                    COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Baker and Bray
Argued at Norfolk, Virginia


SCOTT WINDFIELD ROGERS
                                        MEMORANDUM OPINION * BY
v.       Record No. 1086-97-1     CHIEF JUDGE JOHANNA L. FITZPATRICK
                                                 APRIL 14, 1998
COMMONWEALTH OF VIRGINIA


              FROM THE CIRCUIT COURT OF ACCOMACK COUNTY
                         Glen A. Tyler, Judge
            Anita C. Johnson for appellant.

            Daniel J. Munroe, Assistant Attorney General
            (Richard Cullen, Attorney General, on brief),
            for appellee.



     In a bench trial, appellant, Scott Windfield Rogers, was

convicted of selling drug paraphernalia to a juvenile in

violation of Code § 18.2-265.3.    On appeal, Rogers challenges the

trial court's refusal to dismiss the case following the

Commonwealth's request to nolle prosequi the matter.      He also

contends the trial court erred in refusing to grant him a

continuance and in finding the evidence sufficient to support his

conviction.   Because we find that the trial court abused its

discretion in refusing to grant appellant a continuance, we

reverse appellant's conviction and remand the case for further

proceedings if the Commonwealth be so advised.




     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
                         FACTS AND PROCEEDINGS

     "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).

     Appellant's trial for selling drug paraphernalia to a

juvenile was scheduled for October 17, 1996.     On October 16,

1996, the prosecutor learned that Joseph Scott, an out-of-state

witness whom the Commonwealth had not subpoenaed for trial, would

be unable to attend the trial the following day because he had

missed his train from Georgia.    The prosecutor notified the trial

court and defense counsel that the Commonwealth was moving to
nolle prosequi the case, and appellant's trial was removed from

the October 16 docket.    On the morning of October 17, the trial

court granted defense counsel's request for a hearing on the

Commonwealth's motion.    Before the hearing could occur appellant

left the courthouse, and the trial court refused to conduct the

hearing in his absence.    The court then scheduled a hearing on

October 22, an available date for both the Commonwealth and the

defense.

     Before the hearing, the Commonwealth filed a notice stating

that it intended to proceed with the trial upon the existing

indictment on October 22.    Appellant moved to dismiss the

indictment against him, arguing that the Commonwealth's failure

to have its witness present on October 17 did not constitute



                                  -2-
"good cause" for a nolle prosequi as contemplated by Code

§ 19.2-265.3. 1

       On October 22, the trial court denied appellant's motion to

dismiss, and indicated that the trial could proceed.       Appellant

then requested a continuance to secure the presence of Adam

Martin.      Appellant had requested a witness subpoena for Martin

for both the October 17 and the October 22 hearings.       The sheriff

had served Martin with the subpoena prior to the October 17 court

date, but was unable to serve him before the hearing on October

22.    Appellant claimed that Martin was present in appellant's

home on the night that appellant allegedly sold the drug

paraphernalia to Scott.      Although defense counsel had not

interviewed Martin, appellant asserted that Martin's testimony

would be exculpatory.      The trial court denied appellant's motion

for a continuance.
       Scott testified that, while working undercover as a police

informant on January 27, 1996, he visited appellant's residence.

 Scott found appellant at home with three men, and two others

arrived a few minutes after Scott.        Scott asked if anyone had

drugs for sale, but no one responded affirmatively.       Scott asked

to speak to appellant privately in the kitchen.       There, Scott

asked appellant if he had "a pipe or any paraphernalia" he could

buy.       Appellant said he had a pipe, accompanied Scott to the back
       1
      Code § 19.2-265.3 provides that a "[n]olle prosequi shall
be entered only in the discretion of the court, upon motion of
the Commonwealth with good cause therefor shown."



                                    -3-
bedroom, produced a pipe, and sold the pipe to Scott for ten

dollars.   Scott previously had seen appellant and others use the

pipe to smoke marijuana.

     Scott left appellant's residence and gave the pipe to

Officer William Tarr, who was conducting surveillance of

appellant's home.   The pipe tested positively for marijuana

residue.   Tarr permitted Scott to keep thirty dollars, which was

the money remaining from the amount Tarr had given Scott before

the purchase.
     Scott said that Tarr did not pay him when he did not produce

either drugs or paraphernalia.   Scott was questioned about a

conversation he had with defense witness Rita Jester concerning

why Scott was testifying.   Scott admitted replying words to the

effect that "when people spit on you, you will spit back."     Scott

conceded that he had a prior petit larceny conviction.

     Tarr testified that before Scott entered appellant's home on

January 27, 1996, he searched Scott, found no drugs or contraband

on him, and gave him forty dollars.    Conducting surveillance

outside appellant's home, Tarr saw appellant and Scott move from

their initial positions in the front room towards the back of the

home, where the bedroom was located.   A light was illuminated in

the bedroom, and no one else entered that room for ten minutes

until Scott returned to the front room.   Tarr stated that Scott




                                 -4-
was paid every time he worked as an informant, regardless of

whether he made a purchase of drugs or paraphernalia.

     Testifying on his own behalf, appellant stated that he had

seen the pipe on a night in December of 1995, when Scott and

numerous others were in appellant's home.    Scott asked appellant

if he could have the pipe.   Appellant replied that he knew

nothing about the pipe and had never seen it before.    Appellant

said that Scott walked away with the pipe.   Appellant said he

observed Scott use marijuana ten to fifteen times.
     Appellant denied selling anything to Scott, and said he did

not enter the bedroom with Scott on January 27, 1996.   Appellant

testified that Scott knew appellant had provided the police with

Scott's name as a possible suspect following a theft from

appellant's home in September of 1995.

     Jester testified that appellant had a reputation for honesty

in the community.   She said that some people trusted Scott and

some did not.    Jester had been a frequent guest at appellant's

home and had seen Scott smoking marijuana there.    However, she

had never seen the pipe appellant allegedly sold to Scott, and

never observed appellant sell drug paraphernalia.    On the morning

of trial, she asked Scott what had made him "turn on everybody."

Scott responded, "[P]eople spit in your face enough you're going

to spit back."




                                 -5-
           DENIAL OF APPELLANT'S CONTINUANCE REQUEST 2

     Appellant challenges the trial court's refusal to grant him

a continuance to secure the presence of Martin.
          "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 such discretion." This
          discretion, however, "must be exercised with
          due regard to the constitutional guaranty of
          a fair and impartial trial to one accused of
          crime, and the right to call for evidence in
          his favor."
               In determining whether the trial court
          properly exercised its discretionary powers,
          we look to the diligence exercised by the
          moving party to locate the witness and secure
          his attendance at trial. As well, we must
          determine if there is anything "in the
          circumstances to warrant the conclusion that
          the real purpose in moving for a continuance
          is to delay or evade trial and not to prepare
          for it."


Cherricks v. Commonwealth, 11 Va. App. 96, 99-100, 396 S.E.2d

397, 399 (1990) (citations omitted).

     After having the original trial removed from the docket

based upon his intention to request a nolle prosequi, the
prosecutor filed a notice of intention to proceed with

     2
      We find that the trial court did not err in refusing to
dismiss the case following the Commonwealth's request to nolle
prosequi the matter. The Commonwealth advanced a valid basis--
the unexpected absence of Scott--for its motion to nolle
prosequi. See Code § 19.2-265.3. Scott's testimony was vital to
the Commonwealth's case. Accordingly, the Commonwealth
demonstrated good cause for its motion to nolle prosequi, and
appellant was not entitled to the dismissal of the indictment
against him.



                               -6-
appellant's trial on the merits on October 22, 1996 rather than

pursue the motion to nolle prosequi. 3   On October 18, 1996, the

defense requested a new witness subpoena for Martin, whom the

defense had subpoenaed successfully for the originally scheduled

trial date.    The sheriff was unable to execute the service

request, and it was returned.

     In requesting a continuance on October 22, 1996, appellant

asserted that Martin was to return to the area from Norfolk

within a few days.   The prosecutor did not challenge this

assertion, nor did he allege that prejudice would result from

delaying the trial until Martin could be present.    Appellant

argued that Martin was in the residence on the night of the

alleged paraphernalia sale and that Martin's testimony was

exculpatory.
     The record demonstrates that appellant exercised due

diligence in obtaining the presence of Martin for both the

original trial date and for the subsequent date.    The prosecutor,

acting with neither the prior approval of the trial court nor the

agreement of defense counsel, essentially moved the trial date

from October 17 to October 22, 1996.     Appellant was entitled to

sufficient notice to permit him to present potentially

exculpatory evidence.   The surrounding circumstances did not

     3
      While the prosecutor's notice contained a certificate that
the notice was delivered to defense counsel on October 17, 1996,
the notice was not filed in the clerk's office until October 21,
1996.



                                 -7-
suggest that appellant requested a continuance for the purpose of

delay.   Considering all the particular facts of this case, the

trial court abused its discretion in refusing to grant

appellant's request for a continuance. 4

     Appellant also contends the evidence was insufficient to

support his conviction.   Although the Commonwealth's evidence was

not insufficient as a matter of law, we make no comment on the

evidence which might be presented on retrial.
     For the foregoing reasons, we reverse and remand for further

action if the Commonwealth be so advised.

                                            Reversed and remanded.




     4
      Appellant argues for the first time on appeal that the
Commonwealth unfairly manipulated the trial court's docket and
violated his due process rights by canceling the October 17
trial, despite the fact that the trial court had neither ordered
a nolle prosequi nor granted a continuance. While not approving
such a procedure, 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). Therefore, this argument is
barred by Rule 5A:18 and we need not consider it.



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