Edward Lee Caple, Jr. v Commonwealth of Virginia

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.
∗ 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.
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.

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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