                     COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Bray and Senior Judge Hodges
Argued at Norfolk, Virginia

TERRY DENOVIS McCLOUD

v.       Record No. 2343-94-1                  MEMORANDUM OPINION * BY
                                               JUDGE WILLIAM H. HODGES
COMMONWEALTH OF VIRGINIA                          DECEMBER 5, 1995


             FROM THE CIRCUIT COURT OF NORTHAMPTON COUNTY
                         Glen A. Tyler, Judge

             A. Theresa Bliss for appellant.

             Michael T. Judge, Assistant Attorney General
             (James S. Gilmore, III, Attorney General, on
             brief), for appellee.


     Terry Denovis McCloud (appellant) was convicted of

possession of a firearm after having been convicted of a felony,

in violation of Code § 18.2-308.2.     On appeal, appellant contends

that the court erred in admitting evidence that shots were fired,

a car was struck by bullets, and a passenger was injured by a

bullet.   We affirm the conviction.

                                  I.

     On May 15, 1994, George Bundick, Albertina Tennell, and

Terrence Brisco went to Herman's, a night club located in

Eastville.    Appellant also was there.   At around 2:00 a.m., when

the club closed, Bundick, Tennell, and Brisco planned to leave in

Tennell's car.    When appellant appeared at the driver's window,

Bundick was in the driver's seat, Tennell was closing the front

passenger door, and Brisco was in the rear passenger seat.

Appellant was pointing a gun at the car window.

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
     Everyone in the car ducked down in the seats.    As Bundick

began to drive away, three shots rang out.    Two of the shots hit

Tennell's car, one of them injured Brisco.    A bullet lodged just

inches away from Brisco's spine, causing numbness in his legs.

Bundick drove him to the hospital.

     Appellant initially was indicted for aggravated malicious

wounding, shooting into an occupied vehicle, use of a firearm in

the commission of aggravated malicious wounding, and possession

of a firearm after having been convicted of a felony.    On the day

of trial, however, the first three counts were "nolle prossed,"

and appellant was tried only on the charge of possession of a

firearm by a convicted felon.    He was convicted, in a bench

trial, of that charge.
                                 II.

     At trial, Tennell testified first for the Commonwealth.       She

stated that she saw appellant standing outside the car with a gun

in his hand.   She stated that shots were fired, but that

appellant did not fire them. 1   She testified that three shots

were fired, with two of them hitting the car.    She stated that

"about three seconds down the road," she knew someone had been

wounded in the shooting.   Appellant voiced no objection to

Tennell's testimony.

     Brisco testified next for the Commonwealth.    He

testified that shots were fired and he was hit.    Appellant

stated, "I'm going to object," and the court overruled the
     1
      Tennell testified that after she had ducked down in the
seat, she looked up, and "[appellant] and Ali had switched hands
by then."




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objection.   Brisco then testified about the extent of his injury.

     Bundick testified that, as he was driving away, shots were

fired and Brisco told him he had been shot.     Bundick stated that

he took Brisco to the hospital.    Appellant did not object during

Bundick's testimony.

     Deputy Marshall then testified on behalf of the

Commonwealth.   When Marshall testified that the Tennell car had

been twice struck by bullets, appellant objected.     Counsel

stated, "Judge, again I'm going to object as to -- the charge

here is possession of a firearm, not anything to do with shooting

and I don't think that those pictures or the shooting itself is

relevant to this charge."   The court overruled the objection.

Later, the court clarified appellant's position.     The court

asked, "Your objection is that the fact that there was a gunshot

striking the car is irrelevant to this charge?"     Counsel for

appellant responded, "Yes, sir."
     During appellant's case, counsel asked Andrew Whaley, Garry

Custis, Larry Custis, and Keva Collins if they had heard gunfire

at Herman's club that night.   These witnesses responded that they

had heard shots outside the club at closing time, although none

had seen appellant with a gun.

                                 III.

     Appellant claims on appeal that the court erred in admitting

evidence that a gun was fired, that bullets struck the Tennell

car, and that Brisco was injured, because that evidence was

irrelevant and prejudicial to him.      Appellant did not object when

Tennell and Bundick testified that shots were fired.     He made




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only an unspecified objection, with no grounds stated, when

Brisco testified that shots were fired and he was hit.       See Rule

5A:18 (objection must be stated "together with the grounds

therefor at the time of the ruling . . . .").

     Although appellant made a specific objection, on relevance

grounds, to Deputy Marshall's testimony that shots were fired,

three other witnesses had already related such evidence with

either no or an inadequate objection.

     Significantly, moreover, when appellant elicited testimony

from four defense witnesses that they heard shots fired outside

Herman's at closing time, he waived any objection he may have had

to evidence that shots were fired.    "'[W]here an accused

unsuccessfully objects to evidence which he considers improper

and then on his own behalf introduces evidence of the same

character, he thereby waives his objection, and we cannot reverse

for the alleged error.'"   Hubbard v. Commonwealth, 243 Va. 1, 9,

413 S.E.2d 875, 879 (1992) (quoting Saunders v. Commonwealth, 211

Va. 399, 401, 177 S.E.2d 637, 638 (1970)).

     Appellant did not make a timely and specific objection to

admission of evidence of Brisco's injuries.   During Brisco's

testimony, appellant gave no grounds whatsoever for his

objection.   During Marshall's testimony, his objection was to

evidence of a shooting and photographs of the damaged car.

Accordingly, he is barred by Rule 5A:18 from arguing on appeal

that the trial court erred in admitting evidence of Brisco's

injuries because such evidence was irrelevant and prejudicial.

Moreover, the record does not reflect any reason to invoke the




                                -4-
good cause or ends of justice exceptions to Rule 5A:18.

     Finally, as to the evidence that Tennell's car was struck by

bullets, appellant's objection to this evidence came only during

Marshall's testimony.   Tennell already had testified, without

objection, to the fact that the car had been struck and thus the

evidence already was before the fact finder.

     Further, the evidence was relevant to the charge of

possession of a firearm by a convicted felon.    Tennell and Brisco

testified that they saw appellant with a gun.    The fact that

shots were fired, striking the car, corroborated their testimony.

It was relevant evidence because it established that appellant

possessed a weapon, capable of firing bullets.     See Jones v.

Commonwealth, 16 Va. App. 354, 357, 429 S.E.2d 615, 617, aff'd,

17 Va. App. 233, 436 S.E.2d 192 (1993) (en banc) ("Code

§ 18.2-308.2 prohibits a felon from possessing a device that has

the actual capacity to do serious harm because of its ability to

expel a projectile by the power of an explosion . . . .").

     Finally, the court did not abuse its discretion in

determining that the probative value of the evidence outweighed

its prejudicial effect.   See Ragland v. Commonwealth, 16 Va. App.

913, 918, 434 S.E.2d 675, 678 (1993).    Appellant was tried by the

court, sitting without a jury, and "in a bench trial, the trial

judge is presumed to disregard prejudicial or inadmissible

evidence[.] . . . [T]his presumption will control in the absence

of clear evidence to the contrary."     Hall v. Commonwealth, 14 Va.

App. 892, 902, 421 S.E.2d 455, 462 (1992) (en banc).     See Eckhart

v. Commonwealth, 222 Va. 213, 216, 279 S.E.2d 155, 157 (1981).




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We affirm the judgment of the trial court.

                                             Affirmed.




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