Allen N. Day v. Commonwealth ( 2004 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Senior Judge Hodges
Argued at Richmond, Virginia
ALLEN N. DAY
MEMORANDUM OPINION* BY
v. Record No. 0193-03-2 JUDGE JAMES W. BENTON, JR.
FEBRUARY 3, 2004
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF WESTMORELAND COUNTY
J. Peyton Farmer, Judge Designate
David P. Baugh for appellant.
Virginia B. Theisen, Assistant Attorney General (Jerry W. Kilgore,
Attorney General, on brief), for appellee.
A jury convicted Allen N. Day of possession of cocaine. Day contends the trial judge erred
in permitting the prosecutor to prove Day remained silent when arrested and failed to deny
knowledge of cocaine on a spoon, and Day further contends the evidence was insufficient to prove
he knowingly possessed the cocaine. We hold that the evidentiary issue is defaulted because Day’s
trial counsel did not object to the testimony, and we further hold that the evidence was sufficient to
support the conviction.
I.
The evidence at trial proved that a deputy sheriff arrested Day pursuant to two outstanding
arrest warrants. As an incident to the arrest, the deputy sheriff searched Day and found in Day’s
pants pocket a silver spoon. The deputy sheriff testified that the part of the spoon “that holds the
fluid . . . was coated with a white powdery substance.” He described the substance as “quite thick,”
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
“crystallized,” and “adhered to the spoon.” The evidence further proved that the forensic laboratory
analyzed the substance and reported it to be cocaine.
During the prosecutor’s direct examination, the deputy sheriff also testified that Day did not
say anything during the search and did not deny that the spoon and the pants were his property. On
cross-examination, Day’s trial counsel asked whether he could infer from the deputy’s testimony
that the deputy “asked [Day] those questions.” The deputy responded in the negative and testified
that he did not question Day and that Day made no statements. On redirect examination, the deputy
testified that when he seized the spoon Day showed no “surprise” at the discovery, “sort of hung his
head,” and did not make any statements.
The jury convicted Day of possession of cocaine.
II.
Citing the Fifth Amendment to the Constitution of the United States and Article I, Section 8
of the Constitution of Virginia, Day contends that the deputy sheriff’s testimony violated his
constitutional rights to remain silent and to not be compelled to give evidence against himself. Day
acknowledges that his trial attorney failed to object to this testimony, but he contends that the ends
of justice warrants our consideration of this issue on appeal.
The primary thrust of Rule 5A:18 is quite clear. “No ruling of the trial court . . . will be
considered as a basis for reversal unless the objection was stated together with the grounds
therefor.” Rule 5A:18. Applying Rule 5A:18, we have consistently held that we will not consider
on appeal issues or arguments which were not first raised in the trial court. See Andrews v.
Commonwealth, 37 Va. App. 479, 493, 559 S.E.2d 401, 408 (2002); Ingram v. Commonwealth, 1
Va. App. 335, 341, 338 S.E.2d 657, 660 (1986). We have noted that the main purpose of Rule
5A:18 “is to afford the trial court an opportunity to rule intelligently on the issues presented, thus
avoiding unnecessary appeals and reversals.” Schwartz v. Commonwealth, 41 Va. App. 61, 71, 581
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S.E.2d 891, 896 (2003). In this case, as in Fisher v. Commonwealth, 16 Va. App. 447, 454, 431
S.E.2d 886, 890 (1993), Day “failed to obtain a ruling from the court . . . [and] requested no relief.
Because he was denied nothing by the trial court, there is no ruling for us to review.”
Day contends that the constitutional issue is one that falls within “the ends of justice”
exception to Rule 5A:18. We have held, however, that the mere existence of a constitutional claim
does not meet the standard for invoking the exception. “Rule 5A:18 applies to bar even
constitutional claims.” Ohree v. Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488
(1998). See also Foster v. Commonwealth, 38 Va. App. 549, 555 n.2, 567 S.E.2d 547, 550 n.2
(2002) (noting that although appellant did not argue that the “ends of justice” exception applied to
his claim of an equal protection violation, we found “no basis for its application in this case”).
The “ends of justice” exception only applies when the error is “‘clear, substantial, and
material,’” Redman v. Commonwealth, 25 Va. App. 215, 221, 487 S.E.2d 269, 272 (1997) (citation
omitted), and it may be invoked only “when the record affirmatively shows that a miscarriage of
justice has occurred, not when it merely shows that a miscarriage might have occurred.” Mounce v.
Commonwealth, 4 Va. App. 433, 436, 357 S.E.2d 742, 744 (1987). The deputy testified that Day
was not questioned and did not make a statement. The evidence of Day’s guilt, however, was not
limited to his silence. The deputy sheriff also testified that Day hung his head when the spoon was
seized. This was conduct that the jury could have found sufficient to support a knowing possession.
Thus, the evidence shows only that a miscarriage of justice might have occurred.
We hold that this issue is barred by Rule 5A:18.
III.
When an appeal challenges the sufficiency of the evidence to support a conviction, “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
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415, 418 (1987). So viewed, the evidence proved that the deputy sheriff found a spoon in Day’s
pocket coated with a powdery cocaine residue. The cocaine on the spoon was “crystallized” and
clearly visible. When the deputy seized the spoon, Day “just sort of hung his head.”
The jury believed the Commonwealth’s evidence. “The credibility of the witnesses and the
weight accorded the evidence are matters solely for the fact finder who has the opportunity to see
and hear that evidence as it is presented.” Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455
S.E.2d 730, 732 (1995). The jury was entitled to draw reasonable inferences from the presence of
the spoon in Day’s pocket and Day’s reaction to the discovery. The evidence that Day had a spoon
coated in cocaine and that he “hung his head” when the deputy found the spoon was sufficient for
the jury to find that Day had knowledge of the substance on the spoon. The Commonwealth’s
evidence was competent, was not inherently incredible, and was sufficient to prove beyond a
reasonable doubt that Day possessed the cocaine.
For these reasons, we affirm the conviction.
Affirmed.
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