COURT OF APPEALS OF VIRGINIA 

Present: Judges Bumgardner, Humphreys and Clements 

Argued at Salem, Virginia 

JULEIAN CAPPELL 

 MEMORANDUM OPINION* BY 

v. Record No. 0807-02-3 JUDGE JEAN HARRISON CLEMENTS 

 MAY 27, 2003 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY 

John J. McGrath, Jr., Judge 

 Aaron L. Cook (Aaron L. Cook, PC, on brief), 

for appellant. 

 Virginia B. Theisen, Assistant Attorney 

General (Jerry W. Kilgore, Attorney General, 

on brief), for appellee. 

 Juleian Cappell appeals from a judgment of the trial court 

revoking his previously suspended sentence. On appeal, Cappell 

contends the trial court (1) abused its discretion in finding him 

in violation of his supervised probation and revoking his 

previously suspended sentence and (2) violated his due process 

rights by relying on a ground for revocation that was not included 

in the notice he was given. For the reasons that follow, we 

affirm the judgment of the trial court. 

 As the parties are fully conversant with the record in this 

case and because this memorandum opinion carries no precedential 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.
value, this opinion recites only those facts and incidents of the 

proceedings as are necessary to the parties' understanding of the 

disposition of this appeal. 

I. BACKGROUND 

 On February 10, 1999, having convicted Cappell of four 

charges of forging public records, the trial court sentenced him 

to eight years' imprisonment. The trial court then suspended the 

imposition of the entirety of that sentence and placed Cappell on 

supervised probation for three years. 

 On September 14, 2001, while still on probation, Cappell was 

arrested in connection with the homicide of Rosendo Cruz on 

September 12, 2000, and charged with first degree murder, use of a 

firearm in the commission of murder, discharging a firearm within 

one thousand feet of school property, and possession of a firearm 

after having been convicted of a felony. 

 On September 28, 2001, Cappell's probation officer submitted 

a letter to the trial court alleging Cappell had violated the 

conditions of his probation by virtue of his arrest on the 

September 12, 2000 charges. Specifically, the probation officer 

alleged Cappell had violated "Condition No. 1: 'I will obey all 

Federal, State, and Local laws and ordinances'" and "Condition No. 

9: 'I will not use, own, possess, transport or carry a firearm.'" 

 In a jury trial on February 27 and 28, 2002, Cappell was 

acquitted of the murder, use of a firearm, and discharge of a 

firearm charges. The trial court granted the Commonwealth's 

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motion for nolle prosequi of the possession of a firearm charge on 

March 11, 2002. 

 On March 11, 2002, the same judge who presided over the jury 

trial held a revocation hearing. The judge stated, without 

objection, that the hearing would proceed on Cappell's alleged 

"fail[ure] to keep the peace and be of good behavior [and] 

violation of loca[l] and state ordinances." At the hearing, the 

judge, without objection, admitted the transcript of the jury 

trial into evidence and observed that he had reviewed his notes 

from the jury trial. 

 The evidence from the jury trial revealed that the homicide 

of Rosendo Cruz occurred on the evening of September 12, 2000, 

during an altercation on Norwood Street in the City of 

Harrisonburg between Ashby Jackson and several of his cohorts and 

some "Hispanic" men Jackson had confronted earlier that day. 

Numerous witnesses at the scene of the altercation testified at 

trial as witnesses for the Commonwealth. Several witnesses who 

participated in the conflict were given lenient dispositions of 

their charges by the Commonwealth in exchange for their testimony. 

 The testimony regarding Cappell's participation in the 

conflict varied. One witness testified she did not see him in the 

area of the altercation. Another witness at the scene of the 

altercation testified that, after hearing the gunshots, he saw 

Cappell running with Jackson's brother to Cappell's vehicle. 

Jackson's brother testified he drove with Cappell to the scene of 

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the altercation on Norwood Street. He saw Cappell get out of the 

vehicle but did not see him when the shots were fired. After 

hearing the gunshots, he returned to Cappell's vehicle and saw 

Cappell running back to the vehicle. He did not see Cappell with 

a gun in the vehicle or when Cappell was running back to the 

vehicle. 

 Kenneth Shawn McAfee provided the most conclusive evidence of 

Cappell's involvement in the altercation. McAfee, a convicted 

felon whose murder charge and malicious wounding by mob charge 

were respectively "nol prossed" and reduced to a misdemeanor by 

the Commonwealth in exchange for his testimony, testified he heard 

"one or two" gunshots during the altercation. He looked in the 

direction of the gunfire and saw "a couple more" flashes of light. 

He saw a "gun like object," with "flames shooting from it as it 

[was] fired," in the hand of a man he "took . . . to be" Cappell. 

The shooter's "bald head, . . . wire frame glasses, . . . build, 

and complexion" matched those of Cappell, McAfee stated. He 

testified he was not positive it was Cappell because "there [were] 

no street lights right there" and it was "dark," but he was 

"ninety-five percent sure" Cappell was the shooter. When McAfee 

later asked Cappell "what made [him] do it," Cappell told him only 

that "everybody would be all right." 

 Officer Kevin Whitfield, who investigated the homicide, 

testified that, during an interview conducted on September 14, 

2001, Cappell told him that he did not know anyone associated with 

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the shooting incident, had never been on Norwood Street, and was 

at home at the time of the shooting. Whitfield further testified 

that Cappell told him that he was intoxicated on the night of the 

shooting. 

 At the revocation hearing, Cappell maintained there was no 

basis for the revocation of his suspended sentence because he was 

acquitted of the charges relating to the homicide of Rosendo Cruz. 

Given McAfee's lack of credibility, Cappell argued, the 

Commonwealth could argue, at best, only that he was present at the 

scene of the altercation, which is not, by itself, a valid reason 

to revoke his suspended sentence.1 The Commonwealth countered 

that the evidence at trial amply demonstrated Cappell violated the 

terms and conditions of his probation. For example, the 

Commonwealth argued, the probation officer's letter of September 

28, 2001, stated that a term of Cappell's probation was to 

"[r]emain drug and alcohol free." Cappell, the Commonwealth 

continued, admitted to Officer Whitfield that he had been drinking 

and was intoxicated on the night of the shooting. Cappell raised 

no objection to the Commonwealth's argument. 

 Following the argument of counsel at the revocation hearing, 

the trial court concluded: 

 1

 At the revocation hearing, Cappell agreed with the trial 

court that the standard of proof to be applied in a revocation 

proceeding is a preponderance of the evidence and conceded that 

a conviction for a subsequent criminal offense is not necessary 

for there to be a probation violation. 

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This Court sitting as a finder of fact based 

upon the evidence that was adduced would find 

that the Commonwealth carried a burden of 

showing by a preponderance of the evidence 

that Mr. [Cappell] was the gunman involved in 

the slaying of Rosendo Cruz. 

* * * * * * * 

 . . . [A]ssuming arguendo, although I 

do not agree with it, that I would be 

precluded from considering that fact because 

of the jury verdict. There is ample other 

evidence in the record. For example, . . . 

* * * * * * * 

 Paul Jackson . . . and McAfee, and, I 

believe, one other witness put Cappell in the 

middle of this gang of men that went over to 

seek retribution against the two Hispanic 

males. Also we have the fact according to 

Officer Whitfield that when interrogated by 

Officer Whitfield concerning the shooting of 

Rosendo Cruz, Mr. Cappell made a number of 

statements which in light of the evidence 

that's been introduced the Court finds to be 

clearly dishonest and misleading statements. 

He said he was never at, never been on 

Norwood Street in his life, et cetera. 

Didn't know anything about it. I think the 

evidence clearly shows that he was present at 

the slaying of Mr. Rosendo Cruz if not the 

gunman himself. Also I would note that he 

was under the influence of alcohol at the 

time contrary to the terms of his probation. 

Therefore, the Court finds that he is in 

violation of his probation, and the Court 

revokes all of his suspended sentence and 

remands him to the custody of the . . . 

Sheriff. 

 Cappell's attorney then responded, "If the Court would just 

note my exception. Thank you." 

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II. ANALYSIS 

 Cappell contends the trial court's decision to revoke his 

probation was arbitrary and an abuse of discretion because the 

evidence was insufficient to support the court's finding that 

Cappell was the gunman in the death of Rosendo Cruz. Cappell 

argues that, in making that finding, the trial court improperly 

relied on the "less than certain and wholly discredited testimony" 

of Kenneth Shawn McAfee, which "stands alone as the only evidence 

suggesting that . . . Cappell may be the gunman." 

 When the sufficiency of the evidence is challenged on appeal, 

we view the evidence "in the light most favorable to the 

Commonwealth, granting to it all reasonable inferences fairly 

deducible therefrom." Bright v. Commonwealth, 4 Va. App. 248, 

250, 356 S.E.2d 443, 444 (1987). "The credibility of a witness, 

the weight accorded the testimony, and the inferences to be drawn 

from proven facts are matters solely for the fact finder's 

determination." Crawley v. Commonwealth, 29 Va. App. 372, 375, 

512 S.E.2d 169, 170 (1999). 

 "When a defendant fails to comply with the terms and 

conditions of a suspended sentence, the trial court has the power 

to revoke the suspension of the sentence in whole or in part." 

Alsberry v. Commonwealth, 39 Va. App. 314, 330, 572 S.E.2d 522, 

525 (2002). "A trial court has broad discretion to revoke a 

suspended sentence and probation based on Code § 19.2-306, which 

allows a court to do so 'for any cause deemed by it sufficient.'" 

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Davis v. Commonwealth, 12 Va. App. 81, 86, 402 S.E.2d 684, 686 

(1991). 

 The cause deemed by the court to be 

sufficient for revoking a suspension must be 

a reasonable cause. 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 fact and 

judgment thereon are reversible only upon a 

clear showing of abuse of discretion." The 

discretion required is a judicial discretion, 

the exercise of which "implies conscientious 

judgment, not arbitrary action." 

Marshall v. Commonwealth, 202 Va. 217, 220, 116 S.E.2d 270, 273 

(1960) (quoting Slayton v. Commonwealth, 185 Va. 357, 367, 38 

S.E.2d 479, 484 (1946)). 

 Moreover, "good behavior is a condition of every suspension, 

with or without probation, whether expressly so stated or not." 

Id. Thus, "the failure of a defendant to be of good behavior, 

amounting to substantial misconduct, during the period of the 

suspension would provide reasonable cause for revocation of the 

suspension." Id. at 220-21, 116 S.E.2d at 273-74. 

 Upon our review of the record, we conclude the evidence 

therein is sufficient to sustain the trial court's finding that 

Cappell violated the terms and conditions of his suspended 

sentence. Contrary to his statements to Officer Whitfield that he 

did not know anyone associated with the shooting, had never been 

on Norwood Street, and was at home at the time of the shooting, 

three of the Commonwealth's witnesses placed Cappell at the scene 

of the crime among the group of men who went to Norwood Street to 

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confront the victim and his associates. Additionally, McAfee 

testified that, based on his observation of the shooter's 

distinctive physical characteristics, he was "ninety-five percent 

sure" Cappell was the shooter. The trial judge, who had also 

presided over the jury trial, implicitly found that McAfee's 

testimony was credible. 

 Not held to the higher evidentiary standard of beyond a 

reasonable doubt, see id. at 221, 116 S.E.2d at 274, the trial 

court was entitled to find from this evidence, notwithstanding the 

jury's verdict, that Cappell was illicitly involved in the 

homicide of Rosendo Cruz and that he subsequently made several 

deceitful statements to a police officer investigating that crime 

in order to conceal his involvement. On the basis of either of 

those findings, the trial court could properly conclude that 

Cappell failed "to be of good behavior, amounting to substantial 

misconduct, during the period of the suspension" of his 

sentence. Id. at 220-21, 116 S.E.2d at 273-74. We hold, 

therefore, that the trial court had reasonable cause to revoke the 

suspension of Cappell's sentence and did not abuse its discretion 

in doing so. 

 Cappell also argues that the trial court erroneously relied 

on his consumption of alcohol on the night of the homicide as a 

ground to support his revocation. He contends the trial court's 

reliance on this ground, which had not been previously alleged by 

the Commonwealth, violated his due process rights. 

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 Rule 5A:18 provides, in pertinent part, that "[n]o ruling of 

the trial court . . . will be considered as a basis for reversal 

unless the objection was stated together with the grounds therefor 

at the time of the ruling." (Emphasis added.) Thus, we will not 

consider a claim of trial court error as a ground for reversal 

"where no timely objection was made." Marshall v. Commonwealth, 

26 Va. App. 627, 636, 496 S.E.2d 120, 125 (1998). Similarly, we 

"will 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 (1988). "Rule 5A:18 applies to bar 

even constitutional claims." Id.

 Here, the Commonwealth reminded the trial court at the 

revocation hearing that the probation officer's letter of 

September 28, 2001, stated that a term of Cappell's probation was 

to "[r]emain drug and alcohol free." Cappell, the Commonwealth 

then pointed out, admitted to Officer Whitfield that he had been 

drinking and was intoxicated on the night of the shooting. 

Cappell did not object to the Commonwealth's argument. Likewise, 

when the trial judge noted, in announcing its ruling at the 

revocation hearing, that Cappell had been "under the influence of 

alcohol at the time contrary to the terms of his probation," 

Cappell voiced no objection. Similarly, Cappell made no argument 

at the revocation hearing that the trial court's consideration of 

his consumption of alcohol was a violation of his due process 

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rights or otherwise improper. Rather, Cappell simply noted his 

exception to the trial court's overall ruling. 

 We hold, therefore, that, having failed to raise the 

instant due process issue before the trial court, Cappell is 

procedurally barred by Rule 5A:18 from raising it for the first 

time on appeal. Moreover, our review of the record in this case 

does not reveal any reason to invoke the "good cause" or "ends 

of justice" exceptions to Rule 5A:18. 

 Accordingly, we affirm the judgment of the trial court. 

 Affirmed.

 

 

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