                   COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Humphreys and Retired Judge Kulp ∗
Argued at Richmond, Virginia


EDWARD LEE CAPLE, JR.
                                         MEMORANDUM OPINION ∗∗ BY
v.   Record No. 0139-99-2               JUDGE ROBERT J. HUMPHREYS
                                             AUGUST 22, 2000
COMMONWEALTH OF VIRGINIA


             FROM THE CIRCUIT COURT OF HANOVER COUNTY
              W. Park Lemmond, Jr., Judge Designate

          J. Overton Harris for appellant.

          Leah A. Darron, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellee.


     Edward Lee Caple, Jr. appeals his conviction by a jury of

transporting cocaine, possession of cocaine with the intent to

distribute and possession of cocaine. He argues that the trial

court erred 1) by responding to a question from the jury with

what he suggests was an incorrect statement of the law, and

2) in failing to grant his motion for a mistrial.   For the

reasons that follow, we affirm his convictions.




     ∗
       Retired Judge James E. Kulp took part in the consideration
of this case by designation pursuant to Code § 17.1-400,
recodifying Code § 17-116.01.
     ∗∗
       Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
                          I.    BACKGROUND

     On July 11, 1998, Caple was driving a 1993 Mazda minivan on

Interstate 95 in Hanover County when he was stopped by Trooper

Richard T. Ardis for equipment violations.    In addition to

Caple, there were three other occupants in the van.    When Caple

rolled down the driver's side window, Trooper Ardis smelled an

odor of burning marijuana.     Ardis then obtained Caple's driver's

license and asked him to step to the rear of the vehicle.

     After reviewing the license and talking with Caple, Trooper

Ardis determined that Caple was not the owner of the vehicle.

Accordingly, he advised Caple that if the owner is not the

driver, but is a passenger in the vehicle, the driver is not

given a summons for equipment violations, which are the

responsibility of the owner.    Caple then identified the owner,

Rodney McDuffie, as a passenger in the van.    Trooper Ardis spoke

to McDuffie, who gave him consent to search the van.

     The search revealed two bags of marijuana and a crack

cocaine pipe in the vicinity of the third seat, as well as a bag

containing crack cocaine underneath the driver's seat.    Caple

admitted that the crack cocaine pipe was his.    After Trooper

Ardis advised him that he was under arrest for possession of

drugs, Caple stated that he needed money and was being paid to

drive the vehicle.   He then elaborated that McDuffie was "the

main man" and that originally, he was to be paid to drive a

rental vehicle loaded with cocaine back from New York.    McDuffie

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and his companions were to have followed in the minivan on the

drive back, but Caple explained that authorities in New York had

seized the rental vehicle and $6,000.

     At trial, the defendant testified and denied making these

statements.   He also claimed that he had no knowledge of cocaine

in the van and that he had been coerced by Trooper Ardis and his

companions into admitting ownership of the crack pipe.

     The trial court instructed the jury on actual and

constructive possession, and explained that possession could be

proved by circumstantial evidence.       The court did not instruct

the jury on the concepts of principles, accessories and concert

of action.    However, during his closing argument, the prosecutor

referred to the legal concepts of principles and accessories, as

well as concert of action.

     After deliberating for one hour and forty-five minutes, the

jury returned with a question.    The jury asked, "[i]f there was

intent by more than one in the van, does that mean that all are

guilty of intent?"   After taking the question, several sidebar

conferences were held which were not made a part of the record.

The record does reveal that the prosecutor asked the court to

"re-read" the two jury instructions he had submitted on concert

of action and the definition of principles and accessories.      The

trial court recalled no such instructions being offered by the

Commonwealth, and the prosecutor could not locate his copies.



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Rather than wait to secure written instructions, the court asked

as follows:

          Do you want to go ahead and instruct the
          jury as to what I consider? Well do you
          want me to tell you what I consider and then
          you can argue? I'll tell you what I
          consider to be the answer to the question.

     The record does not reveal any objection to this proposal.

After another unrecorded sidebar conference, the court

instructed the jury as follows:

          Members of the jury, the answer to your
          question, that if there was intent by one or
          more in the van does that mean that all are
          guilty of intent, the answer would be yes if
          they are all acting together. If it was a
          plan and they were acting together to carry
          out this plan, then they were all guilty of
          intent. Now as to the knowledge of the
          intent by someone else to distribute, I'm
          not sure I understand what you mean by that
          last question. Could you elaborate?

     A juror responded as follows:

          If a person acts with others knowing that
          the others will be distributing a substance,
          even though that person wouldn't physically
          be distributing a substance, the knowledge
          of someone else distributing that, does that
          make that person guilty, also?

     The trial court then responded:

          Yes, if he knows and he's acting with them.
          Even though he does not himself do it, he's
          guilty along with the rest of them. If he
          knows and is along, goes along with that, he
          doesn't have to be the actual perpetrator.

     Following this colloquy, another sidebar conference was

held at which counsel for Caple indicated that he had a


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"problem" with the way the instructions were given because they

"may indicate that the person need only have either knowledge or

intent."

     Following this sidebar, the court addressed the jury

further as follows:

           If there was a common plan, members of the
           jury, and this defendant went along with it,
           he's guilty along with the rest. Now, if
           you believe, as he said, he didn't have
           knowledge of all of that, then he's not
           guilty, if you believe him. So you can go
           back to your jury room, decide what your
           verdict will be.

     After the jury retired to deliberate further, counsel for

Caple moved for a mistrial.    His stated reason for the motion

was, "I'm afraid that the exchange may have been confusing to

them and it may have been prejudicial to my client."     After the

court asked him to state his grounds more precisely, he

responded that the law is "that each individual has to have his

own intent" and he further indicated that a correct statement of

the law would be that "you can have shared intent and shared

knowledge", and that the jury must find that Caple had

"knowledge or constructive knowledge and shared intent, which

can be inferred from the circumstances."      The trial court denied

the motion for a mistrial.

                             II.   ANALYSIS

     The Commonwealth contends that Rule 5A:18 bars our

consideration of the question presented because no


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contemporaneous objection stating the grounds for the objection

was made at the time of the ruling.    We agree.

     "Where an accused alleges that the trial court has made

improper remarks in the presence of the jury but fails

contemporaneously to object, request a cautionary instruction or

move for a mistrial, he waives the right to challenge those

remarks on appeal.   A motion for a mistrial is untimely and

properly refused when it is made after the jury has retired."

Humbert v. Commonwealth, 29 Va. App. 783, 791, 514 S.E.2d 804,

808 (1999) (citations omitted).

     In this case, Caple made no objection to the procedure

proposed by the trial court.   He offered no alternative

instruction.   Although at one point he indicated that he had a

"problem" with the way the instructions were given because they

"may indicate that the person need only have either knowledge or

intent", he did not object to the clarification the trial court

gave the jury in response to his "objection".      Finally, Caple

made no motion for a mistrial until the jury retired to

deliberate.

     Because this issue was not properly preserved and because

we see no need to invoke the "ends of justice" exception to Rule

5A:18, we affirm the judgment of the trial court.

                                                            Affirmed.




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