Ronald D. Carver v Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Baker, Willis and Annunziata
Argued at Alexandria, Virginia
RONALD D. CARVER
v. 	Record No. 2646-94-4 	MEMORANDUM OPINION*
BY JUDGE JOSEPH E. BAKER
COMMONWEALTH OF VIRGINIA 	FEBRUARY 6, 1996
FROM THE CIRCUIT COURT OF FREDERICK COUNTY
James L. Berry, Judge
John C. Morgan, Jr., for appellant.
Kathleen B. Martin, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Ronald D. Carver (appellant) contends the trial court erred
when it refused to grant his motion for a continuance based upon
the failure of a witness to appear at trial. 	Sufficiency of the
evidence to support his jury trial conviction for operating a
motor vehicle while under the influence of alcohol is not
contested.
The record discloses that appellant was arrested on February
19, 1994. 	On June 14, 1994, he was found guilty by a general
district court judge. 	When appellant appealed that decision to
the Circuit Court of Frederick County, the matter was first set
to be tried by a jury in that court on August 17, 1994. 	On
August 12, 1994, less than one week before that trial date,
appellant's counsel, citing differences between appellant and
*Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

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counsel, moved the trial court to permit him to withdraw from the
case. 	On August 15, 1994, the trial court granted the motion and
directed appellant to obtain new counsel prior to September 15,
1994, continuing the trial by jury until October 19, 1994.
On October 19, 1994, appellant appeared but without new
counsel. 	Appellant again moved for a continuance and, over the
Commonwealth's objection, the court granted appellant's motion
and ordered the matter to be again postponed for trial by jury to
December 21, 1994. 	That order further directed appellant to be
present with his newly retained counsel at 9:00 a.m. on November
18, 1994. 	On that date, appellant appeared without counsel but
with a letter from Attorney John Morgan explaining he could not
be present on that day. 	By order dated November 28, 1994, the
trial court re-affirmed that the matter would be heard by a jury
on December 21, 1994.
An agreed statement of facts notes that, prior to the
selection of a jury, appellant again moved for a continuance on
the ground that an "essential witness" was not present in court.
It further was agreed that although a subpoena was issued it was
not served. 	The trial court continued the matter for three
hours, to twelve noon, to give appellant time to locate the
witness, but at twelve noon, the witness had not been produced.
At appellant's request, the trial court advised the jury that
appellant had moved for a continuance to permit him to secure the
witness' attendance and that the court had denied the motion. 	No

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proffer was made to the trial court as to the expected content of
Wilson's testimony.
The jury returned the following verdict:
We the jury, on the issues joined, find the
accused, Ronald Dennis Carver, guilty of
operating a motor vehicle while under the
influence of alcohol, a third offense within
10 years, as charged in CR94-158 and fix his
punishment at 1 year confinement and $1,000
fine.
"[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." 	Cherricks v. Commonwealth, 11 Va. App. 96, 99, 396
S.E.2d 397, 399 (1990) (citations omitted). 	"The burden is on
the party seeking a continuance to show that it is likely that
the witness would be present at a later date." 	Chichester v.
Commonwealth, 248 Va. 311, 322, 448 S.E.2d 638, 646 (1994).
The trial court continued the trial for three hours to allow
appellant to locate the missing witness. 	The statement of facts
does not indicate that appellant exercised due diligence in
procuring the witness, nor does it explain why the subpoena was
not returned and whether the missing witness would be present at
a later trial.
Viewing the record in its totality, we cannot say that the
trial court abused its discretion. 	Accordingly, the judgment of
the trial court is affirmed. Affirmed.