Clinton T. Rogers, Jr., s/k/a etc. v Commonwealth

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COURT OF APPEALS OF VIRGINA

Present: Judges Bray, Frank and Senior Judge Hodges
Argued at Chesapeake, Virginia

CLI NTON ‘T. ROGERS, JR, SOMEIT MES KNOMN AS
CLI NTON ‘THOMAS ROGERS, JR
MEMORANDUM OPI N ON’ BY
Vv. Record No. 0346- 99- 1 J UDGE RICHARD S. BRAY
MAY 2, 2000
COMVONWEALTH OF VI RGI NA

FROM THE CI RCU'T COURT OF THE CITY OF NORFOLK
Junius P. Fulton, III, Judge

Allan D Zaleski (Wisberg & Zaleski, P.C,
on brief), for appellant.

Steven A. Wtner, Assistant Attorney Ceneral
(Mark L. Earley, Attorney Ceneral, on brief),
for appellee.

Qinton T. Rogers (defendant) appeals a conviction in a bench
trial for possession of cocaine wth intent to distribute. [®
conpl ains that the trial court erroneously permtted a police
officer to opine that defendant possessed the drugs for purposes
of distribution. Finding no error, we affirm

The parties are fully conversant wth the record, and this
nenodrandum opinion recites only those facts necessary to a
disposition of the appeal. In accordance wth well established
principles, we viewthe evidence in the light nost favorable to

the Connonveal th.

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

I.
On May 2, 1998, Norfolk police arrested defendant after
observing him seated in an automobile with a package of suspected
marijuana "between his legs in plain view." 	During a related
search of defendant's person, police discovered "a plastic bag
containing 20 small zip-loc[k] bags of suspected cocaine" and $168
cash. 	Shortly thereafter, defendant admitted that the bags
contained cocaine, which he intended "to sell," and he had been
selling cocaine for "3 weeks." 	The attendant certificate of
analysis, introduced in evidence, reported 2.6 grams of cocaine.
At trial, Norfolk Police Investigator Michael James Reardon,
a Commonwealth's witness, qualified as an expert in "narcotics
packaging." 	Thereafter, the Commonwealth inquired of Reardon:
I've just handed you [the certificate of
analysis]. 	If you would, looking at the
amount of cocaine listed there and the
manner in which that cocaine is packaged,
could you let me know if you have an opinion
as to whether the possession of that amount
of cocaine is consistent with personal use
in your experience?
Defendant objected, arguing that the question improperly invited
testimony to the "ultimate issue in question." 	The court
overruled the objection, and Reardon responded, without
objection:
The 20 bags would be consistent with someone
who is selling narcotics. 	I can't honestly
say that 2.6 grams is someone who is selling
because I've known people to use a lot more
than that in one day's time, but 20 bags is
something that would be inconsistent -- that
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along with his statement would be -- would
prove to -- would make my opinion be that he
was out there selling narcotics.
II.
Rule 5A:18 provides, in pertinent part, that "[n]o 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." 	"To be timely, an objection must be made when the
occasion arises -- at the time the evidence is offered or the
statement made." 	Marlowe v. Commonwealth, 2 Va. App. 619, 621,
347 S.E.2d 167, 168 (1986).
Assuming, without deciding, that Reardon impermissibly
testified that the evidence was "consistent with someone selling
narcotics" and defendant "was out there selling narcotics," his
answer was unresponsive to a proper question. 	It is well
established that an expert may testify to the conclusion that an
accused was in possession of drugs attended by circumstances
"inconsistent with personal use." 	Davis v. Commonwealth, 12 Va.
App. 728, 731, 406 S.E.2d 922, 923 (1991). 	However, defendant
offered no timely objection to the improper testimony. 	Thus,
Rule 5A:18 precludes our consideration of the issue on appeal.
Further, finding no miscarriage of justice, we decline to invoke
the exception to the rule. 	See generally Redman v.
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Commonwealth, 25 Va. App. 215, 221-22, 487 S.E 2d 269, 272-73

(1997).
Accordingly, we affirmthe conviction.

Af firned.