                    COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Elder and Clements
Argued at Richmond, Virginia


VENESSA M. MONGER
                                           MEMORANDUM OPINION * BY
v.   Record No. 1341-00-2               JUDGE JEAN HARRISON CLEMENTS
                                              NOVEMBER 20, 2001
COMMONWEALTH OF VIRGINIA


             FROM THE CIRCUIT COURT OF HALIFAX COUNTY
                    William L. Wellons, Judge

          Randall J. Trost (Randall J. Trost, P.C., on
          brief), for appellant.

          Steven A. Witmer, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellee.


     Venessa M. Monger was convicted in a bench trial of operating

a motor vehicle after having been declared an habitual offender,

in violation of Code § 46.2-357.    On appeal, she contends the

trial court erred (1) in finding the evidence sufficient to prove

she had actual notice of her habitual offender status and (2) in

refusing to admit into evidence a tape-recorded telephone

conversation between her son and attorney.   For the reasons that

follow, we affirm the conviction.

     As the parties are fully conversant with the record in this

case and because this memorandum opinion carries no precedential


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
value, this opinion recites only those facts and incidents of the

proceedings as necessary to the parties' understanding of the

disposition of this appeal.

                  I.    SUFFICIENCY OF THE EVIDENCE

     Monger contends the evidence presented at trial was

insufficient to sustain her conviction because it failed to prove

beyond a reasonable doubt that she had actual notice of having

been declared an habitual offender and ordered not to drive.

     The Commonwealth initially argues that this issue is

procedurally barred on appeal because it was not presented to the

trial court.   We have held that, "in a bench trial, where a

defendant wishes to preserve a sufficiency motion after presenting

evidence, the defendant must make a motion to strike at the

conclusion of all the evidence, present an appropriate argument in

summation, or make a motion to set aside the verdict."     Howard v.

Commonwealth, 21 Va. App. 473, 478, 465 S.E.2d 142, 144 (1995).

     Here, Monger did not move to strike the evidence or set aside

the verdict at trial.    Her attorney did, however, raise the issue

of notice during closing argument.      He argued that the evidence

presented "raise[d] a doubt in the mind about [Monger] knowing

that she was declared a[n] habitual offender."     We find that this

argument gave the trial court and the Commonwealth the opportunity

to intelligently address, examine, and resolve this issue at the

trial level.   The issue was, therefore, preserved and is properly



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before us on appeal.    See Lee v. Lee, 12 Va. App. 512, 514, 404

S.E.2d 736, 737 (1991) (en banc); Rule 5A:18.

     When the sufficiency of the evidence is challenged on appeal,

we review the evidence "in the light most favorable to the

Commonwealth, granting to it all reasonable inferences fairly

deducible therefrom."   Bright v. Commonwealth, 4 Va. App. 248,

250, 356 S.E.2d 443, 444 (1997).    "In so doing, we must discard

the evidence of the accused in conflict with that of the

Commonwealth, and regard as true all the credible evidence

favorable to the Commonwealth and all fair inferences that may be

drawn therefrom."   Watkins v. Commonwealth, 26 Va. App. 335, 349,

494 S.E.2d 859, 866 (1998).    We are further mindful that the

"credibility of a witness, the weight accorded the testimony, and

the inferences to be drawn from proven facts are matters solely

for the fact[ ]finder's determination."   Keyes v. City of Virginia

Beach, 16 Va. App. 198, 199, 428 S.E.2d 766, 767 (1993).   We will

not disturb the conviction unless it is plainly wrong or

unsupported by the evidence.    Sutphin v. Commonwealth, 1 Va. App.

241, 243, 337 S.E.2d 897, 898 (1985).

     "The Commonwealth bears the burden of 'proving beyond a

reasonable doubt each and every constituent element of a crime

before an accused may stand convicted of that particular

offense.'"   Bruce v. Commonwealth, 22 Va. App. 264, 268, 469

S.E.2d 64, 67 (1996) (quoting Martin v. Commonwealth, 13 Va. App.

524, 529, 414 S.E.2d 401, 403 (1992) (en banc)), aff'd, 256 Va.

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371, 506 S.E.2d 318 (1998).   Thus, to convict Monger of operating

a motor vehicle after having been declared an habitual offender,

in violation of Code § 46.2-357, the Commonwealth had to prove

beyond a reasonable doubt, inter alia, that Monger had actual

knowledge that she had been declared an habitual offender and

ordered not to drive.   See Reed v Commonwealth, 15 Va. App. 467,

471, 424 S.E.2d 718, 720 (1992).

      Here, the evidence proved that on April 3, 1997, the

Department of Motor Vehicles (DMV) determined Monger to be an

habitual offender and ordered her not to drive effective May 7,

1997. 1   The DMV sent notice of that determination, along with

notice of the revocation of her driving privilege, to Monger by

certified mail on April 7, 1997.    The DMV subsequently received

a return receipt allegedly bearing Monger's signature.

      On June 25, 1998, Monger was arrested for driving after

having been declared an habitual offender and released on a

summons.    At trial, Monger acknowledged her signature on the

summons.    The charge was later dismissed.   On January 6, 1999,

Monger was again arrested for driving after having been declared

an habitual offender and again released on a summons.    At trial,

Monger acknowledged her signature on the summons.    This charge




      1
       Monger appealed to the trial court, which affirmed the
determination. By a separate opinion this day, we affirmed the
decision of the trial court.


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was also later dismissed.   In each case, Monger was represented

by an attorney.

     On July 12, 1999, a grand jury indicted Monger for

operating a motor vehicle on January 16, 1999, after having been

declared an habitual offender, in violation of Code § 46.2-357.

     At trial, Monger testified that, prior to January 23, 1999,

she did not know she had been declared an habitual offender and

ordered not to drive.   According to her, the police officers who

stopped her on June 25, 1998 and January 6, 1999 told her only

that her license was suspended.   She further testified she did

not read the summons she had signed and she could not recall

that the judge or her attorney ever told her that she was

charged with driving after having been declared an habitual

offender.   Moreover, Monger denied that the signature on the

return receipt received by the DMV was hers.   She said the

signature was that of her estranged husband, who regularly

forged her name.

     The trier of fact is not required to accept a party's

evidence in its entirety, but is free to believe or disbelieve,

in part or in whole, the testimony of any witness.   Rollison v.

Rollison, 11 Va. App. 535, 547, 399 S.E.2d 823, 830 (1991).

Thus, the trial court was not required to accept Monger's

version of what occurred or her testimony that she had no actual

knowledge of her habitual offender status.   "In its role of

judging witness credibility, the fact finder is entitled to

                               - 5 -
disbelieve the self-serving testimony of the accused and to

conclude that the accused is lying to conceal his [or her]

guilt."   Marable v. Commonwealth, 27 Va. App. 505, 509-10, 500

S.E.2d 233, 235 (1998).

     In determining that Monger had actual notice that she had

been declared an habitual offender, the trial court noted the

similarities, particularly in the first names, between the

signature on the return receipt card returned to the DMV and

Monger's signatures on the two traffic summons.   The trial court

also noted that Monger had signed the two summons, both of which

described the referenced charge as "habitual offender," and had

taken part, while represented by counsel, in "two prior

proceedings which involved charges of operating a motor vehicle

after having been declared a[n] habitual offender."

     Based on our review of the record, we cannot say that the

trial court's determination was plainly wrong or without

evidence to support it.   In light of Monger's two prior arrests

for driving after having been declared an habitual offender and

the obvious similarities between the signatures on the summons

and the return receipt, the trial court was entitled to

disbelieve Monger's claim that she was unaware of her habitual

offender status.   We hold, therefore, that the evidence was

sufficient to prove beyond a reasonable doubt that Monger had

actual notice of her habitual offender status and of having been

ordered not to drive.

                               - 6 -
           II.   ADMISSIBILITY OF TELEPHONE CONVERSATION

     Monger denied she drove her car on January 16, 1999.     She

testified that her nineteen-year-old son, Octavius, drove her to

the video store.   On their way home, he pulled into the

convenience store's parking lot because of car trouble.

Octavius then walked home to check on Monger's younger son,

while Monger arranged to have the car moved and have someone

pick her up.

     Arguing that Octavius's testimony would corroborate her

testimony that Octavius alone drove her car that night, Monger

moved to admit into evidence a tape-recorded telephone

conversation between Octavius and her attorney.   The

conversation was admissible "as a residual exception to the

hearsay rule," Monger maintained, because Octavius was in the

military service and, thus, was unavailable as a witness at

trial.   The trial court denied the motion.

     On appeal, Monger contends that, under the guidance

provided by Code § 8.01-420.2, the tape-recorded telephone

conversation should have been admitted into evidence because the

identities of all the parties to the conversation were known and

all the parties to the conversation were aware that the

conversation was being recorded.

     Upon our review of the record, we find that the argument

Monger makes on appeal was never made at trial.   In accordance

with Rule 5A:18, we will not consider an argument on appeal that

                               - 7 -
is different from the argument presented to the trial court,

even if it relates to the same issue.    See Buck v. Commonwealth,

247 Va. 449, 452-53, 443 S.E.2d 414, 416 (1994); Ohree v.

Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998).

The purpose of this rule is to ensure that the trial court and

opposing party are given the opportunity to intelligently

address, examine, and resolve issues in the trial court, thus

avoiding unnecessary appeals and reversals.    Lee, 12 Va. App. at

514, 404 S.E.2d at 737; Kaufman v. Kaufman, 12 Va. App. 1200,

1204, 409 S.E.2d 1, 3-4 (1991).

     Accordingly, Rule 5A:18 bars our consideration of this

assignment of error on appeal.    Moreover, we find no reason in

the record to invoke the "good cause" or "ends of justice"

exceptions to Rule 5A:18.

     For these reasons, we affirm Monger's conviction.

                                                         Affirmed.




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