COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Bumgardner and Agee 

Argued at Salem, Virginia 

JASON SANDERS WOLFE 

 OPINION BY 

v. Record No. 1714-00-3 JUDGE JERE M. H. WILLIS, JR. 

 NOVEMBER 13, 2001 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF WYTHE COUNTY 

J. Colin Campbell, Judge 

 David S. Saliba (Laura E. Wilson; Saliba & 

Co., P.C., on briefs), for appellant. 

 Virginia B. Theisen, Assistant Attorney 

General (Randolph A. Beales, Acting Attorney 

General, on brief), for appellee. 

 Upon his guilty plea, Jason Sanders Wolfe was convicted of 

first-degree murder, in violation of Code § 18.2-32. On appeal, 

he contends that the trial court erred at sentencing (1) in 

considering the portions of the pre-sentence report and 

probation officer's testimony containing extra-judicial 

statements made by his wife, (2) in admitting evidence of 

unadjudicated criminal conduct based on hearsay that had no 

indicia of reliability, and (3) in admitting the pre-sentence 

report into evidence. For the following reasons, we affirm the 

judgment of the trial court. 
I. BACKGROUND

 On April 11, 2000, Wolfe pled guilty to first-degree 

murder. The trial court ordered a pre-sentence report and set 

sentencing for June 27, 2000. 

 At the beginning of the sentencing hearing, Wolfe moved to 

prohibit the Commonwealth from introducing a portion of the 

pre-sentence report regarding a charge that he had made a 

threatening telephone call. He argued that this charge had been 

dismissed and, therefore, was irrelevant to his criminal history 

and his background and should not be considered. 

 The trial court ruled: 

I'm going to deny your motion. The Court 

finds that it's part of the history of the 

defendant and it's a proper subject to be 

recorded in the presentence report. What 

weight the Court gives it is a matter for 

the Court to consider, but I will not remove 

it. 

 Next, Wolfe moved to prohibit the Commonwealth from 

introducing evidence of statements made by Christy Terry, his 

wife, on the ground that those statements were barred by Code 

§ 19.2-271.2. 

 The trial court denied Wolfe's motion, ruling: 

[Ms. Terry's] statements were in essence 

published. They were made public by her 

before the marriage. . . . [T]hey were made 

at a time when she was seeking a protective 

order on the grounds that she feared for her 

lift [sic], and I think that coupled with 

the fact that this is not an evidentiary 

trial on her statements, but this is a 

presentence report giving a history, I don't 

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think [Code § 19.2-271.2] applies and I deny 

your motion. 

 Over Wolfe's objection, the probation officer testified 

that, in 1997, Wolfe threatened a fellow employee at Heilig 

Meyers with a box-cutter. The probation officer testified that 

she had spoken to Captain Dunagan of the sheriff's office, who 

had investigated this incident, but had not spoken to the victim 

or to any witness. She included information about the incident 

in the pre-sentence report. 

 The probation officer further testified concerning a 

threatening telephone call made by Wolfe to a former girlfriend, 

Angela Phillips. The probation officer testified that she 

discovered in the juvenile and domestic relations district court 

records a criminal complaint that contained the details of the 

threatening call. She testified, however, that she had not 

spoken directly with Phillips. She included in the pre-sentence 

report information that she had obtained from the criminal 

complaint concerning this incident. 

 The probation officer further testified that, in 1999, 

prior to her marriage to Wolfe, Ms. Terry filed a motion for a 

protective order against him. In the motion, Ms. Terry claimed 

that Wolfe had choked, kicked, and pushed her, put holes in the 

walls of their apartment, held a cigarette to her ear, and 

threatened to kill her and any man with whom he caught her. The 

probation officer testified that she acquired this information 

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by speaking with Captain Dunagan of the sheriff's department, 

reviewing a taped interview conducted by an officer, and 

reviewing court records. She included information concerning 

the protective order in the pre-sentence report. 

 In imposing sentence, the trial court noted that it had 

considered the pre-sentence report and listened to the testimony 

of all the witnesses. The trial court noted, in mitigation, 

that Wolfe had an "uneventful" criminal history. However, it 

also noted that "[Wolfe] had a history of [an] explosive, 

uncontrolled temper which probably would never have manifested 

itself if he hadn't been abusing alcohol and drugs." The trial 

court sentenced Wolfe to forty years confinement, with twelve 

years, one month suspended. 

II. MARITAL PRIVILEGE

 Wolfe first contends that the trial court erred in 

considering the portions of the pre-sentence report and the 

probation officer's testimony relating extrajudicial statements 

made by Christy Terry, his wife. He argues that Code 

§ 19.2-271.2, the marital privilege statute, prohibits the 

Commonwealth from introducing such evidence. 

 Code § 19.2-271.2 provides: 

In criminal cases husband and wife shall be 

allowed, and, subject to the rules of 

evidence governing other witnesses and 

subject to the exception stated in 

§ 8.01-398, may be compelled to testify in 

behalf of each other, but neither shall be 

compelled to be called as a witness against 

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the other, except (i) in the case of a 

prosecution for an offense committed by one 

against the other or against a minor child 

of either, (ii) in any case where either is 

charged with forgery of the name of the 

other or uttering or attempting to utter a 

writing bearing the allegedly forged 

signature of the other or (iii) in any 

proceeding relating to a violation of the 

laws pertaining to criminal sexual assault 

(§§ 18.2-61 through 18.2-67.10), crimes 

against nature (§ 18.2-361) involving a 

minor as a victim and provided the defendant 

and the victim are not married to each 

other, incest (§ 18.2-366), or abuse of 

children (§§ 18.2-370 through 18.2-371). 

The failure of either husband or wife to 

testify, however, shall create no 

presumption against the accused, nor be the 

subject of any comment before the court or 

jury by any attorney. 

In the prosecution for a criminal 

offense as set forth in (i), (ii) or (iii) 

above, each shall be a competent witness 

except as to privileged communications. 

 In Cairns v. Commonwealth, 35 Va. App. 1, 542 S.E.2d 771 

(2001), we said that "[Code 19.2-271.2] pertains specifically to 

testimony in criminal cases." Id. at 10, 542 S.E.2d at 775. 

Ms. Terry's statements were not given as testimony in a criminal 

case, but were made during the investigatory stages of a 

separate crime. She was not compelled to testify against Wolfe, 

and, in fact, did not testify. Code § 19.2-271.2 does not apply 

to a report of her earlier extra-judicial statements. See

Livingston v. Commonwealth, 21 Va. App. 621, 628, 466 S.E.2d 

757, 760 (1996) (statute does not pertain to information given 

during pretrial investigations). See also Burns v. 

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Commonwealth, 261 Va. 307, 332-33, 541 S.E.2d 872, 889-90 (2001) 

(setting forth a similar ruling with respect to Code 

§ 8.01-398(A) pertaining to confidential spousal 

communications). 

 Furthermore, "while preserving in the 'witness spouse 

. . . the privilege' to avoid compelled testimony," Code 

§ 19.2-271.2 affords a defendant on trial no right to object to 

his spouse's voluntary testimony. See Turner v. Commonwealth, 

33 Va. App. 88, 95, 531 S.E.2d 619, 622 (2000).1 Ms. Terry's 

statements were in no sense compelled, but were made 

voluntarily. 

 Accordingly, the trial court did not err in considering the 

portions of the pre-sentence report and the probation officer's 

testimony relating statements made by Ms. Terry. 

III. UNADJUDICATED CRIMINAL CONDUCT

 Next, Wolfe contends that the trial court erred at 

sentencing in admitting evidence of unadjudicated criminal 

conduct. He argues that the report of his prior conduct, 

 1

 Former Code § 19.2-271.2 provided: 

In criminal cases . . . neither [husband nor 

wife] shall be compelled, nor, without the 

consent of the other, allowed, to be called 

as a witness against the other . . . . 

The 1996 amendment eliminated the underlined language. See 1996 

Acts of Assembly, Ch. 423. 

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included in the pre-sentence report, was based on hearsay that 

bore no indicia of reliability. 

 We have held that a trial judge 

may rely upon a defendant's criminal record. 

He may consider prior juvenile 

adjudications, dismissed juvenile charges 

and pending charges, charges for which the 

accused has been indicted, but not 

convicted, offenses for which the defendant 

has been convicted, but not sentenced, 

convictions on appeal, and evidence of 

unadjudicated criminal activity. . . . 

Thomas v. Commonwealth, 18 Va. App. 656, 659, 446 S.E.2d 469, 

471 (1994) (en banc) (citations omitted). In holding that a 

trial court may consider a pre-sentence report containing 

hearsay and evidence of unadjudicated crimes without offending 

the due process guarantee, the Supreme Court has stated that 

"most of the information now relied upon by judges to guide them 

in the intelligent imposition of sentences would be unavailable 

if information were restricted to that given in open court by 

witnesses subject to cross-examination." Williams v. New York, 

337 U.S. 241, 250 (1949). 

 "In the sentencing phase of a case, the trial court may 

rely upon hearsay testimony." Alger v. Commonwealth, 19 Va. 

App. 252, 258, 450 S.E.2d 765, 768 (1994). "The information 

relied upon by the court must, however, have some indicia of 

reliability." Id.

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A. BOX-CUTTER INCIDENT

 We find no error in the trial court's admitting evidence 

that on a prior occasion Wolfe held a box-cutter to a 

co-worker's throat. The probation officer learned of this from 

Captain Dunagan of the sheriff's department, who had 

investigated the co-worker's complaint. The probation officer 

reported that the victim had not pressed charges because he was 

frightened. Wolfe was fired after this incident. These 

circumstances provide the requisite "indicia of reliability." 

Therefore, this evidence was properly admitted. 

B. THREATENING PHONE CALL

 We find no error in the trial court's admitting evidence 

that Wolfe made a threatening phone call to his former 

girlfriend, Angela Phillips. According to the probation 

officer's testimony, this call was the subject of a criminal 

complaint filed in the juvenile and domestic relations district 

court. The pre-sentence report recited that the court took this 

accusation under advisement for one year and eventually 

dismissed it. Moreover, Wolfe acknowledged that Ms. Phillips 

had sworn an affidavit charging that he had threatened to kill 

her and anyone she was dating. This evidence bears the 

requisite "indicia of reliability" and, therefore, was properly 

admitted. 

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C. MOTION FOR PROTECTIVE ORDER

 We find no error in the trial court's admitting into 

evidence the portion of the pre-sentence report and the 

probation officer's testimony concerning prior conduct between 

Wolfe and Ms. Terry. The probation officer testified that she 

had reviewed a taped interview of Ms. Terry by Captain Dunagan, 

in which Ms. Terry stated that Wolfe had choked, kicked and 

pushed her, put holes in the walls of their apartment, held a 

cigarette to her ear, and threatened to kill her and any man 

with whom he caught her. The probation officer testified that 

she had also reviewed a protective order that was issued because 

of these allegations. This evidence bears the requisite 

"indicia of reliability" and, therefore, was properly admitted. 

IV. PRE-SENTENCE REPORT

 Finally, Wolfe contends that the trial court should have 

excluded the pre-sentence report "in its entirety." However, 

because Wolfe failed to move the trial court to exclude the 

entire report, Rule 5A:18 bars our consideration of this issue. 

"The Court of Appeals 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 (1998); 

see Rule 5A:18. The record reflects no reason to invoke the 

good cause or ends of justice exceptions to Rule 5A:18.2

 2

 Code § 19.2-299 requires that the report on Wolfe's 

criminal history "shall be filed as a part of the record." Id.

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 The judgment of the trial court is affirmed. 

 Affirmed.

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