COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Fitzpatrick 

Argued at Alexandria, Virginia 

DENNIS WADE HAYNES 

 MEMORANDUM OPINION* BY 

v. Record No. 0615-94-4 JUDGE JAMES W. BENTON, JR. 

 JUNE 6, 1995 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF PAGE COUNTY 

Perry W. Sarver, Judge 

 Kermit L. Racey, II (Racey & Racey, on brief), 

 for appellant. 

 H. Elizabeth Shaffer, Assistant Attorney General 

 (James S. Gilmore, III, Attorney General, on 

 brief), for appellee. 

 Dennis Wade Haynes was indicted for two offenses of burglary 

and one offense of attempted burglary. He was tried for those 

three felonies and two misdemeanor charges at one trial. At the 

conclusion of the Commonwealth's evidence, the trial judge 

granted the Commonwealth's motion to amend the attempted burglary 

indictment to charge burglary with the intent to commit larceny 

in violation of Code § 18.2-89. On this appeal, Haynes raises 

the following issues: 

 1. Whether the trial judge erred in allowing 

the Commonwealth to amend the attempted 

burglary indictment pursuant to Code 

 § 19.2-231 to charge burglary; 

 2. Whether the amendment violated Haynes' 

constitutional right against double jeopardy; 

 3. Whether the trial judge erred in 

admitting in evidence statements of a coconspirator made to a police officer after 

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

designated for publication. 
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the termination of the criminal enterprise 

and outside of Haynes' presence; 

 4. Whether Haynes received ineffective 

assistance of counsel from his courtappointed counsel; and 

 5. Whether the evidence was sufficient to 

prove Haynes' guilt beyond a reasonable 

doubt. 

For the reasons that follow, we dismiss the appeal in part and we 

affirm the convictions. 

 I. 

 The record establishes that Haynes's trial counsel failed to 

object at trial to several issues that are now raised on appeal. 

 Although Haynes seeks to raise at this time issues concerning 

the amended indictment, when the Commonwealth moved at trial to 

amend the indictment from an attempted burglary to burglary, 

Haynes's trial counsel did not object that such an amendment 

would be unlawful. Counsel also made no objection that such an 

amendment would violate the prohibition against double jeopardy. 

 In fact, counsel said of the amendment, "I don't know of any 

reason for saying it cannot be done at this point." 

 The record also reflects that Haynes's trial counsel voiced 

no objection to Investigator Jenkins's testimony concerning the 

statements related to Jenkins by the other participant in the 

burglaries. We find no indication that this issue was raised in 

any fashion at trial. 

 Rule 5A:18 bars our consideration of these issues on appeal. 

 This Court has repeatedly held that the Court of Appeals will 
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not consider an issue on appeal which was not presented in the 

trial court. See Jacques v. Commonwealth, 12 Va. App. 591, 593, 

405 S.E.2d 630, 631 (1991). Moreover, the record does not 

reflect any reason to invoke the good cause or ends of justice 

exceptions to Rule 5A:18. 

 II. 

 Haynes contends that his trial counsel was ineffective in 

failing to preserve these issues for appeal. Claims of 

ineffective assistance of counsel, however, may no longer be 

raised on direct appeal. Code § 19.2-317.1, which allowed, under 

certain circumstances, direct appeal of claims concerning the 

ineffectiveness of trial counsel, was repealed in 1990. 1990 Va. 

Acts, c. 74. See also Walker v. Mitchell, 224 Va. 568, 570-71, 

299 S.E.2d 698, 699-700 (1983). Accordingly, we dismiss the 

appeal of this issue. Id. at 571, 299 S.E.2d at 700. 

 III. 

 Haynes's counsel did move to strike the evidence. Our 

review of Haynes's challenge to the sufficiency of the evidence 

is guided by a well established principle. "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). 

 Brian Woodward, the other participant in the burglaries, 

testified that he and Haynes both needed money. They decided 
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that breaking into houses "seemed to be the only way" to obtain 

money. Woodward testified that when he and Haynes arrived at the 

first house, Haynes decided that the phone line should be cut so 

that no one could call the police. After they cut wires, they 

opened the back storm door, walked into the house, and took a 

purse from the living room. At the second house, Woodward cut 

the screen on the door and Haynes picked the lock of an interior 

door. They took a purse from the dining room of the house. At a 

third house, they opened an unlocked basement door and entered. 

When they were unable to open a door that led to the main part of 

the house, they left. 

 Jason Judd testified that on the day following the 

burglaries, he heard Haynes and Woodward discussing their 

participation in the burglaries. Judd testified that he became 

angry at Woodward and criticized Woodward for participating in 

the burglaries. 

 The trial judge, as fact finder, explicitly found the 

testimony of Woodward and Judd to be reliable. The trial judge 

rejected Haynes's alibi defense and found that the testimony of 

the alibi witness was not worthy of belief. "The weight which 

should be given to evidence and whether the testimony of a 

witness is credible are questions which the fact finder must 

decide." Bridgeman v. Commonwealth, 3 Va. App. 523, 528, 351 

S.E.2d 598, 601 (1986). The testimony of Woodward and Judd was 

competent, was not inherently incredible, and was sufficient to 
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prove beyond a reasonable doubt that Haynes committed the charged 

offenses. 

 For these reasons, the appeal is dismissed in part and the 

judgment is affirmed. 

 Dismissed, in part, and affirmed.