COURT OF APPEALS OF VIRGINIA

Present: Ju dges Bumgardner, Hump hreys and Clements Argued at Salem, Virginia

JULEIAN CAPPELL MEMORANDUM OPINION * BY v. Record No. 0807-02-3 JU DGE JEAN HARR ISON 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. Theise n, Assistan t Attorney General (Jerry W. Kilgore, Atto rney General, on brief), for appellee.

Juleian Cappel l appeals from a judgme nt of the trial court revoking his previously suspended sent ence. On ap peal, Cappell contends the trial cour t (1) abused its discre tion in fi nding him in violation of his supervised probatio n and revoking his previously suspended sentence and (2) viol ated his due process rights by relying on a ground for revocation that was not included in the notice he was given. For th e reasons that follow, we affirm the judgment of the trial court. As the parties are fu lly conversant with the record in this case and because this memorandum opinion carr ies no precedential

* Pursuant to Code § 17.1-413, this opinion is not designated for publication.value, this opin ion recites only those facts and in cidents of the proceedings as are nece ssary to the parties' understandin g of the disposition of this appeal. I. BACKGROUND On February 10, 19 99, having convicte d Cappell of four charges of forging publ ic records, the tria l court sent enced him to eight years' impris onment. The trial cour t then suspended the imposition of the entirety of that sentence and placed Cappell on supervised probatio n for three years. On September 14, 20 01, while still on probation, Cappell was arrested in connection with the homicide of Ro sendo Cruz on September 12, 2000 , and charged with first degree mu rder, use of a firearm in the commissi on of murder, discharging a fi rearm within one thousand feet of school prop erty, and possessi on of a firearm after having been co nvicted of a felony. On September 28, 2001, Cappell's probation officer submitted a letter to the trial court alle ging Cappell ha d violated the conditions of hi s probation by virtue of his arrest on the September 12, 2000 charges. Spec ifically, the pr obation officer alleged Cappell ha d violated "Condition No . 1: 'I will obey all Federal, State, and Lo cal laws and ordinances '" and "Condition No. 9: 'I will not use, ow n, possess, transport or carry a firearm.'" In a jury trial on February 27 and 28, 20 02, Cappell was acquitted of the murd er, use of a firearm, and discha rge of a firearm charges. The trial co urt granted the Commonwealth's

- 2 -motion for nolle prosequi of the possession of a fire arm charge on March 11, 2002. On March 11, 2002, th e same judge who pres ided over the jury trial held a revocati on hearing. The ju dge stated, without objection, that the hearing would pr oceed on Capp ell's alleged "fail[ure] to keep the peace an d be of good behavior [and] violation of loca[l] an d state ordinanc es." At the hearing, the judge, without objectio n, admitted the tran script of the jury trial into evidence an d observed that he ha d reviewed his notes from the jury trial. The evidence from th e jury trial revealed that the homicide of Rosendo Cruz occurr ed on the even ing of Septem ber 12, 2000, during an alte rcation on Norwood Stre et in the City of Harrisonburg between As hby Jackson and several of his cohorts and some "Hispanic" men Ja ckson had confro nted earlier that day. Numerous witnesses at the scene of the alte rcation test ified at trial as witnesses fo r the Commonweal th. Several witnesses who participated in the conflict were given lenient di spositions of their charges by the Commonweal th in exchange fo r their te stimony. The testimony rega rding Cappell' s participat ion in the conflict varied. One witness testifie d she did not se e him in the area of the alte rcation. Anothe r witness at th e scene of the altercation test ified that, afte r hearing the gu nshots, he saw Cappell running wi th Jackson's br other to Cappel l's vehicle. Jackson's brother testified he drove with Cappel l to the scene of - 3 -the altercation on Norwood Street. He saw Cappell get out of the vehicle but did no t see him when the shot s were fired. After hearing the gunsho ts, he returned to Ca ppell's vehi cle and saw Cappell running ba ck to the vehicl e. He did not see Cappell with a gun in the vehicle or when Cappell was running back to the vehicle. Kenneth Shawn Mc Afee provided the most conclusive evidence of Cappell's invo lvement in the altercatio n. McAfee, a convicted felon whose murder charge and malicious wo unding by mob charge were respectively "nol prossed" and reduced to a misdemeanor by the Commonwealth in exchange for his test imony, 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 obje ct," with "fla mes shooting fr om it as it [was] fired," in the hand of a ma n he "took . . . to be" Cappell. The shooter's "bal d head, . . . wire frame glasses, . . . build, and complexion" ma tched those of Cappell, McAfee stated. He testified he was not po sitive it was Cappell because "there [were] no street lights ri ght there" and it wa s "dark," but he was "ninety-five percent su re" Cappell was the shooter. When McAfee later asked Cappel l "what made [him ] do it," Cappel l told him only that "everybody wo uld be all right." Officer Kevin Whit field, who investig ated the homicide, testified that, du ring an interv iew conducted on September 14, 2001, Cappell to ld him that he di d not know anyone associated with

- 4 -the shooting incident, had never been on No rwood Street , and was at home at the time of the shooting. Whit field further testified that Cappell told him that he was in toxicated on th e night of the shooting. At the revocation hearing, Cappell main tained there was no basis for the revo cation of his su spended sent ence 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 altercatio n, which is not, by itself, a va lid reason to revoke his su spended sentence. 1 The Commonwe alth countered that the evidence at trial amply demo nstrated Cappel l violated the terms and condit ions of his pr obation. For example, the Commonwealth argued, th e probation offi cer's letter of September 28, 2001, stated that a term of Capp ell's probat ion was to "[r]emain drug and al cohol free." Cappell, the Commonwealth continued, admitted to Officer Whitfiel d that he had been drinking and was intoxicate d on the night of the sh ooting. Cappell raised no objection to the Co mmonwealth's argument. Following the ar gument of counse l 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.

- 5 -This Court sittin g as a finder of fact based upon the evidence that was adduced would find that the Commonwealth carried a bu rden of showing by a prepondera nce of the evidence that Mr. [Cappell] was th e gunman involved in the slaying of Rosendo Cruz. * * * * * * * . . . [A]ssuming arguendo, al though I do not agree with it, that I would be precluded from consider ing that fa ct because of the jury verdict. There is ample other evidence in th e record. For example, . . . * * * * * * * Paul Jackson . . . and McAfee , and, I believe, one other witn ess put Capp ell in the middle of this gang of men that went over to seek retribution agai nst the two Hispanic males. Also we have the fact according to Officer Whitfiel d that when in terrogated by Officer Whitfiel d concerning the shooting of Rosendo Cruz, Mr . Cappell made a number of statements which in li ght of the evidence that's been intr oduced the Cour t finds to be clearly dishones t and misleading statements. He said he was neve r at, never been on Norwood Street in his life, et cetera. Didn't know an ything about it . I think the evidence clearly shows th at he was present at the slaying of Mr. Rose ndo Cruz if not the gunman himself. Also I would note that he was under the in fluence of alcohol at the time contrary to the te rms of his probation. Therefore, the Court fi nds that he is in violation of his prob ation, and the Court revokes all of his su spended sent ence and remands him to the cu stody of the . . . Sheriff. Cappell's attorn ey then responded, "I f the Court would just note my exceptio n. Thank you."

- 6 -II. ANALYSIS Cappell contends the trial co urt's decision to revoke his probation was arbi trary and an abuse of discretion because the evidence was insuffic ient to suppor t the court's finding that Cappell was the gu nman in the de ath of Rosendo Cruz. Cappell argues that, in making that finding, the tr ial court im properly relied on the "l ess than certain and wholly discre dited testimony" of Kenneth Shawn McAfee, which "sta nds alone as the only evidence suggesting that . . . Cappell may be the gunman." When the sufficiency of the evidence is ch allenged on appeal, we view the evidence "in the light most favorable to the Commonwealth, granting to it all reason able inferences fairly deducible th erefrom." Bright v. Commonwealth , 4 Va. App. 248, 250, 356 S.E.2d 443, 444 (1987). "The cred ibility of a witness, the weight accorded th e testimony, and the in ferences to be drawn from proven facts ar e matters sole ly 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 wi th the terms and conditions of a suspended sent ence, the trial court has the power to revoke the suspension of the se ntence in whole or in part." Alsberry v. Commonwealth , 39 Va. App. 314, 33 0, 572 S.E.2d 522, 525 (2002). "A trial court has broad discretion to revoke a suspended sent ence and probatio n based on Code § 19.2-306, which allows a court to do so 'for any cause deemed by it sufficient.'"

- 7 -Davis v. Commonwealth , 12 Va. App. 81, 86, 402 S.E.2d 684, 686 (1991). The cause de emed by the court to be sufficient for revoking a suspension must be a reasonable cause. The sufficie ncy of the evidence to su stain an order of revocation "is a matter within th e sound disc retion of the trial court. Its finding of fact and judgment thereon are re versible only upon a clear showing of abuse of discreti on." The discretion required is a judicial discretion, the exercise of which "implies conscientious judgment, not arbi trary 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 conc lude the evidence therein is sufficient to sustain the trial court's find ing that Cappell violated the terms and conditions of his suspended sentence. Contrary to his statements to Officer Whit field that he did not know anyone as sociated with the shooting, ha d never been on Norwood Street , and was at home at th e time of th e shooting, three of the Commonweal th's witnesses placed Cappell at the scene of the crime among the group of men who went to Norwood Street to - 8 -confront the victim and his associat es. Addition ally, McAfee testified that, based on his observat ion of the shooter's distinctive ph ysical characterist ics, he was "nin ety-five percent sure" Cappell was the shooter. The trial judge, who had also presided over th e jury trial, im plicitly found that McAfee's testimony was credible. Not held to the hi gher evidentiary stan dard of beyond a reasonable doubt, see id. at 221, 116 S.E.2d at 274, the trial court was entitled to find from this evid ence, notwiths tanding the jury's verdict, that Cappell was illicitly invo lved in the homicide of Rose ndo Cruz and that he su bsequently ma de several deceitful stat ements to a police officer investig ating that crime in order to conceal hi s 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 ha d reasonable caus e to revoke the suspension of Ca ppell's senten ce and did not abus e its discretion in doing so. Cappell also argues that the trial cour t erroneousl y relied on his consumptio n of alcohol on the nigh t of the homicide as a ground to suppor t his revocation. He contends th e trial court's reliance on this grou nd, which had no t been previous ly alleged by the Commonweal th, violated his du e process rights.

- 9 -Rule 5A:18 provides, in pertinent part, th at "[n]o ruling of the trial court . . . wi ll be considered as a basis for reversal unless the objection wa s stated together with the ground s therefor at the time of the ruling ." (Emphasis added.) Thus, we will not consider a claim of tr ial court error as a ground for reversal "where no timely ob jection 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 Commonwe alth reminded the trial court at the revocation hearing th at the probation of ficer's letter of September 28, 2001 , stated that a term of Cappell's pr obation was to "[r]emain drug and alcohol free." Cappell, the Commonwealth then pointed out, admi tted to Office r Whitfield that he had been drinking and was into xicated on the night of the shooting. Cappell did not ob ject to the Comm onwealth's argume nt. Likewise, when the trial judge noted, in anno uncing its ruling at the revocation hearing, th at Cappell had been "under th e influence of alcohol at the time contrary to th e terms of his probation," Cappell voiced no objection. Simi larly, Cappell ma de no argument at the revocation hear ing that the trial cour t's consider ation of his consumption of alcohol was a violat ion of his due process

- 10 -rights or otherw ise improper. Rather, Ca ppell simply noted his exception to the trial court's over all 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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