Joshua Mark Testa v. Commonwealth of Virginia ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, * Judge Elder and
Senior Judge Duff
Argued at Alexandria, Virginia
JOSHUA MARK TESTA
MEMORANDUM OPINION**
v. Record No. 1496-96-4 BY JUDGE CHARLES H. DUFF
DECEMBER 9, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
Thomas D. Horne, Judge
Buta Biberaj (Jonathan G. Martinis; Biberaj &
Associates, on brief), for appellant.
Daniel J. Munroe, Assistant Attorney General
(Richard Cullen, Attorney General; Monica S.
McElyea, Assistant Attorney General, on
brief), for appellee.
Following a jury trial, appellant, Joshua Mark Testa, was
convicted of conspiracy to escape from a secure juvenile
detention facility, escape by force from a secure juvenile
detention facility, conspiracy to commit robbery, and petit
larceny. On appeal, appellant contends that the Commonwealth
failed to identify him as the person arrested and charged with
the crimes for which he was tried. Appellant also asserts that
the Commonwealth's evidence regarding the charges of escape from
a juvenile facility and conspiracy to escape from a juvenile
*
On November 19, 1997, Judge Fitzpatrick succeeded Judge
Moon as chief judge.
**
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
facility was insufficient because it failed to establish that he
was a resident of a juvenile facility pursuant to an order of the
juvenile and domestic relations district court. For the reasons
that follow, we affirm.
Background
"On appeal, we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom." Martin v. Commonwealth,
4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). So viewed, the
evidence proved that, on January 28, 1995, appellant, Bradley
Gibson, and David Smith were locked inside a Loudoun County
Juvenile Interim Holding Facility ("JIHF Hut"). Deputy Norman
Miller was on duty at the time and possessed keys for the
facility's doors. Around 1:00 a.m., Gibson attacked Miller,
immobilizing him. Smith removed the facility's keys from
Miller's pocket, appellant unlocked the door, and the three
detainees fled the JIHF Hut.
The Identification
The facts in this case, as they relate to the identification
of a defendant at trial, are strikingly similar to the facts of
Sheffey v. Commonwealth, 213 Va. 602, 194 S.E.2d 897 (1973). In
Sheffey, the Supreme Court found sufficient evidence identifying
Sheffey as the person arrested and tried, despite the police
officer's failure to point out Sheffey at trial and make an
in-court identification. See id. at 603, 194 S.E.2d at 898. The
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Supreme Court held that the Commonwealth had adequately
identified the defendant because the trial judge had pointed him
out to the jury at the beginning of the trial. See id.
Additionally, "[a]t no time during the presentation of evidence
was any question raised" by Sheffey that the individual arrested
and charged was not in fact the same person in the courtroom
being tried. Id.
At the beginning of appellant's trial, the trial judge made
the following statement to the jurors:
Ladies and gentleman of the venire, the case
that you have been called on to hear today is
a criminal case in which Joshua Mark Testa,
who is the young man seated at counsel table
to my left and is now standing before you, is
charged that he did on or about the 28th day
of January in the year 1995, [commit five
crimes] . . . .
During appellant's trial, Deputy Sheriff DiBenedetto
testified that in late January 1995, he worked at the JIHF Hut.
The Commonwealth's attorney asked if "the Defendant, Josh Testa"
was assigned to the JIHF Hut, and DiBenedetto responded, "That is
correct." Throughout the three-day trial, witnesses referred to
"Mr. Testa," and to "Josh." Like the defendant in Sheffey, at no
time during the presentation of the evidence did appellant raise
any question that the individual charged with the crimes was not
the person sitting at counsel table.
Because the trial judge identified appellant to the jury as
the person on trial, and because DiBenedetto acknowledged that
the defendant and "Testa" were one in the same, we find that, as
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in Sheffey, the Commonwealth sufficiently identified appellant at
trial as the person charged with the crimes. See id. (noting
that arresting officer referred to Sheffey as defendant and by
name). Accordingly, the trial judge did not err in refusing to
strike the evidence.
In his brief, appellant challenges for the first time the
constitutionality of the Supreme Court's decision in Sheffey.
The Court of Appeals will not consider an argument on appeal
which was not presented to the trial court. See Jacques v.
Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d 630, 631 (1991)
(citing Rule 5A:18). Because this argument was not presented to
the trial court, Rule 5A:18 bars our consideration of this
question on appeal. Moreover, the record does not reflect any
reason to invoke the good cause or ends of justice exceptions to
Rule 5A:18.
Pursuant to a Court Order
Appellant contends that the Commonwealth failed to prove
beyond a reasonable doubt that he was residing at the JIHF Hut
pursuant to a court order, consequently, the Commonwealth failed
to prove all the elements of the charges against him.
It shall be unlawful for any person to
escape . . . from a facility operated by the
Department of Youth and Family Services or
from a secure juvenile detention facility in
which he had been placed by the juvenile and
domestic relations court or as a result of
his commitment as a juvenile to the
Department of Youth and Family Services.
Code § 18.2-477.1(B).
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"The juvenile and domestic relations district court judges
share" supervisory powers "over the intake officers with the
Department of Youth and Family Services." Roach v. Commonwealth,
251 Va. 324, 338, 468 S.E.2d 98, 106 (1996). The version of
Code § 16.1-255 in effect at the time of appellant's detention
provided, in pertinent part, that "[n]o detention order shall be
issued for any child except when authorized by the judge or
'intake officer' of a juvenile court." See also Tross v.
Commonwealth, 21 Va. App. 362, 379, 464 S.E.2d 523, 531 (1995)
(noting that juvenile intake officers share with juvenile and
domestic relations district court judges the power to issue
detention orders).
Viewed in the light most favorable to the Commonwealth, see
Martin, 4 Va. App. at 443, 358 S.E.2d at 418, the evidence proved
that appellant was in the JIHF Hit awaiting a forthcoming
"detention review hearing." In a post-arrest statement,
appellant told Lieutenant Buckman, "I was going to wait for my
detention review hearing if I ever wanted to get out of here."
If appellant had an upcoming detention review hearing, then a
fortiori, he was being detained pursuant to an order of
detention.
Captain Ronald Gibson, chief correctional officer for the
sheriff's office of Loudoun County, testified that he
"frequented" the JIHF Hut "[m]aybe once every week or so
depending on how often it was open." The following exchange took
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place at trial:
PROSECUTOR: Captain, you said that you would
go over maybe once a month depending on how
often it was opened. What triggered it being
open?
GIBSON: When there was -- a juvenile was
ordered to a secured -- to a detention center
and there was no bed space available and they
would then be housed there waiting bed space
in the Juvenile Detention Center.
PROSECUTOR: And when you say ordered,
ordered by whom?
GIBSON: The Juvenile Domestic Relations
Court Judge Clements, or whoever it was
presiding that day.
Thus, according to Gibson, the only persons detained in the
JIHF Hut were juveniles ordered there by the juvenile and
domestic relations district court judge.
Considering the evidence as a whole and according the fact
finder all of the inferences fairly deducible therefrom, we hold
that the Commonwealth's evidence was competent, was not
inherently incredible, and was sufficient to prove beyond a
reasonable doubt that appellant escaped from "a facility operated
by the Department of Youth and Family Services or from a secure
juvenile detention facility in which he had been placed by the
juvenile and domestic relations court or as a result of his
commitment as a juvenile to the Department of Youth and Family
Services." Code § 18.2-477.1.
Accordingly, we affirm the convictions.
Affirmed.
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