                   COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Bray and Fitzpatrick
Argued at Alexandria, Virginia

MICHAEL DAVID HILLMAN
 a/k/a WAYNE SCOTT SELMAN

v.       Record No. 2194-93-4              MEMORANDUM OPINION * BY
                                        JUDGE JOHANNA L. FITZPATRICK
COMMONWEALTH OF VIRGINIA                        MAY 16, 1995


         FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
                    Frank A. Hoss, Jr., Judge

          Denise Jakabcin Tassi for appellant.
          Kathleen B. Martin, Assistant Attorney General
          (James S. Gilmore, III, Attorney General, on
          brief), for appellee.


     Michael David Hillman (appellant) was convicted in a jury

trial of distribution of heroin in violation of Code § 18.2-248

and felony murder in violation of Code § 18.2-33.    On appeal, he

argues that the trial court erred in:    (1) failing to strike or

excuse a juror distracted by a work deadline; (2) finding the

evidence sufficient to support his felony murder conviction as an

accessory before the fact; (3) finding a causal link between his

sale of the heroin and the death of the victim; and (4) denying

his motion for a new trial filed more than twenty-one days after

the final order.   For the reasons that follow, we affirm the

trial court.
                            BACKGROUND



     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
        On January 31, 1993, appellant bought ten bags of high grade

heroin in Washington, D.C. for his own use and for sale to

others.       At 7:30 p.m., Willie Ordonez (Ordonez) called Suzann

Szabolsoky (Szabolsoky) and requested to buy heroin.         Szabolsoky

contacted appellant, and appellant sold her a bag of heroin at

9:00 p.m. at her house.       Appellant, who stayed only a few

minutes, left before Ordonez arrived.         Yvonne Johnson (Johnson)

heard Szabolsoky tell appellant that the heroin was for Ordonez,

and appellant warned her to tell Ordonez "to take it easy because

[the heroin was] some powerful stuff."         Thirty to forty-five

minutes later, Szabolsoky sold the heroin to Ordonez; gave him

some cotton, which is used for injecting heroin; and left him in

the kitchen with a syringe.       After fifteen minutes, Ordonez went

into the living room, drank a beer, fell asleep on her sofa, and

died.       The cause of death was morphine poisoning. 1
                          FAILURE TO STRIKE JUROR

        Appellant argues that the trial court erred in refusing to:

(1) strike Juror Martin for cause, and (2) in the alternative,
                                         2
excuse her under Code § 8.01-341.2.          Juror Martin testified that
        1
      The evidence established that heroin changes into morphine
within five minutes of being ingested and that morphine can stay
in a person's system for as long as overnight.
        2
         Code § 8.01-341.2 provides, in pertinent part, that:

                    The court, on its own motion, may exempt
               any person from jury service for a particular
               term of court, or limit that person's service
               to particular dates of that term, if serving
               on a jury during that term or certain dates
               of that term of court would cause such person



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she had a work deadline and would be distracted during the trial,

but that she would "make an attempt" to give the trial her

attention.

     "Upon appellate review, we must give deference to the trial

court's decision whether to exclude or retain a prospective juror

because the trial court 'sees and hears the juror;' accordingly,

the trial court's decision will be disturbed only upon a showing

of manifest error."     Weeks v. Commonwealth, 248 Va. 460, 475, 450

S.E.2d 379, 389 (1994) (quoting Eaton v. Commonwealth, 240 Va.
236, 246, 397 S.E.2d 385, 391 (1990), cert. denied, 502 U.S. 824

(1991)).

     The trial judge did not abuse his discretion in refusing to

strike Juror Martin for cause.    Her work concerns were of no

greater concern than most jurors.      See Mu'Min v. Commonwealth,

239 Va. 433, 444-45, 389 S.E.2d 886, 893-94 (1990).     She

indicated that she would try to give the trial her attention and

that she recognized its importance.

     Appellant's argument that the trial judge should have

excused the juror pursuant to Code § 8.01-341.2 is barred on

appeal because he did not present it to the trial court.      Rule

5A:18.   Even if we addressed this issue, the trial judge clearly

had discretion under Code § 8.01-341.2.
                      SUFFICIENCY OF THE EVIDENCE

     Appellant next argues that the evidence was insufficient to
             a particular occupational inconvenience.




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support his conviction as an accessory before the fact for felony

murder because no evidence proved that he was a contriver,

instigator, or advisor to Szabolsoky.

        "When considering the sufficiency of the evidence on appeal

of a criminal conviction, we must view all the evidence in the

light most favorable to the Commonwealth and accord to the

evidence all reasonable inferences fairly deducible therefrom.

The jury's verdict will not be disturbed on appeal unless it is

plainly wrong or without evidence to support it."     Traverso v.

Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988)

(citations omitted).    "[T]he weight which should be given to

evidence and whether the testimony of a witness is credible are

questions which the fact finder must decide."     Bridgeman v.

Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598, 601-02 (1986).

        In McGhee v. Commonwealth, 221 Va. 422, 270 S.E.2d 729

(1980), the Supreme Court of Virginia determined that:
          in the trial of an accessory before the fact
          the Commonwealth [must] establish the
          following elements beyond a reasonable doubt:
          the commission of the crime by the principal,
          the accessory's absence at the commission of
          the offense, and that before the commission
          of the crime, the accessory was "in some way
          concerned therein . . . as [a] contriver,
          instigator or advisor."

Id. at 425-26, 270 S.E.2d at 731 (footnotes omitted) (quoting

Tolley v. Commonwealth, 216 Va. 341, 348, 218 S.E.2d 550, 555

(1975)).    Only the third prong of this test is at issue in this

case.    In further defining the third element, the Court stated



                                   4
that:
             [a]n instigator of a crime is an accessory
             before the fact even though he or she did not
             participate in the planning of the crime or
             even though unaware of the precise time or
             place of the crime's commission or of the
             precise method employed by the
               principal. . . .

             . . . [T]he accused must either know or have
             reason to know of the principal's criminal
             intention and must intend to encourage,
             incite or aid the principal's commission of
             the crime.


McGhee, 221 Va. at 427, 270 S.E.2d at 732 (footnote and citation

omitted).

        In this case, the jury believed the testimony of the

Commonwealth's witnesses that:    (1) appellant sold the heroin to

Szabolsoky; (2) he knew that she planned to resell the drugs to

Ordonez; and (3) he cautioned Szabolsoky that the heroin was

"some powerful stuff."    Thus, the evidence established that

appellant knew of Szabolsoky's criminal intention and aided her

by supplying the heroin for resale to Ordonez.
                        FELONY MURDER CAUSATION

        Appellant further argues that no evidence linked his

distribution of the heroin to Ordonez's death.

        "While the felonious distribution of drugs is obviously

embraced by the statute, it will suffice as the predicate

'initial felony' necessary to felony-murder only 'where the

killing is so closely related . . . in time, place, and causal

connection as to make it a part of the same criminal



                                   5
enterprise.'"   Talbert v. Commonwealth, 17 Va. App. 239, 245, 436

S.E.2d 286, 289 (1993) (quoting Haskell v. Commonwealth, 218 Va.

1033, 1044, 243 S.E.2d 477, 483 (1978)).    The homicide must be

"within the res gestae of the initial felony and . . . an

emanation thereof."   Berkeley v. Commonwealth, 19 Va. App. 279,

286, 451 S.E.2d 41, 45 (1994).   "[T]he fact finder must determine

in each case if the underlying felony has been completed,

terminated, or abandoned for purposes of this element."     Talbert,

17 Va. App. at 245, 436 S.E.2d at 290.
     When a conviction is based on circumstantial evidence, the

Commonwealth's evidence "'must be consistent with guilt and

inconsistent with innocence and must exclude every reasonable

hypothesis of innocence.'"   Feigley v. Commonwealth, 16 Va. App.

717, 724, 432 S.E.2d 520, 525 (1993) (quoting Bishop v.

Commonwealth, 227 Va. 164, 169, 313 S.E.2d 390, 393 (1984)).

The Commonwealth met its burden in this case.   The evidence

established that:   (1) appellant sold the heroin to Szabolsoky at

9:00 p.m.; (2) appellant knew she was going to resell the heroin

to Ordonez and warned her of the strength of the drugs; (3)

thirty to forty-five minutes later, she sold the heroin to

Ordonez; (4) Ordonez remained in her kitchen with the bag of

heroin and cotton, which is used for injecting heroin; and (5)

Ordonez fell asleep on her sofa and died.   The Commonwealth

proved an unbroken chain of events leading from appellant's sale

of the heroin to Ordonez's death.



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                      MOTION FOR A NEW TRIAL

     Appellant argues that the trial court erred in denying his

motion for a new trial because the court had jurisdiction to hear

the motion under Code § 19.2-303. 3

     The final sentencing order was entered on October 27, 1993,

and the motion was filed on January 18, 1994, more than twenty-

one days after entry of the final order.   The trial court

correctly found that Rule 1:1 precluded a hearing on appellant's

motion.   See Mueller v. Commonwealth, 15 Va. App. 649, 653, 426

S.E.2d 339, 341 (1993).

     Appellant's argument that Code § 19.2-303 gave the court

jurisdiction to hear the motion is without merit.    Code

§ 19.2-303 applies to a request for sentence modification when a

prisoner has not been transferred to the department of

corrections rather than a request for a new trial.

     Accordingly, the decision of the trial court is affirmed.

                                               Affirmed.
     3
      Code § 19.2-303 provides, in pertinent part, that:

                If a person has been sentenced for a
           felony to the Department of Corrections but
           has not actually been transferred to a
           receiving unit of the Department, the court
           which heard the case, if it appears
           compatible with the public interest and there
           are circumstances in mitigation of the
           offense, may, at any time before the person
           is transferred to the Department, suspend or
           otherwise modify the unserved portion of such
           a sentence. The court may place the person on
           probation for such time as the court shall
           determine.




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