                      COURT OF APPEALS OF VIRGINIA


Present: Judges Coleman, Elder and Bumgardner
Argued at Salem, Virginia


DENNIS (NMN) GRAVES
                                           MEMORANDUM OPINION * BY
v.   Record No. 1316-98-3                 JUDGE SAM W. COLEMAN III
                                                JUNE 29, 1999
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
                    Mosby G. Perrow, III, Judge

          Thomas S. Leebrick (Thomas S. Leebrick,
          P.C., on brief), for appellant.

          H. Elizabeth Shaffer, Assistant Attorney
          General, (Mark L. Earley, Attorney General,
          on brief), for appellee.


     Dennis Graves was convicted by bench trial for driving after

having been declared an habitual offender, second offense.   On

appeal, Graves contends that (1) the trial court erred by refusing

to consider his motion to suppress a statement allegedly obtained

in violation of his Fifth Amendment right against

self-incrimination; (2) the trial court erred by admitting a

Department of Motor Vehicle (DMV) transcript as proof of his prior

adjudication as an habitual offender; and (3) the evidence was

insufficient to support the conviction.   Finding no error, we

affirm.


    *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
                              BACKGROUND

       Officer Taylor observed Graves' car weave a little bit, spin

its wheels, and squeal when Graves shifted gears.    After the car

slid to a stop at a traffic light with its tires again squealing,

Taylor activated his lights and pursued the vehicle.   Before

Taylor overtook the vehicle, Graves stopped and fled on foot.

Graves, who was wearing a blue sweatshirt with green sleeves and a

black Pittsburgh Steelers cap, ran behind a residence.     Officer

Taylor lost sight of Graves momentarily but discovered him less

than two or three minutes later, lying in the fetal position next

to a wood pile in the backyard of the residence.    As Officer

Taylor approached, he drew his weapon and requested Graves to come

out from his hiding area.   Graves replied, "You got me.   I give

up."

       Officer Taylor placed Graves under arrest and upon return to

the patrol car asked Graves his name, date of birth, and Social

Security number.   After Taylor called in Graves' name and date of

birth, the dispatcher informed Taylor that Graves' license had

been revoked based upon an habitual offender adjudication.    Taylor

asked Graves about his driver's license status, to which Graves

admitted "he was an habitual offender since high school."    Graves

denies having made this statement and testified at trial that what

he said in response to Taylor's question was that he was an

habitual offender "when [he] was in high school."



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     When Officer Taylor testified that Graves admitted he had

been an habitual offender since high school, defense counsel

objected on the ground that Taylor had obtained the statement as

the result of a custodial interrogation without having first

advised Graves of the Miranda warnings.    Responding to the

objection, the Commonwealth's attorney pointed out that Graves was

required to have filed a pretrial motion at least seven days

before trial in compliance with Code § 19.2-266.2 to suppress the

statement at issue.   At trial, defense counsel did not state a

reason for not having filed a pretrial suppression motion and the

trial court overruled Graves' objection.

                              ANALYSIS

     The trial court did not err in refusing to hear Graves'

objection because Graves neither complied with the pretrial filing

requirements of Code § 19.2-266.2, nor presented any reason or

justification to the trial court as to what "good cause" existed

for his not having the motion timely heard pretrial, or why "in

the interest of justice," it was necessary to hear the motion at

trial.   Furthermore, the court did not err by admitting the DMV

transcript.   Finally, we find the evidence is sufficient to prove

that Graves had notice of his prior adjudication as an habitual

offender and is sufficient to support the conviction for driving

after having been declared an habitual offender, second offense.




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     Code § 19.2-266.2 provides that motions to suppress

statements obtained in violation of a defendant's Fifth Amendment

privilege against self-incrimination shall be made prior to trial:

          Defense motions or objections seeking (i)
          suppression of evidence on that grounds that
          such evidence was obtained in violation of
          the provisions of the Fourth, Fifth or Sixth
          Amendments . . . shall be raised by motion
          or objection, in writing, before trial. The
          motions or objections shall be filed and
          notice given to opposing counsel not later
          than seven days before trial. . . . The
          court may, however, for good cause shown and
          in the interests of justice, permit the
          motions or objections to be raised at a
          later time.

Code § 19.2-266.2; see also Rule 3A:19(d) (stating that "for good

cause shown," the trial court can hear motions barred by failure

to file pretrial).

     Graves concedes that Code § 19.2-266.2 applies to his

motion, but argues that the trial court abused its discretion by

refusing to consider his motion to suppress for "good cause

shown and in the interests of justice."   We disagree.     After

Graves objected to the admissibility of his statement, the

Commonwealth argued that the objection was not timely.     The

trial court overruled the objection and refused to hear the

suppression motion.   Graves offered no explanation for his

failure to move for the statement's suppression pretrial.      Nor

did Graves argue that hearing his motion at trial was necessary

to attain the ends of justice.    Where a defendant moves to

suppress a statement for the first time at trial, if the

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defendant offers no "good cause" for hearing the otherwise

barred motion, nor presents any basis to support a finding that

the "interests of justice" demand that the motion be heard, a

trial court does not abuse its discretion by refusing to hear

the objection.   Although Graves' argument on appeal sets forth

justification for his failure to raise the motion pretrial, the

trial court had no opportunity to consider those arguments and

we decline to consider them here for the first time.    See Rule

5A:18.   Accordingly, we find that the trial court did not abuse

its discretion by refusing to hear Graves' untimely motion to

suppress.

     We find that the trial court did not err in admitting Graves'

DMV transcript indicating he had been declared to be an habitual

offender on June 10, 1997.   See Smoot v. Commonwealth, 18 Va. App.

562, 564-65, 445 S.E.2d 688, 690 (1994).   However, the transcript

indicated that the order adjudicating Graves an habitual offender

was "not accepted by addressee."   Therefore, the transcript,

although admissible, was insufficient to prove Graves had the

requisite notice that he had been declared to be an habitual

offender on June 10, 1997.   See Reed v. Commonwealth, 15 Va. App.

467, 472-73, 424 S.E.2d 718, 720-21 (1992) (requiring defendant

have actual knowledge of having been declared an habitual offender

to convict for driving after having been adjudicated an habitual

offender); Bibb v. Commonwealth, 212 Va. 249, 250, 183 S.E.2d 732,

733 (1971) (finding that where notice of suspension was sent to

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defendant's last known address but returned unopened, Commonwealth

cannot rely on statutory presumption that defendant had notice of

suspension).

     Despite the inadequacy of the DMV transcript, we find that

the evidence was sufficient to support Graves' conviction.      When a

defendant challenges the sufficiency of the evidence, we review

the facts in the light most favorable to the prevailing party,

granting to that party all reasonable inferences fairly deducible

therefrom.   See Higginbotham v. Commonwealth, 216 Va. 349, 352,

218 S.E.2d 534, 537 (1975).   During his arrest, Graves admitted to

Officer Taylor that he "had been an habitual offender since high

school."   His statement is proof of actual notice that he was an

habitual offender.   Thus, our finding that the DMV transcript was

not proof of actual notice does not render the evidence

insufficient to support his conviction.

     Finally, Officer Taylor's testimony was sufficient to prove

that Graves was the operator of the vehicle.    The driver wore a

Pittsburgh Steelers hat and fled behind a residence.    Minutes

later, Taylor discovered Graves hiding behind the residence

wearing a Pittsburgh Steelers hat.     On being discovered, Graves

exclaimed, "You got me.   I give up."    We find the evidence

sufficient to prove Graves' identity as the operator of the

vehicle.

     In conclusion, the trial court did not err by admitting the

DMV transcript, but the transcript did not prove Graves had notice

                               - 6 -
of having been declared an habitual offender.   Additionally, the

trial court did not err by admitting Graves' inculpatory statement

which proved actual notice.   Therefore, because the Commonwealth's

evidence was sufficient to prove Graves' identity and guilty

knowledge, the evidence was sufficient to support the conviction.

Accordingly, we affirm the conviction.

                                                          Affirmed.




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