COURT OF APPEALS OF VIRGINIA 

Present: Judges Bray, Clements and Senior Judge Hodges 

Argued at Chesapeake, Virginia 

JOHN BUTLER, JR. 

 MEMORANDUM OPINION* BY 

v. Record No. 1545-99-1 JUDGE JEAN HARRISON CLEMENTS 

 OCTOBER 17, 2000 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON 

Wilford Taylor, Jr., Judge 

 Robert B. Wilson, V (McDermott & Roe, on 

brief), for appellant. 

 Amy L. Marshall, Assistant Attorney General 

(Mark L. Earley, Attorney General, on brief), 

for appellee. 

John Butler, Jr., was convicted in a bench trial of robbery 

in violation of Code § 18.2-58 and use of a firearm while in the 

commission of a felony in violation of Code § 18.2-53.1. By 

sentencing orders of June 28, 1999, the trial court sentenced 

him to serve 17 years, with 15 years suspended, for the robbery 

conviction and 3 years for the firearm conviction. On appeal, he 

contends the evidence was not sufficient to sustain the 

convictions. Finding appellate review procedurally barred, we 

affirm the convictions. 

 

* Pursuant to Code § 17.1-413, recodifying Code 

§ 17-116.010, this opinion is not designated for publication.
- - 2

As the parties are fully conversant with the record in this 

case and because this memorandum opinion carries no precedential 

value, this opinion recites only those facts necessary to a 

disposition of this appeal. 

Butler contends that the trial court erred in convicting 

him because the "trial court did not believe Percy Mayo," the 

victim and principal witness, and that without Mayo's testimony 

there was not sufficient evidence from the Commonwealth's other 

witnesses--Mayo's mother and Detective Gillis--to convict him. 

Butler relies exclusively on the trial judge's comments at the 

appeal bond hearing on July 13, 1999, as the basis for his 

assertion that the trial court found Mayo's testimony to be 

incredible. At that hearing, the trial judge, in allowing 

Butler's release on supervised probation pending appeal, stated: 

 Well, I will say this case I do 

remember very clearly, and while the victim, 

one victim's credibility was effectively 

challenged, I relied more on the mother of 

that victim. She was an elderly lady that 

really had to watch all of this, and I just 

felt she shouldn't have had to do that. As 

I remember correctly, Mr. Butler did 

apologize to her. 

 You know, it was a very, very serious 

charge, what I considered -- I think I did 

come out on the low end of the guidelines 

because of the nature of the principal 

witness's background. You know, I guess we 

encourage second opinions. 

 What I'm going to do, I'm going to 

reluctantly grant your request . . . in that 

because it's -- I don't normally do this in 
- - 3

these serious crimes of violence, but I do 

remember these facts very clearly. 

Butler argues that this statement by the trial judge indicates 

that the trial court found as a matter of fact that Mayo was not 

a credible witness and that his mother was. Thus, at best, 

according to Butler, the court believed only that portion of 

Mayo's testimony corroborated by his mother. As she failed to 

testify to all of the required elements of robbery and use of a 

firearm in the commission of a felony, Butler could not have 

been properly convicted of those offenses based on her 

testimony. Nor did the testimony of Detective Gillis do more 

than corroborate the fact that a fight took place. It did not 

establish the crimes at issue here. 

 The Commonwealth contends that Butler's argument here, 

concerning the trial judge's comments at the appeal bond 

hearing, was not properly preserved for appeal in accordance 

with Rule 5A:18. We agree. 

 "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 also Rule 5A:18. The purpose of this rule is to ensure that 

the trial court and opposing party are given the opportunity to 

intelligently address, examine, and resolve issues in the trial 

court, thus avoiding unnecessary appeals. See Lee v. Lee, 12 Va. 
- - 4

App. 512, 514, 404 S.E.2d 736, 737 (1991) (en banc); Kaufman v. 

Kaufman, 12 Va. App. 1200, 1204, 409 S.E.2d 1, 3-4 (1991). 

 Here, Butler's sole argument on appeal rests entirely on 

his interpretation of the trial judge's remarks at the appeal 

bond hearing regarding the credibility of Mayo and his mother. 

While Butler touched briefly on the issue of Mayo's credibility 

in his motion to strike at trial, he never presented to the 

trial court the specific argument he now asks us to consider for 

the first time on appeal. He neither made the argument at the 

appeal bond hearing following the trial judge's comments nor 

made any subsequent motions asserting it. Therefore, because it 

was not raised in the trial court, appellant's argument on 

appeal is procedurally barred by Rule 5A:18. Furthermore, 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 appellant's convictions. 

 Affirmed.