COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick,* Judge Elder and 

 Senior Judge Duff 

Argued at Alexandria, Virginia 

JOSHUA MARK TESTA 

 MEMORANDUM OPINION**

v. Record No. 1496-96-4 BY JUDGE CHARLES H. DUFF 

 DECEMBER 9, 1997 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF LOUDOUN COUNTY 

Thomas D. Horne, Judge 

 Buta Biberaj (Jonathan G. Martinis; Biberaj & 

Associates, on brief), for appellant. 

 Daniel J. Munroe, Assistant Attorney General 

(Richard Cullen, Attorney General; Monica S. 

McElyea, Assistant Attorney General, on 

brief), for appellee. 

 Following a jury trial, appellant, Joshua Mark Testa, was 

convicted of conspiracy to escape from a secure juvenile 

detention facility, escape by force from a secure juvenile 

detention facility, conspiracy to commit robbery, and petit 

larceny. On appeal, appellant contends that the Commonwealth 

failed to identify him as the person arrested and charged with 

the crimes for which he was tried. Appellant also asserts that 

the Commonwealth's evidence regarding the charges of escape from 

a juvenile facility and conspiracy to escape from a juvenile 

 

 *On November 19, 1997, Judge Fitzpatrick succeeded Judge 

Moon as chief judge. 

 **Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
 2 

facility was insufficient because it failed to establish that he 

was a resident of a juvenile facility pursuant to an order of the 

juvenile and domestic relations district court. For the reasons 

that follow, we affirm. 

Background

 "On appeal, we review the evidence in the light most 

favorable to the Commonwealth, granting to it all reasonable 

inferences fairly deducible therefrom." Martin v. Commonwealth, 

4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). So viewed, the 

evidence proved that, on January 28, 1995, appellant, Bradley 

Gibson, and David Smith were locked inside a Loudoun County 

Juvenile Interim Holding Facility ("JIHF Hut"). Deputy Norman 

Miller was on duty at the time and possessed keys for the 

facility's doors. Around 1:00 a.m., Gibson attacked Miller, 

immobilizing him. Smith removed the facility's keys from 

Miller's pocket, appellant unlocked the door, and the three 

detainees fled the JIHF Hut. 

The Identification

 The facts in this case, as they relate to the identification 

of a defendant at trial, are strikingly similar to the facts of 

Sheffey v. Commonwealth, 213 Va. 602, 194 S.E.2d 897 (1973). In 

Sheffey, the Supreme Court found sufficient evidence identifying 

Sheffey as the person arrested and tried, despite the police 

officer's failure to point out Sheffey at trial and make an 

in-court identification. See id. at 603, 194 S.E.2d at 898. The 
 3 

Supreme Court held that the Commonwealth had adequately 

identified the defendant because the trial judge had pointed him 

out to the jury at the beginning of the trial. See id. 

Additionally, "[a]t no time during the presentation of evidence 

was any question raised" by Sheffey that the individual arrested 

and charged was not in fact the same person in the courtroom 

being tried. Id. 

 At the beginning of appellant's trial, the trial judge made 

the following statement to the jurors: 

 Ladies and gentleman of the venire, the case 

that you have been called on to hear today is 

a criminal case in which Joshua Mark Testa, 

who is the young man seated at counsel table 

to my left and is now standing before you, is 

charged that he did on or about the 28th day 

of January in the year 1995, [commit five 

crimes] . . . . 

 During appellant's trial, Deputy Sheriff DiBenedetto 

testified that in late January 1995, he worked at the JIHF Hut. 

The Commonwealth's attorney asked if "the Defendant, Josh Testa" 

was assigned to the JIHF Hut, and DiBenedetto responded, "That is 

correct." Throughout the three-day trial, witnesses referred to 

"Mr. Testa," and to "Josh." Like the defendant in Sheffey, at no 

time during the presentation of the evidence did appellant raise 

any question that the individual charged with the crimes was not 

the person sitting at counsel table. 

 Because the trial judge identified appellant to the jury as 

the person on trial, and because DiBenedetto acknowledged that 

the defendant and "Testa" were one in the same, we find that, as 
 4 

in Sheffey, the Commonwealth sufficiently identified appellant at 

trial as the person charged with the crimes. See id. (noting 

that arresting officer referred to Sheffey as defendant and by 

name). Accordingly, the trial judge did not err in refusing to 

strike the evidence. 

 In his brief, appellant challenges for the first time the 

constitutionality of the Supreme Court's decision in Sheffey. 

The Court of Appeals will not consider an argument on appeal 

which was not presented to the trial court. See Jacques v. 

Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d 630, 631 (1991) 

(citing Rule 5A:18). Because this argument was not presented to 

the trial court, Rule 5A:18 bars our consideration of this 

question on appeal. Moreover, the record does not reflect any 

reason to invoke the good cause or ends of justice exceptions to 

Rule 5A:18. 

Pursuant to a Court Order

 Appellant contends that the Commonwealth failed to prove 

beyond a reasonable doubt that he was residing at the JIHF Hut 

pursuant to a court order, consequently, the Commonwealth failed 

to prove all the elements of the charges against him. 

 It shall be unlawful for any person to 

escape . . . from a facility operated by the 

Department of Youth and Family Services or 

from a secure juvenile detention facility in 

which he had been placed by the juvenile and 

domestic relations court or as a result of 

his commitment as a juvenile to the 

Department of Youth and Family Services. 

Code § 18.2-477.1(B). 
 5 

 "The juvenile and domestic relations district court judges 

share" supervisory powers "over the intake officers with the 

Department of Youth and Family Services." Roach v. Commonwealth, 

251 Va. 324, 338, 468 S.E.2d 98, 106 (1996). The version of 

Code § 16.1-255 in effect at the time of appellant's detention 

provided, in pertinent part, that "[n]o detention order shall be 

issued for any child except when authorized by the judge or 

'intake officer' of a juvenile court." See also Tross v. 

Commonwealth, 21 Va. App. 362, 379, 464 S.E.2d 523, 531 (1995) 

(noting that juvenile intake officers share with juvenile and 

domestic relations district court judges the power to issue 

detention orders). 

 Viewed in the light most favorable to the Commonwealth, see

Martin, 4 Va. App. at 443, 358 S.E.2d at 418, the evidence proved 

that appellant was in the JIHF Hit awaiting a forthcoming 

"detention review hearing." In a post-arrest statement, 

appellant told Lieutenant Buckman, "I was going to wait for my 

detention review hearing if I ever wanted to get out of here." 

If appellant had an upcoming detention review hearing, then a 

fortiori, he was being detained pursuant to an order of 

detention. 

 Captain Ronald Gibson, chief correctional officer for the 

sheriff's office of Loudoun County, testified that he 

"frequented" the JIHF Hut "[m]aybe once every week or so 

depending on how often it was open." The following exchange took 
 6 

place at trial: 

 PROSECUTOR: Captain, you said that you would 

go over maybe once a month depending on how 

often it was opened. What triggered it being 

open? 

 GIBSON: When there was -- a juvenile was 

ordered to a secured -- to a detention center 

and there was no bed space available and they 

would then be housed there waiting bed space 

in the Juvenile Detention Center. 

 PROSECUTOR: And when you say ordered, 

ordered by whom? 

 GIBSON: The Juvenile Domestic Relations 

Court Judge Clements, or whoever it was 

presiding that day. 

 Thus, according to Gibson, the only persons detained in the 

JIHF Hut were juveniles ordered there by the juvenile and 

domestic relations district court judge. 

 Considering the evidence as a whole and according the fact 

finder all of the inferences fairly deducible therefrom, we hold 

that the Commonwealth's evidence was competent, was not 

inherently incredible, and was sufficient to prove beyond a 

reasonable doubt that appellant escaped from "a facility operated 

by the Department of Youth and Family Services or from a secure 

juvenile detention facility in which he had been placed by the 

juvenile and domestic relations court or as a result of his 

commitment as a juvenile to the Department of Youth and Family 

Services." Code § 18.2-477.1. 

 Accordingly, we affirm the convictions. 

 Affirmed.