                     COURT OF APPEALS OF VIRGINIA


Present: Judges Humphreys, Agee and Kelsey
Argued by teleconference


JODY DANIEL GENT
                                            MEMORANDUM OPINION * BY
v.   Record No. 0429-02-3                 JUDGE ROBERT J. HUMPHREYS
                                               FEBRUARY 11, 2003
COMMONWEALTH OF VIRGINIA


              FROM THE CIRCUIT COURT OF WISE COUNTY
                     J. Robert Stump, Judge

          Anthony E. Collins (Collins & Collins, on
          brief), for appellant.

          Virginia B. Theisen, Assistant Attorney
          General (Jerry W. Kilgore, Attorney General,
          on brief), for appellee.


     Jody Daniel Gent appeals his conviction, after a jury trial,

for three counts of robbery, three counts of breaking and

entering, felony murder, and solicitation to commit a felony.

Gent argues the trial court erred in admitting into evidence two

statements uttered by the victim, and in excluding other

statements uttered by the victim.   For the reasons that follow, we

affirm the judgment of the trial court.




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication. Further, because this opinion has
no precedential value, we recite only those facts essential to
our holding.
     We first note we have long recognized that the admissibility

of evidence is within the broad discretion of the trial court, and

such a ruling will not be disturbed on appeal in the absence of an

abuse of discretion.   Sabo v. Commonwealth, 38 Va. App. 63, 79,

561 S.E.2d 761, 769 (2002).   Furthermore, "[a] party who relies

upon an exception to an exclusionary rule of evidence bears the

burden of establishing admissibility.   'One seeking to have

hearsay declarations of a witness admitted as an exception to the

general rule must clearly show that they are within the

exception.'"   Doe v. Thomas, 227 Va. 466, 472, 318 S.E.2d 382, 386

(1984) (quoting Skillern and Sons, Inc. v. Rosen, 359 S.W.2d 298,

301 (Tex. 1962)).

     On appeal, Gent contends the trial court erred in admitting

statements made by the victim, Myrtle Petit, to her neighbor,

Betty Mullins, on October 1, 1997 and November 29, 1997. 1



     1
       The Commonwealth contends that Gent waived any error
concerning the testimony as to the October 1, 1997 statement
because he introduced evidence of the same character on his own
behalf when cross-examining Deputy Ronnie Large. Saunders v.
Commonwealth, 211 Va. 399, 401, 177 S.E.2d 637, 638 (1970)
("[W]here an accused unsuccessfully objects to evidence which he
considers improper and then on his own behalf introduces
evidence of the same character, he thereby waives his objection,
and we cannot reverse for the alleged error."). However, we do
not think that the rule applies here. Deputy Large did testify
to statements made to him by Petit concerning some of the same
facts contained in Mullins' testimony to which Gent objected.
The record demonstrates, however, that Deputy Large volunteered
this information on cross-examination and that it was not
intentionally solicited by Gent. See Washington-Va. Ry. Co. v.
Deahl, 126 Va. 141, 151, 100 S.E. 840, 844 (1919) ("The general
rule here invoked is well settled, but in order to be applicable

                               - 2 -
Specifically, Gent argues the trial court erred in finding the

statements were admissible pursuant to the hearsay exception

permitting testimony relating excited utterances.   We disagree.

     During Gent's trial, Mullins testified that on October 1,

1997, Petit appeared at her door during the early morning hours.

Petit held her hand to her face, "like she didn't want anybody to

see and she was acting real nervous."   Mullins then asked Petit to

take her to Petit's home.   When they arrived, Petit began crying

and was "very upset."   She then moved her hand, and Mullins could

see that the side of her face was bruised.    Mullins asked Petit

what had happened.   Petit told her that "somewhere in the middle

of the night somebody had broke in her house and robbed her" and

that they knocked her down, choked her, and hit her in the face.

Mullins asked Petit "how much . . . what they got," and Petit

stated that the man had stolen $1,300 from her chest of drawers.

Mullins then contacted the police.

     Mullins further testified that, at approximately 2:00 a.m.,

on November 29, 1997, Petit knocked on her door again.    Mullins

observed that Petit was crying and upset.    Mullins asked Petit

what had happened and Petit told her she had been robbed again.

Petit and Mullins immediately returned to Petit's home.   Petit

remained upset and took Mullins into her bedroom.   She told


there must be some reasonable and just foundation for holding
that there was in fact a waiver. An application of the rule in
this case would be a distortion of its purpose and a sacrifice
of the principle upon which it rests.").

                               - 3 -
Mullins "this time he had a pipe," and "he said he would kill [me]

if [I] did not give him the money."    Petit stated that the man was

wearing "an orange jumpsuit and a black ski mask" and that she had

waited ten minutes after the robber had left before walking to

Mullins' home.   Mullins then called the police once again.

     Petit died before trial, and the Commonwealth offered her

statements recited above through Mullins.   The trial court

admitted the statements under the "excited utterance" exception to

the hearsay rule.

          A statement comes within the excited
          utterance exception to the hearsay rule and
          is admissible to prove the truth of the
          matter stated, when the statement is
          spontaneous and impulsive, thus guaranteeing
          its reliability. "There is no fixed rule by
          which the question whether the statement is
          admissible as an excited utterance can be
          decided. Resolution of the issue depends
          upon the circumstances of each case."

          The statement must be prompted by a
          startling event and be made at such time and
          under such circumstances as to preclude the
          presumption that it was made as the result
          of deliberation. In addition, the declarant
          must have firsthand knowledge of the
          startling event. The decision whether the
          statement qualifies as an excited utterance
          lies within the discretion of the trial
          court.

Goins v. Commonwealth, 251 Va. 442, 460, 470 S.E.2d 114, 126

(1996) (quoting Clark v. Commonwealth, 235 Va. 287, 292, 367

S.E.2d 483, 485 (1988)) (other citations omitted).

     "[T]he [']startling event['] does not have to be the actual

crime itself, but rather may be a related occurrence that causes

                               - 4 -
such a reaction."   Esser v. Commonwealth, 38 Va. App. 520, 526,

566 S.E.2d 876, 879 (2002).   Further,

           [a]lthough not controlling, the lapse of
           time between the "startling event" and a
           declaration offered in evidence is relevant
           to a determination whether the declaration
           was spontaneous and instinctive, or
           premeditated and deliberative. It is also
           relevant to consider whether the declarant
           made an exclamation impulsively on his own
           initiative, or a statement in response to a
           question.

Doe, 227 Va. at 471-72, 318 S.E.2d at 385 (citations omitted).

"The ultimate test is whether it appears that 'the facts [were]

talking through the party or . . . the party [was] talking about

the facts.'"   Id. at 472, 318 S.E.2d at 385 (quoting Upton v.

Commonwealth, 172 Va. 654, 659, 2 S.E.2d 337, 339 (1939)).

However,

           [t]his often quoted phrase may capture the
           spirit of the exception but is not
           particularly helpful to the resolution of
           specific cases since the issue always
           involves the admission of a party's
           statement about what happened. Facts do not
           speak statements admissible in court, only
           people do, and they may speak truthfully for
           a variety of reasons. The issue is whether
           a person's statement about the facts is the
           product of a startling event such that it
           excludes the possibility that it is a
           fabrication.

Martin v. Commonwealth, 4 Va. App. 438, 441, 358 S.E.2d 415, 417

(1987) (citation omitted).

     Here, the evidence established that Petit made the statements

to Mullins, on both occasions, within minutes after the robbery or


                               - 5 -
within minutes after the "startling event" of returning to her

home, where the robberies had occurred.   Further, Petit was

visibly upset and shaken on both occasions and, with the exception

of Mullins' testimony that Petit told her $1,300 was taken from

her dresser in response to specific questioning from Mullins, no

evidence in the record demonstrates that Petit's statements were

merely a "narrative of a past" event.   Portsmouth Transit Company

v. Brickhouse, Adm'r, 200 Va. 844, 848, 108 S.E.2d 385, 387

(1959).   Instead, as testified to by Mullins, the statements

appear to have been made as a stream of consciousness flowing from

Petit after being asked what had happened to cause her to be upset

and/or after returning to her home, where the robberies had

recently occurred.   Accordingly, on this record, we cannot find

that the trial court abused its discretion, as it appears that

Petit indeed made the statements impulsively and without

deliberation and that she did so without prompting or suggestion

from Mullins.    See Martin, 4 Va. App. at 442, 358 S.E.2d at 418

("The natural reaction of any person arriving to aid one exposed

to a startling event is to inquire, 'What happened?' . . . If the

question or questioner suggested or influenced the response, then

the declaration may lack the necessary reliability to be

admitted."). 2


     2
       Because we find no error in the trial court's admission of
the statements, we do not address the Commonwealth's argument
pertaining to harmless error.

                                - 6 -
     Gent next contends that the trial court erred in excluding

statements made by Petit to her cousin, Marvin Craiger, and her

niece, Nancy Petit, just after she was released from the hospital.

Gent argues that the statements, concerning the identity of the

robber, fall within the dying declaration exception to the hearsay

rule and/or that they should be admitted because the "inherent

unreliability of hearsay is not present."    Gent also contends the

evidence is exculpatory and, thus, its exclusion deprived him of

his constitutional right to present evidence in his own defense.

We once again disagree, and affirm the trial court's ruling.

     We do not address Gent's contentions with regard to the dying

declaration exception to the hearsay rule and the exculpatory

nature of the evidence, as Gent failed to raise these issues

before the trial court at the time the evidence was offered and

the court made its ruling.   Thus, Gent failed to properly preserve

the issues for purposes of appeal.     See Rule 5A:18; see also Sabol

v. Commonwealth, 37 Va. App. 9, 20, 553 S.E.2d 533, 538 (2001)

("To preserve an issue for appeal, appellant must make a

contemporaneous objection to the court's ruling."); Harward v.

Commonwealth, 5 Va. App. 468, 473, 364 S.E.2d 511, 513 (1988)

(holding an objection made as to the admissibility of evidence is

timely only if raised when the questioned statement is made);

Ohree v. Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488

(1998).



                               - 7 -
     Further, we decline Gent's invitation to adopt a "catch-all"

exception to the hearsay rule.     Here, outside the presence of the

jury, Craiger testified that after Petit arrived at Nancy's home,

after being released from the hospital, he asked Petit if she knew

"who done this to you, I said was it Jody Gent?"      Craiger stated

she "shook her head like this," indicating "no," "dropped her

head," and mumbled that "it was a little boy," as she put her hand

out to the side, indicating "two to three feet."      Nancy Petit

stated that Craiger "asked [Petit] if she remembered him and she

said 'well I reckon I do.'"    Craiger asked, "who did this to you?"

"Was it Jody Gent?"    Nancy Petit stated that Petit "bowed her head

and shook it no" and mumbled that it was a "little guy."

     Gent contends that this Court should recognize a "residual

hearsay exception," like that found in the Federal Rules of

Evidence and, thus, find that the trial court erred in refusing to

permit this evidence based upon the Commonwealth's hearsay

objection.    See Fed. R. Evid. 807. 3   However, we find that the


     3
         Federal Rule of Evidence 807 provides as follows:
             A statement not specifically covered by Rule
             803 or 804 but having equivalent
             circumstantial guarantees of
             trustworthiness, is not excluded by the
             hearsay rule, if the court determines that
             (A) the statement is offered as evidence of
             a material fact; (B) the statement is more
             probative on the point for which it is
             offered than any other evidence which the
             proponent can procure through reasonable
             efforts; and (C) the general purposes of
             these rules and the interests of justice

                                 - 8 -
trial court here properly refused to apply federal law to a purely

state prosecution.   See Chandler v. Commonwealth, 249 Va. 270,

279, 455 S.E.2d 219, 225 (1995).

     In Virginia, we have not adopted the federal rules of

evidence, nor have we chosen to codify our rules of evidence.

Hanson v. Commonwealth, 14 Va. App. 173, 185, 416 S.E.2d 14, 21

(1992).   We have however, recognized what might be referred to as

an ad hoc form of the residual hearsay exception, by permitting

the admission of certain evidence possessing a very high indicia

of reliability, such as a date on a postmark, or a dollar figure

on a price tag.   See id. ("[A]lthough a postmark is within the

traditional definition of hearsay, it is admissible as an

exception to the hearsay rule when used to prove the date on which

the postal service affixed its postmark in the regular course of

business."); see also Robinson v. Commonwealth, 258 Va. 3, 10, 516

S.E.2d 475, 479 (1999) (creating an exception to the hearsay rule

in shoplifting cases permitting the admission into evidence of


           will best be served by admission of the
           statement into evidence. However, a
           statement may not be admitted under this
           exception unless the proponent of it makes
           known to the adverse party sufficiently in
           advance of the trial or hearing to provide
           the adverse party with a fair opportunity to
           prepare to meet it, the proponent's
           intention to offer the statement and the
           particulars of it, including the name and
           address of the declarant.




                               - 9 -
price tags regularly affixed to items of personalty offered for

sale).   Nevertheless, we have not chosen to recognize an exception

to the hearsay rule that would permit the admission of any and all

"relevant" statements, which may carry some indicia of

reliability.   Instead, we have created only limited exceptions in

cases where the circumstances prove that "'the inherent

unreliability of hearsay is not present.'"   Id. (quoting State v.

White, 437 A.2d 145, 148 (Conn. Super. Ct. 1981)).   Such is not

the case here, and we decline to extend these limited exceptions

beyond their intended reach.   Thus, we find no abuse of discretion

on the part of the trial court in refusing to admit Craiger and

Nancy Petit's testimony concerning their conversation with Petit

about the identity of the robber.

     For the foregoing reasons, we affirm the judgment of the

trial court.

                                                          Affirmed.




                               - 10 -
