COURT OF APPEALS OF VIRGINIA

Present: Judges Pett y, O’Brien and AtLee Argued at Lexington, Virginia

JOHNNIE ALPHONZO GARLAND MEMORANDUM OPINION  BY v. Record No. 1711-14-3 JUDGE WILLIAM G. PETTY APRIL 19, 2016 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY Stacey W. Moreau, Judge Matthew L. Pack (M. Pack Law, PLLC, on brief), for appellant. Elizabeth C. Kiernan, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Johnnie Alphonzo Garland was indicted for po ssession with intent to distribute cocaine and possession with intent to distribute mariju ana. A jury convicted Garland of possession of cocaine in violation of Code § 18.2-250 1 and possession with intent to distribute marijuana in violation of Code § 18.2-248.1(a)(2). On a ppeal, Garland challenge s his conviction for possession of cocaine. Garland ar gues that the trial court abused its discretion by not granting his motion to set aside the verdict because the ju ry convicted him of a lesser-included offense, possession of cocaine, even though th e jury instructions did not include an instruction on the lesser-included offense. For the following reason, we affirm Ga rland’s conviction.

 Pursuant to Code § 17.1-413, this opin ion is not designated for publication.

1 While the final order entered on Septembe r 3, 2014 correctly describes the conviction offense as possession of cocaine, it incorrectly refers to Code § 18.2-248. Accordingly, we remand this case to the trial court for the sole pur pose of correcting the fina l order to show that the conviction offense was in violation of Code § 18.2-250.UNPUBLISHED- 2 - I. Because the parties are fully conversant w ith the record in this case and this memorandum opinion carries no precedential value, we recite only those facts and incidents of the proceedings as are necessary to the parties’ understa nding of the disposition of this appeal. “‘On appeal, “we review the evidence in th e light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom.”’” Becker v. Commonwealth, 64 Va. App. 481, 486, 769 S.E.2d 683, 685 (2015) (quoting Archer v. Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)). Garland was charged with possession of cocaine with intent to distribute and possession of marijuana with intent to distribute. He was tried by jury on July 15, 2015. After the presentation of the evidence, both parties met with the trial court off the record to discuss jury instructions. Upon returning to the courtroom, Garland noted his objection only to instruction number nine, regarding flight. The objection was overruled, and no other objections to the jury

instructions were raised. For the possession with intent to distribute cocaine charge, the verdict form provided to the jury listed three options for the verdict: guilty of possession with intent to distribute, guilty of possession, or not guilty. The trial court read the jury instructions, a nd after closing argument s the jury retired to deliberate. The jury returned to the courtroom , and the deputy clerk read the verdict aloud. The jury found the defendant guilty of possession with intent to distribute marijuana and possession

of cocaine.

Garland moved to set aside th e jury’s verdict, renewing the arguments made in his motion to strike and arguing that no intent to distribute cocaine had been proven. The trial court responded that Garland had not been convicted of possession with intent to distribute cocaine.- 3 - For clarification, the deputy clerk re-read the jury’s verd ict. Garland then argued that there were no circumstances showing that he possessed the cocai ne. The trial court denied the motion to set aside the verdict. No other objections to the verdict were raised. The jury subsequently sentenced Garland to six years’ incarcerat ion for possession with intent to distribute marijuana and three years’ incarceration for possession of cocaine. On September 2, 2014, the trial court imposed the jury’s sentences. Garland did not object to being

sentenced for either conviction. Garland now a ppeals his conviction for possession of cocaine.

II. Garland argues that the trial court erred in failing to set as ide his conviction for possession of cocaine. Garland does not dispute his failure to raise an objecti on to the lack of a finding instruction for simple possession of cocaine. In fact, he concedes that he agreed that the jury would not be given a finding instruction fo r the offense of simple possession. Garland’s argument is that because the agreed-upon jury in structions did not include a simple possession instruction, the jury could not properly convict h im of simple possession. Garland contends that he preserved this argument in his motion to set as ide the verdict. In the alternative, Garland asserts that if we find that his assignment of error was not preserved, we should consider it under the “ends of justice” exce ption to Rule 5A:18. Rule 5A:18 provides that “[n]o ruling of the trial court . . . will be considered as a basis for reversal unless an objection was stated with reas onable certainty at the time of the ruling, except for good cause shown or to en able the Court of Appeals to at tain the ends of justice.” The main purpose of requiring tim ely specific objections is to afford the trial court an opportuni ty to rule intelligently on the issues presented, thus avoiding unne cessary appeals and reversals. In addition, a specific, contem poraneous objection gives the opposing party the opportunity to m eet the objection at that stage of the proceeding.- 4 - Milam v. Milam, 65 Va. App. 439, 464-65, 778 S.E.2d 535, 547 (2015) (quoting Weidman v. Babcock, 241 Va. 40, 44, 400 S.E.2d 164, 167 (1991)). Moreover, “we will not consider a different ground of objection raised for the firs t time on appeal[.]” Id. at 465, 778 S.E.2d at 547 (alteration in original) (quoting O’De ll v. Commonwealth, 234 Va. 672, 679, 364 S.E.2d 491, 495 (1988)). In his oral motion to set aside the verdict, Garland argued that: “with regard with possession of cocaine, Your Honor, there was no actual possession and ob viously the knowledge could be imputed however . . . there were no circum stances . . . in that case . . . where he could,

could have been found with cocaine.” This wa s a sufficiency argument, contending that there was insufficient evidence to prove that Garla nd possessed the cocaine. At no point did Garland argue to the trial court that the jury was not in structed on simple possession and therefore could

not convict Garland of the offens e. Therefore, his argument was not preserved for appeal. Garland argues that we should nevertheless consider his argument under the “ends of justice” exception to Rule 5A:18. “In order to avail oneself of the exception, a defendant must affirmatively show that a miscarriage of ju stice has occurred, not that a miscarriage might have occurred.” Redman v. Commonwealth, 25 Va. App. 215, 221, 487 S.E.2d 269, 272 (1997). “The ends of justice exception is narrow and is to be used sparingly.” Bazemore v. Commonwealth, 42 Va. App. 203, 219, 590 S.E .2d 602, 609 (2004) (quoting Redman, 25 Va. App. at 220, 587 S.E.2d at 272). “It is a rare case in which, rather th an invoke Rule [5A:18], we rely upon the exception and consider an assignme nt of error not preserved at trial . . . .” Redman, 25 Va. App. at 220-21, 487 S.E.2d at 272 (a lteration in original ) (quoting Jimenez v. Commonwealth, 241 Va. 244, 249, 402 S.E.2d 678, 680 (1991)). Thus, the ends of justice exception “requires that the error be clear, substantial, and ma terial.” Brown v. Commonwealth, 8 Va. App. 126, 132, 380 S.E.2d 8, 11 (1989). In other words, an appellant invoking the ends of- 5 - justice exception must show that “the trial court erred, and [] that a grave or manifest injustice

will occur . . . .” Brittle v. Commonwea lth, 54 Va. App. 505, 513, 680 S.E.2d 335, 339 (2009). Garland contends that it was a “miscarriage of justice” for the jury to convict him of simple possession of cocaine becau se there was no specific instruc tion given on the elements of simple possession of cocaine. Garland relies on cas e law holding that “when a principle of law is vital to a defendant in a criminal case, a trial co urt has an affirmative dut y properly to instruct a jury about the matter.” Jimenez, 241 Va. at 250, 402 S.E.2d at 681. We have held that “[u]nless [the] elements are defined by instructions available to the members of the jury during th eir deliberation, they cannot pr operly determine whether the

Commonwealth has carried its burden.” Dowdy v. Commonwealth, 220 Va. 114, 116, 255 S.E.2d 506, 508 (1979). “However, neither the Suprem e Court of Virginia, nor this Court, has held that we must always apply the ends of justice exception in cases involving faulty jury instructions to which no objection was noted be low—even where such faulty instructions improperly stated the elements of an offens e.” Bazemore, 42 Va. App. at 219, 590 S.E.2d at 610. “The Supreme Court of Virginia has held th at the ‘ends of justice’ exception applies to permit review when a ‘granted instruction omitted some essential elements of the offense’ and ‘no evidence was produced relating to those elements.’” Id. (em phasis added) (quoting Jimenez, 241 Va. at 251, 402 S.E.2d at 681-82). Yet no single jury instruction must contain all of the applicable law in a given case. Elliott v. Commonwealth, 267 Va. 464, 469, 593 S.E.2d 263, 266 (2004). “The law applicable to the case [may be ] contained in multiple instructions which, taken collectively, give pr oper guidance to the jury.” Id. Attaining the ends of justice thus requires the correction of the jury instructi ons, if the instructions allowe d the jury to convict Garland “without proof of an essential and necessary elem ent” of the crime of possession of cocaine. See Campbell v. Commonwealth, 14 Va. A pp. 988, 994, 421 S.E.2d 652, 656 (1992).- 6 - Garland points out that jury instruction elev en, the finding instruction for the possession

with intent to distribute cocaine charge, simply stated: “[i]f you find that the Commonwealth has failed to prove beyond a reasonable doubt that the defendant possesse d with intent to distribute cocaine, then you shall find the defendant not guilty .” However, despite the lack of a specific finding instruction for possession of cocaine, jury instruction tw elve gave the jury proper guidance on the essential elements of “possession of cocaine.” Instruction twelve clearly laid out what constitutes “possession”: To knowingly and intentionally possess a controlled substance means that a person is aware of the presence and character of the substance and has actual physical possession or constructive possession. Actual phys ical possession means that the substance is found on the person. Constructive possession means that the person has dominion or co ntrol over the substance. Mere proximity is not enough. Possession need not be exclusive; it may be shared with another. The length of time of the possession is not material. Ownership or occupancy of the vehicle in which a controlled substance is found does not create a presumption that the owner or occupant either know ingly or intentionally possessed such substance. Such ownership or occupancy is a fact which may be considered with other evidence. Possession may be proved by act s, declarations or conduct of the defendant from which it ma y be fairly inferred that he was aware of the presence and char acter of the substance at the place found. This jury instruction plainly explained what legally constituted posse ssion. Thus although no specific finding instruction was given, the jury ha d clear instruction on th e required elements of

the offense. 2 This guidance enabled the jury to dete rmine if the Commonwealth “prove[d] every essential element of the offense beyond a reas onable doubt.” Dowdy, 220 Va. at 116, 255 S.E.2d

2 Garland did not dispute that the substance found in the car wa s cocaine. Therefore, the only element of “possession of cocaine” at issu e was the element of “possession.” The omitted language from jury instruction eleven simply woul d have told the jury that if they find the defendant possessed the cocaine, but fail to find that he intended to distribute it, they shall find him guilty of possession of cocaine.- 7 - at 508 (quoting Powers v. Commonwealth, 211 Va. 386, 388, 177 S.E.2d 628, 629 (1970)). Moreover, the verdict form gave the jury the option of convicting Garland of possession of cocaine. Because the jury did in fact receive instruction on the essentia l elements of possession of cocaine, it was not an error for the jury to convict Garland of possession of cocaine. Accordingly, Garland cannot invoke the ends of justice exception to Rule 5A:18.

III. Rule 5A:18 bars this Court from considering the merits of Garland’s argument on appeal. Therefore, we affirm Garland’s co nviction and remand to the trial court to correct the final order.

Affirmed and remanded.