                  COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Bray and Annunziata
Argued at Alexandria, Virginia


RALPH FOWLER, A/K/A RALPH MANN,
 A/K/A "KILLA"
                                          MEMORANDUM OPINION * BY
v.         Record No. 0629-97-4           JUDGE RICHARD S. BRAY
                                              MARCH 24, 1998
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
                 Herman A. Whisenant, Jr., Judge
          Anne T. Godson for appellant.

          H. Elizabeth Shaffer, Assistant Attorney
          General (Richard Cullen, Attorney General, on
          brief), for appellee.



     A jury convicted Ralph Fowler (defendant) for attempted

murder and related use of a firearm.   On appeal, defendant

complains (1) that the trial court erroneously permitted the

Commonwealth to amend the indictments to include an alias,

"Killa," for defendant, and (2) that the evidence is insufficient

to support the convictions.   We disagree and affirm the trial

court.

     The parties are fully conversant with the record and this

memorandum opinion recites only those facts essential for

disposition of the appeal.

     In accordance with well established principles, we view the

evidence in the "light most favorable to the Commonwealth,

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
granting to it all reasonable inferences fairly deducible

therefrom."   Martin v. Commonwealth, 4 Va. App. 438, 443, 358

S.E.2d 415, 418 (1987).   The credibility of a witness, the weight

accorded the testimony, and the inferences to be drawn from

proven facts are matters to be determined by the fact finder.

See Long v. Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473,

476 (1989).   "[A] jury is not required to accept in toto an

accused's [testimony], but may rely on it in whole, in part, or

reject it completely."    Rollston v. Commonwealth, 11 Va. App.

535, 547, 399 S.E.2d 823, 830 (1991) (citations omitted).

     Here, the evidence established that Jimmy Medina, Latisha

Brown, and their infant daughter were at their residence when

Medina learned from an acquaintance that someone was "out front

ask[ing] for [him]."   Medina proceeded to the front door and

observed defendant and Javon Saunders "standing against the car."

"They" asked if Medina was Jimmy Hale, a friend of Medina's

brother, Joseph.   Medina replied, "no," closed the door, and

returned to his family.

     Shortly thereafter, Medina responded to a knock at the back

door and again encountered defendant and Saunders.   Saunders

pointed a handgun at Medina's chest and commanded, "You know what

time it is.   Get the f--- on the ground."   Presuming that he was

"getting robbed," Medina struggled with defendant while Saunders

entered the home, confronted Brown and angrily demanded, "Where

the f--- is he, bitch?"   Brown answered, "I don't know," and



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Saunders struck her in the face and head with the weapon, stated,

"F--- this s---, I'm going to cap your ass, bitch," and placed

the "gun to the back of [her] head."   Brown "ducked" and

immediately heard a gunshot.   Also hearing the shot, Medina ran

from the back door to the front of the residence and was again

confronted by Saunders pointing the gun at him.   Medina then fled

and escaped, despite pursuit by defendant and Saunders.

     Subsequent investigation revealed that the bullet passed

within "four or five inches" of the infant resting on the sofa.

Forensic tests matched it to a gun discovered during the

execution of a search warrant at the defendant's residence.

Handsets from two telephones were missing, and police later

recovered one near the rear door bearing Saunders' fingerprints.
     Defendant testified that he and Saunders had traveled to

Medina's home intending to purchase marijuana, armed with the gun

as customary during their "drug deals."   The three men argued

over the quantity of drug sold to them by Medina, and Saunders

threatened Medina with the weapon in an effort to recoup purchase

money.   When Medina fled from the back door, Saunders pointed the

weapon at Brown, and defendant, not "want[ing] nobody to get

shot," "snatched the gun" from Saunders and "it went off."

Defendant denied chasing Medina, but admitted striking Brown "one

time in the head" "[b]ecause she was . . . raising her voice at

me and pushing us."

     Prior to the commencement of trial, the Commonwealth moved




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to amend the indictments to include the alias, "Killa," for

defendant.   Defendant objected, arguing that no evidence

supported the proposed amendment.   In response, the Commonwealth

proffered, unchallenged by defendant, that defendant had written

a letter "signed with that nickname . . . [and bearing] his

fingerprints," and the court granted the motion.

                           The Amendment

     On brief, defendant relied both upon his original argument

that the Commonwealth failed to provide a proper foundation for

the amendment, and the additional contention that the "damaging

nature of this name was highly prejudicial" to defendant, while

"provid[ing] no probative evidence."   However, during oral

argument, defendant correctly conceded that the unchallenged

unilateral avowal by the Commonwealth properly established a

foundation for the amendment, see Stewart v. Commonwealth, 10 Va.
App. 563, 568, 394 S.E.2d 509, 512 (1990), and we are

procedurally barred from considering defendant's remaining

argument.

     It is well established that we 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).   "[E]rror will be sustained to a

ruling of the trial court only when the objection was stated,

together with the grounds therefor, at the time of the ruling,

except for good cause . . . or . . . to attain the ends of




                               - 4 -
justice."   Snurkowski v. Commonwealth, 2 Va. App. 532, 536, 348

S.E.2d 1, 3 (1986); Rule 5A:18.   Defendant in this instance

failed to argue the prejudice issue before the trial court and,

finding no circumstances justifying the ends of justice

exception, thereby precluded appellate review.    See Redman v.

Commonwealth, 25 Va. App. 215, 218, 487 S.E.2d 269, 271 (1997).

                    Sufficiency of the Evidence

     First degree murder includes "any willful, deliberate, and

premeditated killing."   Code § 18.2-32.   "'To sustain a

conviction for attempted murder, the evidence must establish both

a specific intent to kill the victim and an overt but ineffectual

act committed in furtherance of the criminal purpose.'"     Bottoms

v. Commonwealth, 22 Va. App. 378, 382, 470 S.E.2d 153, 155 (1996)

(quoting Wynn v. Commonwealth, 5 Va. App. 283, 292, 362 S.E.2d

193, 198 (1987)).   The jury may find premeditation based on "all

the facts and circumstances[, and t]he intention to kill need not

exist for any specified length of time prior to the [attempted]

killing."   Mundy v. Commonwealth, 11 Va. App. 461, 479, 390

S.E.2d 525, 535, aff'd en banc, 11 Va. App. 461, 399 S.E.2d 29

(1990).   "'A design to kill may be formed only a moment before

the [attempted] act is committed provided the accused had time to

think and did intend to kill.'"   Clozza v. Commonwealth, 228 Va.

124, 134, 321 S.E.2d 273, 279 (1984) (citation omitted).

     "Concert of action" constitutes "'action that has been

planned, arranged, adjusted, agreed on and settled between the




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parties acting together pursuant to some [wrongful] design or

scheme.'"   Berkeley v. Commonwealth, 19 Va. App. 279, 283, 451

S.E.2d 41, 43 (1994) (citation omitted).   "All participants in

such planned enterprises may be held accountable for incidental

crimes committed by another participant during the enterprise

even though not originally or specifically designed."    Id.

"Hence, it is not necessary that the crime should be a part of

the original design; it is enough if it be one of the incidental

probable consequences of the execution of that design, and should

appear at the moment to one of the participants to be expedient

for the common purpose."   Carter v. Commonwealth, 232 Va. 122,

127, 348 S.E.2d 265, 268 (1986) (citations omitted).

     Defendant's own evidence clearly established that he and

Saunders, acting in concert, had gone to Medina's home armed and

with the intent to purchase illegal drugs.   Saunders' subsequent

conduct and attendant statements to Brown supplied the requisite

elements of attempted murder as an incidental, likely consequence

of the joint criminal enterprise.    Thus, defendant was equally

culpable for Saunders' crimes.

     Accordingly, we affirm the convictions.
                                                         Affirmed.




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