COURT OF APPEALS OF VIRGINIA 

Present: Judges Coleman, Elder and Fitzpatrick 

Argued at Richmond, Virginia 

ROBERT E. CONNER 

 MEMORANDUM OPINION* BY 

v. Record No. 1720-96-2 JUDGE JOHANNA L. FITZPATRICK 

 MARCH 25, 1997 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF BRUNSWICK COUNTY 

Robert G. O'Hara, Jr., Judge 

 Matthew N. Ott (Michelle Morris Jones; 

Matthew N. Ott, P.C., on briefs), for 

appellant. 

 Kathleen B. Martin, Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 Robert E. Conner (appellant) was convicted in a bench trial 

of taking indecent liberties with a minor and of contributing to 

the delinquency of a minor. On appeal, he contends that the 

trial court erred in (1) finding the evidence sufficient to prove 

that appellant maintained a custodial or supervisory relationship 

with the victim as required by Code § 18.2-370.1; and (2) 

allowing a mental health counselor to testify about her 

observations of the victim. 

 In May and June of 1994, appellant was the "homebound 

teacher" for J.T. Allen (Allen) who had been injured in an 

automobile accident. After the school year ended, appellant 

maintained contact with Allen, because he "had gotten to know 

 

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

designated for publication. 
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J.T. and he was having a few family problems and his mother 

wanted me to stay involved with and help J.T." 

 During the following school year, appellant was a substitute 

teacher at Allen's school. He continued to remain friendly with 

Allen. On occasions when appellant substituted in Allen's class, 

he called Allen to the front of the room where they would talk. 

On other occasions, when appellant substituted for another class, 

he would remove Allen from class to walk around or go to the 

agricultural department building to smoke. Allen eventually 

complained to the principal because he "got tired" of appellant 

frequently having him excused from class. 

 On April 18, 1995, after an argument with his mother, Allen, 

then age seventeen, contacted appellant and asked him for a ride. 

 Appellant picked up Allen and a friend, allowed Allen to drive 

his friend back to town, and told Allen to return to appellant's 

home. After returning to appellant's home, appellant took 

several pictures of Allen and while posing him, unzipped his 

pants. He pulled Allen's pants down further, and measured 

Allen's forearms, muscles, and stomach, and "he stuck, put the 

end of the measuring tape in one hand and the ruler in the other 

one and he stuck his hand down [Allen's] pants, grabbed [his] 

penis and said, 'Why don't we measure this too?'" Appellant told 

Allen not to tell anyone about the incident. Allen left in 

appellant's car and did not return. 

 At trial, Jan L. Hundley (Hundley), a licensed clinical 
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nurse specialist in child and adolescent psychiatry, testified 

that she had known Allen since 1993. She was not qualified as an 

expert witness. The trial court allowed Hundley to testify 

regarding her "observations" only. Hundley testified regarding 

her observations of Allen's emotional state and demeanor: "He 

was ashamed, he hung his head, he would not speak above a 

whisper. . . . At times he cried uncontrollably . . . . At times 

he was shaking." 

 After the close of all the evidence, the court stated: 

 It has been said and resaid the issue is 

indeed one of credibility. The Court is the 

trier of fact. It has heard the evidence. 

It has had the opportunity to observe the 

witnesses, their manner and appearance on the 

stand, their intelligence, their opportunity 

and their positions in the matter to have 

observed the things about which they've 

testified, their interest in the outcome of 

the case, their bias or prejudice, if any, 

their prior statements, consistent or 

inconsistent, whether they have knowingly 

testified untruthfully as to any material 

fact. 

 The Court applies as the trier of facts 

its common sense to those circumstances and 

all of the circumstances determined from the 

evidence. And when so doing, in 

consideration of the two charges before it, 

the Court is of the opinion that the evidence 

beyond a reasonable doubt supports the 

conviction of the defendant of both charges. 

. . . And the Court does so find the 

defendant guilty as charged. . . . 

 I. 

 Appellant's claim that the evidence was insufficient to 

establish that he maintained a "custodial or supervisory 
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relationship" with Allen on April 18, 1995 is procedurally 

barred. As this Court's review is limited to the record on 

appeal, appellant's failure to transcribe his motion to strike 

and closing argument prevents review in this case. See Justis v. 

Young, 202 Va. 631, 632, 119 S.E.2d 255, 256-57 (1961). Without 

a complete transcript that includes the argument, this Court has 

no knowledge of the arguments made by appellant to the trial 

court. We will not consider on appeal an argument that was not 

presented to the trial court where the record reflects no reason 

to invoke the good cause or ends of justice exceptions to Rule 

5A:18. See Buck v. Commonwealth, 247 Va. 449, 452-53, 443 S.E.2d 

414, 416 (1994); Jacques v. Commonwealth, 12 Va. App. 591, 593, 

405 S.E.2d 630, 631 (1991) (citing Rule 5A:18). 

 II. 

 "The admissibility of evidence is within the broad 

discretion of the trial court, and a ruling will not be disturbed 

on appeal in the absence of an abuse of discretion." Blain v. 

Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988). 

"[I]n a bench trial, the trial judge is presumed to disregard 

prejudicial or inadmissible evidence . . . ." Hall v. 

Commonwealth, 14 Va. App. 892, 902, 421 S.E.2d 455, 462 (1992) 

(en banc) (citations omitted). "'Evidence is relevant if it has 

any logical tendency, however slight, to establish a fact at 

issue in the case.'" Taylor v. Commonwealth, 21 Va. App. 557, 

563, 466 S.E.2d 118, 121 (1996) (quoting Ragland v. Commonwealth, 
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16 Va. App. 913, 918, 434 S.E.2d 675, 678 (1993)). "'Once 

evidence is determined to be relevant and material, "[t]he 

responsibility for balancing . . . probative value and prejudice 

rests in the sound discretion of the trial court," and its 

decision "will not be disturbed on appeal in the absence of a 

clear abuse."'" Id. (quoting Wilkins v. Commonwealth, 18 Va. 

App. 293, 298, 443 S.E.2d 440, 443 (1994) (en banc) (citation 

omitted)). 

 Lay witnesses may testify regarding observations they have 

made about the physical condition of a person with whom they are 

familiar. See Speller v. Commonwealth, 2 Va. App. 437, 441, 345 

S.E.2d 542, 545 (1986). Hundley had counseled Allen since August 

1993 and was familiar with his personality traits. Her 

observations about his demeanor after April 18, 1995 were 

relevant circumstantial evidence that corroborated the offense. 

See Taylor, 21 Va. App. at 565, 466 S.E.2d at 121-22. In the 

instant case, the trial court did not permit Hundley to state any 

professional diagnosis, and properly limited her testimony to 

observations that could have been made by a lay person. 

 Moreover, this was a bench trial. "A judge . . . is 

uniquely suited by training, experience and judicial discipline 

to disregard potentially prejudicial comments and to separate, 

during the mental process of adjudication, the admissible from 

the inadmissible, even though he has heard both." Eckhart v. 

Commonwealth, 222 Va. 213, 216, 279 S.E.2d 155, 157 (1981). 
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"Consequently, we presume that" the trial judge disregarded "any 

prejudicial or inadmissible evidence." Cole v. Commonwealth, 16 
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Va. App. 113, 116, 428 S.E.2d 303, 305 (1993). Finding no 

reversible error, we affirm. 

 Affirmed.