                                COURT OF APPEALS OF VIRGINIA


Present: Judges Humphreys, Kelsey and Senior Judge Bumgardner
Argued at Chesapeake, Virginia


RHAKEEM WILLIAM WINN
                                                            MEMORANDUM OPINION * BY
v.     Record No. 1780-07-2                               JUDGE RUDOLPH BUMGARDNER, III
                                                                  MARCH 24, 2009
COMMONWEALTH OF VIRGINIA


                  FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                            Thomas N. Nance, Judge Designate

                 Diane M. Abato (Abato & Davis, on brief), for appellant.

                 Karen Misbach, Assistant Attorney General II (Robert F.
                 McDonnell, Attorney General, on brief), for appellee.


       Rhakeem William Winn was convicted of attempted rape, sexual battery, and taking

indecent liberties. He was granted an appeal on two issues related only to the conviction of

taking indecent liberties, Code § 18.2-370: (1) did the trial court take judicial notice of facts not

in evidence; and (2) was the evidence sufficient to convict of that charge. Concluding the trial

court did not err, we affirm.

       “On appeal, ‘we review the evidence in the light most favorable to the Commonwealth,

granting to it all reasonable inferences fairly deducible therefrom.’” Archer v. Commonwealth,

26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va. App.

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

       On July 3, 2007, the defendant spent the night at the residence of Kenne Gaines, who was

the mother of his four-year-old daughter. The defendant slept in a bedroom with his infant


       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
daughter and Gaines’ fourteen-year-old sister, C.G. Gaines slept in another bedroom with her

son and her sister.

        Late that night, C.G. awoke Gaines and told her that the defendant had done sexual things

to her. C.G. described those acts at trial. At the conclusion of the evidence, the trial court asked

the Commonwealth if it intended to reopen its case or if it was “going to rely on the voir dire of

his age.” The Commonwealth stated it “will rely on that.” The defendant objected and moved to

strike the evidence because of failure to prove he was over eighteen years old. The trial court

took the indecent liberties charge under advisement pending the submission of briefs on the “age

question.”

        At a later hearing, the defendant contended it was improper to use his voir dire answers

as substantive evidence against him, but he conceded the trial court could observe a defendant

and determine from “his appearance that he was above the age of 18.” However, the defendant

asserted, “the Court would have had to make a finding,” after which “it would have been an

opportunity for the defense to rebut that.” “However,” argued the defendant, “that is not what

the Commonwealth relied on. The Commonwealth boxed itself in, in asking the Court to rely on

the voir dire. I think that is inappropriate to rely on, on that for proof of his age.”

        The trial court ruled as follows:

                        Well, I think without a doubt we would all have to be pretty
                well impaired not to be able to look at the defendant and say that
                he is over the age of 18.
                        I don’t think there is anybody in the Court or courthouse
                that would not agree that the man was certainly over the age of 18.
                        I do find that that is enough, and I do rely on seeing him.

“Independent” of its reliance on the defendant’s appearance, the trial court also indicated that it

“would receive his answer in voir dire” regarding his age.

        The defendant concedes, “physical appearance may be considered as proof of [a

defendant’s age] if the defendant’s physical appearance indicates an age well above the required
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age so far as to be proof beyond a reasonable doubt.” However, he contends the trial court

improperly relied on his statements made during voir dire and took judicial notice of documents

in the record despite the trial judge’s failure to identify what facts it intended to rely upon.

       The Commonwealth must prove the defendant was eighteen years of age or older to

prove the crime of taking indecent liberties with a child in violation of Code § 18.2-370. The

defendant’s appearance may properly be considered as proof that he is over eighteen years old:

               [W]hen proof is required that a person is above or below a given
               age, physical appearance may be considered as proof of that fact.
               If a criminal defendant’s physical appearance indicates an age well
               above that required to be proven and the trial court determines that
               the fact finder is able to conclude beyond a reasonable doubt from
               the defendant’s physical appearance that he exceeds the age
               required to be proven, then the defendant’s physical appearance
               alone is sufficient evidence of his age, and the fact finder may
               resolve that issue based only on the defendant’s physical
               appearance. However, in less obvious cases, where the
               defendant’s physical appearance does not establish beyond a
               reasonable doubt that his age exceeds that required, then physical
               appearance alone is insufficient evidence of his age and must be
               corroborated.

Jewell v. Commonwealth, 8 Va. App. 353, 356, 382 S.E.2d 259, 261-62 (1989).

       The trial court determined the defendant was eighteen years old or older based on his

appearance in the courtroom. It clearly stated its finding, and that finding was proper. The

record does not support the defendant’s argument that the trial court based its finding on the

defendant’s answers to its questions posed during arraignment.

       The trial court did not take judicial notice of those answers to prove his age. The record

clearly shows the trial judge found the defendant’s appearance sufficient, by itself, to prove he

was eighteen or over. Independent of that finding, the trial court did state it would receive the

defendant’s answer during voir dire that he was over eighteen. However, that statement was not

necessary to support appellant’s conviction and thus constituted dicta. See Lofton Ridge, LLC v.

Norfolk S. Ry., 268 Va. 377, 383, 601 S.E.2d 648, 651 (2004) (the alternative justification for
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ruling was dicta because it was unnecessary to the holding). Accordingly, the trial court did not

err.

       The defendant expands his assertion that the evidence was insufficient by arguing, “the

Commonwealth did not prove exposure by the defendant of his genitals or a proposal of a sex

act.” However, the defendant did not make this argument at trial. His argument in support of his

motion to strike only claimed that the Commonwealth had not proven the defendant was eighteen

or over, and that was the only basis on which the trial court ruled against his motion to strike.

“The Court of Appeals will not consider an argument on appeal which was not presented to the

trial court.” Ohree v. Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998).

Rule 5A:18 bars our consideration of this question on appeal.

       Accordingly, we affirm appellant’s conviction for taking indecent liberties.

                                                                                           Affirmed.




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