                    COURT OF APPEALS OF VIRGINIA


Present: Judges Coleman, Bray and Bumgardner
Argued at Norfolk, Virginia


JAMES T. SYKES
                                          MEMORANDUM OPINION * BY
v.         Record No. 2125-97-1          JUDGE SAM W. COLEMAN III
                                               JULY 7, 1998
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
                       Verbena M. Askew, Judge
           Edward I. Sarfan (Sarfan & Nachman, on
           brief), for appellant.

           Steven A. Witmer, Assistant Attorney General
           (Mark L. Earley, Attorney General, on brief),
           for appellee.



     James T. Sykes appeals his bench trial convictions for three

counts of possession of cocaine with intent to distribute.        See

Code § 18.2-248.   Specifically, he contends:   (1) the trial court

abused its discretion by trying him in his absence when he failed

to appear for the conclusion of his trial; (2) the trial court

erroneously refused to compel the Commonwealth to disclose the

identity of an informer; and (3) the evidence is insufficient as

a matter of law to support the convictions.     We disagree and

affirm the convictions.
                           I.   BACKGROUND

     The evidence proved that a reliable informer told City of

Newport News Police Detective Robert Vasquez that Sykes was

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
distributing crack cocaine from his home.    Vasquez and the

informer went to Sykes' apartment.     Vasquez had instructed the

informer to excuse himself to Sykes' bathroom upon arrival and to

remain there while Vasquez purchased drugs from Sykes.

     Sykes greeted Vasquez and the informer at the front door,

and, as arranged, the informer excused himself to the bathroom.

     Vasquez told Sykes he wanted to purchase an "eight ball,"

street lingo for a quantity of cocaine.    Sykes walked to an

adjacent room and returned with several rocks of crack cocaine.

Sykes handed the cocaine to Vasquez in exchange for $170.

Vasquez and the informer then left.
     At trial, Vasquez testified that he did not know whether the

informer had come out of the bathroom during the drug transaction

or heard the conversation with Sykes.    Vasquez also testified

that on two occasions he returned to Sykes' residence and

purchased crack cocaine from Sykes.    Sykes was charged with three

counts of possession of cocaine with intent to distribute.

     Sykes' trial began on April 18, 1996.     At the close of the

Commonwealth's evidence, Sykes made a motion to strike the

evidence.   The trial court ordered a continuance in order for

counsel to submit legal memoranda regarding the motion to strike.

The court instructed defense counsel to "set [the conclusion of

the trial] on another date in this Court."    On June 3, 1996, the

court continued the matter generally with the direction that "the

defendant's attorney is to set [a] trial date with the




                               - 2 -
Commonwealth['s] Attorney."    On July 17, 1996, Sykes failed to

appear for the resumption of trial, and the case was continued to

August 12, 1996.    On August 12, Sykes again failed to appear, and

a capias was issued for his arrest.     Despite attempts to locate

Sykes, the Commonwealth was unable to serve the capias.     On April

23, 1997, more than one year after the trial had commenced, the

trial court completed the guilt phase of the trial in Sykes'

absence.   The court found him guilty of three counts of

possession of cocaine with intent to distribute.

            II.    RESUMING TRIAL IN APPELLANT'S ABSENCE

     An accused's right to be present at trial arises from the

Confrontation Clause of the Sixth Amendment and Code § 19.2-259.

 Cruz v. Commonwealth, 24 Va. App. 454, 460, 482 S.E.2d 880, 883

(1997) (en banc); Hunter v. Commonwealth, 13 Va. App. 187, 190,

409 S.E.2d 483, 485 (1991).    However, a defendant's voluntary

absence from trial may be properly construed as a waiver of his

constitutional and statutory rights to be present at trial.         Id.

"[W]hen the trial court determines that a defendant has

voluntarily and knowingly absconded from the jurisdiction after

his trial has commenced, public policy dictates that a trial

court, exercising its broad discretion, may proceed with the

trial in the defendant's absence."      Barfield v. Commonwealth,

20 Va. App. 447, 453, 457 S.E.2d 786, 789 (1995).

     In the present case, at the conclusion of the Commonwealth's

evidence, the trial judge instructed the parties to coordinate a




                                - 3 -
date to complete the trial.    Sykes failed to appear at the next

three scheduled trial dates.   The trial court issued a capias for

Sykes' failure to appear, which capias remained outstanding for

several months.   To no avail, the Commonwealth searched for Sykes

in an effort to serve the capias.   More than one year after the

Commonwealth presented its case, defense counsel offered no

explanation to explain Sykes' absence and failure to appear for

trial.   Under the circumstances, the trial court reasonably could

conclude that Sykes had absconded the jurisdiction and

voluntarily waived his right to be present at the remainder of

his trial.
     Citing the Cruz holding, Sykes contends the trial court

could not find that he voluntarily waived his right to be present

at trial unless the court had previously warned him that he could

be tried in his absence if he failed to appear.   We disagree.

     Sykes' argument ignores the dichotomy between the principles

applicable to a defendant's failure to appear for the

commencement of trial and the principles applicable when a

defendant absents himself and fails to appear mid-trial.     See

Crosby v. United States, 506 U.S. 255, 260-61 (1993).    Cruz,

dealing with a defendant's absence at the commencement of trial,

held that an accused's voluntary waiver of his right to be

present for the "entire trial" cannot be shown unless, among

other things, he has been warned that his trial may continue in

his absence.   24 Va. App. at 463, 482 S.E.2d at 884 (emphasis



                                - 4 -
added).    In Taylor v. United States, 414 U.S. 17 (1973), the

United States Supreme Court expressly rejected the contention

that a defendant who fails to appear in the middle of trial

cannot be found to have voluntarily waived his right to be

present unless it is demonstrated that he was warned that the

trial will proceed in his absence.       414 U.S. at 20-21.   The Court

stated:
            It is wholly incredible to suggest that [the
            defendant], who was at liberty on bail, had
            attended the opening session of his trial,
            and had a duty to be present at trial . . .
            entertained any doubts about his right to be
            present at every stage of his trial. It
            seems equally incredible to us . . . that a
            defendant who flees from a courtroom in the
            midst of a trial -- where judge, jury,
            witnesses and lawyers are present and ready
            to continue -- would not know that as a
            consequence the trial could continue in his
            absence.

Id. at 21 (citations omitted).

     Admittedly, the trial court in this instance interrupted the

orderly progress of the trial by granting unduly lengthy,

mid-trial continuances.   Nonetheless, once trial has commenced, a

party knows that the trial of the case is in progress and will be

resumed at a reasonably foreseeable date.      As the Court stated in
Taylor, it is incredible for a defendant to think that he can

absent himself mid-trial even when a mid-trial continuance was

granted, and think that the case would not proceed in his

absence.   Thus, the trial court could properly find that Sykes

voluntarily absented himself from the remainder of his trial




                                 - 5 -
notwithstanding whether he was admonished that the trial could

continue in his absence.

     Accordingly, the trial court did not abuse its discretion in

concluding the trial in Sykes' absence when he voluntarily

absented himself from the proceedings for more than one year.

          III.    REFUSAL TO DISCLOSE IDENTITY OF INFORMER

     As a general rule, "the identity of a person furnishing the

prosecution with information concerning criminal activities is

privileged."     Gray v. Commonwealth, 233 Va. 313, 328, 356 S.E.2d

157, 165 (1987).    In Roviaro v. United States, 353 U.S. 53

(1957),
          the Supreme Court established an exception to
          this general rule, . . . [holding] that
          "where the disclosure of an informer's
          identity . . . is relevant and helpful to the
          defense of an accused, or is essential to a
          fair determination of a cause, the privilege
          [of nondisclosure] must give way." The Court
          stated that "no fixed rule with respect to
          disclosure is justifiable" and explained that
          "[t]he problem is one that calls for
          balancing the public interest in protecting
          the flow of information [to the police]
          against the [accused's] right to prepare his
          defense."

Daniel v. Commonwealth, 15 Va. App. 736, 739-40, 427 S.E.2d 423,

425 (1993) (citations omitted).    The privilege is generally

nullified where the informer "participates in the transaction

. . . and . . . could relate testimony helpful to the defense."

Stephenson v. Commonwealth, 18 Va. App. 247, 250, 443 S.E.2d 173,

175 (1994).    However, "[t]he defendant must come forward with

something more than speculation as to the usefulness of the


                                 - 6 -
identity of the informer."   Lanier v. Commonwealth, 10 Va. App.

541, 552-53, 394 S.E.2d 495, 502 (1990); see Stephenson, 18 Va.

App. at 251, 443 S.E.2d at 175.

     Here, Sykes failed to prove that the informer knew the facts

of the alleged drug transaction or that the disclosure of the

informer's identity would have been helpful to his defense or

essential to a fair determination of the case.   The

uncontroverted evidence established that the informer was in the

bathroom when the transaction occurred.   Nothing in the record

suggests that the informer participated in, observed, or

instigated the drug transaction.   Cf. Kenner v. Commonwealth,

8 Va. App. 208, 213, 380 S.E.2d 21, 24-25 (1989) (requiring

disclosure of informer's identity where evidence established that

informer was "actual participant and . . . witness" to offenses

charged).   Accordingly, the trial court did not err in refusing

to disclose the identity of the informer.

                 IV.   SUFFICIENCY OF THE EVIDENCE
     Sykes contends the evidence is insufficient to prove that he

possessed cocaine with intent to distribute because the evidence

proves that he actually distributed cocaine.   His argument is

disingenuous.   The same act or acts may violate two or more

statutes or constitute two or more crimes.   Viewed in the light

most favorable to the Commonwealth, see Derr v. Commonwealth, 242

Va. 413, 424, 410 S.E.2d 662, 668 (1991), the evidence proved

that on three occasions, pursuant to Officer Vasquez's request to



                               - 7 -
purchase cocaine, Sykes handed cocaine to Vasquez in exchange for

money.   This evidence supported the trial court's finding that

Sykes actually possessed cocaine and intended to distribute it.

See Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415,

418 (1987).   That the evidence may have also proved that Sykes

actually distributed cocaine is inapposite.   The decision to

prosecute Sykes for possession of cocaine with intent to

distribute rather than for distribution was a matter of

prosecutorial discretion and is not reviewable by this Court.
See Mason v. Commonwealth, 217 Va. 321, 323-24, 228 S.E.2d 683,

684 (1976).

     For the foregoing reasons, we affirm the convictions.

                                                          Affirmed.




                               - 8 -
