                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Petty, Beales and AtLee
UNPUBLISHED


              Argued at Richmond, Virginia


              RASHID HAKIM HOLMAN
                                                                            MEMORANDUM OPINION* BY
              v.     Record No. 1919-16-2                                  JUDGE RICHARD Y. ATLEE, JR.
                                                                                  APRIL 17, 2018
              COMMONWEALTH OF VIRGINIA


                               FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                                             Gregory L. Rupe, Judge

                               Lauren P. Whitley, Deputy Public Defender, for appellant.

                               Aaron J. Campbell, Assistant Attorney General (Mark R. Herring,
                               Attorney General, on brief), for appellee.


                     Following a bench trial, a judge of the Circuit Court of the City of Richmond (“trial

              court”) found appellant Rashid Hakim Holman guilty of violating his probation. It revoked his

              suspended sentences, and reimposed three years, with all but nine months suspended. On appeal,

              Holman argues the trial court erred in: (1) considering facts from a previous criminal proceeding

              where no facts from that case were introduced in his probation revocation hearing; and

              (2) admitting hearsay statements from a probation violation report, violating Holman’s right to

              confrontation. For the following reasons, we affirm.

                                                        I. BACKGROUND

                     “[W]e view the evidence, and all inferences reasonably drawn from it, in the light most

              favorable to the Commonwealth. ‘It is our duty to affirm the trial court’s judgment unless that

              judgment is plainly wrong or without evidence to support it.’” Reid v. Commonwealth, 65



                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Va. App. 745, 753, 781 S.E.2d 373, 377 (2016) (citation omitted) (quoting Muhammad v.

Commonwealth, 269 Va. 451, 536, 619 S.E.2d 16, 65 (2005)). So viewed, the evidence is as

follows:

       In 2014, Holman was convicted of statutory burglary and possession of marijuana. He

received a sentence of ten years and twelve months in prison, with nine years and ten months

suspended. Later that year, he was convicted of domestic assault and battery, third offense, and

was sentenced to five years in prison, with four years suspended. He was placed on supervised

probation for all offenses. In 2016, Holman was charged with grand larceny. The trial court

issued a capias, alleging that this new charge violated the good behavior condition of Holman’s

suspended sentence.1 Holman’s probation officer filed a probation violation report with the trial

court. The report detailed several violations of the conditions of Holman’s supervised probation,

including Holman’s new felony charge, failing to report his April 2016 arrest for that crime

within three days to his probation officer, missing a scheduled visit with his probation officer in

August 2016, and his failure to request and obtain permission to change his residence four times

between October 2015 and September 2016.

       The revocation hearing, as well as the trial for the new larceny charge, were set for the

same day in October 2016. At the conclusion of the larceny trial, the trial court found Holman

not guilty of that offense. The judge noted that he was “95 percent sure” of Holman’s guilt, but

acquitted Holman on the new larceny charge because he was not sure the evidence proved guilt

beyond a reasonable doubt. He explained: “There’s enough of slight inconsistencies to create

some pause on my part. I don't want you thinking you’re not guilty. I think you’re guilty, but

not enough to feel comfortable to find you guilty beyond a reasonable doubt.”



       1
        The probation violation report cited Holman’s violation of his statutory burglary and
marijuana convictions, but the capias only references the domestic assault and battery conviction.
                                               -2-
       The trial court then turned to the revocation matter. Holman requested a continuance

because he contested the allegations in the probation violation report, and the probation officer

was not available to testify. The trial court granted the request and re-scheduled the revocation

hearing for the following month. Although the trial judge agreed to continue the revocation

hearing to secure the presence of the probation officer, he expressed some skepticism as to why

it was necessary, observing: “You[] guys aren’t following. Revocation proceeding, hearsay of

every kind is admissible.” He also told defense counsel, “I hope you realize and explained to

your client that I’m certainly going to consider what I heard in this thing in the course of this

revocation.”

       When the parties returned for the revocation hearing, Holman’s probation officer, Hunter

Reed, testified. Reed took over Holman’s supervision in July 2016. He authored the major

violation report; however, he relied on another probation officer’s case notes for events that took

place prior to July 2016, as he only had direct knowledge of events that took place after he

assumed supervision. At the conclusion of Reed’s testimony, defense counsel objected to

“anything in the probation violation [report], confrontation clause, that Mr. Reed doesn’t have

personal knowledge of.” The trial court responded, “Denied. I’m admitting it. It is hearsay. It

is admissible.” The following exchange took place between defense counsel and the trial court:

               [DEFENSE COUNSEL]: Your Honor, I’m not saying that the
               hearsay—

               THE COURT: I understand.

               [DEFENSE COUNSEL]: Thank you, Your Honor.

               THE COURT: Maybe one of these days you will get the folks up
               the food chain to buy that argument. Right now, I don’t think it is
               valid.

               [DEFENSE COUNSEL]: Your Honor, I think under Henderson,
               there is a limited right to confrontation cause [sic].

                                                -3-
               THE COURT: Yes, sir.

               [DEFENSE COUNSEL]: Mr. Holman is exercising [his] right to
               confrontational [sic] clause. The probation officer that supervised
               him for most of the time in the violation report.

               THE COURT: Like I said, I’m not buying it.

       At the conclusion of the revocation hearing, the trial court found:

               Well, Mr. Holman, the violation reports, in my estimation, are
               simply enough to revoke the suspended sentences that you have.

               Your position is that it was the probation officer’s fault. Put it to
               you bluntly, if I had 15 years and 10 months hanging over my
               head, I’d be calling in every day just to make sure everything was
               squared away and they knew exactly where I was. This place, that
               place, or some other place, not reporting any arrest right away.
               That’s Number One.

               The other thing is, I tried the other case, and I remember it. I wrote
               down then and I’m re-stamping it again on the guidelines I have
               here. The defendant was tried before this [c]ourt on new grand
               larceny from the person. This [c]ourt was 95 percent sure of the
               defendant’s guilt. Had enough doubt not to be beyond a
               reasonable doubt for a conviction.

               This case alone was enough to revoke you. The violation report
               was enough to revoke the suspended sentence. That’s what I felt
               then. That’s what I feel now. In fact, I feel more convinced that
               that is the correct position.

The trial court revoked Holman’s suspended sentences, and reimposed three years in the

penitentiary, with all but nine months suspended.

                                            II. ANALYSIS

                                  A. Evidence from Previous Trial

       We first address Holman’s argument that the trial court erred in considering the facts

from his grand larceny trial during the revocation proceeding without specifying the exact

evidence it relied upon when deciding to revoke his suspended sentences. Rule 5A:18 reads, in

relevant part: “No ruling of the trial court . . . will be considered as a basis for reversal unless an

                                                 -4-
objection was stated with reasonable certainty at the time of the ruling, except for good cause

shown or to enable the Court of Appeals to attain the ends of justice.” Holman concedes that he

failed to preserve this issue for appellate review, but relies on the ends of justice exception to

Rule 5A:18. “Application of the ends of justice exception is appropriate when the judgment of

the trial court was error and application of the exception is necessary to avoid a grave injustice or

the denial of essential rights.” Charles v. Commonwealth, 270 Va. 14, 17, 613 S.E.2d 432, 433

(2005). The ends of justice exception, however, “is narrow and is to be used sparingly.”

Bazemore v. Commonwealth, 42 Va. App. 203, 219, 590 S.E.2d 602, 609 (2004) (en banc)

(quoting Redman v. Commonwealth, 25 Va. App. 215, 220, 487 S.E.2d 269, 272 (1997)).

       Holman argues the ends of justice exception applies because he “had no notice of what

specific evidence was used against him, or that the evidence of this trial where he was acquitted

would be the basis the trial court would rely heavily upon to revoke his suspended sentence.” He

relies upon Hess v. Commonwealth, 17 Va. App. 738, 441 S.E.2d 29 (1994), in which this Court

held that a trial court may revoke probation based upon evidence from an earlier prosecution

over which the same judge presided, but must “stat[e] for or mak[e] part of the record the

specific evidence upon which he relied.” Id. at 739-40, 441 S.E.2d at 30. Hess is distinct from

this case, however, because — unlike Holman — Hess timely objected at trial, and thus did not

need to satisfy the exacting requirements of the “ends of justice” exception.

       Holman fails to demonstrate how the trial court’s failure to recite specific evidence

amounts to a “grave injustice or the denial of essential rights.” First, Holman had ample notice

that his grand larceny charge would be material to the revocation proceeding, as it was included

in the major violation report, which Holman possessed in advance of the scheduled hearings. In

addition, the revocation hearing was initially scheduled to take place immediately after the grand

larceny trial, before the same judge. It did not occur at that time only because Holman requested

                                                 -5-
a continuance. Holman also had specific notice that the judge planned to consider the evidence

from the grand larceny case in the revocation proceeding. After Holman requested a continuance

upon his acquittal for the grand larceny charge, the trial court told counsel: “I hope you realize

and explained to your client that I’m certainly going to consider what I heard in this thing in the

course of this revocation.” Finally, even if the trial court failed to specify what particular facts

from the larceny trial were most salient to his decision to revoke, it nonetheless expressly stated

that it was “95 percent sure of the defendant’s guilt” in the grand larceny case, and found that

this charge “alone was enough to revoke.” In light of this, we cannot say a grave injustice

occurred or that Holman was denied his essential rights; as such, the ends of justice exception

does not apply.

                                          B. Confrontation

       Holman’s second argument is that the trial court erred by failing to make a “good cause”

finding regarding the admission of hearsay in the probation violation report, thus violating

Holman’s right to confrontation in violation of the Fourteenth Amendment of the United States

Constitution. Henderson v. Commonwealth, 285 Va. 318, 326, 736 S.E.2d 901, 905 (2013)

(holding that testimonial hearsay is subject to the limited confrontation right provided by the

Fourteenth Amendment to probationers in revocation proceedings). Generally, we review a trial

court’s decision to admit hearsay evidence for an abuse of discretion. Id. at 329, 736 S.E.2d at

907. Whether admitting that evidence violated a defendant’s due process rights is a question of

law, reviewed de novo. Id. Here, however, we assume without deciding that the trial court erred

in admitting the hearsay portions of the report,2 and conclude that such error was harmless.


       2
         The Commonwealth argues that the alleged hearsay in the report was not, in fact,
testimonial in nature. In assuming without deciding the trial court erred, we also assume without
deciding the challenged portions of the report were testimonial hearsay. We elect to do so
because of the trial court’s troubling assertions that in a revocation proceeding, “hearsay of every

                                                 -6-
       “It is well established that violations of the Confrontation Clause . . . are subject to

harmless error review.” Luginbyhl v. Commonwealth, 48 Va. App. 58, 64, 628 S.E.2d 74, 77

(2006) (en banc) (quoting United States v. McClain, 377 F.3d 219, 222 (2d Cir. 2004)).

Because Holman asserts a violation of his constitutional rights, the error must be harmless

beyond a reasonable doubt. Crawford v. Commonwealth, 281 Va. 84, 101, 704 S.E.2d 107, 117

(2011). “This standard requires a determination of ‘whether there is a reasonable possibility that

the evidence complained of might have contributed to the conviction.’” Lilly v. Commonwealth,

258 Va. 548, 551, 523 S.E.2d 208, 209 (1999) (quoting Chapman v. California, 386 U.S. 18, 23

(1967)). Harmless error review “puts a limitation on the powers of this [C]ourt to reverse the

judgment of the trial court — a limitation which we must consider on every application for an

appeal and on the hearing of every case submitted to our judgment.” Cox v. Commonwealth, 65

Va. App. 506, 521, 779 S.E.2d 199, 206 (2015) (quoting Walker v. Commonwealth, 144 Va.

648, 652, 131 S.E. 230, 231 (1926)).

       Here, Holman objected only to those portions of the report that occurred prior to Reed’s

assuming his supervision — i.e., Holman’s failure to report his grand larceny arrest within the




kind is admissible.” This is an overly broad, and thus incorrect, statement of the law. Although
hearsay rules are relaxed in a probation revocation proceeding, a probationer nonetheless retains
a limited due process right to confrontation. A judge must find good cause to admit testimonial
hearsay, expressly considering whether the proffered evidence is reliable, or weighing the
respective interests of the defendant and the prosecution. Henderson, 285 Va. at 326-28, 736
S.E.2d at 905-06; see also Cox v. Commonwealth, 65 Va. App. 506, 519, 779 S.E.2d 199, 205
(2015); Saunders v. Commonwealth, 62 Va. App. 793, 808-09, 753 S.E.2d 602, 609-10 (2014).
        Here, the trial court failed to conduct a “good cause” analysis before admitting the report
over Holman’s objection. In light of the trial court’s repeated statements that all hearsay is
admissible in a revocation proceeding, we cannot infer that such an analysis is implicit in the
record.
                                                  -7-
specified timeframe, and his October 2015 failure to report a change in residence.3 Considering

the trial court’s emphasis on Holman’s other violations, as well as the corroborating evidence of

those offenses, we find that the trial court, even setting aside the hearsay issues in controversy,

had ample grounds upon which to revoke Holman’s suspended sentences. First, Holman never

challenged that he failed to report the arrest within the three-day window required by the terms

of his probation. Second, the October 2015 violation was just one of four similar instances in

which Holman either failed to report his current residence or failed to seek advance permission

to move. The other three took place during Reed’s tenure as Holman’s probation officer.4

Finally, the trial court’s statements evince that it would have revoked Holman’s sentences

independent of these two violations. In revocation proceedings, “proof beyond a reasonable

doubt is not required.” Marshall v. Commonwealth, 202 Va. 217, 221, 116 S.E.2d 270, 274

(1960) (citing Slayton v. Commonwealth, 185 Va. 357, 366, 38 S.E.2d 479, 483 (1946)). Code

§ 19.2-306 sets forth the burden of proof in revocation proceedings, stating that a court may

revoke the suspension of a sentence “for any cause the court deems sufficient” and that


       3
           The violation report describes this offense as follows:

                 On October 7, 2015, Holman reported to be living with his mother
                 at [address redacted] in Richmond City, Virginia.
                 On October 21, 2015, a home contact was attempted at Holman’s
                 reported residence. Holman’s mother was at the residence and she
                 stated that Holman had not been living at the residence and that she
                 did not know where Holman was living. Holman’s mother stated
                 that Holman had instructed her to tell the probation officer that he
                 was living at the residence.
                 Holman did not seek permission to, nor did he report this change
                 of residence to his probation officer until October 27, 2015, after
                 his probation officer had discovered that Holman had intentionally
                 mislead [sic] his probation officer in reporting this residence.
       4
        Also, unlike in other cases, e.g. Cox, 65 Va. App. at 512 & n.1, 779 S.E.2d at 201 &
n.1; Henderson, 285 Va. at 322, 736 S.E.2d at 903, Reed not only had personal knowledge of
many of the reported violations, but he in fact authored the major violation report, and was
Holman’s probation officer at the time of the revocation hearing.
                                                -8-
revocation is proper if the court “finds good cause to believe that the defendant has violated the

terms of suspension.”

       Here, the trial court was “95 percent sure of [Holman’s] guilt” in the grand larceny case,

and found that this charge “alone was enough to revoke.” Even though the trial court did not

find Holman guilty of grand larceny beyond a reasonable doubt, the level of certainty the court

expressed satisfies the standard of proof in a revocation proceeding. Most importantly, it

demonstrates that the trial court required no additional violations to find revocation appropriate.

In light of this, any violation of Holman’s confrontation rights resulting from the admission of

the report was harmless beyond a reasonable doubt. See Brant v. Commonwealth, 32 Va. App.

268, 278-79, 527 S.E.2d 476, 481 (2000).

                                         III. CONCLUSION

       Holman failed to preserve his objection to the trial court considering facts from the grand

larceny trial at the revocation proceeding, and the ends of justice exception does not apply;

therefore, he has waived this argument under Rule 5A:18. Assuming without deciding that the

trial court erred in admitting portions of the violation report, such error was harmless.

                                                                                            Affirmed.




                                                -9-
