                    COURT OF APPEALS OF VIRGINIA


Present: Judge Humphreys, Senior Judges Hodges and Overton
Argued at Chesapeake, Virginia


ANDRE LAMONT NOEL
                                         MEMORANDUM OPINION * BY
v.   Record No. 1730-99-2                JUDGE WILLIAM H. HODGES
                                              JUNE 20, 2000
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF LANCASTER COUNTY
                  Joseph E. Spruill, Jr., Judge

          William A. Nunn, III, for appellant.

          Robert H. Anderson, III, Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellee.


     Andre Lamont Noel (appellant) appeals from a judgment of the

Lancaster County Circuit Court (trial court) convicting him of

conspiracy to distribute cocaine, distributing cocaine,

transporting cocaine into the Commonwealth, and possessing cocaine

with intent to distribute.   Appellant contends the trial court

erred by 1) denying his motion to suppress evidence seized during

a search of the house where he was living; 2) admitting certain

hearsay evidence; 3) admitting replicas of crack cocaine into

evidence; and 4) permitting the replica cocaine to be used to

enhance his sentence.   For the reasons that follow, we affirm the

trial court's judgment in part and reverse it in part.

     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
                           I.   Background

     In the summer of 1998, Lieutenant Allen and Investigator Webb

began investigating appellant's involvement in the "Jersey Boys"

drug distribution ring.   As part of this investigation, Webb

observed Arthur Fisher sell crack cocaine to undercover informant

Mary Beale on August 12 and September 9, 1998.   On September 9,

after determining how much cocaine Beale wanted to purchase,

Fisher called appellant from Beale's apartment and requested the

drugs.   Fisher left the apartment, but returned shortly

thereafter, accompanied by appellant.   Fisher then gave Beale a

quantity of crack cocaine in exchange for money.

     Fisher testified that he obtained from appellant the cocaine

he sold to Beale on August 12 and September 9, 1998.   Fisher

testified that he also bought crack cocaine from appellant for his

own consumption.

     Allen eventually determined that the Jersey Boys--appellant,

Edward Beckford, Keith Mayweather, and Daniel Ford--were operating

out of a residence that was owned by Joseph Curry.   Curry had

leased the house to Lakita Ball, who dated Mayweather.

     On October 9, 1998, Allen obtained an arrest warrant for

appellant on a failure to appear charge and proceeded to the

Curry house to serve the warrant.    Ryan Smith responded to the

door at the Curry house and Allen announced that he had an

arrest warrant for appellant.    When Allen asked whether

appellant was present, Smith responded that he would get

                                - 2 -
appellant and turned back into the house.    Allen followed Smith

inside where he encountered and arrested appellant.

        Allen advised appellant of his Miranda rights and expressed

concern that there might be drugs on the premises.    Appellant

responded that "there wasn't any drugs there.     Help yourself.

Look wherever you want to look.    No problem."   Allen testified

that appellant told him that he "stayed" at the Curry house

"sometimes."

        Allen, Webb, and the other deputies subsequently searched

the house and the surrounding property.    They recovered

quantities of crack cocaine from an abandoned refrigerator in a

shed on the property, on the stairway leading to the attic in

the house, on the top kitchen shelf, and over the doorway to the

shed.    Webb estimated that the value of the cocaine seized

totaled approximately $730.    The officers also found a

single-edge razor blade with off-white residue on it on top of

the kitchen refrigerator, a box of approximately two hundred

miniature Ziploc bags, and an open package of single-edge razor

blades (but no razor).    Under the floor vent in the room where

appellant was apprehended, the officers found a small digital

scale and a handgun.    Appellant possessed a pager and $192 in

cash.

        In a post-arrest statement to Allen and Webb, appellant

said he lived at the Curry house with Mayweather, Ford and

codefendant Beckford.    Appellant stated that Mayweather and

                                 - 3 -
Beckford were the "main guys," while he was "just a salesman."

Appellant said the men were selling $10,000 worth of crack

cocaine each month and that he accounted for approximately

$2,000 of that figure.     He admitted that the $192 he possessed

at the time of his arrest was money from drug sales.      Appellant

stated that he was paid $300 plus shoes and clothes for his

efforts.     He admitted selling crack cocaine to Fisher.

Appellant denied knowing that there had been cocaine in the

house when the police were searching.     He explained that he

thought his codefendants had taken all the drugs with them on a

trip.

        Curry testified at the suppression hearing that Ball was the

only person authorized to be living at the house.    Appellant said

that he was living at the house with the permission of Mayweather,

who he thought was the lessee.    Appellant testified at the

suppression hearing that he did not know Curry and that Curry had

never told him he could not stay in the house.    Appellant claimed

he initially told Allen that he did not live at the Curry house.

He denied consenting to the search of the home.

        Appellant was tried by the court sitting without a jury.   At

the conclusion of the Commonwealth's evidence, the trial court

sustained appellant's motion to strike indictments CR99000061




                                 - 4 -
through CR99000063, 1 and CR99000064 through CR99000066. 2   The

court convicted appellant of the remaining charges, which are the

subject of this appeal.

                      II.   Motion to Suppress

     The trial court denied appellant's motion to suppress the

evidence seized by the sheriff's department during the October 9,

1998 search of the Curry house and property.     The court concluded

that appellant was trespassing and did not have standing to

contest the search.   The court noted that appellant had, at least

initially, denied living there and that appellant consented to the

search.

     Appellant contends Allen's initial entry into the house was

illegal and that the subsequent search of the premises was

tainted by this unlawful entry.    The Commonwealth responds that

appellant, as a trespasser, did not have a reasonable

expectation of privacy in the premises.    Moreover, he consented

to the search.

     In reviewing a motion to suppress, "[t]he finding of the

trial judge as to the credibility of witnesses and the weight to


     1
       These indictments charged appellant with transporting
cocaine into Virginia, respectively, between July 1 and July 31,
1998, between August 1 and August 31, 1998, and between
September 1 and September 30, 1998.
     2
       These indictments charged appellant with distributing
cocaine to Arthur Fisher, respectively, between July 1 and July
31, 1998, between August 1 and August 31, 1998, and between
September 1, and September 30, 1998.


                               - 5 -
be given their testimony stands on the same footing as the

verdict of a jury, and will not be disturbed unless it is

plainly wrong or without evidence to support it."       Lanier v.

Commonwealth, 10 Va. App. 541, 549, 394 S.E.2d 495, 500 (1990).

     Police may not enter and search a house without a warrant,

in the absence of exigent circumstances.       See Payton v. New

York, 445 U.S. 573, 590 (1980).       But, "for Fourth Amendment

purposes, an arrest warrant founded on probable cause implicitly

carries with it the limited authority to enter a dwelling in

which the suspect lives when there is reason to believe the

suspect is within."     Id. at 603.    See Barnes v. Commonwealth,

234 Va. 130, 135, 360 S.E.2d 196, 200 (1987); cf. Steagald v.

United States, 451 U.S. 204, 216 (1981) (holding that an arrest

warrant for a third party was insufficient to justify law

enforcement officers in entering the defendant's house to search

for the third party).

     In the present case, Allen had a warrant for appellant's

arrest.   The officers went to the Curry house, where they had

reason to believe appellant resided and was currently located.

They entered the house to execute the warrant based upon the

belief that appellant was present there, and they did not search

the house until after obtaining appellant's consent.

Accordingly, Allen and the other officers entered the house

lawfully, they searched the house and premises pursuant to



                                 - 6 -
appellant's consent, and the trial court properly denied the

motion to suppress. 3

            III.   Hearsay Statements of Beckford and Parker

     Appellant was tried jointly with codefendant Edward

Beckford.    Over appellant's objection, the trial court admitted

into evidence against appellant a post-arrest statement Beckford

made to Allen.     Beckford did not testify at trial.   The trial

court also admitted into evidence hearsay statements made to

Allen and Webb by co-conspirator Faith Parker.

     The statements of Beckford and Parker implicated appellant

as a significant participant in the drug operations

headquartered at the Curry house.     Indeed, in granting

appellant's motion to strike all the indictments for

transporting cocaine into the Commonwealth except case number

CR99000060 (charging appellant with transporting cocaine into

the Commonwealth between June 1 and June 30, 1998), the trial

court noted that the only evidence supporting case number

CR99000060 was the statement Parker made to Webb and Allen.

     The admission of out-of-court statements made by an

unavailable accomplice that tend to incriminate the defendant

violates the Confrontation Clause of the Sixth Amendment.        See

Lilly v. Virginia, 527 U.S. 116, 139 (1999).      Beckford and


     3
       Because the officers' entry was lawful and the search was
consensual, we express no opinion on whether appellant had
standing to object to the entry and search.


                                  - 7 -
Parker were both accomplices of appellant, both made statements

tending to incriminate appellant, and neither was available to

testify at appellant's trial. 4    Thus, the trial court erred in

admitting this evidence.   Appellant's convictions must be

reversed, therefore, unless we can determine that the error was

harmless.

                 The standard that guides our analysis
            of the harmless error issue in this case is
            clear. Thus, "before a federal
            constitutional error can be held harmless,
            the court must be able to declare a belief
            that it was harmless beyond a reasonable
            doubt;" otherwise the conviction under
            review must be set aside. This standard
            requires a determination of "whether there
            is a reasonable possibility that the
            evidence complained of might have
            contributed to the conviction." In making
            that determination, the reviewing court is
            to consider a host of factors, including the
            importance of the tainted evidence in the
            prosecution's case, whether that evidence
            was cumulative, the presence or absence of
            evidence corroborating or contradicting the
            tainted evidence on material points, and the
            overall strength of the prosecution's case.

Lilly v. Commonwealth, 258 Va. 548, 551, 523 S.E.2d 208, 209

(1999) (citations omitted).

     Appellant's confession and the fruits of the October 9,

1998 search, standing alone, proved beyond a reasonable doubt

that appellant was guilty of the conspiracy charge and the

possession with intent charge.     Appellant's confession, the


     4
       Beckford elected not to testify, and Parker could not be
located.


                                  - 8 -
stipulation of Beale's testimony, and the testimony of Webb,

Allen, and Fisher proved appellant's guilt beyond a reasonable

doubt of distributing cocaine on September 9, 1998.

Accordingly, the trial court's error was harmless beyond a

reasonable doubt as it pertained to these charges.

     We cannot reach the same conclusion, however, with regard

to the transportation charge.   The trial court noted that the

only evidence tending to prove appellant guilty of this charge

was the inadmissible hearsay statements of Parker.     Appellant's

confession was insufficient to establish his guilt of this

charge, even as a principal in the second degree.     Accordingly,

appellant's conviction for transporting cocaine into the

Commonwealth between June 1 and June 30, 1998, must be reversed.

             IV.   Admissibility of Simulated Cocaine

     Based on descriptions Parker gave of the crack cocaine she

helped to transport into Virginia for her co-conspirators, Allen

created simulated crack cocaine out of dental stone

(Commonwealth's Exhibits 7 and 8).      The trial court admitted

this demonstrative evidence over the objections of appellant,

who asserted that the foundation for admitting this evidence was

based entirely on the inadmissible hearsay statements of Parker.

     During Allen's testimony, the Commonwealth marked for

identification purposes only, simulated crack cocaine prepared

by Francis Norris (Commonwealth's Exhibit 9).     Appellant

objected to this evidence on hearsay grounds, and the

                                - 9 -
Commonwealth reiterated that it was going to wait and introduce

the exhibit when Norris testified.

     During Norris' testimony, the court reporter asked whether

Exhibit 9 had been admitted into evidence.      The Commonwealth's

Attorney expressed his belief that the exhibit had been admitted

into evidence.   The trial court stated that it had not ruled on

the exhibit's admissibility, and appellant agreed.     After

appellant cross-examined Norris, the trial court admitted the

exhibit into evidence without objection.

                        A.   Exhibits 7 and 8

     A party offering an exhibit has the burden of laying a

proper foundation for its introduction into evidence.      See Brown

v. Corbin, 244 Va. 528, 531, 423 S.E.2d 176, 178 (1992).       The

foundation for Exhibits 7 and 8 was based entirely upon Parker's

inadmissible hearsay.   The trial court erred, therefore, in

admitting this evidence.     Nevertheless, appellant has failed to

establish how he was prejudiced by the admission of this

demonstrative evidence, so the error was harmless.      See Clagett

v. Commonwealth, 252 Va. 79, 91, 472 S.E.2d 263, 270 (1996)

(holding that the erroneous admission of evidence is harmless if

the record contains "overwhelming" evidence of guilt).

                             B.   Exhibit 9

     "No ruling of the trial court . . . will be considered as a

basis for reversal unless the objection was stated together with

the grounds therefor at the time of the ruling, except for good

                                  - 10 -
cause shown or to enable the Court of Appeals to attain the ends

of justice."   Rule 5A:18.

     While appellant objected when the Commonwealth marked

Exhibit 9 for identification--before Norris testified regarding

the exhibit--appellant did not object when the court actually

admitted the evidence.   Accordingly, 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.

               V.   Hearsay Statements of Thomas Lee

     Appellant objected to Allen testifying regarding statements

made to Allen by Thomas "Peanut" Lee.     The Commonwealth did not

subpoena Lee, who was incarcerated on burglary and larceny

charges, to testify at appellant's trial.     As of the date of

trial, Lee had not been charged in connection with the

indictments pending against appellant.     The Commonwealth

asserted that Lee should be considered unavailable because he

was incarcerated and if the Commonwealth called Lee and

compelled him to testify, Lee would be immune from prosecution

for any matters about which he testified.

     The trial court found that Lee was unavailable and admitted

the evidence as statements against Lee's penal interests.

     Allen reported that Lee claimed to have performed services

at the Curry house for Mayweather.      Lee stated that he purchased

crack cocaine from appellant approximately twenty-five times and

                               - 11 -
that one day he saw appellant with sizable piece of crack

cocaine.   In his confession, appellant admitted selling crack

cocaine to Lee.

     In order for a declaration against interest to be admitted

into evidence, the offering party must establish that the

declarant is unavailable.   See Randolph v. Commonwealth, 24 Va.

App. 345, 355, 482 S.E.2d 101, 105 (1997).    "The law is firmly

established in Virginia that a declarant is unavailable if the

declarant invokes the Fifth Amendment privilege to remain

silent."   Boney v. Commonwealth, 16 Va. App. 638, 643, 432

S.E.2d 7, 10 (1993) (emphasis added).    "Where the party having

the burden of showing the declarant's unavailability fails to

call the declarant as a witness, a court will not assume that

the witness will assert the privilege against

self-incrimination, and out-of-court statements of the declarant

are barred under the hearsay rule."     Lewis v. Commonwealth, 18

Va. App. 5, 8, 441 S.E.2d 47, 49 (1994).

     The Commonwealth failed to establish that Lee would invoke

his Fifth Amendment rights if called to testify and thus failed

to prove that he was unavailable.   The trial court erred,

therefore, in admitting this evidence.    Appellant has not

established, however, that he was prejudiced by this evidence.

Appellant confessed to selling crack cocaine to Lee and others,

and also confessed to working in conjunction with Mayweather,



                              - 12 -
Beckford, and Ford.      Accordingly, the trial court's error was

harmless. 5

                 VI.   Hearsay Statements of Daniel Ford

     Appellant contends the trial court erred in admitting into

evidence the hearsay statements of codefendant Daniel Ford,

which were related to the court by Francis Norris.         Norris

testified regarding a telephone conversation he had with "Danny"

after he found suspected contraband at the house Norris was

renting to Parker.      Appellant objected at trial on the ground

that the Commonwealth had failed to establish that the person

Norris talked to was Ford.

     In his opening brief, appellant presented no argument in

support of his assertion that the trial court erred in admitting

this evidence.     Accordingly, appellant has waived his right to

have this matter addressed by the Court.      See Littlejohn v.

Commonwealth, 24 Va. App. 401, 409, 482 S.E.2d 853, 857 (1997);

Rule 5A:20(e).

          VII.   Use of Exhibits 7 and 9 at Sentencing Hearing

         Appellant objected to the probation officer's use of the

weight of Exhibits 7 and 9--the simulated cocaine--to prepare


     5
       Although appellant raised a Lilly objection to this
evidence at trial, he limits his argument in his brief to the
issue of unavailability. We do not, therefore, express any
opinion on whether Lilly applies to statements made by
non-accomplices. Moreover, any constitutional error committed
by admitting this evidence was harmless beyond a reasonable
doubt.


                                  - 13 -
the sentencing guidelines.    The Commonwealth responded that the

guidelines were proper.   The trial court did not respond to

appellant's argument, but merely stated "All right."

     Including the weight of the simulated cocaine as a factor,

the sentencing guidelines recommended a sentence between six

years, three months and ten years, three months, with a midpoint

of eight years, four months.   Appellant asserted that

calculating the guidelines without including the weight of the

simulated drugs resulted in a recommended punishment range of

two years, one month to four years in prison, with a midpoint of

three years, four months.

     In sentencing appellant to a total, active term of

incarceration of ten years, the trial court stated:    "The

guidelines are just that.    They're guidelines.   I don't often

exceed guidelines, but I do on occasion.    This is an occasion

where I think the guidelines are perhaps too modest."     (Emphasis

added.)

     When a defendant raises an objection, it is his

responsibility to obtain a ruling from the trial court.    If the

defendant fails to do this, then "there is no ruling for us to

review on appeal."   Ohree v. Commonwealth, 26 Va. App. 299, 308,

494 S.E.2d 484, 489 (1998).    See Taylor v. Commonwealth, 208 Va.

316, 324, 157 S.E.2d 185, 191 (1967) (finding that the

defendant's objection was not preserved for appeal where he did

not obtain a ruling from the court).

                               - 14 -
     Because the trial court never expressly ruled on

appellant's objection to the sentencing guidelines, there is no

ruling for this Court to review.   The court's statement about

exceeding the guidelines suggests that the court agreed with

appellant that the simulated cocaine weights should not have

been considered in calculating the guidelines.    The court did

not, however, amend the actual sentencing guidelines form.

Moreover, as the court noted, the sentencing guidelines are not

mandatory and the sentences imposed did not exceed the statutory

maximums for these crimes.   See Hunt v. Commonwealth, 25 Va.

App. 395, 405, 488 S.E.2d 672, 677 (1997) (a judge's failure to

follow the sentencing guidelines is not reviewable on appeal);

Code § 19.2-298.01(F).

     For the foregoing reasons, the judgment of the trial court

is affirmed as to indictments CR99000002, CR99000003 and

CR99000067.   We reverse the conviction as to indictment

CR99000060 and dismiss that indictment.

                                                 Affirmed in part,
                                                 reversed and
                                                 dismissed in part.




                              - 15 -
