                               COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Elder and Frank
Argued at Chesapeake, Virginia


FONTAINE LAMONT SHEPPARD
                                                              MEMORANDUM OPINION* BY
v.     Record No. 1270-03-1                                    JUDGE ROBERT P. FRANK
                                                                    JULY 13, 2004
COMMONWEALTH OF VIRGINIA


                FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
                               James A. Cales, Jr., Judge

                 Charles B. Lustig, Assistant Public Defender (John H. Underwood,
                 III, Public Defender, on brief), for appellant.

                 Alice T. Armstrong, Assistant Attorney General (Jerry W. Kilgore,
                 Attorney General, on brief), for appellee.


       Fontaine Lamont Sheppard (appellant) was convicted in a bench trial of possession of

heroin, in violation of Code § 18.2-250. On appeal, he contends the trial court erred in admitting the

certificate of analysis, which was not timely filed as required by Code § 19.2-187, and in finding the

evidence was sufficient to convict him. For the reasons stated, we reverse.

                                          BACKGROUND

       Officer J.S. Lilly of the Portsmouth Police Department saw appellant, whom he knew,

standing in the “breezeway” of 1118 Virginia Avenue. Officer Lilly began running in appellant’s

direction. Appellant “turned and started running up the stairway of 1118,” into Apartment F.

       Officer Lilly knocked on the door of Apartment F and was admitted by an occupant,

Richard Alston. Officer Lilly “saw [appellant] coming out of the bathroom . . . and head to . . . the

master bedroom.” When Officer Lilly reached the bedroom, “[appellant] was actually . . . heading

       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
back towards the doorway, stepping on the middle of the bed.” Officer Lilly testified appellant was

“coming from” a small nightstand located under a window. The top drawer of the nightstand was

“slightly open.” Officer Lilly took appellant into custody and directed Officer Durham to look into

the nightstand.

       When Officer Durham looked in the open drawer, he immediately “saw a plastic baggie

with approximately twenty-five caps of heroin or suspected heroin.” It looked like “someone had

just plopped it down inside the nightstand table.”

       After Officer Durham found the suspected heroin, appellant told Officer Lilly, “The dope

you found wasn’t mine. You know that I don’t hold that much weight. I was just helping a friend

. . . . You know me, Lilly. I never got caught with that much weight. The dope is his.”

       The occupants, Jonte Tyndall and Richard Alston, denied having any drugs in the apartment

and denied knowing appellant.

       The trial was originally scheduled for March 19, 2003, but was advanced to March 4, 2003

to accommodate a witness, who was being sent overseas by the military the next day. On March 4,

2003, prior to arraignment, the Commonwealth made a motion requesting that the court hear some

testimony that day, but continue the remainder of the case to allow the Commonwealth to timely file

the certificate of analysis pursuant to Code § 19.2-187. The certificate had not been received by the

Commonwealth or filed in the clerk’s office by the time of the trial on March 4. The certificate was

ultimately filed later that day. Appellant argued the Commonwealth’s motion to bifurcate the

testimony was simply an attempt to circumvent the seven-day filing requirement for certificates.

Appellant objected to any “continuance and/or any acceptance of half of a trial today.”

       The trial court overruled appellant’s objection and proceeded to hear part of the

Commonwealth’s case. The matter was then continued until March 12, 2003, when the




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Commonwealth put on the remainder of its case, including the certificate of analysis that indicated

the substance found in the drawer was heroin.

       During the course of its case, the Commonwealth offered the certificate of analysis.

Appellant responded, “no objection,” and then stated, “Your Honor, maybe I should clarify I

have no objection other than the standing objection for the bifurcated trial or the adjourned trial.”

                                            ANALYSIS

       We first examine appellant’s argument that the evidence was insufficient to convict him

of possession of heroin.

               [I]n reviewing a claim of sufficiency of the evidence on appeal, we
               “consider the evidence and all reasonable inferences fairly
               deducible therefrom in the light most favorable to the
               Commonwealth[,]” the party prevailing below. Derr v.
               Commonwealth, 242 Va. 413, 424, 410 S.E.2d 662, 668 (1991).
               We must affirm the trial court’s judgment unless “plainly wrong,”
               Phan v. Commonwealth, 258 Va. 506, 511, 521 S.E.2d 282, 284
               (1999), and we will not overrule that judgment and “‘substitute
               [our] own judgment, even if [our] opinion might differ from [the
               trial court’s].’” Id. (quoting George v. Commonwealth, 242 Va.
               264, 278, 411 S.E.2d 12, 20 (1991)); see also Sanchez v.
               Commonwealth, 41 Va. App. 319, 335, 585 S.E.2d 327, 335
               (2003) [rev’d on other grounds].

Correll v. Commonwealth, 42 Va. App. 311, 323, 591 S.E.2d 712, 718 (2004).

       Appellant claims the Commonwealth’s evidence did not prove he knowingly or

intentionally possessed heroin. He claims the evidence proved only that he was in a room in

which heroin was found.

               “The Commonwealth may prove possession of a controlled
               substance by showing either actual or constructive possession.”
               Barlow v. Commonwealth, 26 Va. App. 421, 429, 494 S.E.2d 901,
               904 (1998).

               “To establish ‘possession’ in the legal sense, not only must the
               Commonwealth show actual or constructive possession of the drug
               by the defendant, it must also establish that the defendant
               intentionally and consciously possessed the drug with knowledge


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                of its nature and character.” Williams v. Commonwealth, 14
                Va. App. 666, 669, 418 S.E.2d 346, 348 (1992) (citation omitted).

                        To support a conviction based on constructive possession,
                        “the Commonwealth must point to evidence of acts,
                        statements, or conduct of the accused or other facts or
                        circumstances which tend to show that the defendant was
                        aware of both the presence and character of the substance
                        and that it was subject to his dominion and control.”

                Glasco v. Commonwealth, 26 Va. App. 763, 774, 497 S.E.2d 150,
                155 (1998) (citation omitted) (emphasis added).

Birdsong v. Commonwealth, 37 Va. App. 603, 607-08, 560 S.E.2d 468, 470 (2002).

         Appellant argues the only evidence that linked him to the heroin was his exit from in a

bedroom in which the drugs were found. The record belies that assertion. Appellant was found

stepping on the bed, moving away from a nightstand with its drawer slightly opened. Police

found the drugs on top of other items in the drawer. Appellant was in close proximity to the

drugs.

         Appellant testified he was invited into the apartment, but he also denied entering the

bedroom, both assertions contradicting the testimony of other witnesses. “In its role of judging

witness credibility, the fact finder is entitled to disbelieve the self-serving testimony of the

accused and to conclude that the accused is lying to conceal his guilt.” Marable v.

Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d 233, 235 (1998). The trial court clearly

did not believe appellant’s statements, a decision that is left to his discretion. Further, the trial

court could properly conclude that appellant, possessing heroin, fled when he saw Officer Lilly,

entered a stranger’s apartment, and hid the drugs in the nightstand to avoid detection. Ricks v.

Commonwealth, 39 Va. App. 330, 335-37, 573 S.E.2d 266, 268-69 (2002) (explaining that flight

can be considered by the fact finder as evidence of guilt).

         Most significantly, appellant’s analysis ignores his statement to the police after his

capture. When he was arrested, appellant told Officer Lilly, “I was just helping a friend. I never

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got caught with that much weight. The dope is his.” The trial court could reasonably infer from

this statement that appellant possessed the drugs for a friend. Appellant implicitly admitted he

“intentionally and consciously possessed the drug with knowledge of its nature and character.”

Williams, 14 Va. App. at 669, 418 S.E.2d at 348. He implicitly admitted holding the drugs for a

friend and having some idea of the amount of drugs in the drawer. He simply denied ownership,

which is not an element of the crime of possession. See Code § 18.2-250 (criminalizing

possession, not ownership, of controlled substances). We conclude the evidence was sufficient

to convict appellant of possession of heroin.

        Appellant next contests the admissibility of the certificate of analysis, which was not filed

at least seven days prior to the hearing or trial. See Code § 19.2-187 (predicating admissibility

of the certificate on its filing with the clerk of court at least seven days prior to trial). The

Commonwealth concedes the certificate was not timely filed. Further, in its brief, the

Commonwealth concedes, “[a] continuance of any length after the trial ha[s] begun” does not

remedy a failure to comply with the statute. Bottoms v. Commonwealth, 20 Va. App. 466, 469,

457 S.E.2d 796, 797 (1995). However, the Commonwealth contends appellant did not object to

the admissibility of the certificate when it was offered at the March 12, 2003 continuance of the

original trial.1 We disagree.

        When the certificate was offered, appellant indicated he had no objection, but then

clarified his position by saying, “I have no objection other than the standing objection for the

bifurcated trial or the adjourned trial.” The Commonwealth argues this statement was not an

objection to the admissibility of the certificate, but only reminded the trial court of his earlier



        1
        The Attorney General conceded during oral argument that appellant made the
appropriate arguments on March 4, 2003 to preserve the issue for appeal. However, the Attorney
General contends appellant effectively waived this argument on March 12.

                                                  -5-
objection to the continuance and the bifurcated trial. Thus, the Commonwealth continues, the

admissibility of the certificate was not preserved under Rule 5A:18.

               “[U]nder Rule 5A:18 we do not notice the trial errors for which no
               timely objection was made except in extraordinary situations when
               necessary to enable us to attain the ends of justice. The laudatory
               purpose behind Rule 5A:18, and its equivalent Supreme Court
               Rule 5:25, frequently referred to as the contemporaneous objection
               rules, is to require that objections be promptly brought to the
               attention of the trial court with sufficient specificity that the
               alleged error can be dealt with and timely addressed and corrected
               when necessary. The rules promote orderly and efficient justice
               and are to be strictly enforced except where the error has resulted
               in manifest injustice. Errors can usually be corrected in the trial
               court, particularly in a bench trial, without the necessity of appeal.”

Bazemore v. Commonwealth, 42 Va. App. 203, 218, 590 S.E.2d 602, 609 (2004) (en banc)

(quoting Brown v. Commonwealth, 8 Va. App. 126, 131, 380 S.E.2d 8, 10 (1989)).

       Here, when the Commonwealth made its motion and explained that the certificate was

not available, appellant advised the trial court that he objected to a trial proceeding in a

piece-meal manner in order to permit the Commonwealth to file the certificate after the

beginning of the trial, in violation of Code § 19.2-187. Appellant complained, “The absolute

only reason that we’re continuing or recessing is because the drug report was not filed.”

       Thus, by referring to his earlier objection to bifurcating the trial, appellant unequivocally

put the trial court on notice that he was objecting to the introduction of the certificate.

Appellant’s clarification of his “no objection” was sufficient to indicate to the trial court that he

intended to rely on his earlier objection. The trial court acknowledged it “underst[oo]d” the

objection. Nothing in the record suggests appellant abandoned his objection to the continuance

of the case in order to allow admission of the certificate.

       Since the Commonwealth concedes the certificate was not filed within the required seven

days, and we find appellant did preserve his objection to the admissibility of the certificate, we

find the trial court erred in admitting the certificate, in violation of Code § 19.2-187.
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       We reverse the judgment of the trial court because the admission of a certificate of

analysis in violation of Code § 19.2-187 is always deemed prejudicial. See Woodward v.

Commonwealth, 16 Va. App. 672, 674, 432 S.E.2d 510, 512 (1993) (stating that “[p]rejudice to

the defendant from a failure to comply [with Code § 19.2-187] need not be shown”). We remand

the case for a new trial, if the Commonwealth is so inclined, because “this reversal is for mere

trial error, and not for evidentiary insufficiency.” Gray v. Commonwealth, 220 Va. 943, 946,

265 S.E.2d 705, 706 (1980).

                                                                          Reversed and remanded.




                                               -7-
Benton, J., concurring.

       I concur in the reversal and remand for a new trial. When a case is to be remanded and

retried because of trial error, a “discussion [of] the [sufficiency of the evidence . . . would only

be proper if, upon it, no other verdict, save that of ‘not guilty’ could properly be reached.” Allen

v. Commonwealth, 171 Va. 499, 504, 198 S.E. 894, 897 (1938). I believe it is sufficient to say in

the posture of this case that we cannot conclude as a matter of law that the evidence was

insufficient to support the verdict. See Parsons v. Commonwealth, 32 Va. App. 576, 584-85, 529

S.E.2d 810, 814 (2000) (Benton, J., concurring and dissenting).




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