Cooper v. Com.

• Decision Date: 11 August 2009
• Docket Number: Record No. 1392-08-3.
• Citation: 54 Va. App. 558,680 S.E.2d 361
• Parties: Christopher Brent COOPER v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

680 S.E.2d 361

54 Va. App. 558

Christopher Brent COOPER v. COMMONWEALTH of Virginia.

Record No. 1392-08-3.

Court of Appeals of Virginia, Salem.

August 11, 2009.

Tate C. Love (Black, Noland & Read, P.L.C., on briefs), Staunton, for appellant.

Virginia B. Theisen, Senior Assistant Attorney General (Robert F. McDonnell, Attorney General; Donald E. Jeffrey, III, Senior Assistant Attorney General, on brief), for appellee.

Present: KELSEY, McCLANAHAN and BEALES, JJ.

D. ARTHUR KELSEY, Judge.

The trial court found Christopher Brent Cooper guilty of manufacturing marijuana not for his own use, Code § 18.2-248.1(c), and for knowingly receiving a stolen shotgun, Code § 18.2-108. On appeal, Cooper argues his convictions should be overturned because (a) the court erroneously continued the trial date at the Commonwealth's request; (b) the court erred in admitting into evidence a report from the FBI's National Crime Information Center (NCIC); and (c) insufficient evidence supports his convictions. Disagreeing with each of these assertions, we affirm.

I.

On appeal, we review the evidence in the "light most favorable" to the Commonwealth. Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003). Viewing the record through this evidentiary prism requires us to "discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom." Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980) (emphasis and citation omitted). As an appellate court, moreover, our examination of the record "is not limited to the evidence mentioned by a party in trial argument or by the trial court in its ruling." Bolden v. Commonwealth, 275 Va. 144, 147, 654 S.E.2d 584, 586 (2008), aff'g, 49 Va.App. 285, 640 S.E.2d 526 (2007).

At trial, Andrew Forest Milam testified that he knew Cooper and "hung out" at Cooper's home prior to being incarcerated in June 2007. Cooper lived in the home with his sister. While in Cooper's residence, Milam and Cooper "discussed drugs" and specifically talked about marijuana. They focused on "certain plants, where we could get it, things like that." Milam observed potted, growing marijuana plants on Cooper's back porch. Cooper said he and "Jeff" owned the plants. Cooper also mentioned that he had a few firearms "upstairs" in his bedroom. "I have guns in my room," Cooper stated, mentioning specifically a pistol and a 12-gauge shotgun. Cooper admitted they "were stolen weapons."

Another of Cooper's friends, Jerry Simmons, testified that Cooper discussed "drugs" with him as well. Cooper said "he could get me some" in May 2007, Simmons continued. Like Milam, Simmons saw the marijuana plants growing on Cooper's back porch. Simmons recalled Cooper saying "he had four guns that I could buy." Cooper said Simmons could choose between two 12-gauge shotguns, an Uzi, and a .40 caliber firearm — all of which, Cooper confided, had been stolen. Simmons returned the next day to buy the .40 caliber firearm.

Special Agent R.D. Zullig of the Virginia State Police testified that "[n]umerous complaints" had been received "regarding narcotics-related activity" at Cooper's residence. Based on interviews with Milam and Simmons, Zullig obtained warrants to search Cooper's residence. On the back porch, police found the two marijuana plants observed by Milam and Simmons. Throughout the house, police discovered "drug paraphernalia and narcotics in numerous rooms" including electronic digital scales, two sets of hemostats, a multitude of large and small baggies, a plastic grinder, additional marijuana, a .25 caliber pistol with an obliterated serial number, individually packaged methamphetamine, and various drug pipes. Several of these items (a digital scale, the additional marijuana, the .25 caliber pistol, the individually packaged methamphetamine) were found in the bedroom of Cooper's sister. Cooper's sister, however, said none of these items belonged to her. Testifying as an expert, Zullig explained the items found in Coopers home were all "consistent with the distribution of drugs."

Police also collected 12-gauge shotgun shells scattered about in "numerous areas of the house." In Cooper's bedroom, police recovered a 12-gauge shotgun. Without objection, the Commonwealth introduced a picture of the shotgun into evidence. Zullig testified it was "the shotgun identified as being stolen from Rockingham County. . . ." Later in Zullig's testimony, the Commonwealth sought to introduce an NCIC report confirming that the shotgun (identified by its unique serial number) had been reported as stolen. Cooper's counsel objected on hearsay grounds. Applying Frye v. Commonwealth, 231 Va. 370, 345 S.E.2d 267 (1986), the trial court overruled the objection and admitted the NCIC report under the business records exception to the hearsay rule.

In his case in chief, Cooper called to the stand his live-in girlfriend. She testified that Cooper obtained the 12-gauge shotgun from someone named "Adam" who asked Cooper to "hold onto it" for him. She overheard Cooper ask Adam "if the gun was stolen." When asked if the marijuana plants "were there for selling, or for . . ." she interrupted Cooper's counsel, "Oh, that, I-I-I don't-I don't know." At that, the prosecutor waived cross-examination and the defense rested.

The trial court found Cooper guilty. On the marijuana charge, the court concluded "there's no question" Cooper was manufacturing the marijuana in violation of Code § 18.2-248.1(c). On the charge of receiving stolen property, the 12-gauge shotgun, the court concluded, "I don't know how you'd get much stronger circumstantial evidence than that."

II.

A. CONTINUANCE OF TRIAL DATE

Prior to trial, the Commonwealth requested a continuance because a witness who was under indictment could not be compelled to testify. The prosecutor proffered to the trial court that the witness's counsel had reported she would be pleading guilty in the next few days and afterwards would be available for subpoena in Cooper's case. The court granted the motion and continued the case for about a month. Cooper argues on appeal we should vacate his convictions and remand for retrial because the trial court erroneously granted the continuance motion. We disagree.

Whether to grant or deny a continuance rests within the "sound discretion" of the trial court. Ortiz v. Commonwealth, 276 Va. 705, 722, 667 S.E.2d 751, 762 (2008) (quoting Haugen v. Shenandoah Valley Dep't of Soc. Servs., 274 Va. 27, 34, 645 S.E.2d 261, 265 (2007)). An appellate court can reverse only if the trial court committed an "abuse of discretion" and thereby caused "resulting prejudice." Id. This "two-pronged" test, Lebedun v. Commonwealth, 27 Va.App. 697, 712, 501 S.E.2d 427, 434 (1998), has long been the standard under Virginia practice. See also Silcox v. Commonwealth, 32 Va.App. 509, 513, 528 S.E.2d 744, 746 (2000).

Satisfying both prongs of the test is "essential to reversal." Butler v. Commonwealth, 264 Va. 614, 621, 570 S.E.2d 813, 817 (2002) (citations omitted). "The absence of one renders inconsequential the presence of the other." Bolden, 49 Va.App. at 290, 640 S.E.2d at 529. "We cannot reverse if a defendant `has shown no prejudice resulting from what he claims was an abuse of discretion' in granting or denying a continuance motion." Id. (quoting Quintana v. Commonwealth, 224 Va. 127, 135, 295 S.E.2d 643, 646 (1982)). Prejudice, moreover, "may not be presumed; it must appear from the record." Id. (quoting Lowery v. Commonwealth, 9 Va.App. 304, 307, 387 S.E.2d 508, 510 (1990)).

In this case, Cooper cannot demonstrate any prejudice. He does not claim the continuance compromised his ability to get his witnesses to trial, conflicted with his counsel's other responsibilities, or otherwise weakened his ability to mount a defense to the charges. Perhaps so, Cooper counters, but the continuance did give the Commonwealth "another month to prepare." Appellant's Br. at 7. We fail to see the harm in that. Cooper likewise received another month to prepare. And Cooper can hardly claim that justice would be served by "forcing the Commonwealth to go to trial unprepared." Bolden, 49 Va.App. at 292, 640 S.E.2d at 530. Nor can he overcome the illogic of his own argument: Even if we accepted his more-time-to-prepare thesis, he would not be acquitted. We would at most reverse and remand for retrial — thereby remedying an allegedly erroneous month-long continuance by the trial court with a de facto year-or-two continuance by the appellate court.

Cooper's failure to demonstrate prejudice "renders inconsequential," id. at 290, 640 S.E.2d at 529, his allegation that the trial court abused its discretion in granting the continuance. "Given our holding, any discussion on that point would conflict with two principles of judicial self-restraint: our reluctance to issue what amounts to an `advisory opinion' on an inessential subject, Craddock v. Commonwealth, 40 Va.App. 539, 551 n. 1, 580 S.E.2d 454, 461 n. 1 (2003), and our corresponding desire to decide the case `on the best and narrowest ground available.' Air Courier Conference v. Am. Postal Workers Union, 498 U.S. 517, 531, 111 S.Ct. 913, 922, 112 L.Ed.2d 1125 (1991) (Stevens, J., concurring)." Johnson v. Commonwealth, 45 Va.App. 113, 117 n. 3, 609 S.E.2d 58, 60 n. 3 (2005).¹

B. ADMISSIBILITY OF NCIC REPORT

Without objection, Agent Zullig testified that the 12-gauge shotgun in the photograph offered into evidence was the gun recovered from Cooper's bedroom and was "the shotgun identified as being stolen from Rockingham County. . . ." When the prosecutor sought to admit into evidence the NCIC report confirming this, Cooper objected on hearsay grounds.² The trial court held that the NCIC report fit within the business records exception to the hearsay rule under Frye v. Commonwealth, 231 Va. 370, 345 S.E.2d 267 (1986). We...