                     COURT OF APPEALS OF VIRGINIA


Present: Judges Fitzpatrick, Annunziata and Senior Judge Duff
Argued at Alexandria, Virginia


JOSE JUAN CARCAMO
                                          MEMORANDUM OPINION * BY
v.       Record No. 1554-95-4          JUDGE JOHANNA L. FITZPATRICK
                                            SEPTEMBER 17, 1996
COMMONWEALTH OF VIRGINIA


              FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
                       William L. Winston, Judge
           Deborah E. Kramer, for appellant.

           Leah A. Darron, Assistant Attorney General
           (James S. Gilmore, III, Attorney General, on
           brief), for appellee.



     Jose Juan Carcamo (appellant) was convicted in a jury trial

of distribution of cocaine in violation of Code § 18.2-248.      On

appeal, he argues that the trial court erred in:    (1) finding the

evidence sufficient to convict him of distribution of cocaine;

(2) refusing to allow his attorney to cross-examine a police

officer about the criminal charges against another individual;

(3) limiting his evidence during the sentencing phase; and

(4) dismissing the jury prior to publishing a jury note

indicating that the jury would have imposed a lesser sentence if

the law allowed.    For the reasons that follow, we affirm the

conviction.
                              BACKGROUND


     *
      Pursuant to Code § 17-116.010 this opinion is not

designated for publication.
     On the night of November 4, 1994, Officers Mark Jenkins

(Jenkins) and Randolph Ice (Ice) conducted undercover

surveillance for drug activity near a Shell station in Arlington,

Virginia.   The officers watched the station from a distance of

sixty-three yards across the street in their parked vehicles.

The lighting was sufficient for the officers to observe what was

occurring in the station's parking lot, and both officers used

binoculars to enhance their vision.
     Officer Jenkins saw appellant approach Eric Cedillos

(Cedillos) in the woods at the edge of the Shell station's

parking lot.   At 10:20 p.m., appellant handed Cedillos a white,

cylindrical object, and Cedillos gave appellant what appeared to

be money.   Cedillos placed the white object in his sock.

Cedillos later took the object out of his sock and placed it in

his right front pants pocket.   Officer Ice also saw the

hand-to-hand transaction between appellant and Cedillos, but

could not identify the object being passed because it was

obscured.   Appellant put the money in his pocket and walked away

after the exchange.   A few minutes later, an unidentified man

approached Cedillos, and Jenkins saw them engage in a drug

transaction.   Appellant returned to the Shell station a few

minutes later and stood next to Cedillos, at which time the

officers approached and identified themselves.

     The police searched the men and found the white object (a

crazy glue bottle) in Cedillos' right front pants pocket.    The

police opened the container and found what appeared to be and



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what was later identified as cocaine.   Ice estimated the street

value for the quantity of cocaine found to be $160.   The police

searched appellant and found $138 in his pocket.

     During a jury trial held April 3, 1995, both officers

testified unequivocally that the men they arrested were the same

they had observed earlier.   Appellant denied selling drugs to

Cedillos and testified that he was at the Shell station to buy

juice.    He explained that he cashed his paycheck for $100 at a

liquor store that afternoon and that he already had $38 in his

pocket.   Appellant's employer testified that every other Friday

was a payday, but could not confirm that November 4, 1994 was a

payday.
     At the close of the Commonwealth's case, appellant's counsel

made a motion to strike because the Commonwealth had not proven

the elements of the crime, but the court denied this motion.

Appellant's counsel renewed this motion at the conclusion of all

evidence, and the court again denied the motion.

     The jury found appellant guilty as charged, and the court

held the sentencing phase of the trial on April 4, 1995.   The

jury recommended the minimum sentence of five years in the state

penitentiary.   On June 23, 1995, the trial court followed the

jury's recommendation and sentenced appellant to five years in

the state penitentiary.
                     SUFFICIENCY OF THE EVIDENCE

     Appellant argues that the trial court erred in finding the




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evidence sufficient to convict him of distribution of cocaine.

Specifically, he contends that the Commonwealth's evidence was

primarily circumstantial and failed to exclude all reasonable

conclusions inconsistent with guilt.

     "When considering the sufficiency of the evidence on appeal

of a criminal conviction, we must view all the evidence in the

light most favorable to the Commonwealth . . . ."    Traverso v.

Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988).

This Court has held that "'[c]ircumstantial evidence is as

competent and is entitled to as much weight as direct evidence,

provided it is sufficiently convincing to exclude every

reasonable hypothesis except that of guilt.'"   Shurbaji v.

Commonwealth, 18 Va. App. 415, 423, 444 S.E.2d 549, 553 (1994)

(quoting Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864,

876 (1983), cert. denied, 465 U.S. 1109 (1984)).

     In this case, the evidence established that Jenkins and Ice

conducted a surveillance of the Shell station and saw a

transaction between appellant and Cedillos.   Appellant handed

Cedillos a white, cylindrical object, and Cedillos gave appellant

money.   Cedillos placed the object in his sock and later moved

the object to his right front pants pocket.   When police searched

Cedillos, they found the white, cylindrical object, which

contained cocaine, in Cedillos' right front pants pocket.

Appellant had $138 in his pocket, and Ice estimated the street

value of the quantity of cocaine found to be $160.   At trial,



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Jenkins and Ice confirmed that the men they arrested were the

same two men they had observed earlier.    Viewing this evidence in

the light most favorable to the Commonwealth, we hold that the

trial court did not err in finding the evidence sufficient to

convict appellant of distribution of cocaine.
                    LIMITATION OF CROSS-EXAMINATION

     Appellant next asserts that the trial court erred in

refusing to allow him to cross-examine Jenkins about the charges

against Cedillos.
     During cross-examination of Jenkins, appellant's attorney

asked whether Jenkins had charged Cedillos with distribution of

drugs.   The Commonwealth's attorney objected, arguing that the

charges against Cedillos were "totally irrelevant."    The trial

court sustained the Commonwealth's objection and stated "you try

one case at a time."    Appellant's counsel responded, "That's

true," and made no objection to the court's ruling.

     The Court of Appeals will not consider an argument on appeal

that was not presented to the trial court.     Jacques v.

Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d 630, 631 (1991).

"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

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

of justice."   Rule 5A:18.   This issue is barred by Rule 5A:18.
          LIMITATION OF EVIDENCE DURING SENTENCING PHASE




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     Appellant contends that the trial court erred in limiting

his evidence in mitigation of punishment during the sentencing

phase of trial.

     At trial, appellant's boss, Cristian Rodas, testified that

appellant had a reputation for truth and veracity among his

co-workers, bosses, and friends.       Appellant's former co-worker,

Daniel Mendez, confirmed that appellant was a "good person."

During the sentencing phase, appellant's counsel sought to

introduce additional evidence of appellant's employment history

and his family.   The trial court determined that appellant's

counsel could reiterate evidence introduced at trial attesting to

appellant's employment history and reputation, but ruled that

appellant could not testify about his employment history and

family beyond the scope of what was introduced at trial.      The

court found that the additional information was not "relevant and

admissible on the issue of sentencing" under Code § 19.2-295.1.

The court also instructed the jury that appellant had no criminal

record.
     Code § 19.2-295.1 provides as follows:
               In cases of trial by jury, upon a
          finding that the defendant is guilty of a
          felony, a separate proceeding limited to the
          ascertainment of punishment shall be held as
          soon as practicable before the same jury.
            At such proceeding, the Commonwealth shall
          present the defendant's prior criminal
          convictions by certified, attested or
          exemplified copies of the record of
          conviction, including adult convictions
          and juvenile convictions and adjudications of
          delinquency. Prior convictions shall include
          convictions and adjudications of delinquency



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           under the laws of any state, the District of
           Columbia, the United States or its
           territories. The Commonwealth shall provide
           to the defendant fourteen days prior to trial
           notice of its intention to introduce evidence
           of the defendant's prior criminal
           convictions. Such notice shall include (i)
           the date of each prior conviction, (ii) the
           name and jurisdiction of the court where each
           prior conviction was had, and (iii) each
           offense of which he was convicted. Prior to
           commencement of the trial, the Commonwealth
           shall provide to the defendant photocopies of
           certified copies of the defendant's prior
           criminal convictions which it intends to
           introduce at sentencing. After the
           Commonwealth has introduced such evidence of
           prior convictions, or if no such evidence is
           introduced, the defendant may introduce
           relevant, admissible evidence related to
           punishment. Nothing in this section shall
           prevent the Commonwealth or the defendant
           from introducing relevant, admissible
           evidence in rebuttal. If the defendant is
           found guilty of an offense other than a
           felony, punishment shall be fixed as
           otherwise provided by law.

                If the jury cannot agree on a punishment
           and if the defendant, the attorney for the
           Commonwealth, and the court agree, in the
           manner provided in § 19.2-257, then the court
           shall fix punishment.


(Emphasis added.)   "Evidence is relevant if it has any logical

tendency, however slight, to establish a fact at issue in the

case."   Ragland v. Commonwealth, 16 Va. App. 913, 918, 434 S.E.2d

675, 678 (1993).
               In Virginia, non-constitutional error is
          harmless "[w]hen it plainly appears from the
          record and the evidence given at the trial
          that the parties have had a fair trial on the
          merits and substantial justice has been
          reached." "[A] fair trial on the merits and
          substantial justice" are not achieved if an
          error at trial has affected the verdict. . . .
          An error does not affect a verdict if a reviewing



                                 7
          court can conclude, without usurping the jury's
          fact finding function, that, had the error not
          occurred, the verdict would have been the same.


Lavinder v. Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d 910,

911 (1991) (en banc) (citation omitted).   The Supreme Court of

Virginia has held that errors relating to information imparted to

the jury are harmless when the accused's guilt is established by

the evidence and the jury imposes the minimum punishment.     See

Caldwell v. Commonwealth, 221 Va. 291, 298, 269 S.E.2d 811, 815

(1980) (holding that error in informing jury about parole was not

harmless where jury imposed maximum sentence on two counts); Hall
v. Commonwealth, 143 Va. 554, 561-62, 130 S.E.2d 416, 419 (1925)

(holding that error in improperly admitting other crimes evidence

was harmless where evidence clearly established the guilt of the

accused and the jury imposed the minimum sentence).

     Assuming without deciding that the trial court erred in

limiting appellant's evidence of employment history and family

during the sentencing phase, we hold that this error was harmless

and did not affect appellant's sentence, as he received the

minimum sentence allowed for the offense committed.   Under these

circumstances, even if the trial court had allowed appellant to

introduce additional evidence regarding his work history and

family, "the verdict would have been the same," and thus the

error is harmless.   See Lavinder, 12 Va. App. at 1005, 407 S.E.2d

at 911.
             JURY NOTE RECOMMENDING LESSER SENTENCE




                                 8
        Appellant lastly argues that the trial court erred in

failing to publish a jury note indicating that the jury would

have imposed a lesser sentence if the law allowed until after it

had dismissed the jury.    Specifically, appellant contends that

the jury's note indicates that the verdict was not unanimous and

that, if he had known about the note prior to the dismissal of

the jury, he would have polled the jury.

        During deliberations in the sentencing phase, the jury

asked, "Should the jury choose to recommend the minimum sentence

can we also recommend that the Court suspend part or all of the

sentence?    Is this in our power?"    The trial court responded as

follows:
             Yes, the jury may make a recommendation under
             the law. However, the Court is not obligated
             to follow the recommendation. The case will
             come up on a future date for the imposition
             of sentence. At that time the Court can
             consider your recommendation together with
             other material that will be before the Court
             at that time. If a recommendation is made
             please place it on a separate paper from the
             verdict.


Appellant did not object to the trial judge's response to the

jury.    The jury recommended the minimum sentence of five years in

the state penitentiary.    After the trial judge read the verdict,

appellant did not object to the form of the verdict or ask to

poll the jury.    The jury also wrote a separate statement that

read as follows:    "[H]ad we had the latitude, we would have

recommended one to two years imprisonment with no fine.      We ask

the court to consider this recommendation when it imposes the



                                   9
sentence."   The court did not inform either party of this

statement until after it dismissed the jury, at which point no

objections were made.   On June 23, 1995, the trial court imposed

the five-year sentence recommended by the jury.

     Code § 18.2-248(C) provides as follows:     "Any person who

violates this section . . . shall upon conviction be imprisoned

for not less than five nor more than forty years and fined not

more than $500,000."    (Emphasis added.)   "[T]he general rule [is]

that if the jury make[s] a recommendation for leniency, without

statutory authority, such recommendation is not a part of the

verdict and not binding on the trial court."     Clarke v.

Commonwealth, 207 Va. 298, 301, 149 S.E.2d 875, 877 (1966).        See

also Harmon v. Commonwealth, 209 Va. 574, 581, 166 S.E.2d 232,

237 (1969) ("[A] recommendation for mercy in the verdict of a

jury in a criminal trial is mere surplusage, without legal

effect, and may be disregarded by the trial court.").

     Appellant's argument that he was denied the opportunity to

request imposition of the lesser sentence recommended by the jury

is without merit.   Under Code § 18.2-248(C), the jury had no

authority to recommend a sentence of less than five years.    Thus,

in imposing sentence on appellant, the trial court was not

required to follow the jury's recommendation for leniency.

Additionally, appellant was aware that the jury intended to

recommend a suspended sentence if it imposed the minimum

sentence, but chose not to poll the jurors.    Under these



                                 10
circumstances, we hold that the trial court did not err in

failing to publish the jury's note prior to dismissing the jury.

     We recognize that Rule 3A:17 requires that "[i]n all

criminal prosecutions, the verdict shall be unanimous, in writing

and signed by the foreman, and returned by the jury in open

court."   (Emphasis added.)   However, in this case, no evidence

shows that the jury's verdict as to sentence was not unanimous.

The plain meaning of the jury note indicated that the jury was

recommending a lesser sentence for the trial court to consider

when imposing sentence.
     Accordingly, the decision of the trial court is affirmed.

                                                    Affirmed.




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