                    COURT OF APPEALS OF VIRGINIA


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


JAMES MAYNARD PRO
                                      MEMORANDUM OPINION * BY
v.   Record No. 1799-99-4           JUDGE ROSEMARIE ANNUNZIATA
                                           JUNE 20, 2000
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                    Kathleen H. MacKay, Judge

          S. Jane Chittom, Appellate Counsel (Elwood
          Earl Sanders, Jr.; Public Defender
          Commission, on briefs), for appellant.

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


     James Maynard Pro appeals from his conviction of making a

threat to burn a building in violation of Code § 18.2-83.    He

contends the trial court erred 1) in admitting into evidence two

protective orders with an accompanying affidavit; 2) in finding

the Commonwealth's evidence sufficient to convict him of the

charged offense; and 3) in relying upon the personal experience

of the court in evaluating evidence in the case.   For the

reasons that follow, we find no error and affirm the conviction.




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

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

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom."    Hunley v. Commonwealth,

30 Va. App. 556, 559, 518 S.E.2d 347, 349 (1999).    On October

17, 1998, Pro argued with his mother, Florence Pro ("Mrs. Pro"),

concerning money Pro wished Mrs. Pro to give him to redeem his

tools from pawn.    When Mrs. Pro refused to give him the money,

Pro became angry and knocked some Lenox ornaments off a table in

Mrs. Pro's home, causing them to break.    Pro "said that he was

going to burn the house down before [Mrs. Pro] gave the house to

the girls," the "girls" being Mrs. Pro's adult granddaughters,

Geri Ann and Andrea. 1   Mrs. Pro called the police, and thereafter

sought and obtained an emergency protective order from the

juvenile and domestic relations district court.    On November 2,

1998, that order was made permanent.

     At Pro's trial on April 6, 1999, Mrs. Pro testified for the

Commonwealth.    She testified that when Pro destroyed the

ornaments, she was "scared to a certain point."    However, she

denied that Pro's threat to burn her house frightened her, and

claimed that she only sought the protective order "to get him

[to] move out of my house and go [out] on his own."    Mrs. Pro

acknowledged, however, that "she signed off on the [temporary]


     1
         Geri Ann and Andrea are Pro's estranged daughters.

                                - 2 -
protective order," and subsequently "went back and got a

permanent one."

     The Commonwealth offered the temporary and permanent

protective orders, with the attached affidavit signed by Mrs.

Pro, as substantive evidence to show "why she went and got" the

protective order.   The court admitted the protective orders and

affidavit over Pro's objection.

     In finding Pro guilty, the court noted that "there has to

be an appropriate mens rea in order for this crime to be

committed, which is a threat to burn . . . ."   The court viewed

"threat" as "a communication avowing an intent to injure

another's person or property" which "taken in its particular

context must reasonably cause the receiver to believe that the

speaker will act according to his expression of intent."    The

court found as a matter of fact that Pro's statement that he

"was going to burn the house down" was a "malicious threat" that

"made apparent an intent to injure [Mrs. Pro's] person or

property" and that "Mrs. Pro thought that it was a legitimate

threat."    Discounting the possibility the words were spoken in

jest, the court found "[t]hese people were serious."

     Pro was sentenced to one year of incarceration, which the

court suspended for a period of two years.   This appeal

followed.




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      ADMISSIBILITY OF THE PROTECTIVE ORDERS AND AFFIDAVIT

     Pro contends the protective orders and supporting affidavit

were inadmissible, arguing the orders are rendered inadmissible

by statutory proscription, and the affidavit is inadmissible

both as an adjunct of the inadmissible protective orders and as

hearsay.   Pro has failed to preserve this claim for appeal,

however.

     When the protective order was offered into evidence, Pro

objected only that the order was not relevant.     Defense counsel

argued that the Commonwealth's attorney offered the order only

"to impeach his own witness because he doesn't like her

responses" and that the order was not relevant to any material

fact in the case.   Pro made no other objection.   On appeal,

however, Pro contends the affidavit in support of the protective

order was inadmissible under Code § 16.2-253.4(G), and as

hearsay.   These arguments were not presented to the trial court,

and are therefore barred by Rule 5A:18, which provides that

"[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 . . . attain the ends of justice."    We find no

basis to apply the good cause or ends of justice exceptions in

this case, and we therefore address this contention no further.




                               - 4 -
                     SUFFICIENCY OF THE EVIDENCE

       Pro further contends the evidence admitted at trial was

insufficient as a matter of law to convict him.      This claim is

without merit.

       As noted, we view the evidence in the light most favorable

to the Commonwealth, granting to it all reasonable inferences

fairly deducible.    See Hunley, 30 Va. App. at 559, 518 S.E.2d at

349.   We do not substitute our judgment for that of the trier of

fact, whose judgment will not be set aside unless plainly wrong

or without evidence to support it.      See id.   So viewed, the

evidence on the record supported the trial court's judgment.       In

support of his argument, Pro contends that Mrs. Pro's testimony

constituted positive proof that she did not believe Pro intended

to burn her house and that because the affidavit contradicting

her testimony stated various reasons for Mrs. Pro's fear of Pro,

the trial court could not properly infer, based on the

affidavit, that Mrs. Pro's fear derived from a belief that Pro

intended to carry out his threat.    We disagree.

       Where extrinsic evidence is properly admitted to

"contradict" prior testimony, "such evidence has a dual

character . . . and . . . unlike other forms of impeaching

evidence . . . is also admissible as substantive evidence."

Charles E. Friend, The Law of Evidence in Virginia § 4-7, at 140

(4th ed. 1993).   "Out of court statements offered to show the


                                - 5 -
state of mind of the declarant are admissible in Virginia when

relevant and material."     Johnson v. Commonwealth, 2 Va. App.

598, 602, 347 S.E.2d 163, 165 (1986); see also Pavlick v.

Commonwealth, 27 Va. App. 219, 231, 497 S.E.2d 920, 926 (1998)

(en banc) ("If shown to be relevant to the case, out-of-court

utterances are admissible to show the state of mind of the

declarant.").    Thus, if Mrs. Pro's statements in the affidavit

supporting the protective order are relevant and material to

this case, the affidavit was properly admitted as substantive

evidence.

        The affidavit served both as impeachment evidence and as

affirmative evidence of Mrs. Pro's state of mind at the time Pro

threatened to burn her house.    Despite Mrs. Pro's assertions in

her ore tenus testimony, the affidavit gave the court grounds to

doubt the credibility of that testimony.    Furthermore, as

substantive evidence, it served to show her fearful state of

mind immediately after Pro made his threat, supporting, by

inference, her belief that Pro intended to carry out the

threatened act.    The fact that the affidavit stated additional

grounds for her fear of Pro is irrelevant, as the weight

accorded the evidence lies within the discretion of the trier of

fact.     See Commonwealth v. Holloway, 9 Va. App. 11, 17, 384

S.E.2d 99, 102 (1989).    "The inferences to be drawn from proven

facts, so long as they are reasonable, are within the province


                                 - 6 -
of the trier of fact."   Hancock v. Commonwealth, 12 Va. App.

774, 782, 407 S.E.2d 301, 306 (1991) (citation omitted).   In

sum, the court had sufficient evidence before it to support its

conclusion that Mrs. Pro reasonably believed Pro's threat:    Mrs.

Pro's testimony established that Pro communicated an intent to

burn her house, the immediate context of Pro's statement

established its malicious nature, and Mrs. Pro's signed

affidavit established her fearful state of mind resulting from

Pro's statement, proving that she believed his threat to be

sincere.

           TRIAL COURT'S RELIANCE ON PERSONAL EXPERIENCE

     Finally, Pro contends the trial court erred by taking

judicial notice that, in intra-family disputes, frequently a

complainant will file criminal charges against a defendant, only

to recant at a later time irrespective of the merits of the

initial accusation.   However, Pro made no objection at the time

the judge made this observation, and no effort was made to alert

the court that such an observation might be exceptionable.    Rule

5A:18 therefore bars our further consideration of this claim.

     For the reasons stated, we affirm the decision of the trial

court.

                                                    Affirmed.




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