COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Baker and Bray 

Argued at Norfolk, Virginia 

SCOTT WINDFIELD ROGERS 

 MEMORANDUM OPINION* BY 

v. Record No. 1086-97-1 CHIEF JUDGE JOHANNA L. FITZPATRICK 

 APRIL 14, 1998 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF ACCOMACK COUNTY 

Glen A. Tyler, Judge 

 Anita C. Johnson for appellant. 

 Daniel J. Munroe, Assistant Attorney General 

(Richard Cullen, Attorney General, on brief), 

for appellee. 

 In a bench trial, appellant, Scott Windfield Rogers, was 

convicted of selling drug paraphernalia to a juvenile in 

violation of Code § 18.2-265.3. On appeal, Rogers challenges the 

trial court's refusal to dismiss the case following the 

Commonwealth's request to nolle prosequi the matter. He also 

contends the trial court erred in refusing to grant him a 

continuance and in finding the evidence sufficient to support his 

conviction. Because we find that the trial court abused its 

discretion in refusing to grant appellant a continuance, we 

reverse appellant's conviction and remand the case for further 

proceedings if the Commonwealth be so advised. 

 

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

designated for publication. 
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FACTS AND PROCEEDINGS

 "On appeal, we review the evidence in the light most 

favorable to the Commonwealth, granting to it all reasonable 

inferences fairly deducible therefrom." Martin v. Commonwealth, 

4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). 

 Appellant's trial for selling drug paraphernalia to a 

juvenile was scheduled for October 17, 1996. On October 16, 

1996, the prosecutor learned that Joseph Scott, an out-of-state 

witness whom the Commonwealth had not subpoenaed for trial, would 

be unable to attend the trial the following day because he had 

missed his train from Georgia. The prosecutor notified the trial 

court and defense counsel that the Commonwealth was moving to 

nolle prosequi the case, and appellant's trial was removed from 

the October 16 docket. On the morning of October 17, the trial 

court granted defense counsel's request for a hearing on the 

Commonwealth's motion. Before the hearing could occur appellant 

left the courthouse, and the trial court refused to conduct the 

hearing in his absence. The court then scheduled a hearing on 

October 22, an available date for both the Commonwealth and the 

defense. 

 Before the hearing, the Commonwealth filed a notice stating 

that it intended to proceed with the trial upon the existing 

indictment on October 22. Appellant moved to dismiss the 

indictment against him, arguing that the Commonwealth's failure 

to have its witness present on October 17 did not constitute 
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"good cause" for a nolle prosequi as contemplated by Code 

§ 19.2-265.3.1

 On October 22, the trial court denied appellant's motion to 

dismiss, and indicated that the trial could proceed. Appellant 

then requested a continuance to secure the presence of Adam 

Martin. Appellant had requested a witness subpoena for Martin 

for both the October 17 and the October 22 hearings. The sheriff 

had served Martin with the subpoena prior to the October 17 court 

date, but was unable to serve him before the hearing on October 

22. Appellant claimed that Martin was present in appellant's 

home on the night that appellant allegedly sold the drug 

paraphernalia to Scott. Although defense counsel had not 

interviewed Martin, appellant asserted that Martin's testimony 

would be exculpatory. The trial court denied appellant's motion 

for a continuance. 

 Scott testified that, while working undercover as a police 

informant on January 27, 1996, he visited appellant's residence. 

 Scott found appellant at home with three men, and two others 

arrived a few minutes after Scott. Scott asked if anyone had 

drugs for sale, but no one responded affirmatively. Scott asked 

to speak to appellant privately in the kitchen. There, Scott 

asked appellant if he had "a pipe or any paraphernalia" he could 

buy. Appellant said he had a pipe, accompanied Scott to the back 

 

 1Code § 19.2-265.3 provides that a "[n]olle prosequi shall 

be entered only in the discretion of the court, upon motion of 

the Commonwealth with good cause therefor shown." 
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bedroom, produced a pipe, and sold the pipe to Scott for ten 

dollars. Scott previously had seen appellant and others use the 

pipe to smoke marijuana. 

 Scott left appellant's residence and gave the pipe to 

Officer William Tarr, who was conducting surveillance of 

appellant's home. The pipe tested positively for marijuana 

residue. Tarr permitted Scott to keep thirty dollars, which was 

the money remaining from the amount Tarr had given Scott before 

the purchase. 

 Scott said that Tarr did not pay him when he did not produce 

either drugs or paraphernalia. Scott was questioned about a 

conversation he had with defense witness Rita Jester concerning 

why Scott was testifying. Scott admitted replying words to the 

effect that "when people spit on you, you will spit back." Scott 

conceded that he had a prior petit larceny conviction. 

 Tarr testified that before Scott entered appellant's home on 

January 27, 1996, he searched Scott, found no drugs or contraband 

on him, and gave him forty dollars. Conducting surveillance 

outside appellant's home, Tarr saw appellant and Scott move from 

their initial positions in the front room towards the back of the 

home, where the bedroom was located. A light was illuminated in 

the bedroom, and no one else entered that room for ten minutes 

until Scott returned to the front room. Tarr stated that Scott 
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was paid every time he worked as an informant, regardless of 

whether he made a purchase of drugs or paraphernalia. 

 Testifying on his own behalf, appellant stated that he had 

seen the pipe on a night in December of 1995, when Scott and 

numerous others were in appellant's home. Scott asked appellant 

if he could have the pipe. Appellant replied that he knew 

nothing about the pipe and had never seen it before. Appellant 

said that Scott walked away with the pipe. Appellant said he 

observed Scott use marijuana ten to fifteen times. 

 Appellant denied selling anything to Scott, and said he did 

not enter the bedroom with Scott on January 27, 1996. Appellant 

testified that Scott knew appellant had provided the police with 

Scott's name as a possible suspect following a theft from 

appellant's home in September of 1995. 

 Jester testified that appellant had a reputation for honesty 

in the community. She said that some people trusted Scott and 

some did not. Jester had been a frequent guest at appellant's 

home and had seen Scott smoking marijuana there. However, she 

had never seen the pipe appellant allegedly sold to Scott, and 

never observed appellant sell drug paraphernalia. On the morning 

of trial, she asked Scott what had made him "turn on everybody." 

 Scott responded, "[P]eople spit in your face enough you're going 

to spit back." 
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DENIAL OF APPELLANT'S CONTINUANCE REQUEST2

 Appellant challenges the trial court's refusal to grant him 

a continuance to secure the presence of Martin. 

 "A motion for a continuance in order to 

obtain the presence of a missing witness is 

addressed to the sound discretion of the 

trial court whose decision will not be 

reversed unless the record affirmatively 

shows an abuse of such discretion." This 

discretion, however, "must be exercised with 

due regard to the constitutional guaranty of 

a fair and impartial trial to one accused of 

crime, and the right to call for evidence in 

his favor." 

 In determining whether the trial court 

properly exercised its discretionary powers, 

we look to the diligence exercised by the 

moving party to locate the witness and secure 

his attendance at trial. As well, we must 

determine if there is anything "in the 

circumstances to warrant the conclusion that 

the real purpose in moving for a continuance 

is to delay or evade trial and not to prepare 

for it." 

Cherricks v. Commonwealth, 11 Va. App. 96, 99-100, 396 S.E.2d 

397, 399 (1990) (citations omitted). 

 After having the original trial removed from the docket 

based upon his intention to request a nolle prosequi, the 

prosecutor filed a notice of intention to proceed with 

 

 2We find that the trial court did not err in refusing to 

dismiss the case following the Commonwealth's request to nolle

prosequi the matter. The Commonwealth advanced a valid basis-- 

the unexpected absence of Scott--for its motion to nolle

prosequi. See Code § 19.2-265.3. Scott's testimony was vital to 

the Commonwealth's case. Accordingly, the Commonwealth 

demonstrated good cause for its motion to nolle prosequi, and 

appellant was not entitled to the dismissal of the indictment 

against him. 
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appellant's trial on the merits on October 22, 1996 rather than 

pursue the motion to nolle prosequi.3

 On October 18, 1996, the 

defense requested a new witness subpoena for Martin, whom the 

defense had subpoenaed successfully for the originally scheduled 

trial date. The sheriff was unable to execute the service 

request, and it was returned. 

 In requesting a continuance on October 22, 1996, appellant 

asserted that Martin was to return to the area from Norfolk 

within a few days. The prosecutor did not challenge this 

assertion, nor did he allege that prejudice would result from 

delaying the trial until Martin could be present. Appellant 

argued that Martin was in the residence on the night of the 

alleged paraphernalia sale and that Martin's testimony was 

exculpatory. 

 The record demonstrates that appellant exercised due 

diligence in obtaining the presence of Martin for both the 

original trial date and for the subsequent date. The prosecutor, 

acting with neither the prior approval of the trial court nor the 

agreement of defense counsel, essentially moved the trial date 

from October 17 to October 22, 1996. Appellant was entitled to 

sufficient notice to permit him to present potentially 

exculpatory evidence. The surrounding circumstances did not 

 

 3While the prosecutor's notice contained a certificate that 

the notice was delivered to defense counsel on October 17, 1996, 

the notice was not filed in the clerk's office until October 21, 

1996. 
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suggest that appellant requested a continuance for the purpose of 

delay. Considering all the particular facts of this case, the 

trial court abused its discretion in refusing to grant 

appellant's request for a continuance.4

 Appellant also contends the evidence was insufficient to 

support his conviction. Although the Commonwealth's evidence was 

not insufficient as a matter of law, we make no comment on the 

evidence which might be presented on retrial. 

 For the foregoing reasons, we reverse and remand for further 

action if the Commonwealth be so advised. 

 Reversed and remanded.

 

 4Appellant argues for the first time on appeal that the 

Commonwealth unfairly manipulated the trial court's docket and 

violated his due process rights by canceling the October 17 

trial, despite the fact that the trial court had neither ordered 

a nolle prosequi nor granted a continuance. While not approving 

such a procedure, the Court of Appeals will not consider an 

argument on appeal which was not presented to the trial court. 

See Jacques v. Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d 

630, 631 (1991) (citing Rule 5A:18). Therefore, this argument is 

barred by Rule 5A:18 and we need not consider it.