                               COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Felton, Judges Frank and Powell
Argued at Chesapeake, Virginia


DELANO JARRELL DREW
                                                             MEMORANDUM OPINION * BY
v.     Record No. 2289-08-1                                    JUDGE CLEO E. POWELL
                                                                 SEPTEMBER 22, 2009
COMMONWEALTH OF VIRGINIA


               FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                                 Patricia L. West, Judge

                 Timothy John Quick for appellant.

                 Craig Stallard, Assistant Attorney General (William C. Mims,
                 Attorney General; Josephine F. Whalen, Assistant Attorney
                 General II, on brief), for appellee.


       Delano Jarrell Drew (“Drew”) was convicted of two counts of conspiracy, in violation of

Code § 18.2-22; robbery, in violation of Code § 18.2-58; attempted robbery, in violation of Code

§ 18.2-58; two counts of use of a firearm during the commission of a felony, in violation of Code

§ 18.2-53.1; and wearing a mask in public, in violation of Code § 18.2-422. On appeal, Drew

argues that the evidence was insufficient “to convict [him] of the attempted robbery of Antonio

San Jose Gonzales, the use of a firearm during the commission of that attempted robbery, and the

conspiracy to commit that robbery, in the absence of the inadmissible hearsay testimony of

Rachel Morales proving the identity of the second victim” as Gonzales. 1 Specifically, Drew


       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       1
         Though Drew listed all of his convictions on his notice of appeal, we will consider only
those convictions that relate to his question presented. See Rule 5A:12(c) (providing, in
pertinent part, that “[o]nly questions presented in the petition for appeal will be noticed by the
Court of Appeals”).
argues that Morales learned Gonzales’s identity from others and, therefore, her testimony that

Gonzales was the victim of the attempted robbery she witnessed was inadmissible hearsay.

Drew acknowledges that in the trial court he asserted that this objection applied only to

attempted robbery and not to use of a firearm during the commission of a felony or conspiracy to

commit robbery. He asks this Court to invoke either the ends of justice or good cause shown

exceptions to Rule 5A:18 and consider these issues because the objection is “equally applicable”

to the other two charges and Drew “should not be punished for counsel’s failure to recognize”

this. We disagree and, for the reasons that follow, we affirm Drew’s convictions.

                                       I. BACKGROUND

       On September 2, 2005, Rachel Morales and Antonio Gonzales stood in front of his home.

As they talked, they noticed a red car drive past twice. Approximately five minutes later, two

black men, wearing t-shirts wrapped like bandannas so that only their eyes and foreheads were

exposed, approached them. Morales saw that the taller of the two men carried a gun.

       The taller man approached Gonzales and ordered Gonzales to give him any items he had

on his person. When Gonzales did not hand anything over, the taller man patted Gonzales down,

found a pack of cigarettes, and threw it on the ground. He said to the shorter man, “Dee, search

the car,” and the shorter man complied. The taller man ordered Morales and Gonzales to walk

away and not look back. As Morales walked away, she used her cell phone to call the police.

Once the police arrived, Morales returned to her car and realized that her compact discs and

purse were missing.

       As part of his investigation, Detective Mark Laino spoke with Drew. During the

conversation, Detective Laino explained to Drew that he had information that Drew may have

been involved in some robberies with Barry Wilborne, who is significantly taller than Drew.

The detective cautioned Drew that robbery is a violent crime – “only a trigger pull away from a

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homicide.” Drew explained that he had been at a friend’s house and they were driving around

when they saw some people standing outside. Drew told the detective “I told [Wilborne] we

shouldn’t rob them because we had driven past them two times and they saw us.” Drew

confessed that after he and Wilborne drove past Morales and Gonzales a couple of times, they

parked. Drew said that he grabbed a t-shirt and put it around his face. When Detective Laino

showed Drew a photograph of Morales’s car, Drew agreed that the car looked like the one at the

robbery. Drew said that Wilborne was the one who actually took Morales’s purse and that

Wilborne had the property because he had a newborn to support. In response to Detective

Laino’s offer to allow Drew to write a letter of apology, Drew said that he would prefer to

apologize in person because it was more personal.

          At trial, Drew objected to Morales’s testimony identifying Gonzales as the second victim,

arguing that this testimony was inadmissible hearsay. The trial court overruled this objection.

At the close of all of the evidence, Drew renewed his motion to strike. The trial court accepted

the detective’s testimony, disbelieved Drew’s testimony, and denied Drew’s renewed motion to

strike.

                                            II. ANALYSIS

          Our Court’s rules provide that

                 [n]o ruling of the trial court . . . will be considered as a basis for
                 reversal unless the objection was stated together with the grounds
                 therefor at the time of the ruling, except for good cause shown or
                 to enable the Court of Appeals to attain the ends of justice.

Rule 5A:18. This rule exists so that the trial court is alerted to possible error and is afforded the

opportunity to “consider the issue intelligently and take any corrective actions necessary to avoid

unnecessary appeals, reversals and mistrials.” Martin v. Commonwealth, 13 Va. App. 524, 530,

414 S.E.2d 401, 404 (1992) (citing Campbell v. Commonwealth, 12 Va. App. 476, 480, 405

S.E.2d 1, 2 (1991) (en banc)).
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       At trial, Drew objected to Morales’s testimony identifying Gonzales as the victim of the

attempted robbery. He specifically stated that his objection did not apply to Drew’s conspiracy

and use of a firearm during the commission of a felony charges. Drew now argues that this

Court should apply either the “ends of justice” or the “good cause shown” exceptions to Rule

5A:18 so that Drew is not punished for his counsel’s error at trial. He makes no argument as to

why either exception is applicable in this case.

       “Ordinarily, in the criminal context, application of the ends of justice exception is

appropriate where ‘[the accused] was convicted for conduct that was not a criminal offense’ or

‘the record . . . affirmatively proves that an element of the offense did not occur.’” West v.

Commonwealth, 43 Va. App. 327, 338, 597 S.E.2d 274, 279 (2004) (quoting Redman v.

Commonwealth, 25 Va. App. 215, 221-22, 487 S.E.2d 269, 272-73 (1997)). Nothing in the

record indicates that “‘[the accused] was convicted for conduct that was not a criminal offense’

or ‘the record . . . affirmatively proves that an element of the offense did not occur.’” Id.

Similarly, nothing indicates why the “good cause shown exception” is applicable here.

Therefore, Rule 5A:18 bars consideration of whether Drew’s hearsay objection should apply to

his convictions for use of a firearm during the commission of a felony and for conspiracy.

       As to Drew’s conviction for attempted robbery, Drew frames his question presented as,

“[w]as the evidence sufficient to convict the Defendant of the attempted robbery of Antonio San

Jose Gonzales . . . in the absence of the inadmissible hearsay testimony of Rachel Morales

proving the identity of the second victim?” He essentially asks this Court to accept his argument

that Morales’s testimony identifying Gonzales as the second victim is inadmissible hearsay and

then consider the sufficiency of the evidence absent the evidence that he contends is

inadmissible. Drew’s question presented does not ask this Court to rule on whether Morales’s

identification of Gonzales is hearsay. When determining the sufficiency of the evidence, “‘we

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consider all admitted evidence, including illegally [or improperly] admitted evidence.’” Sprouse

v. Commonwealth, 53 Va. App. 488, 493, 673 S.E.2d 481, 483 (2009) (quoting Hargraves v.

Commonwealth, 37 Va. App. 299, 312-13, 557 S.E.2d 737, 743 (2002) (citing Lockhart v.

Nelson, 488 U.S. 33, 41 (1988))). Therefore, because Drew framed his question presented as

one of sufficiency of the evidence and did not ask this Court to determine if the identification

testimony was hearsay, the issue of whether Morales’s testimony identifying Gonzales as the

second victim is inadmissible hearsay is not properly before this Court.

       Thus, the only question before us is whether the evidence is sufficient to support Drew’s

conviction for attempted robbery of Gonzales and we find that it is sufficient. “[U]pon appellate

review, the evidence and all reasonable inferences flowing therefrom must be viewed in the light

most favorable to the prevailing party in the trial court.” Commonwealth v. Hudson, 265 Va.

505, 514, 578 S.E.2d 781, 786 (2003) (citing Derr v. Commonwealth, 242 Va. 413, 424, 410

S.E.2d 662, 668 (1991); Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534,

537 (1975)). “This principle requires us to ‘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 to be drawn therefrom.’” James v. Commonwealth, 53

Va. App. 671, 675, 674 S.E.2d 571, 579 (2009) (quoting Parks v. Commonwealth, 221 Va. 492,

498, 270 S.E.2d 755, 759 (1980) (emphasis and citation omitted)).

       Robbery, a common law crime, is defined as the ‘“taking, with intent to steal, of the

personal property of another, from his person or in his presence, against his will, by violence or

intimidation.’” George v. Commonwealth, 242 Va. 264, 277, 411 S.E.2d 12, 20 (1991) (quoting

Pierce v. Commonwealth, 205 Va. 528, 532, 138 S.E.2d 28, 31 (1964)).

               Attempted robbery, also a common law offense, requires the
               Commonwealth “to prove beyond a reasonable doubt that [the
               defendant] intended to steal personal property from [the victim],
               against his will, by force, violence, or intimidation. Additionally,
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               the Commonwealth must prove beyond a reasonable doubt that
               [the defendant] committed a direct, but ineffectual, act to
               accomplish the crime.” Pitt v. Commonwealth, 260 Va. 692, 695,
               539 S.E.2d 77, 78-79 (2000) (citing Johnson v. Commonwealth,
               209 Va. 291, 293, 163 S.E.2d 570, 572-73 (1968)).

Jay v. Commonwealth, 275 Va. 510, 524-25, 659 S.E.2d 311, 319-20 (2008).

       Here, Morales testified that she and Gonzales noticed a car drive past them twice shortly

before they were robbed. Morales said that the men who robbed her and Gonzales had t-shirts

wrapped around their faces. Drew told Detective Laino that he and Wilborne drove past a couple

twice before stopping. The men wrapped t-shirts around their faces before approaching the

couple and robbing them. Drew told Detective Laino that Wilborne had the purse and other

items taken during the robbery. He also said that a photograph of Morales’s car appeared to be

the same car at the robbery. Indeed, Drew declined the opportunity to write an apology letter to

Gonzales and Morales because he wished to make a more personal apology face to face. Though

Drew testified that he played no role in the robbery, the trial court disbelieved his testimony.

Thus, the evidence viewed in the light most favorable to the Commonwealth proves that Drew

“intended to steal personal property from [the victim], against his will, by force, violence, or

intimidation” and “committed a direct, but ineffectual, act to accomplish the crime.” Pitt, 260

Va. at 695, 539 S.E.2d at 78-79 (citing Johnson, 209 Va. at 293, 163 S.E.2d at 572-73).

                                        III. CONCLUSION

       For these reasons, we affirm Drew’s convictions.

                                                                                     Affirmed.




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