COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fe lton, Judges Frank and Powell Argued at Chesapeake, Virginia

DELANO JARRELL DREW MEMORANDUM OPINION * BY v. Record No. 2289-08-1 J UDGE CLEO E. POWELL SEPTEMBER 22, 2009 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH Patricia L. West, Judge Timothy John Quick for appellant. Craig Stallard, Assistant Attorney General (William C. Mims, Attorney General; Josephine F. Whalen, Assistant Attorney General II, on brief), for appellee.

Delano Jarrell Drew (“Drew”) was convicted of two counts of conspiracy, in violation of Code § 18.2-22; robbery, in violation of Code § 18.2-58; attempted robbery, in violation of Code § 18.2-58; two counts of use of a firearm during th e commission of a felony, in violation of Code § 18.2-53.1; and wearing a mask in public, in viol ation of Code § 18.2-422. On appeal, Drew argues that the evidence was insu fficient “to convict [him] of the attempted robbery of Antonio San Jose Gonzales, the use of a firearm during th e commission of that attempted robbery, and the conspiracy to commit that robbery, in the abse nce of the inadmissible hearsay testimony of Rachel Morales proving the identity of the second victim” as Gonzales. 1 Specifically, Drew

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.

1 Though Drew listed all of his convictions on hi s notice of appeal, we will consider only those convictions that relate to his question presented. See Rule 5A:12(c) (providing, in pertinent part, that “[o]nly questions presented in the petition for appeal will be noticed by the Court of Appeals”).- 2 - argues that Morales learne d Gonzales’s identity from others and, therefore, her testimony that Gonzales was the victim of the attempted r obbery she witnessed was inadmissible hearsay. Drew acknowledges that in the trial court he as serted that this object ion applied only to attempted robbery and not to use of a firearm dur ing the commission of a felony or conspiracy to commit robbery. He asks this Court to invoke either the ends of ju stice or good cause shown exceptions to Rule 5A:18 and consider these issu es because the objection is “equally applicable” to the other two charges and Drew “should not be punished for counsel’s failure to recognize” this. We disagree and, for the reasons that follow, we affirm Dr ew’s convictions.
I. BACKGROUND On September 2, 2005, Rachel Morales and Ant onio Gonzales stood in front of his home. As they talked, they noticed a re d car drive past twice. Approxi mately five minutes later, two black men, wearing t-shirts wrappe d like bandannas so that only their eyes and foreheads were exposed, approached them. Morales saw that the taller of the two men carried a gun. The taller man approached Gonzales and orde red Gonzales to give him any items he had on his person. When Gonzales did not hand anyt hing over, the taller man patted Gonzales down, found a pack of cigarettes, and threw it on the gr ound. He said to the shorter man, “Dee, search the car,” and the shorter man complied. The talle r man ordered Morales and Gonzales to walk away and not look back. As Morales walked awa y, she used her cell phone to call the police. Once the police arrived, Morales returned to her car and realized that her compact discs and purse were missing. As part of his investigation, Detective Mark Laino spoke with Drew. During the conversation, Detective Laino explained to Drew that he had information that Drew may have been involved in some robberies with Barry Wil borne, who is significantly taller than Drew. The detective cautioned Drew that robbery is a violent crime – “only a trigger pull away from a- 3 - homicide.” Drew explained that he had been at a friend’s ho use and they were driving around when they saw some people standing outside. Dr ew told the detective “I told [Wilborne] we shouldn’t rob them because we had driven past them two times and they saw us.” Drew confessed that after he and Wil borne drove past Morales and Gonz ales a couple of times, they parked. Drew said that he grabbed a t-shirt and put it around his face. When Detective Laino showed Drew a photograph of Mora les’s car, Drew agreed that th e car looked like the one at the robbery. Drew said that Wilborne was the one who actually took Morales’s purse and that Wilborne had the property because he had a new born to support. In response to Detective Laino’s offer to allow Drew to write a letter of apology, Drew said that he would prefer to apologize in person because it was more personal. At trial, Drew objected to Morales’s test imony identifying Gonzales as the second victim, arguing that this testimony was in admissible hearsay. The trial c ourt overruled this objection. At the close of all of the evid ence, Drew renewed his motion to strike. The trial court accepted the detective’s testimony, disbelieved Drew’s te stimony, and denied Drew’s renewed motion to strike.
II. ANALYSIS Our Court’s rules provide that [n]o ruling of the trial court . . . will be considered as a basis for reversal unless the objection was st ated together with the grounds therefor at the time of the ruling, except for good cause shown or to enable the Court of Appeals to attain the ends of justice. Rule 5A:18. This rule exists so that the trial c ourt is alerted to possible error and is afforded the opportunity to “consider the issue intelligently and take any correc tive actions necessary to avoid unnecessary appeals, reversals and mistrials.” Martin v. Commonwealth , 13 Va. App. 524, 530, 414 S.E.2d 401, 404 (1992) (citing Campbell v. Commonwealth , 12 Va. App. 476, 480, 405 S.E.2d 1, 2 (1991) (en banc)).- 4 - At trial, Drew objected to Morales’s testim ony identifying Gonzales as the victim of the attempted robbery. He specifically stated that his objection did not apply to Drew’s conspiracy and use of a firearm during the commission of a felony charges. Drew now argues that this Court should apply either the “e nds of justice” or the “good cau se shown” exceptions to Rule 5A:18 so that Drew is not punished for his counsel’s error at trial. He makes no argument as to why either exception is applicable in this case. “Ordinarily, in the criminal context, applic ation of the ends of justice exception is appropriate where ‘[the accused] was convicted for conduct that wa s not a criminal offense’ or ‘the record . . . affirmatively proves that an element of the offense did not occur.’” West v. Commonwealth , 43 Va. App. 327, 338, 597 S.E.2d 274, 279 (2004) (quoting Redman v. Commonwealth , 25 Va. App. 215, 221-22, 487 S.E.2d 269, 272-73 (1997)). Nothing in the record indicates that “‘[the accu sed] was convicted for conduct that was not a criminal offense’ or ‘the record . . . affirmativ ely proves that an element of the offense did not occur.’” Id. Similarly, nothing indicates why the “good cause shown exception” is applicable here. Therefore, Rule 5A:18 bars consideration of wh ether Drew’s hearsay obje ction should apply to his convictions for use of a firearm during th e commission of a felony and for conspiracy. As to Drew’s conviction for attempted robbe ry, Drew frames his question presented as, “[w]as the evidence sufficient to convict the Defe ndant of the attempted robbery of Antonio San Jose Gonzales . . . in the ab sence of the inadmissible hearsay testimony of Rachel Morales proving the identity of the second victim?” He essentially asks this Court to accept his argument that Morales’s testimony identifying Gonzales as the second victim is inadmissible hearsay and then consider the sufficiency of the evidence absent the evidence that he contends is inadmissible. Drew’s question presented does not ask this Court to rule on whether Morales’s identification of Gonzales is hearsay. When de termining the sufficiency of the evidence, “‘we- 5 - consider all admitted evidence, including ille gally [or improperly] admitted evidence.’” Sprouse v. Commonwealth , 53 Va. App. 488, 493, 673 S.E.2d 481, 483 (2009) (quoting Hargraves v. Commonwealth , 37 Va. App. 299, 312-13, 557 S.E.2d 737, 743 (2002) (citing Lockhart v. Nelson , 488 U.S. 33, 41 (1988))). Therefore, because Drew framed his question presented as one of sufficiency of the eviden ce and did not ask this Court to determine if the identification testimony was hearsay, the issue of whether Mora les’s testimony identifying Gonzales as the second victim is inadmissible hearsay is not properly before this Court. Thus, the only question before us is whethe r the evidence is suffici ent to support Drew’s conviction for attempted robbery of Gonzales and we find that it is sufficient. “[U]pon appellate review, the evidence and all reasonable inferences flowing therefrom must be viewed in the light most favorable to the prevaili ng party in the trial court.” Commonwealth v. Hudson , 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003) (citing Derr v. Commonwealth , 242 Va. 413, 424, 410 S.E.2d 662, 668 (1991); Higginbotham v. Commonwealth , 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975)). “This principle requires us to ‘disca rd the evidence of the ac cused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferenc es to be drawn therefrom.’” James v. Commonwealth , 53 Va. App. 671, 675, 674 S.E.2d 571, 579 (2009) (quoting Parks v. Commonwealth , 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980) (emphasis and citation omitted)). Robbery, a common law crime, is defined as the ‘“taking, with intent to steal, of the personal property of another, from his person or in his presence, against his will, by violence or intimidation.’” George v. Commonwealth , 242 Va. 264, 277, 411 S.E.2d 12, 20 (1991) (quoting Pierce v. Commonwealth , 205 Va. 528, 532, 138 S.E.2d 28, 31 (1964)). Attempted robbery, also a comm on law offense, requires the Commonwealth “to prove beyond a reasonable doubt that [the defendant] intended to steal pers onal property from [the victim], against his will, by force, violen ce, or intimidation. Additionally,- 6 - the Commonwealth must prove be yond a reasonable doubt that [the defendant] committed a direct, but ineffectual, act to accomplish the crime.” Pitt v. Commonwealth , 260 Va. 692, 695, 539 S.E.2d 77, 78-79 (2000) (citing Johnson v. Commonwealth , 209 Va. 291, 293, 163 S.E.2d 570, 572-73 (1968)). Jay v. Commonwealth , 275 Va. 510, 524-25, 659 S.E.2d 311, 319-20 (2008). Here, Morales testified that she and Gonzales noticed a car drive past them twice shortly before they were robbed. Morales said that the men who robbed her and Gonzales had t-shirts wrapped around their faces. Drew told Detective La ino that he and Wilborne drove past a couple twice before stopping. The men wrapped t-shir ts around their faces before approaching the couple and robbing them. Drew told Detective Laino that Wilborne had the purse and other items taken during the robbery. He also said th at a photograph of Morales’ s car appeared to be the same car at the robbery. Ind eed, Drew declined the opportunity to write an apology letter to Gonzales and Morales because he wished to ma ke a more personal apology face to face. Though Drew testified that he played no role in the robbery, the trial court di sbelieved his testimony. Thus, the evidence viewed in the light most fa vorable to the Commonwea lth proves that Drew “intended to steal personal property from [the vi ctim], against his will, by force, violence, or intimidation” and “committed a direct, but in effectual, act to accomplish the crime.” Pitt , 260 Va. at 695, 539 S.E.2d at 78-79 (citing Johnson , 209 Va. at 293, 163 S.E.2d at 572-73).
III. CONCLUSION For these reasons, we affirm Drew’s convictions. Affirmed.