                               COURT OF APPEALS OF VIRGINIA


Present: Judges Beales, Alston and Senior Judge Annunziata
Argued at Alexandria, Virginia


AHMED IZZELDON OSMAN
                                                              MEMORANDUM OPINION * BY
v.     Record No. 1455-08-4                                 JUDGE ROSEMARIE ANNUNZIATA
                                                                  JANUARY 26, 2010
COMMONWEALTH OF VIRGINIA


                      FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                                  Stanley P. Klein, Judge

                 Eric E. Clingan (Clingan Tull Easley, PLLC, on briefs), for
                 appellant.

                 Donald E. Jeffrey, III, Senior Assistant Attorney General (William C.
                 Mims, Attorney General, on brief), for appellee.


       Ahmed Izzeldon Osman, appellant, was convicted by a jury of first-degree murder, robbery,

and use of a firearm in the commission of a felony. On appeal, he contends the trial court erred by

admitting evidence concerning a conversation appellant had with an undercover officer. We hold

that this issue is procedurally defaulted. Accordingly, we affirm appellant’s convictions.

                                             Background

       Under well established principles, we state the evidence, and all inferences that may be

reasonably drawn, in the light most favorable to the party prevailing in the proceedings below. See

Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). “‘[T]he burden is

upon [the defendant] to show that th[e] ruling, when the evidence is considered most favorably to

the Commonwealth, constituted reversible error.’” McGee v. Commonwealth, 25 Va. App. 193,




       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
197, 487 S.E.2d 259, 261 (1997) (en banc) (quoting Fore v. Commonwealth, 220 Va. 1007, 1010,

265 S.E.2d 729, 731 (1980)).

       On June 11, 2006 at 9:57 p.m., police officers found the body of the victim, a taxicab driver,

lying outside the driver’s side door of his parked cab. The medical examiner determined that the

cause of death was a gunshot wound to the chest, which was fired from behind the victim.

       At approximately 9:00 p.m. on that same evening at a Metro station located about nine and

one-half miles from the crime scene, appellant entered a taxicab parked at a cab stand. Joseph

Giday was the driver of the cab. Appellant asked Giday to drive him to an intersection, but

appellant appeared unsure about where he wanted to go. Giday turned down the fare, and appellant

exited and entered another taxicab that was in line at the cab stand. Ten days after the incident,

Giday identified appellant with eighty to eighty-five percent certainty from a police photograph

spread. He also positively identified appellant in court.

       Muhamad Awan was the driver of the taxicab that was parked directly behind Giday’s cab

at the Metro station. Awan saw a man enter and exit Giday’s cab. When the man approached

Awan’s cab, Awan also refused the fare. Tariq Chaudrhai, another taxicab driver, also saw a man

enter, then exit Giday’s cab, and then enter the taxicab driven by the victim after which the cab

drove away. The crime scene was located about one-half mile from the intersection appellant had

described to Giday.

       Appellant made arrangements to meet an undercover detective on June 14, 2006 in order to

exchange a .357 magnum for another gun. Police arrested appellant at the pre-arranged location and

found the .357 firearm in the middle of the rear seat of the vehicle near where appellant had been

seated. Forensic analysis showed that this gun was the weapon used to fire a bullet recovered from

the dashboard of the victim’s vehicle. On the day after the victim was shot, the victim’s credit card




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was used to make a purchase in a store. Appellant’s fingerprint was located on a receipt for this

transaction.

        Prior to and during the time frame of the incident, Detective Quinn was working undercover

purchasing stolen goods in a store front operation. At the pretrial hearing, Quinn testified that on

June 2, 2006, appellant contacted him and stated he had a “hot” firearm he wanted to sell. Quinn

again spoke to appellant via telephone on June 12, 2006, the day after the victim was shot. Quinn

was not aware of the shooting related to the instant offenses, but knew of a recent, unrelated

attempted carjacking offense. Quinn decided to discuss the attempted carjacking offense with

appellant to see if appellant would provide any details about the carjacking incident.

        In the telephone conversation, Quinn stated to appellant that he had seen a news report about

a crime where the “description sounded like you,” and he told appellant not to bring “heat to [his]

place.” Quinn testified that appellant asked, “Did they say how the victim was doing?” Quinn

responded, “I don’t think anyone got hit.” Quinn testified appellant then said, “I’m pretty sure

someone got hit.”

        Appellant filed a pretrial motion in limine requesting that the trial court prohibit testimony

from Detective Quinn concerning the telephone conversation he had with appellant on June 12,

2006. At the pretrial hearing, Quinn testified he did not inform appellant that he was referring to an

unrelated carjacking incident during the conversation, but believed he mentioned that the victim in

the attempted carjacking was a “lady.”

        The trial court denied appellant’s pretrial motion in limine. In making its ruling, the trial

court stated,

                That’s where the line is drawn subject to seeing what happens
                during the course of the trial. Again, I am still operating under
                papers. I have the benefit to some extent of Mr. Quinn’s
                testimony. But certain things may change and weighing the
                prejudice and probative value may change when the actual
                evidence is being presented to me at trial.
                                                  -3-
The trial court also ruled that on cross-examination appellant could question Quinn about whether

he was referring to the instant offense or another incident. Appellant appealed the trial court’s

decision to this Court.

                                                 Analysis

        On appeal, appellant contends the evidence about the June 12, 2006 conversation was

irrelevant, prejudicial, and not probative because it misled the jury into believing appellant was

exhibiting guilty knowledge of the instant offenses. In addition, appellant contends the trial court’s

ruling that he could clarify during cross-examination which offense Quinn was referencing in the

conversation did not cure any error.

        “To be timely, an objection to the admissibility of evidence must be made when the

occasion arises--that is, when the evidence is offered, the statement made or the ruling given.”

Harward v. Commonwealth, 5 Va. App. 468, 474, 364 S.E.2d 511, 513 (1988).

        The trial court ruled at the pretrial motion in limine that Quinn’s testimony would be

admitted at trial depending on the circumstances that took place at trial. At the pretrial hearing, the

trial court stated, “[C]ertain things may change [at trial] and weighing the prejudice and probative

value may change when the actual evidence is being presented to me at trial.” Thus, “[t]he ruling of

the trial court, in effect, was a tentative [or provisional] ruling that the evidence would be admissible

provided its relevance was established at trial. Such circumstances require a contemporaneous

objection when the evidence is offered to afford the trial court the opportunity to consider the

admissibility.” Id. at 475, 364 S.E.2d at 514.

        At trial, appellant both failed to object to the admission of the testimony at the time it was

offered and failed to present the arguments to the trial court that he now makes on appeal.

“Accordingly, we do not consider the challenge to . . . the evidence because Rule 5A:18 precludes




                                                   -4-
consideration of challenges to admissibility of evidence to which there has been no timely

objection.” Id.

                          Although Rule 5A:18 allows exceptions for good cause or
                  to meet the ends of justice, appellant does not argue that we should
                  invoke these exceptions. See e.g., Redman v. Commonwealth, 25
                  Va. App. 215, 221, 487 S.E.2d 269, 272 (1997) (“In order to avail
                  oneself of the exception, a defendant must affirmatively show that a
                  miscarriage of justice has occurred, not that a miscarriage might
                  have occurred.” (emphasis added)). We will not consider, sua
                  sponte, a “miscarriage of justice” argument under Rule 5A:18.

Edwards v. Commonwealth, 41 Va. App. 752, 761, 589 S.E.2d 444, 448 (2003) (en banc).

       For this reason, appellant’s convictions are affirmed.

                                                                                         Affirmed.




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