                    COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Coleman and Senior Judge Cole
Argued at Richmond, Virginia


TROY ALAN SIMMONS
                                             MEMORANDUM OPINION *
v.   Record No. 0152-97-2                 BY JUDGE MARVIN F. COLE
                                                APRIL 7, 1998
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                     Timothy J. Hauler, Judge
          Cary B. Bowen (Amy M. Curtis; Bowen, Bryant,
          Champlin & Carr, on brief), for appellant.

          Richard B. Smith, Assistant Attorney General
          (Richard Cullen, Attorney General, on brief),
          for appellee.



     Appellant, Troy Alan Simmons, was convicted of second degree

murder and burglary while armed.   On appeal, he contends that the

trial court committed error when it (1) failed to declare a

mistrial when evidence of prior bad acts was admitted in evidence

in violation of an agreement between defense counsel and the

prosecutor that such evidence would be excluded; (2) introduced

in evidence a statement of the appellant made at the hospital,

which the trial court found to be unreliable; and (3) denied

appellant a fair trial because of cumulative prejudice.   We

affirm.

     On appeal, we view the evidence in the light most favorable

to the Commonwealth, granting to it all reasonable inferences
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
fairly deducible therefrom.       See Martin v. Commonwealth, 4 Va.

App. 438, 443, 358 S.E.2d 415, 418 (1987).

                             I.    Mistrial

     Before trial, appellant and the prosecutor made a joint

motion in limine, advising the court that they had agreed not to

go into evidence of other offenses and not to explore areas of

other ancillary offenses.    The prosecutor stated, and defense

counsel concurred, that they did not want to dwell on specific

bad acts in front of the jury; this would apply to the

Commonwealth on direct examination of witnesses but that it might

not apply during cross-examination of witnesses.      The court

granted the joint motion.
     During the direct testimony of Melissa Schaack, daughter of

the victim and girlfriend of appellant, the following questioning

occurred:
            Q.   Now, let me ask you, had there been any
                 problems or had you seen any problems
                 between Mr. Simmons and your mother?
            A.   Yes. There was.
            Q.   Of what nature?
            A.   Troy and my mother never did get along.
                 . . . [N]either one of them liked each
                 other.
            Q.   Other than the fact that they didn't get
                 along, had there been any serious
                 problems?
            A.   There was a problem right after
                 Thanksgiving. He assaulted my brother
                 and sister's babysitter and we had out a
                 trespassing warrant.
            Q.   I'm talking about your mother and Mr.
                 Simmons. You had seen no trouble
                 between your mother and Mr. Simmons at
                 all?

            Mr. Bowen:   Judge, I'm going to reserve an


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            objection to that comment to argue at the
            proper time.


     Later, while the jury was excused, defense counsel made a

motion for a mistrial based upon Schaack's testimony which

counsel claimed violated the agreement between the parties and

the in limine ruling of the trial court.     The trial judge denied

the mistrial motion, but offered to give a curative instruction.

Defense counsel asked the judge not to give the curative

instruction.
     The testimony of Melissa Schaack indicated that appellant

and her mother (the victim) did not get along.    Although there

was no violence between them, there were arguments.     Appellant

testified that when he phoned, the victim would refuse to let him

speak to Melissa and would hang up on him.    Other evidence

indicated that the victim had instructed appellant not to call

her home.

     In Martin v. Commonwealth, 11 Va. App. 397, 409, 399 S.E.2d

623, 629 (1990), we stated:   "The defendant refused the

cautionary instruction.   When a defendant not only does not

request an instruction, but denies the court's offer to give one,

any error which may have been committed otherwise is waived."       By

refusing the trial judge's offer to give a curative instruction,

the defendant waived his objection to the alleged error.

Furthermore, even if defense counsel had not waived his

objection, the trial court did not err by denying the motion for

a mistrial.    Although the parties agreed to exclude the evidence


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and the trial judge concurred in the agreement, the evidence was

otherwise admissible and the trial court did not err by admitting

relevant and material evidence.

     Evidence of prior crimes or bad acts of a defendant are

inadmissible when offered only to prove a criminal predisposition

to commit the crime for which the defendant is charged.

"'Evidence of other offenses is [admissible] if it shows the

conduct and feeling of the accused towards his victim, if it

establishes their prior relations, or if it tends to prove any

relevant element of the offense charged.'"      Foster v.

Commonwealth, 6 Va. App. 313, 323, 369 S.E.2d 688, 694 (1988)

(quoting Kirkpatrick v. Commonwealth, 211 Va. 269, 272, 176

S.E.2d 802, 805 (1970)).     Here, the evidence was admissible to

prove the prior relationship between the defendant and the

victim, and we will not reverse the trial court for refusing to

declare a mistrial for not excluding admissible evidence.

                  II.   Appellant's Hospital Statement
     The appellant testified on his own behalf.     During

cross-examination, the prosecutor asked if he recalled being

interviewed by Detective Church at the hospital.     Defense counsel

objected to the admissibility of the appellant's statement to

Church because Miranda warnings were not given and because

appellant was in the recovery room after major surgery and was

under sedation.    Defense counsel claimed that a statement given

under these circumstances was not reliable.     The dispositive




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question is whether there was manifest prejudice when a statement

of the appellant, which the trial court later found to be

unreliable, was introduced into evidence.

     After considering argument of counsel, the trial judge

stated:
          I think you may ask Mr. Simmons if he had
          given a statement to Detective Church that
          differs significantly from the statement he
          has given the court today, and if he says he
          doesn't know, or if he doesn't remember, then
          we'll bring Detective Church in. If he says,
          "Yes, it was," then that's the end of it.

     Defense counsel did not object to this procedure, but stated

that the Church statement given to him by the prosecutor did not

appear to be a complete interview.   The trial judge stated that

defense counsel was entitled to have full information.    It was

arranged for him to interview Church and to hear a tape of the

conversation between Church and Simmons at the hospital.

     After interviewing Church and listening to the tape, defense

counsel advised the trial court:
          I believe that what Mr. Simmons will say is
          that there are differences in what Mr. Church
          says and what he says today, and as well with
          the statement to [Officer] Crews. I'm not
          trying -- once Mr. Von Schuch asks him, we'll
          know. I mean I don't know of any way to
          handle it really.


     At this point, the record indicates that every objection

made by defense counsel had been resolved to his satisfaction by

the trial judge.   The prosecutor asked Simmons the questions

proposed by the judge with no further objection:
          Q.   Do you recall talking to Detective



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                Church of the Chesterfield County Police
                Department after you came out of surgery
                at the Medical College of Virginia?
           A.   Vaguely, sir.
           Q.   And isn't it true that the statement you
                made to him at that time was different
                from the statement you've just given
                this jury as to how Ms. Veca was
                stabbed?
           A.   Yes, sir, that's entirely possible.
           Q.   So both of the statements that you gave
                the police officer at the scene and the
                statement that you gave Detective Church
                are different than what you've told the
                jury here today?
           A.   Yes, sir. I believe that's possible.

     In view of these admissions, the prosecutor did not inquire

about the details or content of the appellant's statements to

Church.   Although the hospital statement was marked as an exhibit

for identification purposes, the jury neither saw the hospital

statement, nor was it introduced into evidence.

     We find that the defendant was not prejudiced by the

questioning about his hospital statement to Church because the

record does not reflect that the hospital statement was

introduced in evidence or shown to the jury.

                    III.    Cumulative Prejudice

     The appellant contends that he was denied a fair trial

because the two separate grounds for which he sought a mistrial

also amounted to cumulative prejudice.    This argument was not

raised in the trial court and for this reason we will not

consider it on appeal.     See Jacques v. Commonwealth, 12 Va. App.

591, 593, 405 S.E.2d 630, 631 (1991); Rule 5A:18.




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     Accordingly, Rule 5A:18 bars our consideration of this

question.   Moreover, the record does not reflect any reason to

invoke the good cause or ends of justice exception to Rule 5A:18.

                                                        Affirmed.




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