                        COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Frank and Clements
Argued at Alexandria, Virginia


LUIS ALBERTO NAVARRETTE
                                            MEMORANDUM OPINION * BY
v.   Record No. 0403-01-4                JUDGE JEAN HARRISON CLEMENTS
                                                OCTOBER 8, 2002
COMMONWEALTH OF VIRGINIA


               FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
                         Paul F. Sheridan, Judge

          Gary H. Smith for appellant.

          Jennifer R. Franklin, Assistant Attorney
          General (Randolph A. Beales, Attorney
          General, on brief), for appellee.


     Luis Alberto Navarrette was convicted in a jury trial of

three counts of rape of a child under the age of thirteen, in

violation of Code § 18.2-61.    On appeal, he contends (1) the trial

court erred in denying his motion to suppress the inculpatory

statements he involuntarily made to police during a custodial

interrogation that violated his constitutional rights and (2) the

Commonwealth's evidence was insufficient as a matter of law to

sustain his convictions.    Finding no error, we affirm Navarrette's

convictions.

     As the parties are fully conversant with the record in this

case and because this memorandum opinion carries no precedential


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
value, this opinion recites only those facts and other incidents

of the proceedings as necessary to the parties' understanding of

the disposition of this appeal.

                        I.   MOTION TO SUPPRESS

     On appeal from a trial court's denial of a motion to

suppress, the burden is on the appellant to show that the denial

of the motion constituted reversible error.       See Fore v.

Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1980).    In

reviewing such a denial, we consider the evidence in the light

most favorable to the Commonwealth, granting to the Commonwealth

all reasonable inferences fairly deducible from the evidence.

E.g., Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407

S.E.2d 47, 48 (1991).

     Viewed in the light most favorable to the Commonwealth, the

pertinent evidence presented in this case established that, on

March 2, 2000, Kaiser Permanente informed the Arlington County

Police Department that M.N., an eleven-year-old patient of theirs,

was pregnant.   During an interview with the police that same day,

M.N. reported that Navarrette, her uncle, who lived with her

family, had had sexual intercourse with her.

     That same day, two detectives in plain clothes and a

Spanish-speaking uniformed officer, Isaac Ruiz, went to

Navarrette's apartment around 11:30 p.m.    The officers knocked on

the front door of the apartment.    When M.N.'s father opened the

door, Ruiz told him that they were there about his daughter's case

                                 - 2 -
and wanted to speak to Navarrette.     The father let the officers

in, telling them his brother, Navarrette, was asleep in the

bedroom.   Accompanied by Ruiz, the father knocked on the bedroom

door, opened it, and pointed out Navarrette.

     Not turning on the lights in the room because other people

were asleep in the room, Ruiz saw Navarrette sitting on the bed.

As a precaution, Ruiz scanned the room with his flashlight but saw

nothing of concern.   Identifying himself as a police officer, Ruiz

informed Navarrette he was there in reference to M.N.'s case and

asked him to get dressed and come into the other room.

     Although initially groggy, Navarrette quickly woke up and was

responsive.   He got dressed, came out of the bedroom, and sat at

the kitchen table next to M.N.'s father.     With Ruiz translating,

the detectives told Navarrette they were there about M.N.'s case

and asked if he minded coming to the police station with them to

answer some questions.   Navarrette replied, "No problem."   Ruiz

told Navarrette he was not under arrest.     He was not handcuffed.

Ruiz testified that the demeanor of the officers in the apartment

was "passive" throughout their encounter with Navarrette.    They

never, Ruiz testified, raised their voices in speaking to

Navarrette.

     Before leaving, Navarrette went back to the bedroom to get

his wallet.   Ruiz accompanied him and used his flashlight to

assist him in finding his wallet.



                               - 3 -
     Leaving the apartment, Navarrette walked "causally" with the

officers to Ruiz's marked police cruiser.   When Ruiz unlocked the

car, Navarrette opened the rear door himself and got in.   The car

had no "cage," the doors were unlocked, and the interior door

handles were operational.   One of the detectives sat up front with

Ruiz, who drove.   M.N.'s father rode to the police station with

the other detective.    The drive to the police station took five

minutes.    M.N.'s father testified that, before they left for the

police station, the officers told Navarrette and him, "[W]e'll

bring you back," which he understood to mean that they would bring

both of them back to the apartment following the questioning at

the police station.

     At the police station, Officer Ruiz escorted Navarrette to

the interview room on the eighth floor.   Arriving at the room,

Ruiz showed Navarrette where to sit and offered to get him a Coke

to drink.    Navarrette initially declined the offer but accepted

when Ruiz again offered to get him a drink five minutes later.

Later, while they awaited the arrival of the investigating

detective, Ruiz showed Navarrette to the bathroom.   Ruiz waited

for Navarrette outside the bathroom in the hall because a "pass

card" was needed to get back into the interview room area.

Navarrette "seemed a little tired" to Ruiz, but he had no problems

communicating and was responsive to the questions asked.

     At approximately 1:45 a.m., Detective Skeens, who was in

plain clothes, arrived at the interview room.   Navarrette had his

                                - 4 -
head resting on his hands when Skeens and Ruiz first entered the

interview room, but looked up as they came in.     According to

Skeens, Navarrette "seemed to be alert" and was "pretty

responsive."   Neither officer had a weapon.    The door remained

open during the interview, and Navarrette was not handcuffed.

     Skeens, who spoke only English, asked Navarrette if he would

answer some questions, and Navarrette, who appeared "really awake"

to Ruiz, agreed to speak with him.      Skeens explained to Navarrette

that there were allegations that Navarrette had engaged in sexual

intercourse with his eleven-year-old niece.     Skeens further

informed Navarrette that he was not under arrest, that he did not

have to talk to the police, and that arrangements would be made to

get him a ride home if he wanted to leave.

     According to Ruiz, Navarrette began the interview speaking to

Skeens in English.    Later, Ruiz testified, Navarrette would

sometimes respond immediately in Spanish to Skeens' question

without needing Ruiz to translate the question.     Ruiz would then

translate Navarrette's response into English for Skeens.     Other

times, Navarrette would immediately restate Skeens' question in

Spanish to Ruiz, who would confirm that it was the correct

question.   Navarrette would then respond to the question in

English or Spanish.   Ruiz testified he had no trouble speaking

with Navarrette or understanding what he was saying.

     Navarrette initially denied the allegations that he had had

sexual relations with his niece, saying "he would have to be some

                                - 5 -
kind of animal to do that."    However, when Skeens informed

Navarrette that his niece was pregnant and suggested Navarrette

may have been forced to do things against his will by her,

Navarrette admitted he had had sexual intercourse with her at

least ten different times, stating it was her fault for flirting

with him.   After confirming with Navarrette that the admitted acts

indeed constituted sexual intercourse, Skeens placed him under

arrest.    Skeens then had Ruiz read Navarrette a Miranda rights

form in Spanish, which Navarrette signed at 3:05 a.m.

     During the interview, Navarrette never stated he wanted to

leave or stop answering questions.      He never asked to speak to his

brother.    Skeens and Ruiz both testified the officers did not bang

on the table, raise their voices to Navarrette, become angry with

him, or threaten him during the interview.

     Testifying at the suppression hearing, Navarrette denied he

ever had sex with his niece.    He testified he repeatedly told the

police during the interrogation he did not have sexual intercourse

with M.N.   He further testified, however, that, after Skeens

became upset, banged on the table, and demanded the truth, he told

the police he had had sexual intercourse with M.N. in the hope he

would be released.   Acknowledging neither officer at the interview

told him he would be released if he admitted he had had sexual

intercourse with his niece, he was, he testified, tired at the

time and thought he would be let go if he said he had done so.     He

was tired, he stated, because he had gotten up on March 2, 2001,

                                - 6 -
at 4:00 a.m., worked nine hours at his construction job pouring

concrete for house foundations, driven his girlfriend to her job

where he helped her clean an office building until 9:30 p.m., and

gone to bed at 10:30 p.m., before being woken by the police a

short time later.

     Dr. Gloria Morote, a neuro-psychologist, testified she

determined from testing that Navarrette was in the mentally

deficient range for verbal intelligence and in the low average

range for nonverbal intelligence.   Such a deviation in the two

intelligence ranges, Morote testified, was characteristic of

someone with a "language-related processing disorder[]."     Such a

disorder, Morote explained, would cause one to have problems

receiving and processing information and communicating clearly.

Based on the results of a test for malingering, Dr. Morote

concluded that Navarrette did not purposefully score low on the

verbal intelligence test.   Based on the results of a test

administered to Navarrette's sister to measure Navarrette's

compliance in the presence of authority figures, Morote concluded

that Navarrette was "more compliant than ninety-five percent of

the population," meaning he would be likely to "give in or to cave

under pressure, . . . or to just not stand up for himself."

     Dr. Morote further testified she performed a "thorough"

history of Navarrette's educational background.   According to her

testimony, however, Navarrette told her he attended school from

the age of five until he was sixteen, but only completed sixth

                               - 7 -
grade because he repeated first grade.   Timewise, Morote

testified, this "didn't . . . make sense," but she offered no

explanation.

                 A.   Voluntariness of Confession

     Navarrette contends that his admission to the police that he

had sexual intercourse with his niece was not made voluntarily.

Specifically, he argues that, given his low intelligence, his

language-related processing disorder, his inordinate propensity to

comply with authority figures, and his extreme state of fatigue at

the time of the interrogation, his will was overborne when the

police woke him in the middle of the night, took him to the police

station, and interrogated him for nearly three hours, at times

banging on the table and demanding the truth while confronting him

with accusations that he raped his niece.   Having initially denied

having had sexual intercourse with his niece, Navarrette

eventually told the police he did, he asserts, as a result of his

confusion and stress, in the hope that he would be released.

Thus, Navarrette concludes, his inculpatory statements were not

voluntary and the trial court erred in denying his motion to

suppress them.

     "The Commonwealth has the burden to prove, by a preponderance

of the evidence, that a defendant's confession was freely and

voluntarily given."   Bottenfield v. Commonwealth, 25 Va. App. 316,

323, 487 S.E.2d 883, 886 (1997).   The issue of voluntariness is a

question of law requiring an independent determination on appeal.

                               - 8 -
E.g., Wilson v. Commonwealth, 13 Va. App. 549, 551, 413 S.E.2d

655, 656 (1992).   However, in making that independent

determination, "we are bound by the trial court's subsidiary

factual findings unless those findings are plainly wrong."   Id.

     "In assessing voluntariness, [we] must determine whether 'the

statement is the "product of an essentially free and unconstrained

choice by its maker," or . . . whether the maker's will "has been

overborne and his capacity for self-determination critically

impaired."'"    Roberts v. Commonwealth, 18 Va. App. 554, 557, 445

S.E.2d 709, 711 (1994) (quoting Stockton v. Commonwealth, 227 Va.

124, 140, 314 S.E.2d 371, 381 (1984) (quoting Schneckloth v.

Bustamonte, 412 U.S. 218, 225 (1973))).   To make that

determination, we must look to the "'totality of all the

surrounding circumstances,'" Commonwealth v. Peterson, 15 Va. App.

486, 488, 424 S.E.2d 722, 723 (1992) (quoting Gray v.

Commonwealth, 233 Va. 313, 324, 356 S.E.2d 157, 163 (1987)),

including "the defendant's age, intelligence, mental and physical

condition, background and experience with the criminal justice

system, the conduct of the police, and the circumstances of the

interview."    Bottenfield, 25 Va. App. at 323, 487 S.E.2d at 886.

While the "mental condition of the defendant is 'surely relevant

to [his] susceptibility to police coercion[,]' . . . evidence of

coercive police activity 'is a necessary predicate to the finding

that a confession is not "voluntary."'"   Peterson, 15 Va. App. at

488, 424 S.E.2d at 723 (quoting Colorado v. Connelly, 479 U.S.

                                - 9 -
157, 167 (1986)).   In other words, "some level of coercive police

activity must occur before a statement or confession can be said

to be involuntary."   Id.   Furthermore, the police misconduct must

be "'causally related to the confession.'"   Williams v.

Commonwealth, 4 Va. App. 53, 73, 354 S.E.2d 79, 90 (1987)

(emphasis omitted) (quoting Connelly, 479 U.S. at 164).    In

considering the conduct of the police, we "must consider the

interrogation techniques employed, including evidence of trickery

and deceit, psychological pressure, threats or promises of

leniency, and duration and circumstances of the interrogation."

Terrell v. Commonwealth, 12 Va. App. 285, 291, 403 S.E.2d 387, 390

(1991).

     We are further mindful, in assessing whether Navarrette's

inculpatory statements were voluntarily made, that "[c]onflicts in

evidence present factual questions that are to be resolved by the

trial court," which "'must evaluate the credibility of the

witnesses, resolve the conflicts in their testimony and weigh the

evidence as a whole.'"   Mills v. Commonwealth, 14 Va. App. 459,

468, 418 S.E.2d 718, 723 (1992) (quoting Albert v. Commonwealth, 2

Va. App. 734, 738, 347 S.E.2d 534, 536 (1986)).   The trier of fact

is not required to accept a party's evidence in its entirety, but

is free to believe or disbelieve in part or in whole the testimony

of any witness.   Rollison v. Commonwealth, 11 Va. App. 537, 547,

399 S.E.2d 823, 830 (1991).



                                - 10 -
     Here, the trial judge rejected Dr. Morote's testimony

regarding Navarrette's intelligence and cognitive abilities,

finding the "premise of [her] factual collection of information

. . . inconsistent with the facts" of the case.   In reaching that

decision, the trial judge found:

               Officer Ruiz spent time with this man,
          heard him speak in English, heard him
          mentally work out what was being said to him,
          had him translate the English question
          accurately to Spanish, turn to Ruiz and go
          back to the English-speaking questioner. His
          cognitive ability, his language skills, his
          responsiveness, his state-of-mind, Ruiz is
          the one who is very important in that
          decision.

           *      *      *         *   *      *       *

               The expert is very qualified and very
          persuasive and very helpful to the Court, but
          the facts upon which she relies are not facts
          that appear persuasive to this Court.

           *      *      *         *   *      *       *

               I'm not persuaded these I.Q. numbers are
          right.

           *      *      *         *   *      *       *

               I had the opportunity to witness this
          man and listen to him, watch him. He is – I
          mean in fifteen years of watching criminal
          defendants under the pressure of litigation,
          indictment and courtroom proceedings, he is
          certainly not in the bottom in terms of
          intelligence, verbal and otherwise.

           *      *      *         *   *      *       *

               His communication skills are right –
          there is no way he is retarded.

           *      *      *         *   *      *       *

                              - 11 -
                [H]e persuades me both by demeanor and
           responsiveness and apparent intelligence
           today, that he does have the capacity to make
           reasonable choices and voluntary choices, and
           have a free will in what he chooses to do or
           what he chooses not to do.

     These subsidiary factual findings by the trial court are

supported by credible evidence in the record and are not plainly

wrong.   As noted by the trial judge, Officer Ruiz's testimony

regarding Navarrette's capacity to correctly translate Skeens'

questions into Spanish before Ruiz translated them evinces

Navarrette's ability to effectively process language and

communicate.   Moreover, the transcript of Navarrette's testimony

at the suppression hearing clearly does not reflect the

declarations of a person with a low level of intelligence, a

language-related processing disorder, or a problem with excessive

compliance.    To the contrary, Navarrette's answers to the

questions asked during direct and cross-examination, as translated

into English by the in-court interpreter, were consistently

articulate, responsive, precise, and given without apparent

hesitation or confusion.   Additionally, several times during

cross-examination and questioning by the trial judge, Navarrette

unwaveringly denied having done the act addressed in the question.

Accordingly, because it is supported by credible evidence and not

plainly wrong, we are bound by the trial court's factual finding

that Navarrette's intelligence and mental condition did not impair

his capacity for self-determination.


                                - 12 -
        As to Navarrette's claim that his extreme state of fatigue at

the time of the interview rendered his inculpatory statements

involuntary, our review of the record convinces us that this

contention is also without merit.      While Navarrette was plainly

awakened in the middle of the night from a short sleep after a

long workday, 1 no evidence shows that his capacity for

self-determination was impaired by fatigue.      He was groggy at his

apartment when he first awoke, but he quickly became alert.        At

the police station, he appeared to be "a little tired" to Ruiz,

but he was alert and responsive.      Although he was at the police

station for nearly two hours before Detective Skeens arrived for

the interview, the interview itself lasted only a little over an

hour.       There was no indication that he was falling asleep during

the interview or that he was disoriented or confused.      According

to Ruiz, he was "really awake" during the interview.      To Skeens,

he "seemed alert" and "responsive."

        Moreover, viewed in the light most favorable to the

Commonwealth, the evidence does not establish any coercive police

misconduct.      There is no evidence that the police used trickery or

deceit, psychological pressure, or threats or promises of leniency

to elicit Navarrette's confession.      According to Skeens and Ruiz,

neither officer raised his voice during the interview, got angry,

banged on the table, or threatened Navarrette.      Furthermore,


        1
       Nothing in the record indicates the police knew of
Navarrette's long workday.

                                   - 13 -
Skeens told Navarrette he was not under arrest, did not have to

speak with the police, and would be given a ride home if he wanted

to leave.

       Additionally, Navarrette is an adult.     He attended school

until he was sixteen years old, regularly drove a car, and had a

job.

       Considering the totality of all the surrounding

circumstances, we conclude, as did the trial court, that

Navarrette's will was not overborne, his capacity for

self-determination was not critically impaired, and his confession

was the product of an essentially free and unconstrained choice.

Accordingly, we hold that Navarrette's admission to the police

that he had engaged in sexual intercourse with M.N. was freely and

voluntarily given.

                         B.   Custodial Status

       Navarrette also contends his confession was given during a

custodial interrogation conducted by the police.      Although not

arrested at the time of his confession, Navarrette argues that,

based on the totality of the circumstances surrounding his

confession, a reasonable person in his shoes would have understood

that he was not free to ignore the officers' requests to answer

questions or to leave the police station.      Therefore, he argues,

he was entitled to Miranda warnings before he made the inculpatory

statements, and the failure of the police to give such warnings



                                - 14 -
prior to his inculpatory statements required suppression of his

confession.   We disagree.

     A person who "has been taken into custody or otherwise

deprived of his freedom of action in any significant way" is

entitled to be given Miranda warnings before being questioned by

police.   Miranda v. Arizona, 384 U.S. 436, 444 (1966).    Miranda

applies when a person has been deprived of his freedom of action

to the "degree associated with a formal arrest."    California v.

Beheler, 463 U.S. 1121, 1125 (1983) (per curiam).   To make this

determination, "the only relevant inquiry is how a reasonable man

in the suspect's shoes would have understood the situation."

Berkemer v. McCarty, 468 U.S. 420, 442 (1984).   "The totality of

circumstances must be considered in determining whether the

suspect is in custody when questioned . . . ."   Wass v.

Commonwealth, 5 Va. App. 27, 32, 359 S.E.2d 836, 839 (1987).

           The circumstances may include factors such as
           the familiarity or neutrality of the
           surroundings, the number of officers present,
           the degree of physical restraint, the
           duration and character of the interrogation,
           the presence of probable cause to arrest, and
           whether the suspect has become the focus of
           the investigation.

Cherry v. Commonwealth, 14 Va. App. 135, 140, 415 S.E.2d 242, 245

(1992).

     The record before us indicates that, when the three police

officers went to Navarrette's home, they explained to him that

they were there about M.N.'s case and asked him to voluntarily


                               - 15 -
come to the police station to answer some questions.    Two officers

were in plain clothes, and the uniformed officer was there to

interpret for Navarrette and the other officers.    No guns were

displayed, and Navarrette was told he was not under arrest.     He

was never handcuffed.    Navarrette had the opportunity to speak to

other family members.    Navarrette was allowed to return to his

room to get his wallet before leaving, and Officer Ruiz assisted

in finding the wallet with his flashlight.

        When they left for the police station, Navarrette got into

Officer Ruiz's vehicle on his own.    The doors of the unmarked

police car were unlocked, the car had no "cage," and the rear

interior door handles were operational.    Navarrette and his

brother were told that the officers would bring them back home

after the questioning.

        At the police station Navarrette was given a Coke and

permitted to use the bathroom.    The door to the interview room was

open.    Neither of the officers present at the interview displayed

a weapon.    At the beginning of the interview Navarrette was again

told that he was not under arrest, did not have to talk to the

officers, and arrangements would be made to take him home if he

wanted to leave.    Navarrette was not constrained in any way prior

to or during the interview.    The officers remained calm throughout

the interview.

        Although Navarrette was a subject of Skeens' investigation,

Skeens did not initially confront Navarrette with M.N.'s specific

                                 - 16 -
allegations against him.     Instead, he told Navarrette that there

were allegations that something might have happened between

Navarrette and his niece and he wanted to get Navarrette's side of

the story.    Eventually, Skeens revealed that M.N. was pregnant and

that she had indicated Navarrette might be involved.    Skeens

suggested M.N. may have forced Navarrette to do things against his

will.    Only then did Navarrette admit he had had sexual

intercourse with his niece, at which point Skeens placed him under

arrest.

        Considering the totality of the circumstances, we conclude

that a reasonable man in Navarrette's shoes would not have

considered himself in custody or otherwise deprived of his freedom

of action in any significant way during the interview with Skeens.

We hold, therefore, that Navarrette was not in custody for Miranda

purposes.

        Accordingly, the trial court did not err in refusing to

suppress Navarrette's inculpatory statements.

                    II.   SUFFICIENCY OF THE EVIDENCE

        Navarrette contends the evidence was insufficient to

establish the corpus delicti of the crime of rape because his

extrajudicial confession was not sufficiently corroborated.       The

Commonwealth contends Navarrette is procedurally barred from

raising this argument on appeal because he made no such argument

before the trial court.     Navarrette concedes he did not

specifically raise the issue of corpus delicti in his motions to

                                 - 17 -
strike.   He maintains, however, that his general sufficiency

argument at trial was sufficient to preserve this issue for

appeal.   In the alternative, Navarrette asks us to invoke the

"ends of justice" exception to Rule 5A:18 to consider his claim.

     Rule 5A:18 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 enable the

Court of Appeals to attain the ends of justice."    "The purpose

of the rule is to ensure that the trial court and opposing party

are given the opportunity to intelligently address, examine, and

resolve issues in the trial court, thus avoiding unnecessary

appeals."   Andrews v. Commonwealth, 37 Va. App. 479, 493, 559

S.E.2d 401, 408 (2002).   Consequently, we "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).   Likewise, we will not consider an argument on appeal that

is different from the specific argument presented to the trial

court, even if it relates to the same general issue.   See Floyd v.

Commonwealth, 219 Va. 575, 584, 249 S.E.2d 171, 176 (1978)

(holding that only the same specific sufficiency argument

presented to the trial court may be considered on appeal).

     Here, it is clear the trial court had no opportunity to

consider Navarrette's claim that his confession was not

sufficiently corroborated to establish the corpus delicti.

                               - 18 -
Indeed, the only issue raised by Navarrette in his motion to

strike was the sufficiency of the evidence to establish the dates

cited in the indictments.    We hold, therefore, that, because the

trial court never had the opportunity to consider whether

Navarrette's confession was sufficiently corroborated to establish

the corpus delicti, we are barred by Rule 5A:18 from considering

that issue on appeal.

     Moreover, our review of the record in this case does not

reveal any reason to invoke the "ends of justice" exception to

Rule 5A:18.    "[T]he ends of justice exception is narrow and is to

be used sparingly . . . ."    Brown v. Commonwealth, 8 Va. App. 126,

132, 380 S.E.2d 8, 10 (1989).    "In order to avail oneself of the

exception, a defendant must affirmatively show that a miscarriage

of justice has occurred, not that a miscarriage might have

occurred."    Redman v. Commonwealth, 25 Va. App. 215, 221, 487

S.E.2d 269, 272 (1997).    The defendant must show that he "was

convicted for conduct that was not a criminal offense or the

record must affirmatively prove that an element of the offense did

not occur."    Id. at 221-22, 487 S.E.2d at 272-73.

                  In every criminal prosecution, the
             Commonwealth must prove the element of corpus
             delicti, that is, the fact that the crime
             charged has been actually perpetrated.
             Further, if the accused has fully confessed
             that he committed the crime, then only slight
             corroboration of the confession is required
             to establish corpus delicti beyond a
             reasonable doubt.



                                - 19 -
Cherrix v. Commonwealth, 257 Va. 292, 305, 513 S.E.2d 642, 651

(1999) (citation omitted).

     Here, Navarrette fully confessed to having sexual intercourse

with M.N. on numerous occasions over a period of one and a half

years.   One of M.N.'s aunts testified that she saw Navarrette and

M.N. together in M.N.'s bedroom with the door closed on several

occasions.   Another aunt testified that she observed the pair

"kissing like a couple" when she entered the bedroom and found

M.N. lying on top of Navarrette in the bed.   The same aunt also

testified that, on another occasion, she saw the pair in the

bedroom watching a pornographic movie.

     From this record, Navarrette does not affirmatively persuade

us, as he must, that a miscarriage of justice has occurred.    We

hold, therefore, that the "ends of justice" exception does not

require us to consider this argument on appeal.

     Accordingly, we affirm Navarrette's convictions.

                                                         Affirmed.




                               - 20 -
