                    COURT OF APPEALS OF VIRGINIA


Present:  Chief Judge Fitzpatrick, * Judge Elder and
          Senior Judge Duff
Argued at Alexandria, Virginia


JOSHUA MARK TESTA
                                           MEMORANDUM OPINION**
v.   Record No. 1496-96-4                BY JUDGE CHARLES H. DUFF
                                             DECEMBER 9, 1997
COMMONWEALTH OF VIRGINIA


             FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
                      Thomas D. Horne, Judge
           Buta Biberaj (Jonathan G. Martinis; Biberaj &
           Associates, on brief), for appellant.

           Daniel J. Munroe, Assistant Attorney General
           (Richard Cullen, Attorney General; Monica S.
           McElyea, Assistant Attorney General, on
           brief), for appellee.



     Following a jury trial, appellant, Joshua Mark Testa, was

convicted of conspiracy to escape from a secure juvenile

detention facility, escape by force from a secure juvenile

detention facility, conspiracy to commit robbery, and petit

larceny.   On appeal, appellant contends that the Commonwealth

failed to identify him as the person arrested and charged with

the crimes for which he was tried.   Appellant also asserts that

the Commonwealth's evidence regarding the charges of escape from

a juvenile facility and conspiracy to escape from a juvenile

     *
      On November 19, 1997, Judge Fitzpatrick succeeded Judge
Moon as chief judge.
     **
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
facility was insufficient because it failed to establish that he

was a resident of a juvenile facility pursuant to an order of the

juvenile and domestic relations district court.    For the reasons

that follow, we affirm.

                              Background

     "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).   So viewed, the

evidence proved that, on January 28, 1995, appellant, Bradley

Gibson, and David Smith were locked inside a Loudoun County

Juvenile Interim Holding Facility ("JIHF Hut").    Deputy Norman

Miller was on duty at the time and possessed keys for the

facility's doors.   Around 1:00 a.m., Gibson attacked Miller,

immobilizing him.   Smith removed the facility's keys from

Miller's pocket, appellant unlocked the door, and the three

detainees fled the JIHF Hut.
                          The Identification

     The facts in this case, as they relate to the identification

of a defendant at trial, are strikingly similar to the facts of

Sheffey v. Commonwealth, 213 Va. 602, 194 S.E.2d 897 (1973).       In

Sheffey, the Supreme Court found sufficient evidence identifying

Sheffey as the person arrested and tried, despite the police

officer's failure to point out Sheffey at trial and make an

in-court identification.    See id. at 603, 194 S.E.2d at 898.     The




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Supreme Court held that the Commonwealth had adequately

identified the defendant because the trial judge had pointed him

out to the jury at the beginning of the trial.   See id.

Additionally, "[a]t no time during the presentation of evidence

was any question raised" by Sheffey that the individual arrested

and charged was not in fact the same person in the courtroom

being tried.   Id.

     At the beginning of appellant's trial, the trial judge made

the following statement to the jurors:
          Ladies and gentleman of the venire, the case
          that you have been called on to hear today is
          a criminal case in which Joshua Mark Testa,
          who is the young man seated at counsel table
          to my left and is now standing before you, is
          charged that he did on or about the 28th day
          of January in the year 1995, [commit five
          crimes] . . . .


     During appellant's trial, Deputy Sheriff DiBenedetto

testified that in late January 1995, he worked at the JIHF Hut.

The Commonwealth's attorney asked if "the Defendant, Josh Testa"

was assigned to the JIHF Hut, and DiBenedetto responded, "That is

correct."   Throughout the three-day trial, witnesses referred to

"Mr. Testa," and to "Josh."   Like the defendant in Sheffey, at no
time during the presentation of the evidence did appellant raise

any question that the individual charged with the crimes was not

the person sitting at counsel table.

     Because the trial judge identified appellant to the jury as

the person on trial, and because DiBenedetto acknowledged that

the defendant and "Testa" were one in the same, we find that, as



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in Sheffey, the Commonwealth sufficiently identified appellant at

trial as the person charged with the crimes.        See id. (noting

that arresting officer referred to Sheffey as defendant and by

name).   Accordingly, the trial judge did not err in refusing to

strike the evidence.

     In his brief, appellant challenges for the first time the

constitutionality of the Supreme Court's decision in Sheffey.

The Court of Appeals will not consider an argument on appeal

which was not presented to the trial court.        See Jacques v.

Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d 630, 631 (1991)

(citing Rule 5A:18).    Because this argument was not presented to

the trial court, Rule 5A:18 bars our consideration of this

question on appeal.    Moreover, the record does not reflect any

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

Rule 5A:18.

                       Pursuant to a Court Order

     Appellant contends that the Commonwealth failed to prove

beyond a reasonable doubt that he was residing at the JIHF Hut

pursuant to a court order, consequently, the Commonwealth failed

to prove all the elements of the charges against him.
          It shall be unlawful for any person to
          escape . . . from a facility operated by the
          Department of Youth and Family Services or
          from a secure juvenile detention facility in
          which he had been placed by the juvenile and
          domestic relations court or as a result of
          his commitment as a juvenile to the
          Department of Youth and Family Services.


Code § 18.2-477.1(B).


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     "The juvenile and domestic relations district court judges

share" supervisory powers "over the intake officers with the

Department of Youth and Family Services."   Roach v. Commonwealth,

251 Va. 324, 338, 468 S.E.2d 98, 106 (1996).   The version of

Code § 16.1-255 in effect at the time of appellant's detention

provided, in pertinent part, that "[n]o detention order shall be

issued for any child except when authorized by the judge or

'intake officer' of a juvenile court."   See also Tross v.
Commonwealth, 21 Va. App. 362, 379, 464 S.E.2d 523, 531 (1995)

(noting that juvenile intake officers share with juvenile and

domestic relations district court judges the power to issue

detention orders).

     Viewed in the light most favorable to the Commonwealth, see

Martin, 4 Va. App. at 443, 358 S.E.2d at 418, the evidence proved

that appellant was in the JIHF Hit awaiting a forthcoming

"detention review hearing."   In a post-arrest statement,

appellant told Lieutenant Buckman, "I was going to wait for my

detention review hearing if I ever wanted to get out of here."

If appellant had an upcoming detention review hearing, then a
fortiori, he was being detained pursuant to an order of

detention.

     Captain Ronald Gibson, chief correctional officer for the

sheriff's office of Loudoun County, testified that he

"frequented" the JIHF Hut "[m]aybe once every week or so

depending on how often it was open."   The following exchange took




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place at trial:
          PROSECUTOR: Captain, you said that you would
          go over maybe once a month depending on how
          often it was opened. What triggered it being
          open?

             GIBSON: When there was -- a juvenile was
             ordered to a secured -- to a detention center
             and there was no bed space available and they
             would then be housed there waiting bed space
             in the Juvenile Detention Center.

             PROSECUTOR: And when you say ordered,
             ordered by whom?

             GIBSON: The Juvenile Domestic Relations
             Court Judge Clements, or whoever it was
             presiding that day.

     Thus, according to Gibson, the only persons detained in the

JIHF Hut were juveniles ordered there by the juvenile and

domestic relations district court judge.

     Considering the evidence as a whole and according the fact

finder all of the inferences fairly deducible therefrom, we hold

that the Commonwealth's evidence was competent, was not

inherently incredible, and was sufficient to prove beyond a

reasonable doubt that appellant escaped from "a facility operated

by the Department of Youth and Family Services or from a secure

juvenile detention facility in which he had been placed by the

juvenile and domestic relations court or as a result of his

commitment as a juvenile to the Department of Youth and Family

Services."    Code § 18.2-477.1.

     Accordingly, we affirm the convictions.

                                                Affirmed.




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