COURT OF APPEALS OF VIRGINIA 

Present: Judges Haley, Petty and Powell 

Argued at Salem, Virginia 

HARRY M. YOUNG, S/K/A 

 HARRY MOUTIER YOUNG 

 MEMORANDUM OPINION∗ BY 

v. Record No. 0014-08-3 JUDGE JAMES W. HALEY, JR. 

 FEBRUARY 3, 2009 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF BRISTOL 

Charles B. Flannagan, II, Judge 

 Michael A. Bishop (Michael A. Bishop, P.C., on brief), for 

appellant. 

 Rosemary V. Bourne, Assistant Attorney General (Robert F. 

McDonnell, Attorney General, on brief), for appellee. 

I. INTRODUCTION 

Harry Moutier Young (“Young”) argues the trial court erred in refusing to permit him to 

inquire, upon cross-examination, about certain details of pending charges against a 

Commonwealth witness. On brief, Young concedes he “did not make a record of such question 

during the trial.” Thus, Young failed to preserve his argument for our review as required by 

Rule 5A:18.1

 Accordingly we affirm. 

 ∗

 Pursuant to Code § 17.1-413, this opinion is not designated for publication. 

1

 This point was likewise conceded during oral argument. 
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II. BACKGROUND 

A grand jury indicted Young on three counts of distribution of cocaine. The evidence 

against Young came from a female police informant (“P.N.”) and the police officers working 

with her. 

Prior to trial, Young filed a motion asking the court “to determine . . . whether the 

informant’s relationship with the drug task force may be questioned for bias.” Young asserted 

“that the informant is currently under investigation for crimes involving narcotics” and that those 

alleged acts, “although criminal in nature and currently pending . . . [cause] legal bias.” The 

circuit court addressed the motion at the beginning of the trial. The court held “the defendant is 

entitled to show” bias and that it would “take that up as the issue arises.” 

During her testimony, P.N. stated she worked with the police because she “was tired of 

the crack being out on the streets” and because she received money for her help. On 

cross-examination, defense counsel asked P.N. about pending charges against her. The 

following exchange occurred: 

Q. What was the offense? 

A. Breaking and entering. 

Q. What were you alleged to have stolen? 

A. DVDs. 

[Prosecutor]: Your Honor, I’m going to object. I think he 

can ask her what she was charged with going towards bias, not 

impeachment, but to go into the actual allegations of the offense, 

first off, they’re hearsay; secondly, they’re still pending charges. I 

think that would be going too far otherwise. 

[Defense counsel]: Your Honor, the Commonwealth has 

opened the door by her feelings towards narcotics. 

[Prosecutor]: Your Honor, she’s charged with breaking 

and entering and petit larceny. We think, therefore, asking her the 

nature of the offense as well as the offense dates may be relevant 
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and, therefore, the defendant — defense counsel can ask, but to ask 

for what the allegations are of the charges, first, they are hearsay, 

and they have nothing to do with her bias. 

[Judge]: All right. Maybe you’d better restate your 

question. You are permitted to inquire as to the nature of the 

offenses, but we don’t need to get into the details of the offense. 

After this colloquy, defense counsel began a new line of questioning and did not raise the 

issue of allegations against P.N. concerning theft again. A jury convicted Young on all charges. 

 Young filed a motion to set aside the verdict based on the circuit court sustaining the 

Commonwealth’s objection, quoted above, as to the scope of cross-examination. The motion 

stated Young’s pretrial motion asked the court “to rule on his ability to cross-examine the 

confidential informant about the details of her pending charges involving the theft of controlled 

substances for possible legal bias.” It further asserted the informant’s professed desire to help 

police eradicate narcotics permitted defense counsel to inquire concerning “the subject of her 

motives for aiding the narcotics law enforcement agents.” 

 That motion was considered at a sentencing hearing on November 5, 2007. Counsel 

maintained P.N. “exhibited to the Court and to the jury her disgust with narcotics, while she had 

current pending charges involving the theft of narcotics.” Summarizing, counsel stated that if the 

jury “knew that she was stealing narcotics and her statement of disgust for drugs wasn’t entirely 

truthful, that her believability may have been altered, and that if her believability were altered, 

that the case itself may have been altered.” Significantly, even at this stage of the proceeding, 

Young never demonstrated that P. N. had been charged with stealing narcotics rather than DVDs, 

as she had testified at trial. The court denied the motion, holding Young received an adequate 

opportunity to cross-examine the informant. 
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III. ANALYSIS 

 Rule 5A:18 provides in part: “No 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, except for good cause shown or to enable the Court of Appeals to attain the ends of 

justice.” “‘The Court of Appeals will not consider an argument on appeal which was not 

presented to the trial court.’” George v. Commonwealth, 51 Va. App. 137, 148, 655 S.E.2d 43, 

48 (2008) (quoting Ohree v. Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488 

(1998)). 

 The contemporaneous objection rule exists “‘to alert the trial judge to possible error so 

that the judge may consider the issue intelligently and take any corrective actions necessary to 

avoid unnecessary appeals, reversals and mistrials.’” Neal v. Commonwealth, 15 Va. App. 416, 

422, 425 S.E.2d 521, 525 (1992) (quoting Martin v. Commonwealth, 13 Va. App. 524, 530, 414 

S.E.2d 401, 404 (1992)). The requirement also “gives the opposing party the opportunity to 

meet the objection at that stage of the proceeding.” West v. Commonwealth, 43 Va. App. 327, 

337, 597 S.E.2d 274, 278 (2004). 

To these ends, an objection “must be both specific and timely.” Thomas v. 

Commonwealth, 44 Va. App. 741, 750, 607 S.E.2d 738, 742, adopted upon reh’g en banc, 45 

Va. App. 811, 613 S.E.2d 870 (2005). As we have previously summarized: 

It is the duty of a party, as a rule . . . to state the grounds of 

his objection, so that the trial judge may understand the precise 

question or questions he is called upon to decide. The judge is not 

required to search for objections which counsel have not 

discovered, or which they are not willing to disclose. 

Darnell v. Commonwealth, 12 Va. App. 948, 952-53, 408 S.E.2d 540, 542 (1991) (internal 

quotation marks and citation omitted). Furthermore, “one specific argument on an issue does not 
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preserve a separate legal point on the same issue for review.” Edwards v. Commonwealth, 41 

Va. App. 752, 760, 589 S.E.2d 444, 448 (2003) (en banc). 

 Applying these standards, we conclude Young failed to preserve his assignment of error, 

during trial, for our review. He concedes that point. 

Nonetheless, Young maintains the trial court should somehow have perceived the basis of 

his objection. Young’s pretrial motion never mentioned the informant was charged with or being 

investigated concerning theft of narcotics. Rather, it stated she “is currently under investigation 

for crimes involving narcotics.” The nature of those crimes, if any, remained, and still remain, 

unspecified. Second, the dialogue in question, quoted above, failed to give the trial court notice 

that defense counsel wished to question the informant concerning alleged theft of narcotics. 

When defense counsel asked the informant what her pending charges alleged her to have stolen, 

she responded “DVDs.” The prosecution then objected to revealing the details of the alleged 

offenses, and defense counsel argued to the court that “the Commonwealth has opened the door 

by her feelings towards narcotics.” Defense counsel’s statement did not alert the judge the 

informant was alleged to have stolen narcotics. Since Young failed to alert the trial court to his 

assignment of error at trial, we may not consider it on appeal. 

 Although Young presented the trial court with the argument he raises on appeal in his 

motion to set aside the verdict, this came too late to preserve the contention for appeal. As our 

Supreme Court has held: “No objection was made . . . until argument by [defense] counsel on 

the motion to set aside the verdict. Thus, the objection came too late for any error to be 

corrected by the trial court, and for the error, if any, to constitute reversible error.” Ryan v. 

Commonwealth, 219 Va. 439, 447, 247 S.E.2d 698, 704 (1978); see also Carter v. Nelms, 204 

Va. 338, 343, 131 S.E.2d 401, 404 (1963); Boblett v. Commonwealth, 10 Va. App. 640, 651, 396 

S.E.2d 131, 137 (1990). 
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 Even if Rule 5A:18 did not apply, Young’s assignment of error would still fail because he 

did not proffer the substance of the excluded testimony.2 If a trial court excludes testimony, the 

offended party must proffer the expected answer by an unchallenged statement of counsel, 

mutual stipulation, or testimony in the absence of the jury. Whittaker v. Commonwealth, 217 

Va. 966, 969, 234 S.E.2d 79, 81 (1977). Without a proffer, “we cannot competently determine 

error [or] much less reversible error.” Tynes v. Commonwealth, 49 Va. App. 17, 21, 635 S.E.2d 

688, 689 (2006). This Court “will not consider testimony which the trial court has excluded 

before it was presented without a proper showing of what that testimony would have been.” 

Lockhart v. Commonwealth, 34 Va. App. 329, 340, 542 S.E.2d 1, 6 (2001). “The failure to 

proffer the expected testimony is fatal to [a] claim on appeal.” Molina v. Commonwealth, 47 

Va. App. 338, 367-68, 624 S.E.2d 83, 97 (2006). 

 Here Young failed to present the trial court with a proper proffer to preserve his claim for 

appeal. As noted previously, Young’s pretrial motion only stated “that the informant is currently 

under investigation for crimes involving narcotics.” At trial, Young simply told the court the 

prosecution “has opened the door by her feelings towards narcotics.” After the trial court 

sustained the prosecution’s objection, Young did not seek to question the informant outside the 

presence of the jury or make a proffer. Young also did not try to introduce the desired evidence 

by other means of questioning. While Young indicated he believed P.N. to have pending charges 

concerning the theft of narcotics in his motion to set aside the verdict, this assertion, made after 

the jury was discharged, and with no evidence supporting the assertion in the record, came too 

 2

 This point was conceded at oral argument. 
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late for preservation upon appeal. Roadcap v. Commonwealth, 50 Va. App. 732, 740 n.1, 653 

S.E.2d 620, 624 n.1 (2007).3

 For the foregoing reasons, we affirm the judgment of the trial court. 

Affirmed. 

 3

 The cited footnote in Roadcap stated: 

In his post-trial briefs and arguments, Roadcap’s counsel 

stated that he needed to amplify his position with additional points 

he had not specifically raised at trial. A litigant, however, cannot 

wait until after trial to present foundation evidence pertinent to a 

trial court’s decision during trial to allow or exclude testimony. 

See Jones v. Commonwealth, 50 Va. App. 437, 445, 650 S.E.2d 

859, 863 (2007) (agreeing that “post-trial motions regarding 

admission of evidence generally are not timely, especially after the 

jury has reached a verdict and been excused”); see also Boblett v. 

Commonwealth, 10 Va. App. 640, 650-51, 396 S.E.2d 131, 136-37 

(1990). Rule 5A:18 requires both the objection and the “grounds 

therefor” to be made “at the time of the ruling.”