                     COURT OF APPEALS OF VIRGINIA


Present: Judges Bumgardner, Humphreys and Clements
Argued at Salem, Virginia


JULEIAN CAPPELL
                                          MEMORANDUM OPINION * BY
v.   Record No. 0807-02-3              JUDGE JEAN HARRISON CLEMENTS
                                               MAY 27, 2003
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY
                   John J. McGrath, Jr., Judge

          Aaron L. Cook (Aaron L. Cook, PC, on brief),
          for appellant.

          Virginia B. Theisen, Assistant Attorney
          General (Jerry W. Kilgore, Attorney General,
          on brief), for appellee.


     Juleian Cappell appeals from a judgment of the trial court

revoking his previously suspended sentence.   On appeal, Cappell

contends the trial court (1) abused its discretion in finding him

in violation of his supervised probation and revoking his

previously suspended sentence and (2) violated his due process

rights by relying on a ground for revocation that was not included

in the notice he was given.   For the reasons that follow, we

affirm the judgment of the trial court.

     As the parties are fully conversant with the record in this

case and because this memorandum opinion carries no precedential


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
value, this opinion recites only those facts and incidents of the

proceedings as are necessary to the parties' understanding of the

disposition of this appeal.

                           I.    BACKGROUND

     On February 10, 1999, having convicted Cappell of four

charges of forging public records, the trial court sentenced him

to eight years' imprisonment.    The trial court then suspended the

imposition of the entirety of that sentence and placed Cappell on

supervised probation for three years.

     On September 14, 2001, while still on probation, Cappell was

arrested in connection with the homicide of Rosendo Cruz on

September 12, 2000, and charged with first degree murder, use of a

firearm in the commission of murder, discharging a firearm within

one thousand feet of school property, and possession of a firearm

after having been convicted of a felony.

     On September 28, 2001, Cappell's probation officer submitted

a letter to the trial court alleging Cappell had violated the

conditions of his probation by virtue of his arrest on the

September 12, 2000 charges.     Specifically, the probation officer

alleged Cappell had violated "Condition No. 1: 'I will obey all

Federal, State, and Local laws and ordinances'" and "Condition No.

9: 'I will not use, own, possess, transport or carry a firearm.'"

     In a jury trial on February 27 and 28, 2002, Cappell was

acquitted of the murder, use of a firearm, and discharge of a

firearm charges.   The trial court granted the Commonwealth's

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motion for nolle prosequi of the possession of a firearm charge on

March 11, 2002.

     On March 11, 2002, the same judge who presided over the jury

trial held a revocation hearing.   The judge stated, without

objection, that the hearing would proceed on Cappell's alleged

"fail[ure] to keep the peace and be of good behavior [and]

violation of loca[l] and state ordinances."   At the hearing, the

judge, without objection, admitted the transcript of the jury

trial into evidence and observed that he had reviewed his notes

from the jury trial.

     The evidence from the jury trial revealed that the homicide

of Rosendo Cruz occurred on the evening of September 12, 2000,

during an altercation on Norwood Street in the City of

Harrisonburg between Ashby Jackson and several of his cohorts and

some "Hispanic" men Jackson had confronted earlier that day.

Numerous witnesses at the scene of the altercation testified at

trial as witnesses for the Commonwealth.   Several witnesses who

participated in the conflict were given lenient dispositions of

their charges by the Commonwealth in exchange for their testimony.

     The testimony regarding Cappell's participation in the

conflict varied.   One witness testified she did not see him in the

area of the altercation.   Another witness at the scene of the

altercation testified that, after hearing the gunshots, he saw

Cappell running with Jackson's brother to Cappell's vehicle.

Jackson's brother testified he drove with Cappell to the scene of

                               - 3 -
the altercation on Norwood Street.    He saw Cappell get out of the

vehicle but did not see him when the shots were fired.   After

hearing the gunshots, he returned to Cappell's vehicle and saw

Cappell running back to the vehicle.    He did not see Cappell with

a gun in the vehicle or when Cappell was running back to the

vehicle.

     Kenneth Shawn McAfee provided the most conclusive evidence of

Cappell's involvement in the altercation.   McAfee, a convicted

felon whose murder charge and malicious wounding by mob charge

were respectively "nol prossed" and reduced to a misdemeanor by

the Commonwealth in exchange for his testimony, testified he heard

"one or two" gunshots during the altercation.   He looked in the

direction of the gunfire and saw "a couple more" flashes of light.

He saw a "gun like object," with "flames shooting from it as it

[was] fired," in the hand of a man he "took . . . to be" Cappell.

The shooter's "bald head, . . . wire frame glasses, . . . build,

and complexion" matched those of Cappell, McAfee stated.   He

testified he was not positive it was Cappell because "there [were]

no street lights right there" and it was "dark," but he was

"ninety-five percent sure" Cappell was the shooter.   When McAfee

later asked Cappell "what made [him] do it," Cappell told him only

that "everybody would be all right."

     Officer Kevin Whitfield, who investigated the homicide,

testified that, during an interview conducted on September 14,

2001, Cappell told him that he did not know anyone associated with

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the shooting incident, had never been on Norwood Street, and was

at home at the time of the shooting.     Whitfield further testified

that Cappell told him that he was intoxicated on the night of the

shooting.

     At the revocation hearing, Cappell maintained there was no

basis for the revocation of his suspended sentence because he was

acquitted of the charges relating to the homicide of Rosendo Cruz.

Given McAfee's lack of credibility, Cappell argued, the

Commonwealth could argue, at best, only that he was present at the

scene of the altercation, which is not, by itself, a valid reason

to revoke his suspended sentence. 1    The Commonwealth countered

that the evidence at trial amply demonstrated Cappell violated the

terms and conditions of his probation.     For example, the

Commonwealth argued, the probation officer's letter of September

28, 2001, stated that a term of Cappell's probation was to

"[r]emain drug and alcohol free."     Cappell, the Commonwealth

continued, admitted to Officer Whitfield that he had been drinking

and was intoxicated on the night of the shooting.     Cappell raised

no objection to the Commonwealth's argument.

     Following the argument of counsel at the revocation hearing,

the trial court concluded:


     1
       At the revocation hearing, Cappell agreed with the trial
court that the standard of proof to be applied in a revocation
proceeding is a preponderance of the evidence and conceded that
a conviction for a subsequent criminal offense is not necessary
for there to be a probation violation.


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          This Court sitting as a finder of fact based
          upon the evidence that was adduced would find
          that the Commonwealth carried a burden of
          showing by a preponderance of the evidence
          that Mr. [Cappell] was the gunman involved in
          the slaying of Rosendo Cruz.

          *      *       *         *   *     *      *

               . . . [A]ssuming arguendo, although I
          do not agree with it, that I would be
          precluded from considering that fact because
          of the jury verdict. There is ample other
          evidence in the record. For example, . . .

          *      *       *         *   *     *      *

               Paul Jackson . . . and McAfee, and, I
          believe, one other witness put Cappell in the
          middle of this gang of men that went over to
          seek retribution against the two Hispanic
          males. Also we have the fact according to
          Officer Whitfield that when interrogated by
          Officer Whitfield concerning the shooting of
          Rosendo Cruz, Mr. Cappell made a number of
          statements which in light of the evidence
          that's been introduced the Court finds to be
          clearly dishonest and misleading statements.
          He said he was never at, never been on
          Norwood Street in his life, et cetera.
          Didn't know anything about it. I think the
          evidence clearly shows that he was present at
          the slaying of Mr. Rosendo Cruz if not the
          gunman himself. Also I would note that he
          was under the influence of alcohol at the
          time contrary to the terms of his probation.
          Therefore, the Court finds that he is in
          violation of his probation, and the Court
          revokes all of his suspended sentence and
          remands him to the custody of the . . .
          Sheriff.

     Cappell's attorney then responded, "If the Court would just

note my exception.   Thank you."




                               - 6 -
                           II.    ANALYSIS

     Cappell contends the trial court's decision to revoke his

probation was arbitrary and an abuse of discretion because the

evidence was insufficient to support the court's finding that

Cappell was the gunman in the death of Rosendo Cruz.   Cappell

argues that, in making that finding, the trial court improperly

relied on the "less than certain and wholly discredited testimony"

of Kenneth Shawn McAfee, which "stands alone as the only evidence

suggesting that . . . Cappell may be the gunman."

     When the sufficiency of the evidence is challenged on appeal,

we view the evidence "in the light most favorable to the

Commonwealth, granting to it all reasonable inferences fairly

deducible therefrom."   Bright v. Commonwealth, 4 Va. App. 248,

250, 356 S.E.2d 443, 444 (1987).    "The credibility of a witness,

the weight accorded the testimony, and the inferences to be drawn

from proven facts are matters solely for the fact finder's

determination."   Crawley v. Commonwealth, 29 Va. App. 372, 375,

512 S.E.2d 169, 170 (1999).

     "When a defendant fails to comply with the terms and

conditions of a suspended sentence, the trial court has the power

to revoke the suspension of the sentence in whole or in part."

Alsberry v. Commonwealth, 39 Va. App. 314, 330, 572 S.E.2d 522,

525 (2002).   "A trial court has broad discretion to revoke a

suspended sentence and probation based on Code § 19.2-306, which

allows a court to do so 'for any cause deemed by it sufficient.'"

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Davis v. Commonwealth, 12 Va. App. 81, 86, 402 S.E.2d 684, 686

(1991).

                 The cause deemed by the court to be
            sufficient for revoking a suspension must be
            a reasonable cause. The sufficiency of the
            evidence to sustain an order of revocation
            "is a matter within the sound discretion of
            the trial court. Its finding of fact and
            judgment thereon are reversible only upon a
            clear showing of abuse of discretion." The
            discretion required is a judicial discretion,
            the exercise of which "implies conscientious
            judgment, not arbitrary action."

Marshall v. Commonwealth, 202 Va. 217, 220, 116 S.E.2d 270, 273

(1960) (quoting Slayton v. Commonwealth, 185 Va. 357, 367, 38

S.E.2d 479, 484 (1946)).

      Moreover, "good behavior is a condition of every suspension,

with or without probation, whether expressly so stated or not."

Id.   Thus, "the failure of a defendant to be of good behavior,

amounting to substantial misconduct, during the period of the

suspension would provide reasonable cause for revocation of the

suspension."    Id. at 220-21, 116 S.E.2d at 273-74.

      Upon our review of the record, we conclude the evidence

therein is sufficient to sustain the trial court's finding that

Cappell violated the terms and conditions of his suspended

sentence.   Contrary to his statements to Officer Whitfield that he

did not know anyone associated with the shooting, had never been

on Norwood Street, and was at home at the time of the shooting,

three of the Commonwealth's witnesses placed Cappell at the scene

of the crime among the group of men who went to Norwood Street to

                                - 8 -
confront the victim and his associates.     Additionally, McAfee

testified that, based on his observation of the shooter's

distinctive physical characteristics, he was "ninety-five percent

sure" Cappell was the shooter.    The trial judge, who had also

presided over the jury trial, implicitly found that McAfee's

testimony was credible.

     Not held to the higher evidentiary standard of beyond a

reasonable doubt, see id. at 221, 116 S.E.2d at 274, the trial

court was entitled to find from this evidence, notwithstanding the

jury's verdict, that Cappell was illicitly involved in the

homicide of Rosendo Cruz and that he subsequently made several

deceitful statements to a police officer investigating that crime

in order to conceal his involvement.     On the basis of either of

those findings, the trial court could properly conclude that

Cappell failed "to be of good behavior, amounting to substantial

misconduct, during the period of the suspension" of his

sentence.   Id. at 220-21, 116 S.E.2d at 273-74.    We hold,

therefore, that the trial court had reasonable cause to revoke the

suspension of Cappell's sentence and did not abuse its discretion

in doing so.

     Cappell also argues that the trial court erroneously relied

on his consumption of alcohol on the night of the homicide as a

ground to support his revocation.    He contends the trial court's

reliance on this ground, which had not been previously alleged by

the Commonwealth, violated his due process rights.

                                 - 9 -
     Rule 5A:18 provides, in pertinent part, that "[n]o ruling of

the trial court . . . will be considered as a basis for reversal

unless the objection was stated together with the grounds therefor

at the time of the ruling."    (Emphasis added.)   Thus, we will not

consider a claim of trial court error as a ground for reversal

"where no timely objection was made."     Marshall v. Commonwealth,

26 Va. App. 627, 636, 496 S.E.2d 120, 125 (1998).      Similarly, we

"will not consider an argument on appeal which was not presented

to the trial court."   Ohree v. Commonwealth, 26 Va. App. 299,

308, 494 S.E.2d 484, 488 (1988).      "Rule 5A:18 applies to bar

even constitutional claims."    Id.

     Here, the Commonwealth reminded the trial court at the

revocation hearing that the probation officer's letter of

September 28, 2001, stated that a term of Cappell's probation was

to "[r]emain drug and alcohol free."     Cappell, the Commonwealth

then pointed out, admitted to Officer Whitfield that he had been

drinking and was intoxicated on the night of the shooting.

Cappell did not object to the Commonwealth's argument.    Likewise,

when the trial judge noted, in announcing its ruling at the

revocation hearing, that Cappell had been "under the influence of

alcohol at the time contrary to the terms of his probation,"

Cappell voiced no objection.   Similarly, Cappell made no argument

at the revocation hearing that the trial court's consideration of

his consumption of alcohol was a violation of his due process



                                - 10 -
rights or otherwise improper.   Rather, Cappell simply noted his

exception to the trial court's overall ruling.

     We hold, therefore, that, having failed to raise the

instant due process issue before the trial court, Cappell is

procedurally barred by Rule 5A:18 from raising it for the first

time on appeal.   Moreover, our review of the record in this case

does not reveal any reason to invoke the "good cause" or "ends

of justice" exceptions to Rule 5A:18.

     Accordingly, we affirm the judgment of the trial court.

                                                         Affirmed.




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