                   COURT OF APPEALS OF VIRGINIA

Present: Judge Annunziata, Senior Judges Duff and Hodges
Argued at Alexandria, Virginia

JAMES MONROE HAGUE, S/K/A
 JAMES M. HAGUE, IV
                                              MEMORANDUM OPINION * BY
v.   Record No. 1274-99-2                      JUDGE CHARLES H. DUFF
                                                    MAY 23, 2000
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                    James B. Wilkinson, Judge

          Craig S. Cooley for appellant.

          Virginia B. Theisen, Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellee.


     Appellant was convicted of rape.       On appeal, appellant argues

that the trial court committed reversible error in refusing to

exclude a material witness, the victim, upon his motion to exclude

all witnesses.   We disagree and affirm.

                               BACKGROUND

     Christopher Luck and the victim went to the house where Luck

rented a room.   An argument ensued between Luck and several

people, including appellant.     Appellant repeatedly hit Luck and

motioned to the victim to go into a bedroom.      Appellant then had

intercourse with the victim. 1


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
     1
       In his petition for appeal, appellant also argued that the
evidence was insufficient to support the rape conviction because
         Appellant was indicted for malicious wounding and rape.   At

the beginning of the trial, appellant move to exclude all material

witnesses.     Since Luck, the victim in the malicious wounding

charge, was to testify first, the Commonwealth requested that the

rape victim be allowed to remain in the courtroom.     The

Commonwealth argued that the rape victim had a right to be present

in the courtroom and that all victims would be considered material

witnesses.     The trial court permitted the rape victim to remain in

the courtroom during Luck's testimony.

               THE EXCLUSION OF A VICTIM FROM THE COURTROOM

     Appellant argues that Code §§ 19.2-11.01(4)(b) and

19.2-265.01 mandated that the victim be excluded from the

courtroom. 2    On appeal, appellant also argues that his due process

right to the presumption of innocence was violated since Code

§ 19.2-11.01(4)(b) permitted a victim of a crime to remain in the

courtroom.

     At trial, appellant argued that until the evidence

established that a person was a victim, the alleged victim stood

in the same position as any other witness in the case and should

be excluded from the courtroom.     Appellant never argued that his

____________________
the victim consented to the intercourse. Appellant's petition
for appeal was denied as to this question.
     2
       Effective July 1, 1999, these statutes were amended to
permit a victim, even if a material witness, to remain in the
courtroom. Under the present statutes, a victim is permitted to
remain in the courtroom, "unless the presence of the victim
would substantially impair the conduct of a fair trial."

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due process right was violated.   "The Court of Appeals will not

consider an argument on appeal which was not presented to the

trial court."   Ohree v. Commonwealth, 26 Va. App. 299, 308, 494

S.E.2d 484, 488 (1998).   See Rule 5A:18.   Accordingly, this

argument will not be considered on appeal.

     At the time of appellant's trial, Code § 19.2-11.01(4)(b)

provided that "[v]ictims shall have the right to remain in the

courtroom during a criminal trial or proceeding pursuant to the

provisions of § 19.2-265.01 unless excluded by the court as a

material witness."   At the time of appellant's trial, Code

§ 19.2-265.01 provided in pertinent part:

          [A]ny victim as defined by § 19.2-11.01 may
          remain in the courtroom. . . . However, if
          either the attorney for the Commonwealth or
          any defendant represents to the court that
          he intends to call as a material witness any
          victim as defined in § 19.2-11.01, the court
          shall exclude that person from the trial or
          proceeding.

     Assuming that, pursuant to former Code § 19.2-265.01, the

trial court should have excluded the victim from the courtroom,

the trial court did not commit reversible error.

     "The 'purpose of excluding the witnesses from the courtroom

is, of course, to deprive a later witness of the opportunity of

shaping his testimony to correspond to that of an earlier one.'"

Bennett v. Commonwealth, 236 Va. 448, 465, 374 S.E.2d 303, 314

(1988) (citation omitted).   "A trial court has discretion to

decide whether a witness who violates an exclusion order should


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be prevented from testifying.   Factors to be considered in

resolving the question include whether there was prejudice to

the defendant and whether there was intentional impropriety

attributable to the prosecution."       Id. (citations omitted).

     While the victim heard Luck's testimony, his testimony

addressed the malicious wounding charge and concerned

appellant's actions prior to appellant and the victim going into

the bedroom.   Additionally, the victim's testimony was not

influenced by Luck's, since her testimony did not mirror Luck's

testimony.   Appellant's defense to the rape charge was that the

victim consented to the intercourse.      Luck's testimony did not

address the issue of whether the victim consented to the

intercourse.   Appellant has failed to show any prejudice

resulting from the trial court's decision permitting the rape

victim to remain in the courtroom during Luck's testimony.

According, appellant's rape conviction is affirmed.

                                                             Affirmed.




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