                        COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Annunziata and Humphreys
Argued at Alexandria, Virginia


JOSEPH DONALD THORPE, JR.
                                           MEMORANDUM OPINION * BY
v.   Record No. 1623-00-4                 JUDGE ROBERT J. HUMPHREYS
                                              FEBRUARY 19, 2002
COMMONWEALTH OF VIRGINIA


               FROM THE CIRCUIT COURT OF FAUQUIER COUNTY
                    Carleton Penn, Judge Designate

             Joseph R. Winston, Special Appellate Counsel
             (Public Defender Commission, on brief), for
             appellant.

             Robert H. Anderson, III, Senior Assistant
             Attorney General (Mark L. Earley, Attorney
             General, on brief), for appellee.


     Joseph Donald Thorpe, Jr. appeals an order of the trial

court which revoked his suspended sentence and probation, and

sentenced him to six months in jail.     Thorpe contends that the

court erred in finding he had violated the terms of his

probation.     For the reasons that follow, we affirm.

     On June 21, 1996, Thorpe entered into a plea agreement

wherein he agreed to plead guilty to operating a motor vehicle

after having been declared an habitual offender and felonious

failure to appear.     By way of the plea agreement, Thorpe also

stipulated that he had violated the terms of the probation he


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
had been placed on in 1993, following his conviction for another

offense.   In exchange, the Commonwealth agreed to recommend the

imposition of the 1993 sentence, in addition to a sentence of

five years, with three years suspended on the habitual offender

charge, and a suspended three-year sentence on the charge of

failure to appear.   Both parties agreed that upon Thorpe's

release under these terms, he would be placed on supervised

probation for five years "upon the usual terms and conditions,

including that he be of good behavior and violate no laws of the

Commonwealth . . . ."

     Thorpe was sentenced on August 15, 1996, and an order of

final judgment, amended on December 2, 1996, was entered to

reflect the terms of the plea agreement, including the provision

that Thorpe would be placed on supervised probation for a period

of five years following his release from prison.

     Thorpe was ultimately released from prison and began

supervised probation on July 6, 1999.   On that date, Thorpe met

with his probation officer and signed a written list of the

conditions of his probation.   The relevant conditions are set

forth below:

           Condition #6: I will follow the Probation
           and Parole Officer's instructions and be
           truthful and cooperative.

           Condition #7: I will not use any alcoholic
           beverages to the extent that it disrupts or
           interferes with my employment or orderly
           conduct.


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     On December 20, 1999, Thorpe reported to his appointment

with his probation officer, Thomas Quinn, demonstrating evidence

of "excessive alcohol use."    Quinn gave Thorpe a breathalyzer

test which disclosed that Thorpe had a blood alcohol content of

0.15%.   At that time, Quinn verbally advised Thorpe to "remain

alcohol free."    Nevertheless, Thorpe registered a blood alcohol

level of 0.068% during an unscheduled home visit by Quinn on

March 21, 2000.

     Accordingly, on March 23, 2000, Quinn filed a Report of

Probation Violations with the court, recommending that the court

schedule a show cause hearing.    The report set forth the

circumstances described above, in addition to Thorpe's continued

failure to attend counseling sessions at the Fauquier Family

Guidance Center's Intensive Outpatient Program, despite Quinn's

instruction that he complete the program.

     At the show cause hearing, the Commonwealth introduced

Quinn's report and then rested.    Thorpe raised no objection to

the introduction of the report.    In his case-in-chief, Thorpe

conceded that on December 20, 1999 his blood alcohol level had

tested as reported by Quinn.   Thorpe also agreed that Quinn told

him, "I think you are drinking too much and I want you to lay

off it for a while [sic].   If you don't, I am going to have to

violate you."    However, Thorpe testified that he had indeed

consumed alcohol prior to having been administered the

breathalyzer test on March 21, 2000.     Finally, Thorpe stated

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that he had missed sessions of the outpatient program, but

explained that he had missed the sessions due to conflicts with

his work schedule.    Thorpe claimed he had resolved the issue of

his absences with the therapists in charge of the outpatient

program.

     In closing argument, Thorpe contended that since Quinn had

not put his statement to Thorpe regarding consumption of alcohol

in writing, he perceived it as merely a "suggestion."       Thus, he

argued he had not violated the actual written conditions of his

probation.

     In reaching its decision, the trial court noted:

             not only the violation alluded to of the
             0.068 [sic] which show[ed] that [Thorpe was]
             drinking alcohol, but the Court is more
             concerned with a 0.15 [sic] which is about
             twice the legal limit.

Accordingly, the trial court found Thorpe had violated the terms

of his probation and ordered him to serve six months of his

remaining sentence.

     On appeal, Thorpe claims that the "rule should have been

dismissed," contending that the trial court erred in allowing

the Commonwealth to introduce Quinn's report, which he claims is

inadmissible hearsay, violating his right to due process.

Thorpe also contends that "simple fairness would seem to dictate

that any material modification of the written conditions [of

probation] be in writing."    Finally, Thorpe argues that the

Commonwealth failed to present any evidence which proved his

                                 - 4 -
consumption of alcohol on December 20, 1999 and March 21, 2000

"interfere[d] with [his] employment or orderly conduct."

     We note first that pursuant to Rule 5A:18, "[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, except for good cause shown

or to enable the Court of Appeals to attain the ends of

justice."   See Cottrell v. Commonwealth, 12 Va. App. 570, 574,

405 S.E.2d 438, 441 (1991) (noting this procedural bar applies

even to defendant's constitutional claims).    At the hearing,

Thorpe failed to raise any objection to the admission of Quinn's

report and, given our jurisprudence on this issue, and our

review of the record, we find no reason to invoke the ends of

justice exception to Rule 5A:18. 1   Accordingly, we do not address

this issue for purposes of appeal.

     Next, we find no merit in Thorpe's argument concerning

Quinn's failure to put his statements regarding Thorpe's

consumption of alcohol in writing.     Thorpe has cited no

authority requiring that such instructions be placed in writing.

Instead, he argues that "simple fairness" would dictate that any



     1
        See Pannell v. Commonwealth, 34 Va. App. 287, 293, 540
S.E.2d 527, 530, aff'd on reh'g en banc, 35 Va. App. 643, 547
S.E.2d 529 (2001), (noting that adult revocation proceedings are
not a stage of criminal prosecution; thus, the process allows
evidence that would not be admissible in an adversary criminal
trial); see also Hess v. Commonwealth, 17 Va. App. 738, 742, 441
S.E.2d 29, 32 (1994).

                               - 5 -
change in the written probation conditions be put in writing.

However, we find no "material change" in the probation

conditions as Thorpe suggests.    Indeed, the written conditions

of Thorpe's probation specifically required him to "follow the

Probation and Parole Officer's instructions," and to be

"cooperative."   Thorpe conceded that Quinn told him to "lay off"

the alcohol and that Quinn had told him if he failed to do so,

Quinn would "violate [him]."   We fail to see how this

instruction changed the conditions of Quinn's probation; nor do

we see how the instruction could have been made any clearer to

Thorpe.   Moreover, Thorpe's insistence that because the

instruction was not put in writing it was merely a "suggestion,"

simply demonstrates his lack of willingness to cooperate with

Quinn in carrying out the terms and conditions of his probation.

     Finally, it is well settled that:

           "[w]hen considering the sufficiency of the
           evidence on appeal of a criminal conviction,
           we must view all the evidence in the light
           most favorable to the Commonwealth and
           accord to the evidence all reasonable
           inferences fairly deducible therefrom.
           The . . . verdict will not be disturbed on
           appeal unless it is plainly wrong or without
           evidence to support it."

Clarke v. Commonwealth, 32 Va. App. 286, 300, 527 S.E.2d 484,

491 (2000) (quoting Clark v. Commonwealth, 30 Va. App. 406,

409-10, 517 S.E.2d 260, 261 (1999)).     "'If there is evidence to

support the conviction, the reviewing court is not permitted to

substitute its judgment, even if its view of the evidence might

                                 - 6 -
differ from the conclusions reached by the finder of fact at the

trial.'"   Id. (quoting Commonwealth v. Taylor, 256 Va. 514, 518,

506 S.E.2d 312, 314 (1998)).

     So viewed, the evidence demonstrated that Thorpe clearly

violated the written terms of his probation.   Thorpe himself

conceded that he failed to follow his "Probation and Parole

Officer's instructions and be . . . cooperative" by consuming

alcohol after having been told by Quinn to "lay off" the alcohol.

Furthermore, Thorpe's blood alcohol level of 0.15% on December 20,

1999, when he reported to Quinn's office, would have been

sufficient for a conviction of public intoxication under Code

§ 18.2-388.   Thus, Thorpe also violated his agreement to "be of

good behavior and violate no laws of the Commonwealth."

Accordingly, Thorpe's argument that the evidence was insufficient

to establish he consumed alcohol in a manner which would "disrupt

or interfere with his employment or orderly conduct," is of no

consequence and we, therefore, affirm the judgment of the trial

court.

                                                            Affirmed.




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