                    COURT OF APPEALS OF VIRGINIA


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


WAYNE GIBSON WEIS
                                           MEMORANDUM OPINION * BY
v.   Record No. 1986-95-2                   JUDGE MARVIN F. COLE
                                               JANUARY 7, 1997
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF GOOCHLAND COUNTY
                  F. Ward Harkrader, Jr., Judge
          Jeffrey L. Galston (Hyder, Lowe & Galston, on
          brief), for appellant.

          Eugene Murphy, Assistant Attorney General
          (James S. Gilmore, III, Attorney General, on
          brief), for appellee.



     On appeal from his conviction, Wayne Gibson Weis (defendant)

contends that the trial court erred in refusing to permit him to

withdraw his waiver of a jury trial and in proceeding with a

bench trial.   We find no error and affirm the judgment of the

trial court.

     On November 25, 1994, a Goochland County grand jury indicted

the defendant upon two counts of statutory burglary and one count

of grand larceny.   At arraignment on February 17, 1995, the

defendant entered not guilty pleas to all three charges.   Upon

examination by the trial judge, Weis testified that he was twenty

(20) years old and fully understood the charges against him.

After discussing the matter with his attorney, Weis stated that
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
he wished to be tried by the court rather than a jury.   Both the

court and the prosecution agreed to the waiver of trial by jury.

The defendant's knowing and voluntary waiver of a trial by jury

was noted in the court's order regarding the February 17, 1995

hearing.

     On February 24, 1995, defense counsel moved the court for a

psychological evaluation to determine the defendant's sanity at

the time of the offense.   The motion was granted, and the matter

was set for review on March 24, 1995.   On that date, the

psychological evaluation had not been completed, thus the case

was continued on the defendant's motion to the April term day.

On April 11, 1995, the case was continued to April 14, 1995.     On

April 14, 1995, the case was set for trial on May 9, 1995.      On

May 9, 1995, the defendant again requested a continuance and the

case was set for trial without a jury on June 9, 1995.
     On the day of the trial on June 9, 1995, almost four months

after the defendant's waiver of a trial by jury, the defendant

informed the court that he wished to withdraw the waiver and be

tried by a jury.   Counsel advised the court that the defendant

had "good reasons" for making this election, but no reasons were

disclosed to the court.    Counsel advised the court that the

defendant had been attempting to contact him for three or four

days, but they had not been able to connect with one another.

     The Commonwealth's attorney opposed the motion on the ground

that it was not timely made.   He cited the approximately four




                                  2
month delay brought about by the defendant's motion for a

psychological evaluation.    He advised that the Commonwealth would

be prejudiced by a delay to arrange a jury trial because of

inconvenience to the two victims, both of whom were present.    One

victim had made several trips to the court concerning the case,

and the other lived in Northern Virginia, requiring a journey of

several hours to be present in court.

     Referring to the numerous prior continuances, the trial

judge ruled that the motion to withdraw the waiver of trial by

jury was untimely.   He commented that a failure to proceed would

be prejudicial to the Commonwealth and its witnesses.    Therefore,

the bench trial proceeded.
     The Commonwealth presented the testimony of Joan Cawthon and

Barbara Wyatt, the owners of the properties where the break-ins

occurred.   Charles Mongold, an accomplice, testified concerning

the burglaries and the larceny, implicating the defendant.    Two

other accomplices, Wayne Anderson and Phillip Hayes, refused to

answer some of the questions propounded to them by the

prosecution.   The trial judge ordered them to answer the

questions, but they refused.   Both were held in contempt, and the

trial recessed indefinitely until they agreed to testify.

     On June 22, 1995, the trial resumed.    Without introducing

any further evidence, the Commonwealth rested.   The defendant did

not put on any evidence.    Following closing arguments, the trial

judge found the defendant guilty of statutory burglary, grand




                                  3
larceny, and unlawful entry.

     On appeal, the sole issue is whether the trial court abused

its discretion in refusing to allow the defendant to withdraw his

waiver of trial by jury, which was timely made, and to have his

case tried by a jury.

     Article I, Section 8 of the Constitution of Virginia

guarantees to an accused in a criminal case the right to a jury

trial.   This same section of the Constitution permits an accused

who pleads not guilty to waive a jury and to be tried by the

court "with the consent and the concurrence of the attorney for

the Commonwealth and of the court entered of record . . . ."       Va.

Const. Art. I, § 8.     See also Code § 19.2-257 and § 19.2-258;

Rule 3A:13(b).

     The leading case in Virginia deciding when an accused may

withdraw a waiver of a jury trial is Thomas v. Commonwealth, 218

Va. 553, 238 S.E.2d 834 (1977).    The general rule is stated as

follows:
                "Whether one accused of crime who has
           regularly waived a jury trial will be
           permitted to withdraw the waiver and have his
           case tried before a jury is ordinarily within
           the discretion of the trial court. The rule,
           as expressed in some cases, is that if an
           accused's application for withdrawal of
           waiver is made in due season so as not to
           substantially delay or impede the cause of
           justice, the trial court should allow the
           waiver to be withdrawn.

                The authorities are uniformly to the
           effect that a motion for withdrawal of waiver
           made after the commencement of the trial is
           not timely and should not be allowed.
           Whether a motion for the withdrawal of a


                                   4
          waiver of trial by jury made prior to the
          actual commencement of the trial of the case
          is timely depends primarily upon the facts
          and circumstances of the individual case.
          Where there is no showing that granting the
          motion would unduly delay the trial or would
          otherwise impede justice, the motion is
          usually held to be timely. In some cases,
          however, it has been held that a motion for
          withdrawal of a waiver of jury trial,
          although made prior to the trial, was not
          timely and was properly denied by the trial
          court, the decisions in these cases being
          based primarily upon the ground that granting
          the motion wold have resulted in an
          unreasonable delay in the trial."

Id. at 555, 238 S.E.2d at 835 (citations omitted).    See also

Patterson v. Commonwealth, 19 Va. App. 698, 700-01, 454 S.E.2d

367, 369 (1995); Wright v. Commonwealth, 4 Va. App. 303, 308-09,

357 S.E.2d 547, 549 (1987); Carter v. Commonwealth, 2 Va. App.

392, 398-99, 345 S.E.2d 5, 9 (1986).

     The defendant does not dispute the fact that he knowingly,

intelligently and voluntarily waived his right to a jury trial at

the arraignment held on February 17, 1995 and that both the trial

judge and the prosecution concurred.   He contends that his motion

to withdraw the waiver of a jury trial was timely made at trial

on June 9, 1995.   However, our review of the record discloses

that four months, lacking one week, had elapsed since the waiver

was made at the arraignment.   The delay in scheduling the trial

was mostly attributable to the defendant.   On February 17, 1995,

the trial judge granted defendant's motion for a psychological

evaluation for sanity on the date of the crimes.    The case was

set for March 24, 1995, to review the evaluation.    After several


                                 5
continuances relating to the completion of the evaluation, the

trial judge specifically asked defense counsel on April 14, 1995

if this was to be a jury trial.   The defendant responded "no,"

and the case was set for trial on May 9, 1995.    On this date the

defendant was required to appear in the Circuit Court of

Mecklenburg County as a witness and by agreement of all parties

Weis' case was again continued to June 9, 1995.   At none of these

court appearances did defendant indicate a desire to withdraw his

waiver of a jury trial.
     When the motion to withdraw the waiver of the jury trial was

raised for the first time at trial, neither the defendant nor his

counsel provided any reason for a jury trial instead of a bench

trial.   The Commonwealth demonstrated the prejudice that its

witnesses would suffer should the court permit a continuance to

allow a jury trial.   In addition, several prisoners had been

transported from correctional centers to appear as witnesses for

the Commonwealth, creating the potential for additional security

problems.

     Upon these arguments, the trial court found that the motion

to withdraw the waiver of a jury trial was untimely, denied the

motion, and ordered that the bench trial proceed.   Based upon

this record we find that the trial court did not abuse its

discretion to deny the motion to withdraw the waiver of a jury

trial.

     In argument before this Court, defense counsel admitted that




                                  6
the trial judge would have acted within his discretion in denying

the motion to withdraw the waiver of a jury trial except for the

refusal of two of the Commonwealth's witnesses to testify.

Anderson and Hayes were held in contempt for refusing to answer

the prosecutor's questions, and the case was recessed

indefinitely.   The defendant argues on appeal that since the case

had to be recessed that the trial judge should have reconsidered

the motion to withdraw the waiver of a jury trial because the

reasons for denying the motion no longer existed.   He also argues

that if the Commonwealth had properly prepared its case through

discovery and had determined what the testimony of Anderson and

Hayes would be, the recess would not have been necessary.
     However, the defendant did not renew his motion to withdraw

the waiver of a jury trial and did not request the trial judge to

reconsider his ruling in any manner.   Therefore, the trial judge

had no opportunity to rule upon the question the defendant now

presents to this Court.

     It is well established that on appeal a ruling of a trial

court cannot be a basis for reversal unless an objection is

stated together with the grounds therefore at the time of the

ruling, except for good cause shown or to enable the Court of

Appeals to attain the ends of justice.    Campbell v. Commonwealth,

12 Va. App. 476, 480, 405 S.E.2d 1, 2 (1991)(en banc); Rule

5A:18.   Arguments not presented to the trial court will not be

entertained on appeal.    Jacques v. Commonwealth, 12 Va. App. 591,




                                  7
593, 405 S.E.2d 630, 631 (1991).       Finding no justification for

the application of the "good cause" or "ends of justice"

exceptions to Rule 5A:18, we are precluded from considering this

argument.   See Mounce v. Commonwealth, 4 Va. App. 433, 436, 357

S.E.2d 742, 744 (1987).   We find that this argument is

procedurally barred.

     Based upon the foregoing, we affirm the defendant's

convictions.
                                                       Affirmed.




                                   8
