                   COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Lemons and Frank
Argued at Norfolk, Virginia


CATHERINE ROTHWELL, S/K/A
 CATHERINE C. ROTHWELL
                                           MEMORANDUM OPINION * BY
v.   Record No. 1342-98-1                   JUDGE ROBERT P. FRANK
                                               JANUARY 4, 2000
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                      Joseph A. Leafe, Judge

          Michael J. Woods for appellant.

          Eugene Murphy, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellee.


     Catherine C. Rothwell (appellant) appeals her convictions of

two counts of child endangerment pursuant to Code § 40.1-103 and

four counts of child cruelty pursuant to Code § 18.2-371.1 1 after

a bench trial.   On appeal, she contends that the trial court erred

in denying her a continuance for a second psychological




     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
     1
       The Court notes that the final sentencing order entered by
the trial court erroneously reflects that the appellant was
found guilty of six counts of child endangerment pursuant to
Code § 40.1-103. Accordingly, this case is remanded to the
trial court for the sole purpose of amending the final order to
reflect that the appellant was found guilty of two counts of
child endangerment pursuant to Code § 40.1-103 and four counts
of child cruelty pursuant to Code § 18.2-371.1.
evaluation, denying her due process.     We disagree and affirm

appellant's convictions.

                               FACTS

     A licensed clinical psychologist, Dr. David Keenan, evaluated

appellant's competency to stand trial in September 1997.    Keenan

concluded appellant understood the charges against her.    He also

found appellant possessed an adequate understanding of courtroom

terms and procedures and that she had the capacity to understand

the roles of the various courtroom personnel.    Although concerned

that appellant's condition might deteriorate under stress, Keenan

concluded:   "[G]iven the present positive relationship with her

attorney, I would says [sic] that she presently meets competency

to stand trial criteria at the most basic of levels."

     The trial court appointed a new attorney for appellant on

January 23, 1998.   On May 29, 1998, counsel for appellant asked

for a psychological re-evaluation to determine appellant's

competency to stand trial.   Counsel proffered that when he spoke

with appellant briefly she seemed fine.     After meeting with

appellant for a longer period of time, he stated, "But on my last

visit, I talked with her for about two hours and I found her train

of thought to be somewhat erratic.     I don't think she understands

the seriousness of these charges."

     Counsel proffered that appellant represented that she had

evidence that would assist in her defense, but when he asked her

for it, she said her sister had it and that the sister would

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present it at trial.   Counsel represented that appellant gave him

the names of six witnesses, but that all of the witnesses were

unfavorable, some of them witnesses for the Commonwealth.

Appellant told counsel that "her case [was] in God's hands, and

that God's going to look out for her."   Counsel concluded:

           I just feel, from my perspective, Your Honor,
           as her counsel, that I feel that . . . I need
           a second opinion on her evaluation since I am
           new to this case . . . . I just feel, as a
           safety precaution for myself and [appellant],
           that she should be reevaluated by another
           psychologist who can see if they come to the
           same conclusion.

     The trial court denied the appellant's motion for a "second

opinion" at a hearing on May 29, 1998.   Then, at trial, appellant

renewed her motion and requested a continuance to obtain the

"second opinion."   The trial court denied the motion for a

continuance and tried the case on that date.

                              ANALYSIS

     "Whether to grant or deny a continuance of a trial is a

matter that lies within the sound discretion of a trial court, and

its ruling will not be reversed on appeal unless it is plainly

wrong."   Cardwell v. Commonwealth, 248 Va. 501, 508, 450 S.E.2d

146, 151 (1994) (citing Lomax v. Commonwealth, 228 Va. 168, 172,

319 S.E.2d 763, 765 (1984); Parish v. Commonwealth, 206 Va. 627,

631-32, 145 S.E.2d 192, 195 (1965)).

     Code § 19.2-169.1(A) provides in part:

           If . . . the court finds, upon hearing
           evidence or representations of counsel for

                               - 3 -
           the defendant or the attorney for the
           Commonwealth, that there is probable cause to
           believe that the defendant lacks substantial
           capacity to understand the proceedings
           against him or to assist his attorney in his
           own defense, the court shall order that a
           competency evaluation be performed.

     At a hearing to determine competency to stand trial "the

party alleging that the defendant is incompetent shall bear the

burden of proving by a preponderance of the evidence the

defendant's incompetency."   Code § 19.2-169.1(E).   "[T]he standard

for competence to stand trial is whether the defendant has

'sufficient present ability to consult with his lawyer with a

reasonable degree of rational understanding' and has 'a rational

as well as factual understanding of the proceedings against him.'"

Godinez v. Moran, 509 U.S. 389, 396 (1993) (quoting Dusky v.

United States, 362 U.S. 402 (1960)).    A trial court's

determination of a defendant's competency to stand trial is a

question of fact.   See Delp v. Commonwealth, 172 Va. 564, 570-71,

200 S.E. 594, 596 (1939).    "[A] factual finding made by the trial

court is binding on appeal unless plainly wrong."    Naulty v.

Commonwealth, 2 Va. App. 523, 527, 346 S.E.2d 540, 542 (1986)

(citing McFadden v. Commonwealth, 225 Va. 103, 108, 300 S.E.2d

924, 926 (1983)).

     Appellant's counsel argued the following as the basis for his

concern.   First, appellant said her sister had evidence to assist

with appellant's defense but her sister did not contact counsel.

Second, appellant gave counsel the names of witnesses who were

                                - 4 -
adverse to appellant's case.   Third, appellant indicated the case

was in God's hands.    Counsel further expressed concern that

appellant's train of thought was somewhat erratic, and he did not

think appellant understood the seriousness of the charges.

     During the court's colloquy with appellant, it was clear that

appellant was competent to stand trial.   She understood the

court's questions and properly responded to the questions.      She

was cogent and responsive.   During the trial, appellant's

testimony was detailed.   She clearly remembered names, dates, and

information in detail.    She fully participated in the trial.    The

trial judge had the opportunity to observe and evaluate appellant

during the trial.   Appellant's counsel made no additional comments

on his client's competency once the trial began.

     Appellant did not assert to the trial court that her mental

state had deteriorated since the September 1997 evaluation, but

rather argued that she wanted a second opinion.    There was no

evidence that appellant's mental condition had changed since

Keenan's evaluation.

     Appellant did not satisfy the requirement of Code

§ 19.2-169.1 because she did not show probable cause that she

lacked substantial capacity to understand the proceedings or to

assist counsel in her defense.

     "'Probable cause, as the very name implies, deals with

probabilities.   These are not technical; they are the factual and

practical considerations in every day life on which reasonable and

                                 - 5 -
prudent men, not legal technicians, act.'"    Derr v. Commonwealth,

242 Va. 413, 421, 410 S.E.2d 662, 666 (1991) (quoting Saunders v.

Commonwealth, 218 Va. 294, 300, 237 S.E.2d 150, 155 (1977)).

Probable cause is "determined by objective facts," not the

"subjective opinion" of a police officer.    Klinger v. United

States, 409 F.2d 299, 304 (8th Cir. 1969).   Therefore, it follows

that probable cause cannot be based on the subjective conclusions

of counsel.

     We cannot say, as a matter of law, that the trial court's

finding that there was no probable cause to believe that appellant

was incompetent to stand trial was plainly wrong.

     The record supports the trial court's ruling to deny

appellant's motion for a second psychiatric opinion.   Accordingly,

the trial court did not abuse its discretion when it denied

appellant's motion for a continuance.

     For these reasons, we affirm the appellant's convictions.

                                              Affirmed and remanded.




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