                    COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Bray and Senior Judge Overton
Argued at Norfolk, Virginia


MICHAEL EUGENE WILLIAMS
                                          MEMORANDUM OPINION *
v.       Record No. 2784-97-1         BY JUDGE NELSON T. OVERTON
                                            MARCH 30, 1999
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
                       Randolph T. West, Judge

            Charles E. Haden for appellant.

            Richard B. Smith, Assistant Attorney General
            (Mark L. Earley, Attorney General, on
            brief), for appellee.


     In a bench trial, Michael Eugene Williams (appellant) was

convicted of robbery, malicious wounding, and two counts of

using a firearm in the commission of a felony.     On appeal,

appellant challenges the trial court's refusal to consider, in

ruling upon his motion for a new trial, an affidavit from an

alleged eyewitness to the incident.    Finding no error, we affirm

appellant's convictions.

                        FACTS AND PROCEEDINGS

     "On appeal, 'we review the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom.'"      Archer v.

     *
      Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)

(citation omitted).

        At the beginning of appellant's trial, the trial court

asked appellant if he had any witnesses to call in his behalf.

Appellant responded, "Yes I have one, but I don't know his

name."    Appellant claimed that he saw the witness every day.

Appellant indicated that he was prepared to proceed with the

trial nonetheless.

        The Commonwealth's evidence proved that on the morning of

April 22, 1997, Anthony Sterling and his cousin were approached

on the street by three men.    Appellant, with whom Sterling was

well acquainted, was one of the three men.      Sterling and

appellant conversed briefly.    As Sterling and his cousin turned

to continue on their way, one of the men with appellant,

identified by Sterling as "Antoine," pointed a gun at Sterling's

face.    Antoine ordered Sterling to empty his pockets and lie on

the ground.    Sterling said they could have what was in his

pockets, but he refused to lie on the ground.

        Appellant said, "Get his shit.   Get his shit."   Appellant

took Sterling's watch and the money from one of Sterling's

pockets.    The third assailant patted Sterling's other pocket.

Sterling pushed away the third man and ran.     As Sterling fled,

he was struck by a bullet in the right leg.     Sterling heard

appellant say, "Shoot him.    Shoot his ass."


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     Testifying in his own behalf, appellant claimed that he was

present when the incident began, but that he was not involved.

Appellant stated that on the morning of April 22, 1997, he was

trying to "score a bag of heroin" for his own personal use from

Sterling.     Appellant said he had seventeen dollars "exactly."

He encountered "Twan" and "Mo" on the street, and they followed

him to Sterling.     Before appellant could make the purchase, he

testified, "Twan and Mo pulled out the gun."    Appellant stated

that he ran away as Twan and Mo started searching Sterling's

pockets.     Appellant denied taking anything from Sterling.   The

trial court rejected appellant's account of the event and found

him guilty of the charged offenses.

     On October 28, 1997, appellant made an oral motion for a

new trial based upon newly discovered evidence.    Defense counsel

stated that since the trial, Betty Jackson had come forward with

information about the incident and had sworn an affidavit. 1


     1
         Jackson's affidavit stated:

             1. My name is Betty Jackson. I am giving
             this affidavit on behalf of Michael Eugene
             Williams.
             2. On August 8, 1997, I gave Michael
             Williams eighteen dollars for him to buy me
             some cocaine. He bought from Mr. Sterling
             and when he turned to leave, two other
             fellows robbed Mr. Sterling, and shot him.
             3. Michael was not involved in the robbery
             at all.
             4. I had moved and Michael did not know
             where I was so he could not find me until
             now. I came forward after I heard he was
             found guilty of something he did not do.
                                 - 3 -
Jackson was present in court that day.   Due to time constraints,

the trial court refused to hear appellant's motion that day, but

required Jackson to provide her address, telephone number, and

place of employment so that the defense could subpoena her for a

future hearing.

     By agreement of counsel, the hearing upon appellant's

motion was scheduled for November 18, 1997.   Although a witness

subpoena was served by posting upon Jackson, she failed to

appear at the hearing.   Appellant asked to continue the matter,

but the court refused.   In response to appellant's request for a

ruling on his motion for a new trial "based on the affidavit,"

the court stated:

          I was going to, on your motion, this morning
          just reopen the trial, was what I was going
          to do, not grant a new trial. I was going
          to reopen and let her testify, but since
          she's not here, you know, I can't do
          anything about that.

The trial court denied appellant's motion for a new trial, and

proceeded to sentence appellant.

                             ANALYSIS

     In his brief, appellant contends that "the trial court

should have either granted a continuance to get Jackson into

court or else ruled that the witness was 'unavailable.'"

Whether the trial court committed reversible error by denying

appellant's continuance request was neither an issue raised as a



                               - 4 -
"question presented" in appellant's petition for appeal nor an

issue upon which this Court granted appellate review.     See Rule

5A:12(c) ("[o]nly questions presented in the petition for appeal

will be noticed by the Court of Appeals").    See also Perez v.

Commonwealth, 25 Va. App. 137, 139 n.2, 486 S.E.2d 578, 579 n.2

(1997).   Furthermore, appellant did not argue in the lower court

that the trial judge should consider Jackson's affidavit because

she was unavailable to appear as a witness.   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).   Accordingly, we will not address these two questions.

     The sole issue remaining for our determination is whether

the trial court erred in refusing to consider Jackson's

affidavit before ruling upon appellant's motion for a new trial.

           "Motions for new trials based on
           after-discovered evidence are addressed to
           the sound discretion of the trial judge, are
           not looked upon with favor, are considered
           with special care and caution, and are
           awarded with great reluctance. . . . The
           applicant bears the burden to establish that
           the evidence (1) appears to have been
           discovered subsequent to trial; (2) could
           not have been secured for use at the trial
           in the exercise of reasonable diligence by
           the movant; (3) is not merely cumulative,
           corroborative or collateral; and (4) is
           material, and such as should produce
           opposite results on the merits at another
           trial."



                                - 5 -
Hopkins v. Commonwealth, 20 Va. App. 242, 249, 456 S.E.2d 147,

150 (1995) (en banc) (citation omitted).

     Even if the affidavit constituted evidence the trial court

properly could have considered in ruling upon appellant's

motion, a question we do not decide here, 2 the affidavit's

contents did not mandate a new trial for appellant.   Jackson's

affidavit states that two men, not including appellant, robbed

Sterling on August 8, 1997, almost four months after the robbery

and other crimes with which appellant was charged.    Thus, the

affidavit on its face is immaterial to the crimes of which

appellant was convicted.

     Moreover, the affidavit is inconsistent with appellant's

testimony in significant aspects.   Jackson states in the

affidavit that appellant bought eighteen dollars worth of

cocaine from Sterling on her behalf just before the robbery.

Appellant testified that he approached Sterling to buy heroin

for his own use, that he had seventeen dollars to make the

purchase, but that Twan and Mo robbed Sterling before he

obtained the drugs.   These glaring inconsistencies serve to

undermine, rather than strengthen, appellant's testimony, which

the trial court chose to discredit.




     2
      "Affidavits are not generally admitted as a hearsay
exception solely because they are affidavits." 2 Charles E.
Friend, The Law of Evidence in Virginia § 18-28 (4th ed. 1993).

                               - 6 -
     Furthermore, if Jackson's affidavit accurately describes

the robbery of Sterling, then appellant would have known of

Jackson's testimony before trial.   If appellant had been

purchasing drugs for her from Sterling just before the robbery,

appellant would have been well aware of that fact and that

Jackson's testimony might prove valuable to him.   Thus, any

information Jackson could provide would not qualify as

after-discovered evidence.

     We find that the trial court did not abuse its discretion

in denying appellant's motion for a new trial.   Accordingly,

appellant's convictions are affirmed.

                                                         Affirmed.




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