                    COURT OF APPEALS OF VIRGINIA


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


CORWYN CORDELL SKINNER
                                            MEMORANDUM OPINION *
v.   Record No. 0926-96-3                 BY JUDGE CHARLES H. DUFF
                                               APRIL 8, 1997
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
                     Richard S. Miller, Judge
             Elizabeth P. Murtagh, Assistant Public
             Defender, for appellant.

             H. Elizabeth Shaffer, Assistant Attorney
             General (James S. Gilmore, III, Attorney
             General, on brief), for appellee.



     Corwyn Cordell Skinner (appellant) was convicted in a bench

trial of possessing cocaine.    On appeal, appellant challenges the

trial judge's refusal to grant a continuance and the sufficiency

of the evidence to support his conviction.    For the reasons that

follow, we affirm the conviction.
                            THE CONTINUANCE

     Appellant was arrested on October 26, 1995.      On that same

day, he was released on bond.    On November 8, 1995, counsel was

appointed.   Defense counsel was present at appellant's December

16, 1995 preliminary hearing.    On February 1, 1996, the day of

trial, defense counsel orally moved for a continuance and made

the following representations:
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
               Mr. Skinner has a brother that is in
          Minnesota that was not willing to come back
          to testify on his behalf. He got a call from
          his brother yesterday. And his brother
          indicates he's coming back to this area in
          March for a family get-together, a family
          wedding that has been planned. I would like
          to have that witness. I think he has some --
          I've not talked to him directly.
               Based on information my client has given
          me, he might be able to corroborate some
          information my client has. The cocaine in
          this case is point zero three grams, very
          small amount of drugs. And it's -- this
          other witness can tell us where the coat was
          before my client got it. He was a material
          witness.
               I don't have exact dates that he will be
          here in Lynchburg. But I do think if we
          could get him here, it would be helpful to my
          client's case. So I'm in a position to ask
          for a continuance today.


     The trial judge asked defense counsel whether she could

assure the witness' presence or whether the witness "indicated

[to her that] he would come."   Defense counsel was unable to

answer affirmatively.   Neither defense counsel nor the prosecutor

had spoken with the witness.    The witness "was living in

Minnesota" at the time of the offense and at the time of the

preliminary hearing.    The trial judge asked whether the witness'

testimony would be incriminating so that he might invoke his

privilege not to testify.   Defense counsel stated, "Judge, that's

why I feel like I need to talk to him myself.   And I did not know

about this witness until this morning."   Based on defense

counsel's uncertainty and the fact that the witness might invoke

his privilege against self-incrimination, the trial judge found

that the witness was not available and denied the motion.



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     Despite never having talked with the witness, defense

counsel presented the following handwritten proffer:
          Corey Skinner gave Corwyn Skinner the jacket
          he was wearing approximately 1 year before
          this incident. Corey Skinner would testify
          that he had put cocaine in that jacket
          previously.


Although she signed it, the prosecutor refused to stipulate to

the proffer.

     "'"[A] motion for a continuance in order to obtain the

presence of a missing witness is addressed to the sound

discretion of the trial court whose decision will not be reversed

unless the record affirmatively shows an abuse of discretion."'"

 Gray v. Commonwealth, 16 Va. App. 513, 517, 431 S.E.2d 86, 89

(1993) (quoting Cherricks v. Commonwealth, 11 Va. App. 96, 99,

396 S.E.2d 397, 399 (1990)).   "Abuse of discretion [in denying a

continuance] and prejudice to the complaining party are essential

for reversal.   In considering a request for a continuance, the

court is to consider all the circumstances of the case."     Venable
v. Venable, 2 Va. App. 178, 181, 342 S.E.2d 646, 648 (1986)

(citations omitted).
          If the expected testimony is competent and
          material and not merely cumulative, and if it
          is credible and probably will affect the
          result, and will likely be obtained at a
          future trial, and if due diligence has been
          exercised to secure the attendance of the
          absent witness, and if the accused cannot
          safely go to trial without his testimony,
          generally a continuance will be granted.


Lacks v. Commonwealth, 182 Va. 318, 324, 28 S.E.2d 713, 715




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(1944) (citations omitted).

     "In determining whether the trial court properly exercised

its discretionary powers, we look to the diligence exercised by

the moving party to gather and make the evidence available at

trial."   Smith v. Commonwealth, 16 Va. App. 630, 636, 432 S.E.2d

2, 6 (1993).    See also Bryant v. Commonwealth, 248 Va. 179, 181,

445 S.E.2d 667, 669 (1994) (defendant did not provide counsel

with witness' address until six days before trial).   "The burden

is on the party seeking a continuance to show that it is likely

that the witness would be present at a later date and would

testify in the manner indicated in the proffer."    Chichester v.

Commonwealth, 248 Va. 311, 322, 448 S.E.2d 638, 646 (1994)

(citation omitted), cert. denied, 115 S. Ct. 1134 (1995).

     Although the proffer suggests that defendant's brother gave

him the jacket, defense counsel informed the trial judge that the

jacket was not available because the defendant "dumped the coat."

Thus, even if the defendant's brother had testified, he could

only have speculated that the missing jacket was the same jacket

he had given defendant.   "While justice, not speed, should be

paramount in determining whether a continuance will be granted,

the court is not obligated to grant a continuance based on mere

speculation."    Smith, 16 Va. App. at 634-35, 432 S.E.2d at 5.

See also Chichester, 248 Va. at 322, 448 S.E.2d at 646 (noting

that, even if defendant had been able to locate and produce

missing witnesses, it was "unlikely" they would have admitted



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committing crimes for which defendant was on trial).

     The appellant waited until the day of trial to inform

defense counsel that his brother was a material witness.    The

trial judge could reasonably conclude on that ground that

appellant failed to exercise due diligence in procuring his

brother's testimony.   The record is silent as to why appellant

withheld the existence of the witness until the day of trial.

Cf. Gray, 16 Va. App. at 518-19, 431 S.E.2d at 90 (holding that

defendant exercised due diligence when he timely and properly

subpoenaed out-of-state witnesses under Uniform Act to Secure the

Attendance of Witnesses from without a State in Criminal

Proceedings, pursuant to Code §§ 19.2-272 through 19.2-282).

Because defense counsel had never spoken with the witness, and

because the jacket that was to be the subject of the brother's

testimony was not available, the scope and substance of the

witness' testimony was entirely speculative.   For these reasons,

the trial judge did not abuse his discretion in denying the

continuance.
                   SUFFICIENCY OF THE EVIDENCE

     "When considering the sufficiency of the evidence on appeal

in a criminal case, this Court views the evidence in a light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom."   Compton v. Commonwealth,

22 Va. App. 751, 753, 473 S.E.2d 95, 96-97 (1996).   So viewed,

the evidence established that Officer Holyfield saw appellant



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approach a man in a "very high drug and crime area" known to be

"an open-air drug market."   From across the street about twenty

feet away, Holyfield observed appellant and the man conduct a

brief conversation, after which the man "reached into his pocket,

[and] pulled out a brown piece of paper that appeared to be tied

off at the top."    The man "opened the top of it off, reached down

into the [paper, and] pinched an object" with his thumb and index

finger.    Appellant "had his hand with his palms up, [and] his

fingers extended."   The man then "laid the object into

[appellant's] hand [and appellant] clenched his hand."    Holyfield

approached the two men as soon as the man placed something in

appellant's hand.    The man fled when he saw Holyfield approach.

When appellant "turned around, [he] still had his hand clenched."

Holyfield "told [appellant] to put his hands up where [he] could

see them."   However, appellant "took his [clenched] hand and put

it into his right -- into like a side pocket on the coat that he

was wearing."
      As Holyfield drew closer, appellant said "You c[an] search

me.   Go ahead.   I ain't got no drugs.   I ain't got nothing."

      "In the right pocket where [appellant's] hand went into,

[Holyfield] observed some very small, off-white chunks that

appeared to be suspected crack cocaine that were -- it [sic]

appeared to have been crushed up and were lying in the bottom of

the pocket."    Holyfield was able to pick out some pieces with his

fingers.   He also testified that crack cocaine is "[c]rushable."




                                  6
     The object recovered by Holyfield was tested and proved to

be 0.03 grams of cocaine.    On cross-examination, appellant

acknowledged knowing what crack cocaine looks like and admitted

past cocaine use.

     A conviction for possession of illegal drugs requires proof

that the "defendant was aware of the presence and character of

the drugs, and that he intentionally and consciously possessed

them."   Josephs v. Commonwealth, 10 Va. App. 87, 99, 390 S.E.2d

491, 497 (1990) (en banc).    "Possession of a controlled drug

gives rise to an inference of the defendant's knowledge of its

character."   Id. at 101, 390 S.E.2d at 498-99.   Moreover, "[t]he

requisite knowledge on the part of the accused may be proved by

evidence of acts, declarations or conduct showing that he knew of

the existence of narcotics at the place they were found."      Harmon

v. Commonwealth, 15 Va. App. 440, 447, 425 S.E.2d 77, 81 (1992).

     While in a known drug area, Holyfield saw what his training

and experience led him to believe was a drug transaction.      During

Holyfield's approach and before he addressed appellant, appellant

spontaneously denied possessing any illegal drugs.   Appellant

kept his hand clenched as Holyfield approached, and, instead of

raising his hand as ordered, he thrust it into a coat pocket from

which Holyfield recovered crushed pieces of crack cocaine.

Moreover, appellant admitted he had used and was familiar with

crack cocaine.

     The fact finder believed the Commonwealth's evidence and its



                                  7
theory of the case.    Conversely, the fact finder rejected

appellant's explanation of how the cocaine got into his pocket.

"The weight which should be given to evidence and whether the

testimony of a witness is credible are questions which the fact

finder must decide."    Bridgeman v. Commonwealth, 3 Va. App. 523,

528, 351 S.E.2d 598, 601 (1986).       The Commonwealth's evidence was

competent, was not inherently incredible, and was sufficient to

prove beyond a reasonable doubt that appellant was guilty of

possessing cocaine.
     Accordingly, we affirm appellant's conviction.

                                        Affirmed.




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