think it is valid. [DEFENSE COUNSEL]: Your H onor, I think under Henderson, there is a limited right to c onfrontation cause [sic].- 4 - THE COURT: Yes, sir. [DEFENSE COUNSEL]: Mr. Holma n is exercising [his] right to confrontational [sic] clause . The probation officer that super vised him for most of the time in the violation report. THE COURT: Like I said, I’m not buying it. At the conclusion of the revoca tion hearing, the trial court f ound: Well, Mr. Holman, the violation r eports, in my estimation, are simply enough to revoke the suspe nded sentences that you have. Your position is that it was the probation officer’s fault. Pu t it to you bluntly, if I had 15 years and 10 months hanging over my head, I’d be calling in every day j ust to make sure everything was squared away and they knew exactly w here I was. This place, th at place, or some other place, not r eporting any arrest right away

. That’s Number One. The other thing is, I tried the other case, and I remember it. I wrote down then and I’m re-stamping it again on the guidelines I have here. The defendant was tried be fore this [c]ourt on new grand larceny from the person. This [c ]ourt was 95 percent sure of t he defendant’s guilt. Had enough doubt not to be beyond a reasonable doubt for a conviction. This case alone was enough to re voke you. The violation report was enough to revoke the suspended sentence. That’s what I fel t then. That’s what I feel now. I n fact, I feel more convinced t hat that is the correct position. The trial court revoked Holman’s suspended sentences, and reimp osed three years in the penitentiary, with all but nine months suspended.
II. A NALYSIS A. Evidence from Previous Trial We first address Holman’s argument that the trial court erred in considering the facts from his grand larceny trial duri ng the revocation proceeding w ithout specifying the exact evidence it relied upon when deci ding to revoke his suspended s entences. Rule 5A:18 reads, in relevant part: “No ruling of the trial court . . . will be con sidered as a basis for reversal unless an- 5 - objection was stated with reasonabl e certainty at the time of t he ruling, except for good cause shown or to enable the Court of A ppeals to attain the ends of j ustice.” Holman concedes that he failed to preserve this issue for appellate review, but relies on the ends of justice exception to Rule 5A:18. “Application of the ends of justice exception is a ppropriate when the judgment of the trial court was error and a pplication of the exception is n ecessary to avoid a grave injustice or the denial of essential rights .” Charles v. Commonwealth, 270 Va. 14, 17, 613 S.E.2d 432, 433 (2005). The ends of justice exce ption, however, “is narrow and is to be used sparingly.” Bazemore v. Commonwealth, 42 Va. App. 203, 219, 590 S.E.2d 602, 609 (2004) ( en banc ) (quoting Redman v. Commonwealth, 25 Va. App. 215, 220, 487 S.E. 2d 269, 272 (1997)). Holman argues the ends of justice exception applies because he “had no notice of what specific evidence was used again st him, or that the evidence of this trial where he was acquitted would be the basis the trial court would rely heavily upon to r evoke his suspended sentence.” He relies upon Hess v. Commonwealth, 17 Va. App. 738, 441 S.E.2d 2 9 (1994), in which this Court held that a trial court may r evoke probation based upon evidenc e from an earlier prosecution over which the same judge preside d, but must “stat[e] for or ma k[e] part of the record the specific evidence upon which he relied.” Id. at 739-40, 441 S. E.2d at 30. Hess is distinct from this case, however, because — un like Holman — Hess timely objec ted at trial, and thus did not need to satisfy the exacting re quirements of the “ends of justi ce” exception. Holman fails to demonstrate how t he trial court’s failure to r ecite specific evidence amounts to a “grave injustice or the denial of e ssential rights .” First, Holman had ample notice that his grand larceny charge woul d be material to the revocati on proceeding, as it was included in the major violation report , which Holman possessed in advanc e of the scheduled hearings. In addition, the revocation hearing w as initially scheduled to tak e place immediately after the grand larceny trial, before the same judge. It did not occur at that time only because Holman requested- 6 - a continuance. Holman also had s pecific notice that the judge planned to consider the evidence from the grand larceny case in the revocation proceeding. Afte r Holman requested a continuance upon his acquittal for the grand lar ceny charge, the trial cour t told counsel: “I hope you realize and explained to your client that I’m certainly going to consid er what I heard in this thing in the course of this revocation.” Fin ally, even if the trial court f ailed to specify what particular facts from the larceny trial were most salient to his decision to rev oke, it nonetheless expressly stated that it was “95 percent sure of the defendant’s guilt” in the g rand larceny case, and found that this charge “alone was enough to r evoke.” In light of this, we cannot say a gr ave injustice occurred or that Holman was deni ed his essential rights; as suc h, the ends of justice exception does not apply.
B. Confrontation Holman’s second argument is tha t the trial co urt erred by fail ing to make a “good cause” finding regarding the admission of hearsay in the probation vio lation report, thus violating Holman’s right to confrontati on in violation of the Fourteenth Amendment of the United States Constitution. Henderson v. Commonwealth, 285 Va. 318, 326, 736 S.E.2d 901, 905 (2013) (holding that testimonial hearsa y is subject to the limited con frontation right provided by the Fourteenth Amendment to probationers in revocation proceedings) . Generally, we review a trial court’s decision to admit hearsa y evidence for an abuse of disc retion. Id. at 329, 736 S.E.2d at 907. Whether admitting that evidence violated a defendant’s du e process rights is a question of law, reviewed de novo . Id. Here, however, we assume w ithout deciding that the tria l court erred in admitting the hearsay portions of the report, 2 and conclude that such error was harmless.

2 The Commonwealth argues that t he alleged hearsay in the reportwas not, in fact, testimonial in nature. In assu ming without deciding the trial court erred, we a lso assume without deciding the challenged portions of the report were testimonial hearsay. We elect to do so because of the trial court’s troubling assertions that in a rev ocation proceeding, “hearsay of every- 7 - “It is well established that vi olations of the Confrontation C lause . . . are subject to harmless error review.” L uginbyhl v. Commonwealth, 48 Va. App. 58, 64, 628 S.E.2d 74, 77 (2006) ( en banc ) (quoting United State s v. McClain, 377 F.3d 219, 222 (2d Cir. 2004)). Because Holman asserts a violati on of his constitutional rights , the error must be harmless beyond a reasonable doubt. Cra wford v. Commonwealth, 281 Va. 8 4, 101, 704 S.E.2d 107, 117 (2011). “This standard requires a determination of ‘whether th ere is a reasonable possibility that the evidence complained of might have contributed to the convic tion.’” Lilly v. Commonwealth, 258 Va. 548, 551, 523 S.E.2d 208, 209 (1999) (quoting Chapman v . California, 386 U.S. 18, 23 (1967)). Harmless error review “puts a limitation on the power s of this [C]ourt to reverse the judgment of the trial court — a limitation which we must consid er on every application for an appeal and on the hearing of every case submitted to our judgme nt.” Cox v. Commonwealth, 65 Va. App. 506, 521, 779 S.E.2d 199, 206 (2015) (quoting Walker v . Commonwealth, 144 Va. 648, 652, 131 S.E. 230, 231 (1926)). Here, Holman objected only to tho se portions of the report tha t occurred prio r to Reed’s assuming his supervision — i.e. , Holman’s failure to report his grand larceny arrest within th e

kind is admissible.” This is an overly broad, and thus incorre ct, statement of the law. Although hearsay rules are relaxed in a probation revocation proceeding, a probationer nonetheless retains a limited due process right to c onfrontation. A judge must fin d good cause to admit testimonial hearsay, expressly considering w hether the proffered evidence i s reliable, or weighing the respective interest s of the defendant and the prosecution. Hen derson, 285 Va. at 326-28, 736 S.E.2d at 905-06; see also C ox v. Commonwealth, 65 Va. App. 506 , 519, 779 S.E.2d 199, 205 (2015); Saunders v. Commonwealth, 62 Va. App. 793, 808-09, 753 S.E.2d 602, 609-10 (2014). Here, the trial court failed to conduct a “good cause” analysis before admitting the report over Holman’s objection. In light o f the trial court’s repeate d statements that all hearsay is admissible in a revocation proceeding, we cannot infer that suc h an analysis is implicit in the record.- 8 - specified timeframe, and his Oct ober 2015 failure to report a c hange in residence. 3 Considering the trial court’s emphasis on Hol man’s other violations, as wel l as the corroborating evidence of those offenses, we find that the trial court, even setting asid e the hearsay issues in controversy, had ample grounds upon which to revoke Holman’s suspended sente nces. First, Holman never challenged that he failed to re port the arrest within the three -day window required by the terms of his probation. Second, the O ctober 2015 violation was just one of four similar instances in which Holman either failed to repor t his current residence or f ailed to seek advance permission to move. The other three took plac e during Reed’s tenure as Ho lman’s probation officer. 4 Finally, the trial court’s stat ements evince that it would have revoked Holman’s sentences independent of these two viola tions. In revocation proceedings , “proof beyond a reasonable doubt is not required.” Mars hall v. Commonwealth, 202 Va. 217, 221, 116 S.E.2d 270, 274 (1960) (citing Slayton v. Commonwealth, 185 Va. 357, 366, 38 S. E.2d 479, 483 (1946)). Code § 19.2-306 sets forth the burden of proof in revocation proceed ings, stating that a court may revoke the suspension of a senten ce “for any cause the court de ems sufficient” and that

3 The violation report describe s this offense as follows: On October 7, 2015, Holman reported to be living with his mothe r at [address redacted] in Richmond City, Virginia. On October 21, 2015, a home contact was attempted at Holman’s reported residence. Holman’s moth er was at the residence and s he stated that Holman had not been l iving at the residence and tha t she did not know where Holman was living. Holman’s mother stated that Holman had instructed her to tell the probation officer th at he was living at the residence. Holman did not seek permission t o, nor did he report this chang e of residence to his probation officer until October 27, 2015, a fter his probation officer had discovere d that Holman had intentiona lly mislead [sic] his probation officer in reporting this residence

.
4 Also, unlike in other cases , e.g. Cox, 65 Va. App. at 512 & n. 1, 779 S.E.2d at 201 & n.1; Henderson, 285 Va. at 322, 736 S.E.2d at 903, Reed not onl y had personal knowledge of many of the reported violations, but he in fact authored the ma jor violation report, and was Holman’s probation officer at the time of the revocation hearin g.- 9 - revocation is proper if the c ourt “finds good cau se to believe that the defendant has violated the terms of suspension.” Here, the trial court was “95 pe rcent sure of [Holman’s] guilt ” in the grand larceny case, and found that this charge “al one was enough to revoke.” Even though the trial court did not find Holman guilty of grand larceny beyond a reasonable doubt, the level of cer tainty the court expressed satisfies the standa rd of proof in a revocation proce eding. Most importantly, it demonstrates that the trial c ourt required no additional violat ions to find revocation appropriate. In light of this, any violation of Holman’s confrontation right s resulting from the admission of the report was harmless beyond a reasonable doubt. See Brant v . Commonwealth, 32 Va. App. 268, 278-79, 527 S.E.2d 476, 481 (2000).
III. C ONCLUSION Holman failed to preserve his obj ection to the trial court cons idering facts from the grand larceny trial at the revocation proceeding, and the ends of jus tice exception does not apply; therefore, he has waived thi s argument under Rule 5A:18. Assum ing without deciding that the trial court erred in admitting por tions of the violation report , such error was harmless. Affirmed.