COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Bray and Annunziata 

Argued at Alexandria, Virginia 

RALPH FOWLER, A/K/A RALPH MANN, 

 A/K/A "KILLA" 

 MEMORANDUM OPINION* BY 

v. Record No. 0629-97-4 JUDGE RICHARD S. BRAY 

 MARCH 24, 1998 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY 

Herman A. Whisenant, Jr., Judge 

 Anne T. Godson for appellant. 

 H. Elizabeth Shaffer, Assistant Attorney 

General (Richard Cullen, Attorney General, on 

brief), for appellee. 

 A jury convicted Ralph Fowler (defendant) for attempted 

murder and related use of a firearm. On appeal, defendant 

complains (1) that the trial court erroneously permitted the 

Commonwealth to amend the indictments to include an alias, 

"Killa," for defendant, and (2) that the evidence is insufficient 

to support the convictions. We disagree and affirm the trial 

court. 

 The parties are fully conversant with the record and this 

memorandum opinion recites only those facts essential for 

disposition of the appeal. 

 In accordance with well established principles, we view the 

evidence in the "light most favorable to the Commonwealth, 

 

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

designated for publication. 
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granting to it all reasonable inferences fairly deducible 

therefrom." Martin v. Commonwealth, 4 Va. App. 438, 443, 358 

S.E.2d 415, 418 (1987). The credibility of a witness, the weight 

accorded the testimony, and the inferences to be drawn from 

proven facts are matters to be determined by the fact finder. 

See Long v. Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473, 

476 (1989). "[A] jury is not required to accept in toto an 

accused's [testimony], but may rely on it in whole, in part, or 

reject it completely." Rollston v. Commonwealth, 11 Va. App. 

535, 547, 399 S.E.2d 823, 830 (1991) (citations omitted). 

 Here, the evidence established that Jimmy Medina, Latisha 

Brown, and their infant daughter were at their residence when 

Medina learned from an acquaintance that someone was "out front 

ask[ing] for [him]." Medina proceeded to the front door and 

observed defendant and Javon Saunders "standing against the car." 

 "They" asked if Medina was Jimmy Hale, a friend of Medina's 

brother, Joseph. Medina replied, "no," closed the door, and 

returned to his family. 

 Shortly thereafter, Medina responded to a knock at the back 

door and again encountered defendant and Saunders. Saunders 

pointed a handgun at Medina's chest and commanded, "You know what 

time it is. Get the f--- on the ground." Presuming that he was 

"getting robbed," Medina struggled with defendant while Saunders 

entered the home, confronted Brown and angrily demanded, "Where 

the f--- is he, bitch?" Brown answered, "I don't know," and 
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Saunders struck her in the face and head with the weapon, stated, 

"F--- this s---, I'm going to cap your ass, bitch," and placed 

the "gun to the back of [her] head." Brown "ducked" and 

immediately heard a gunshot. Also hearing the shot, Medina ran 

from the back door to the front of the residence and was again 

confronted by Saunders pointing the gun at him. Medina then fled 

and escaped, despite pursuit by defendant and Saunders. 

 Subsequent investigation revealed that the bullet passed 

within "four or five inches" of the infant resting on the sofa. 

Forensic tests matched it to a gun discovered during the 

execution of a search warrant at the defendant's residence. 

Handsets from two telephones were missing, and police later 

recovered one near the rear door bearing Saunders' fingerprints. 

 Defendant testified that he and Saunders had traveled to 

Medina's home intending to purchase marijuana, armed with the gun 

as customary during their "drug deals." The three men argued 

over the quantity of drug sold to them by Medina, and Saunders 

threatened Medina with the weapon in an effort to recoup purchase 

money. When Medina fled from the back door, Saunders pointed the 

weapon at Brown, and defendant, not "want[ing] nobody to get 

shot," "snatched the gun" from Saunders and "it went off." 

Defendant denied chasing Medina, but admitted striking Brown "one 

time in the head" "[b]ecause she was . . . raising her voice at 

me and pushing us." 

 Prior to the commencement of trial, the Commonwealth moved 
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to amend the indictments to include the alias, "Killa," for 

defendant. Defendant objected, arguing that no evidence 

supported the proposed amendment. In response, the Commonwealth 

proffered, unchallenged by defendant, that defendant had written 

a letter "signed with that nickname . . . [and bearing] his 

fingerprints," and the court granted the motion. 

The Amendment

 On brief, defendant relied both upon his original argument 

that the Commonwealth failed to provide a proper foundation for 

the amendment, and the additional contention that the "damaging 

nature of this name was highly prejudicial" to defendant, while 

"provid[ing] no probative evidence." However, during oral 

argument, defendant correctly conceded that the unchallenged 

unilateral avowal by the Commonwealth properly established a 

foundation for the amendment, see Stewart v. Commonwealth, 10 Va. 

App. 563, 568, 394 S.E.2d 509, 512 (1990), and we are 

procedurally barred from considering defendant's remaining 

argument. 

 It is well established that we 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). "[E]rror will be sustained to a 

ruling of the trial court only when the objection was stated, 

together with the grounds therefor, at the time of the ruling, 

except for good cause . . . or . . . to attain the ends of 
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justice." Snurkowski v. Commonwealth, 2 Va. App. 532, 536, 348 

S.E.2d 1, 3 (1986); Rule 5A:18. Defendant in this instance 

failed to argue the prejudice issue before the trial court and, 

finding no circumstances justifying the ends of justice 

exception, thereby precluded appellate review. See Redman v. 

Commonwealth, 25 Va. App. 215, 218, 487 S.E.2d 269, 271 (1997). 

Sufficiency of the Evidence

 First degree murder includes "any willful, deliberate, and 

premeditated killing." Code § 18.2-32. "'To sustain a 

conviction for attempted murder, the evidence must establish both 

a specific intent to kill the victim and an overt but ineffectual 

act committed in furtherance of the criminal purpose.'" Bottoms 

v. Commonwealth, 22 Va. App. 378, 382, 470 S.E.2d 153, 155 (1996) 

(quoting Wynn v. Commonwealth, 5 Va. App. 283, 292, 362 S.E.2d 

193, 198 (1987)). The jury may find premeditation based on "all 

the facts and circumstances[, and t]he intention to kill need not 

exist for any specified length of time prior to the [attempted] 

killing." Mundy v. Commonwealth, 11 Va. App. 461, 479, 390 

S.E.2d 525, 535, aff'd en banc, 11 Va. App. 461, 399 S.E.2d 29 

(1990). "'A design to kill may be formed only a moment before 

the [attempted] act is committed provided the accused had time to 

think and did intend to kill.'" Clozza v. Commonwealth, 228 Va. 

124, 134, 321 S.E.2d 273, 279 (1984) (citation omitted). 

 "Concert of action" constitutes "'action that has been 

planned, arranged, adjusted, agreed on and settled between the 
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parties acting together pursuant to some [wrongful] design or 

scheme.'" Berkeley v. Commonwealth, 19 Va. App. 279, 283, 451 

S.E.2d 41, 43 (1994) (citation omitted). "All participants in 

such planned enterprises may be held accountable for incidental 

crimes committed by another participant during the enterprise 

even though not originally or specifically designed." Id. 

"Hence, it is not necessary that the crime should be a part of 

the original design; it is enough if it be one of the incidental 

probable consequences of the execution of that design, and should 

appear at the moment to one of the participants to be expedient 

for the common purpose." Carter v. Commonwealth, 232 Va. 122, 

127, 348 S.E.2d 265, 268 (1986) (citations omitted). 

 Defendant's own evidence clearly established that he and 

Saunders, acting in concert, had gone to Medina's home armed and 

with the intent to purchase illegal drugs. Saunders' subsequent 

conduct and attendant statements to Brown supplied the requisite 

elements of attempted murder as an incidental, likely consequence 

of the joint criminal enterprise. Thus, defendant was equally 

culpable for Saunders' crimes. 

 Accordingly, we affirm the convictions. 

 Affirmed.