COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Clements and Senior Judge Hodges
Argued at Chesapeake, Virginia
JOHN BUTLER, JR.
MEMORANDUM OPINION * BY
v. Record No. 1545-99-1 JUDGE JEAN HARRISON CLEMENTS
OCTOBER 17, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Wilford Taylor, Jr., Judge
Robert B. Wilson, V (McDermott & Roe, on
brief), for appellant.
Amy L. Marshall, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
John Butler, Jr., was convicted in a bench trial of robbery
in violation of Code § 18.2-58 and use of a firearm while in the
commission of a felony in violation of Code § 18.2-53.1. By
sentencing orders of June 28, 1999, the trial court sentenced
him to serve 17 years, with 15 years suspended, for the robbery
conviction and 3 years for the firearm conviction. On appeal, he
contends the evidence was not sufficient to sustain the
convictions. Finding appellate review procedurally barred, we
affirm the convictions.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
As the parties are fully conversant with the record in this
case and because this memorandum opinion carries no precedential
value, this opinion recites only those facts necessary to a
disposition of this appeal.
Butler contends that the trial court erred in convicting
him because the "trial court did not believe Percy Mayo," the
victim and principal witness, and that without Mayo's testimony
there was not sufficient evidence from the Commonwealth's other
witnesses--Mayo's mother and Detective Gillis--to convict him.
Butler relies exclusively on the trial judge's comments at the
appeal bond hearing on July 13, 1999, as the basis for his
assertion that the trial court found Mayo's testimony to be
incredible. At that hearing, the trial judge, in allowing
Butler's release on supervised probation pending appeal, stated:
Well, I will say this case I do
remember very clearly, and while the victim,
one victim's credibility was effectively
challenged, I relied more on the mother of
that victim. She was an elderly lady that
really had to watch all of this, and I just
felt she shouldn't have had to do that. As
I remember correctly, Mr. Butler did
apologize to her.
You know, it was a very, very serious
charge, what I considered -- I think I did
come out on the low end of the guidelines
because of the nature of the principal
witness's background. You know, I guess we
encourage second opinions.
What I'm going to do, I'm going to
reluctantly grant your request . . . in that
because it's -- I don't normally do this in
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these serious crimes of violence, but I do
remember these facts very clearly.
Butler argues that this statement by the trial judge indicates
that the trial court found as a matter of fact that Mayo was not
a credible witness and that his mother was. Thus, at best,
according to Butler, the court believed only that portion of
Mayo's testimony corroborated by his mother. As she failed to
testify to all of the required elements of robbery and use of a
firearm in the commission of a felony, Butler could not have
been properly convicted of those offenses based on her
testimony. Nor did the testimony of Detective Gillis do more
than corroborate the fact that a fight took place. It did not
establish the crimes at issue here.
The Commonwealth contends that Butler's argument here,
concerning the trial judge's comments at the appeal bond
hearing, was not properly preserved for appeal in accordance
with Rule 5A:18. We agree.
"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 also Rule 5A:18. 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. See Lee v. Lee, 12 Va.
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App. 512, 514, 404 S.E.2d 736, 737 (1991) (en banc); Kaufman v.
Kaufman, 12 Va. App. 1200, 1204, 409 S.E.2d 1, 3-4 (1991).
Here, Butler's sole argument on appeal rests entirely on
his interpretation of the trial judge's remarks at the appeal
bond hearing regarding the credibility of Mayo and his mother.
While Butler touched briefly on the issue of Mayo's credibility
in his motion to strike at trial, he never presented to the
trial court the specific argument he now asks us to consider for
the first time on appeal. He neither made the argument at the
appeal bond hearing following the trial judge's comments nor
made any subsequent motions asserting it. Therefore, because it
was not raised in the trial court, appellant's argument on
appeal is procedurally barred by Rule 5A:18. Furthermore, our
review of the record in this case does not reveal any reason to
invoke the "good cause" or "ends of justice" exceptions to Rule
5A:18. Accordingly, we affirm appellant's convictions.
Affirmed.
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