                   COURT OF APPEALS OF VIRGINIA


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


ROBERT SANTORA, S/K/A
 ROBERT J. SANTORA
                                      MEMORANDUM OPINION * BY
v.   Record No. 2962-98-4        CHIEF JUDGE JOHANNA L. FITZPATRICK
                                        FEBRUARY 22, 2000
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
                    Thomas A. Fortkort, Judge

           John Clifton Rand for appellant.

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


     Robert J. Santora (appellant) was convicted in a jury trial

of solicitation to commit murder and solicitation of the use of

a firearm in that murder.    On appeal, he contends the trial

court erred in:   (1) failing to grant his motion to strike; (2)

permitting the Commonwealth to offer evidence of a date

different than that alleged in the indictment; (3) finding that

evidence of his prior threats to kill the intended victim were

relevant and probative; (4) denying his motion for a

continuance; and (5) denying his motion for bail and to suspend

execution of sentence.     For the following reasons, we affirm.


     *
       Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
                                I.

     Under familiar principles of appellate review, we examine

the evidence in the light most favorable to the Commonwealth,

the prevailing party below, granting to it all reasonable

inferences fairly deducible therefrom.    See Juares v.

Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997).

     So viewed, the evidence established that appellant and his

ex-wife, Julia Clark (Clark), divorced in 1988 and appellant was

granted sole custody of their two minor children.   In the fall

of 1993, Clark contested previous rulings regarding visitation

and custody.   In 1994, Clark acquired joint custody of the

children.   In 1995, Clark petitioned for and gained sole custody

of the older child, and in 1996, she acquired sole custody of

the younger child.

     Clark testified that around "the '94 time frame," appellant

threatened to kill her before he would allow her to gain custody

of the children.   Clark indicated that appellant made this

threat "[a]t least two or three times."

     In October 1997, appellant's visitation rights were

terminated and a no contact order was entered.   Appellant was

jailed in March 1998 for failure to pay support.    At that time,

James Robichaud (Robichaud), another inmate in the jail,

befriended appellant.   Appellant requested Robichaud to get him

an unregistered firearm that could not be traced.   Appellant

talked about killing Clark, the circuit court judge presiding

                               - 2 -
over the custody proceedings and the guardian ad litem for the

children.   Appellant made sure that Robichaud "had his phone

number" and address.   After his release, Robichaud located

appellant and "asked him if he still wanted the gun."   Appellant

met with Robichaud the next night and gave him $300 to purchase

a gun "to kill his [ex-]wife."    Robichaud used the money to buy

drugs.

     Robichaud later contacted appellant and reopened

discussions about the gun.   At that time, appellant discussed

his plan to murder or have someone murder Clark.   Eventually,

appellant indicated that Clark had to be killed before an

impending October 16, 1997 support hearing or he would be

returned to jail for contempt.    Robichaud feared that Clark

would be killed if he did nothing and went to the police.     The

police provided Robichaud with an inoperable gun and videotaped

the September 12, 1997 meeting when Robichaud delivered the gun

to appellant.

     At trial, the Commonwealth presented the testimony of

Robichaud and introduced the videotaped transaction between

Robichaud and appellant on September 12, 1997.   Additionally,

the trial court admitted an audiotape of a conversation between

appellant and Robichaud that occurred several hours before the

videotaped transaction.   In that conversation, Robichaud

informed appellant that he had "picked up a toy" that "will do

the job," to which appellant replied, "Great, great."   During

                                 - 3 -
the conversation, appellant agreed to "swing by with the car and

pick [Robichaud] up" around 6:30 p.m.

     In his defense, appellant testified that he had never

discussed killing his ex-wife or the other two individuals.   He

said that he had given Robichaud $200 to buy tools.   Appellant

stated that Robichaud was the individual who suggested to him

that he kill his ex-wife.   Finally, appellant testified that he

did not know that Robichaud had a gun in the bag on the day of

the exchange and that he took the gun to prevent danger to

children and other bystanders.    The jury rejected appellant's

testimony and found appellant guilty of solicitation to commit

murder and solicitation of the use of a firearm in that murder.

                                  II.

     In the indictments the grand jury charged appellant with

the following:

               On or about the 12th day of September,
          1997, in the County of Arlington, ROBERT
          SANTORA did command, entreat, or otherwise
          attempt to persuade another person to commit
          a felony, to wit: murder of his wife.

In a pretrial hearing and at trial, the Commonwealth's Attorney

explained that the indictment was based on appellant's asking

Robichaud to supply a gun to be used to murder Clark.    Because

an accessory before the fact may be indicted and tried the same

as the principal, the Commonwealth argued that appellant

solicited Robichaud to commit a felony, to-wit:   being an

accessory before the fact to the murder of Clark.   On appeal,

                                 - 4 -
appellant contends that because the Commonwealth failed to prove

that Robichaud was an accessory before the fact, the evidence

was insufficient to convict appellant of solicitation to commit

the murder.

     When a defendant presents evidence in his own behalf, after

the trial court denies his motion to strike made at the

conclusion of the Commonwealth’s case-in-chief, the reviewing

court considers the entire record to determine whether the

evidence was sufficient.   See Sheppard v. Commonwealth, 250 Va.

379, 387, 464 S.E.2d 131, 136 (1995).   Having presented evidence

in his defense, appellant waived the right to rely solely upon

the Commonwealth's evidence on his motion to strike.

Accordingly, we consider all the evidence in determining the

sufficiency of the evidence.

     Code § 18.2-29, the statute under which appellant was

convicted, provides that "[a]ny person who commands, entreats,

or otherwise attempts to persuade another person to commit a

felony, shall be guilty of [criminal solicitation,] a Class 6

felony."   Thus, "[c]riminal solicitation involves the attempt of

the accused to incite another to commit a criminal offense."

Branche v. Commonwealth, 25 Va. App. 480, 490, 489 S.E.2d 692,

697 (1997).   "'It is immaterial whether the solicitation has any

effect and whether the crime solicited is in fact committed.

. . . The gist of [the] offense is incitement.'"   Id. (quoting

Huffman v. Commonwealth, 222 Va. 823, 827, 284 S.E.2d 837, 840

                               - 5 -
(1981)).   "The act of solicitation may be completed before an

attempt is made to commit the solicited crime."    Ford v.

Commonwealth, 10 Va. App. 224, 226, 391 S.E.2d 603, 604 (1990).

     In the instant case, the evidence proved that appellant

entreated or persuaded Robichaud to procure an untraceable gun

to be used to kill Clark.    Moreover, appellant told Robichaud

the purpose for which he wanted the gun, thus making Robichaud

subject to prosecution as an accessory before the fact to

murder, because Robichaud procured the gun for that purpose.      It

is immaterial whether the solicited crime had been completed, as

the gravamen of the offense is the attempt to persuade another

to commit an unlawful act.   Here, the Commonwealth properly

characterized the wrongful act that appellant solicited

Robichaud to commit, that is, being an accessory before the fact

to the murder of Clark.   We find no error.

                                III.

     Appellant next contends the trial court erred in permitting

the Commonwealth to introduce evidence of a different date than

that alleged in the indictment.   He also argues that the

Commonwealth improperly proceeded on a theory of the case

different from that outlined in its response to his bill of

particulars.   Appellant first raised these arguments in his

post-trial motion to set aside the verdict.   The matter was

never set for hearing before the trial court, and these issues

were never presented to the trial court.   Having failed to

                                - 6 -
properly preserve the alleged error, his challenge is barred

upon appeal.   See Rule 5A:18.   Additionally, the record does not

reflect any reason to invoke the good cause or ends of justice

exceptions to Rule 5A:18.     See Marlowe v. Commonwealth, 2 Va.

App. 619, 622, 347 S.E.2d 167, 169 (1986) (holding that the

Commonwealth may prove the commission of the crime on a date

different from that alleged in the indictment); see also

Pederson v. City of Richmond, 219 Va. 1061, 1067, 254 S.E.2d 95,

99 (1979) ("Solicitation may comprise a course of conduct,

intended to induce another to act, that continues over an

extended period.").

                                  IV.

     Appellant next contends the trial court erred in admitting

evidence of his prior threats he made to Clark.    The threats

were made during the spring of 1994, and the crimes were alleged

to have occurred on September 12, 1997.    Accordingly, appellant

argues that the threats were "too remote" to be relevant to the

solicitation charges and were overly prejudicial.    We disagree.

     "Once factual relevance has been established, the trial

court may consider remoteness as one of the factors in

determining evidentiary relevance of prior bad act evidence, but

it should not withhold such evidence solely on the basis of

remoteness unless the expanse of time has truly obliterated all

probative value."     Lafon v. Commonwealth, 17 Va. App. 411, 419,

438 S.E.2d 279, 284 (1993).    "Whether evidence is so remote that

                                 - 7 -
it lacks probative value is a matter resting largely within the

discretion of the trial court."   Bunch v. Commonwealth, 225 Va.

423, 438, 304 S.E.2d 271, 279 (1983).

     In the instant case, the evidence proved that appellant and

Clark divorced in 1988 and that appellant was initially granted

sole custody of their minor children.   However, the parties were

locked in a custody dispute that lasted several years, and the

threats to kill her related to that issue.   Appellant's threats

were relevant to show the conduct and feeling of the accused

towards Clark and the custody battle.   More importantly, it

tended to explain appellant's motive for soliciting Robichaud.

The record demonstrated ongoing and increased acrimony between

appellant and Clark beginning in 1993 and culminating with Clark

acquiring sole custody of the children in 1996.    Under these

circumstances, the trial court did not abuse its discretion in

finding that appellant's threats were not too remote and that

its probative value outweighed any prejudice.     See, e.g., Falon,

17 Va. App. at 419-20, 438 S.E.2d at 284-85 (allowing testimony

that the defendant had shown his friends how to "grab" a woman

fourteen months before the crime); Moore v. Commonwealth, 222

Va. 72, 75-77, 278 S.E.2d 822, 824-25 (1981) (allowing the

admission of sexual acts occurring twenty months before and

three months after the date of the offense on trial); Brown v.

Commonwealth, 208 Va. 512, 516-17, 158 S.E.2d 663, 667 (1968)

(allowing the admission of acts of incestuous intercourse

                              - 8 -
occurring during a period of several years prior to the date of

the offense on trial). 1

                                V.

     Appellant argues that the trial court erred in denying his

motion for a continuance because he was unable to access certain

information from his computer which was in the custody of the

Commonwealth.   Although the Commonwealth produced the computer,

appellant could not access any of the files.   Accordingly,

appellant concludes, he was denied the opportunity to adequately

develop his defense and a continuance should have been granted.

We disagree.

     "The decision whether to grant a continuance is a matter

within the sound discretion of the trial court."   Lowery v.

Commonwealth, 9 Va. App. 304, 307, 387 S.E.2d 508, 509 (1990).

The Virginia Supreme Court has established a two-pronged test

for determining whether a trial court's denial of a continuance

request is reversible error.   Under this test, we may reverse a

trial court's denial of a motion for a continuance only if it

appears from the record:   (1) that the court abused its

discretion and (2) that the movant was prejudiced by the court's


     1
       Boney v. Commonwealth, 29 Va. App. 795, 514 S.E.2d 810
(1999), cited by appellant, is factually distinguishable. In that
case, the Commonwealth presented evidence that three years prior
to the offense charged the defendant had been convicted of
assault. We held that the assault involved "a man unrelated to
the instant prosecution" and that "[n]othing in the trial record
established any nexus" between the defendant, the victim and the
unrelated assault victim. Id. at 801, 514 S.E.2d at 813.

                               - 9 -
decision.    See Cardwell v. Commonwealth, 248 Va. 501, 509, 450

S.E.2d 146, 151 (1994).    Evidence is considered material "only

if there is a reasonable probability that, had the evidence been

disclosed to the defense, the result of the proceeding would

have been different."     Robinson v. Commonwealth, 231 Va. 142,

151, 341 S.E.2d 159, 164 (1986) (citation omitted).

"Exculpatory evidence" is defined as evidence that is "material

to guilt or punishment and favorable to the accused," Allen v.

Commonwealth, 20 Va. App. 630, 637, 460 S.E.2d 248, 251 (1995),

and includes impeachment evidence.       See United States v. Bagley,

473 U.S. 667, 676 (1985).

     Here, the record establishes that on April 16, 1998, five

days before trial, appellant requested the trial court to grant

him access to his computer to recover certain computer records

necessary for his defense.    Counsel stated the following:

            [T]here's some evidence that he was . . .
            using the Internet to solicit hit men.
            There's some evidence that [he was] using
            his computer at the time that Mr. Robishaw
            [sic] tried to get him, that he was
            purposely using his computer, uh, to try to
            avoid Mr. Robishaw, other, some other facts
            that show what exactly he was doing on the
            computer that relate to this case.

Appellant's attorney indicated that he asked for the computer

records in discovery and the Commonwealth allowed counsel to

"fool with [the] computer."    Counsel stated that he was

unfamiliar with computers and, thus, he was unable to access the

information.   Defense counsel also acknowledged that appellant

                                - 10 -
made a specific request to the Commonwealth "as to some sort of

directory" and, in response, he received a number of computer

records on April 10, 1998.   However, according to defense

counsel, those records were "not, apparently, what [appellant]

asked for in terms of relaying of a request through me."     The

trial court ordered the Commonwealth to take appellant's

computer to the jail and allow him access to it.

     On the day of trial, appellant told the trial court that

the Commonwealth delivered the computer.    However, he "was never

able to access what was in the computer."   Specifically,

appellant asserted that he needed more than the two available

electrical outlets and, therefore, he "was never able to boot

the computer up" or get "what he wanted from the computer."    The

trial court directed the Commonwealth to have the computer

brought to a room in the courthouse that contained sufficient

plugs, and, "once he's properly set up and booted," to allow

appellant the fifteen or twenty minutes he averred he needed to

get the data.

     On the second day of trial, appellant indicated that he

"got on the computer" "for about 15, 20 minutes," but it did not

"boot up."   The evidence showed that the data on the hard drive

was no longer accessible.    However, the Commonwealth indicated

that the information on the hard drive was earlier backed up in

compressed form and could be accessed with the proper expertise.

Before proceeding, the trial court directed appellant to make a

                               - 11 -
proffer as to what information he sought to recover and use at

trial.   Defense counsel proffered the existence of "Web pages

that [appellant] was in the process of constructing, having to

do with the three alleged victims."     This evidence was intended

to show that appellant "was making preparations to make public

his anger toward these individuals" and that would be "extremely

material" because a "rational person" would not commit a violent

act on someone about whom he is constructing a Web page and

"making angry statements."   Defense counsel further proffered

that computer data would establish that appellant "purposely

tied the Internet up so that he wouldn't have to take" a

telephone call from Robichaud and that he "didn't want anything

to do with Mr. Robichaud."   Such proof, argued appellant's

attorney, would corroborate appellant's testimony.    Finally,

appellant proffered that computer records would confirm his

"planned vacation to Florida, which would refute the statements

of Mr. Robichaud that he simply intended to go to Florida to buy

guns."

     Later that afternoon, Vice Intelligence Detective Rimer

testified that the data could be restored, but it would take a

few days and possibly require technical assistance from an

outside computer company.    The trial court ruled as follows:

                There are several of those issues that
           you can address that the Commonwealth is not
           going to question, I assume. But the
           machine was running that day, I mean, they
           don't know one way or the other. . . .

                               - 12 -
               At this point, unfortunately, we're
          going to have to proceed without [the
          computer].

     On appeal, appellant contends that the "evidence [he]

sought was critical to his case because it involved a number of

pieces of computer evidence which would have substantiated his

testimony."   In support, appellant contends that computer

records would have substantiated that he "purposely tied up his

telephone by using the internet to avoid being called by

Robichaud for their September 12 meeting."   He also contends

that he would have presented Web pages on which he vented his

anger on his alleged victims and "a variety of computer records

substantiating his actions and movements which contradicted

evidence of the Commonwealth."

     Assuming such evidence existed and would have been

admissible, the record fails to show that the evidence was

exculpatory or that its absence prejudiced appellant.   Any

evidence tending to show that appellant was using his computer,

thereby tying up his telephone line, would not prove that he

purposely did so to avoid Robichaud.   Moreover, Officer Jessup

testified that Robichaud contacted him about appellant's

solicitations "around the 10th, the 9th or 10th of September";

shortly thereafter, Jessup observed appellant and Robichaud

"talking and working on [a] car" belonging to appellant.

Finally, the September 12, 1997 audiotape of Robichaud's

telephone call showed that appellant's answering machine

                              - 13 -
activated after the fourth ring, but when Robichaud identified

himself and began to leave a message, appellant picked up the

telephone and spoke with Robichaud.    Appellant's act of

overriding the answering machine, which acted as a screening

device, picking up the telephone, and setting up a meeting with

Robichaud later that day belied appellant's assertion that he

tried to avoid talking with Robichaud.

     The fact that appellant may have been precluded from

presenting evidence that he prepared Web pages expressing his

anger at Clark was not prejudicial.    Moreover, such evidence was

not exculpatory.   The record was replete with evidence of

appellant's enmity toward Clark.   He had voiced threats against

her and had been embroiled in a lengthy and bitter custody

battle with her.

     Regarding the "various computer records substantiating his

actions and movements which contradicted evidence of the

Commonwealth," appellant failed to allege in his petition what

these records would show, what evidence they would contradict,

and how they would have assisted his defense.   At trial,

appellant proffered that his calendar would show that he had

scheduled a trip to Florida, not to procure firearms, but to

vacation.   The Commonwealth did not allege that appellant

planned to purchase guns in Florida; it contended that appellant

solicited Robichaud to procure a "clean" gun to use.



                              - 14 -
     Based on appellant's proffer, the record fails to show that

the evidence sought and allegedly contained on appellant's

computer was material and would have made a difference in the

outcome of the case.   Therefore, appellant has failed to show

how he was prejudiced.   Accordingly, the trial court did not

abuse its discretion in denying the motion for a continuance.

                                VI.

     Finally, appellant argues that the trial court erred in

failing to postpone execution of his sentence pursuant to Code

§ 19.2-319 2 and to rule on his motion for bail.   Appellant's

argument has not been properly preserved and, therefore, is

barred on appeal. See Rule 5A:18.

     At his September 11, 1998 sentencing hearing, appellant

requested pursuant to Code § 19.2-319 that he be allowed "to

remain in Arlington [County jail] pending his appeal

preparation."   Arguing that the statute was inapplicable, the

Commonwealth's Attorney stated, "I think that's an appeal bond."

Appellant's counsel responded, "It does appear to be, Your

Honor.   I have not looked at this and so I don't --"   No further

discussion of the matter occurred.




     2
       Code § 19.2-319 provides that "[i]f a person sentenced by a
circuit court to . . . confinement in the state correctional
facility indicates an intention to apply for a writ of error, the
circuit court shall postpone the execution of such sentence for
such time as it may deem appropriate."


                              - 15 -
     When appellant filed his post-trial pro se motions, his

counsel included a motion to suspend sentence, but made no

reference to bail.   Only appellant's handwritten pro se motion

mentioned bail.   Appellant failed to schedule a hearing to

present argument and allow the trial court to rule on the issue.

Accordingly, it is barred on appeal.   See Rule 5A:18.

     For the foregoing reasons, appellant's convictions are

affirmed.

                                                         Affirmed.




                              - 16 -
