COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Bray and Senior Judge Hodges 

Argued at Norfolk, Virginia 

TERRY DENOVIS McCLOUD 

v. Record No. 2343-94-1 MEMORANDUM OPINION* BY 

 JUDGE WILLIAM H. HODGES 

COMMONWEALTH OF VIRGINIA DECEMBER 5, 1995 

FROM THE CIRCUIT COURT OF NORTHAMPTON COUNTY 

Glen A. Tyler, Judge 

 A. Theresa Bliss for appellant. 

 Michael T. Judge, Assistant Attorney General 

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

brief), for appellee. 

 Terry Denovis McCloud (appellant) was convicted of 

possession of a firearm after having been convicted of a felony, 

in violation of Code § 18.2-308.2. On appeal, appellant contends 

that the court erred in admitting evidence that shots were fired, 

a car was struck by bullets, and a passenger was injured by a 

bullet. We affirm the conviction. 

 I. 

 On May 15, 1994, George Bundick, Albertina Tennell, and 

Terrence Brisco went to Herman's, a night club located in 

Eastville. Appellant also was there. At around 2:00 a.m., when 

the club closed, Bundick, Tennell, and Brisco planned to leave in 

Tennell's car. When appellant appeared at the driver's window, 

Bundick was in the driver's seat, Tennell was closing the front 

passenger door, and Brisco was in the rear passenger seat. 

Appellant was pointing a gun at the car window. 

 

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

designated for publication. 
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 Everyone in the car ducked down in the seats. As Bundick 

began to drive away, three shots rang out. Two of the shots hit 

Tennell's car, one of them injured Brisco. A bullet lodged just 

inches away from Brisco's spine, causing numbness in his legs. 

Bundick drove him to the hospital. 

 Appellant initially was indicted for aggravated malicious 

wounding, shooting into an occupied vehicle, use of a firearm in 

the commission of aggravated malicious wounding, and possession 

of a firearm after having been convicted of a felony. On the day 

of trial, however, the first three counts were "nolle prossed," 

and appellant was tried only on the charge of possession of a 

firearm by a convicted felon. He was convicted, in a bench 

trial, of that charge. 

 II. 

 At trial, Tennell testified first for the Commonwealth. She 

stated that she saw appellant standing outside the car with a gun 

in his hand. She stated that shots were fired, but that 

appellant did not fire them.1

 She testified that three shots 

were fired, with two of them hitting the car. She stated that 

"about three seconds down the road," she knew someone had been 

wounded in the shooting. Appellant voiced no objection to 

Tennell's testimony. 

 Brisco testified next for the Commonwealth. He 

testified that shots were fired and he was hit. Appellant 

stated, "I'm going to object," and the court overruled the 

 1Tennell testified that after she had ducked down in the 

seat, she looked up, and "[appellant] and Ali had switched hands 

by then." 
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objection. Brisco then testified about the extent of his injury. 

 Bundick testified that, as he was driving away, shots were 

fired and Brisco told him he had been shot. Bundick stated that 

he took Brisco to the hospital. Appellant did not object during 

Bundick's testimony. 

 Deputy Marshall then testified on behalf of the 

Commonwealth. When Marshall testified that the Tennell car had 

been twice struck by bullets, appellant objected. Counsel 

stated, "Judge, again I'm going to object as to -- the charge 

here is possession of a firearm, not anything to do with shooting 

and I don't think that those pictures or the shooting itself is 

relevant to this charge." The court overruled the objection. 

Later, the court clarified appellant's position. The court 

asked, "Your objection is that the fact that there was a gunshot 

striking the car is irrelevant to this charge?" Counsel for 

appellant responded, "Yes, sir." 

 During appellant's case, counsel asked Andrew Whaley, Garry 

Custis, Larry Custis, and Keva Collins if they had heard gunfire 

at Herman's club that night. These witnesses responded that they 

had heard shots outside the club at closing time, although none 

had seen appellant with a gun. 

 III. 

 Appellant claims on appeal that the court erred in admitting 

evidence that a gun was fired, that bullets struck the Tennell 

car, and that Brisco was injured, because that evidence was 

irrelevant and prejudicial to him. Appellant did not object when 

Tennell and Bundick testified that shots were fired. He made 
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only an unspecified objection, with no grounds stated, when 

Brisco testified that shots were fired and he was hit. See Rule 

5A:18 (objection must be stated "together with the grounds 

therefor at the time of the ruling . . . ."). 

 Although appellant made a specific objection, on relevance 

grounds, to Deputy Marshall's testimony that shots were fired, 

three other witnesses had already related such evidence with 

either no or an inadequate objection. 

 Significantly, moreover, when appellant elicited testimony 

from four defense witnesses that they heard shots fired outside 

Herman's at closing time, he waived any objection he may have had 

to evidence that shots were fired. "'[W]here an accused 

unsuccessfully objects to evidence which he considers improper 

and then on his own behalf introduces evidence of the same 

character, he thereby waives his objection, and we cannot reverse 

for the alleged error.'" Hubbard v. Commonwealth, 243 Va. 1, 9, 

413 S.E.2d 875, 879 (1992) (quoting Saunders v. Commonwealth, 211 

Va. 399, 401, 177 S.E.2d 637, 638 (1970)). 

 Appellant did not make a timely and specific objection to 

admission of evidence of Brisco's injuries. During Brisco's 

testimony, appellant gave no grounds whatsoever for his 

objection. During Marshall's testimony, his objection was to 

evidence of a shooting and photographs of the damaged car. 

Accordingly, he is barred by Rule 5A:18 from arguing on appeal 

that the trial court erred in admitting evidence of Brisco's 

injuries because such evidence was irrelevant and prejudicial. 

Moreover, the record does not reflect any reason to invoke the 
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good cause or ends of justice exceptions to Rule 5A:18. 

 Finally, as to the evidence that Tennell's car was struck by 

bullets, appellant's objection to this evidence came only during 

Marshall's testimony. Tennell already had testified, without 

objection, to the fact that the car had been struck and thus the 

evidence already was before the fact finder. 

 Further, the evidence was relevant to the charge of 

possession of a firearm by a convicted felon. Tennell and Brisco 

testified that they saw appellant with a gun. The fact that 

shots were fired, striking the car, corroborated their testimony. 

 It was relevant evidence because it established that appellant 

possessed a weapon, capable of firing bullets. See Jones v. 

Commonwealth, 16 Va. App. 354, 357, 429 S.E.2d 615, 617, aff'd, 

17 Va. App. 233, 436 S.E.2d 192 (1993) (en banc) ("Code 

§ 18.2-308.2 prohibits a felon from possessing a device that has 

the actual capacity to do serious harm because of its ability to 

expel a projectile by the power of an explosion . . . ."). 

 Finally, the court did not abuse its discretion in 

determining that the probative value of the evidence outweighed 

its prejudicial effect. See Ragland v. Commonwealth, 16 Va. App. 

913, 918, 434 S.E.2d 675, 678 (1993). Appellant was tried by the 

court, sitting without a jury, and "in a bench trial, the trial 

judge is presumed to disregard prejudicial or inadmissible 

evidence[.] . . . [T]his presumption will control in the absence 

of clear evidence to the contrary." Hall v. Commonwealth, 14 Va. 

App. 892, 902, 421 S.E.2d 455, 462 (1992) (en banc). See Eckhart 

v. Commonwealth, 222 Va. 213, 216, 279 S.E.2d 155, 157 (1981). 
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 We affirm the judgment of the trial court. 

 Affirmed.