COURT OF APPEALS OF VIRGINIA
Present: Judges Fitzpatrick, Annunziata and Senior Judge Duff Argued at Alexandria, Virginia
DENNIS LEE FELTNER MEMORANDUM OPINION * BY v. Record No. 2596-95-4 JUDGE JOHANNA L. FITZPATRICK OCTOBER 1, 1996 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CLARKE COUNTY James L. Berry, Judge Spencer D. Ault (Ault & Stein, P.C., on brief), for appellant.
Michael T. Judge, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Dennis Lee Feltner (appellant) was convicted in a bench
trial of possession of cocaine with intent to distribute in
violation of Code § 18.2-248. On appeal, he argues that the
trial court erred in: (1) finding that the chain of custody of
the drugs was not broken when a police officer left the drugs in
the trunk of his car and on his desk; (2) admitting the
certificate of analysis when the evidence failed to show that an
authorized agent received the drugs at the laboratory; and (3)
finding the evidence sufficient to convict him of possession of
cocaine with intent to distribute. For the reasons that follow,
we affirm the conviction.
* Pursuant to Code § 17-116.010 this opinion is not
designated for publication. BACKGROUND
In December 1994, Investigator Robert Eckman (Eckman) and
Lieutenant Harvey R. Norris (Norris), Frederick County Sheriffs
assigned to a Regional Drug Task Force, received information
that, on December 5, 1994, appellant, an employee of a fruit
stand in Clarke County, would travel to Maryland to pick up some
produce and "would also pick up some cocaine." On the night of
December 5, 1994, Eckman, Norris, and other officers set up
surveillance, saw the produce truck return to Clarke County at
3:00 a.m., and followed the truck into the fruit stand's parking
lot. Appellant denied that there were any drugs in the produce
truck and consented to a search of the truck and his person.
While patting appellant's leg, Norris felt something in his pant
pocket and asked what it was. Appellant responded, "You found
it." Norris removed twelve grams of cocaine from appellant's
pocket and gave the drugs to Eckman. Investigator Michael
Donohoe (Donohoe), searched appellant's personal vehicle after
receiving permission, and found a Tupperware container with two
baggies of a white substance on the front driver's side
floorboard. Donohoe gave the baggies to Eckman. Appellant identified the white substance as cocaine and told
Donohoe that he needed the cocaine to stay awake because he drove
during the night. Appellant also told Donohoe that "he would
pick up cocaine in Maryland for his friends in the area."
Appellant "never actually said that he sold" cocaine, but that
2 "he would collect the money and go get it."
Eckman took the drugs recovered from appellant and his car,
placed them in a brown paper bag, and locked them in the trunk of
his car. No other paper bags with similar substances were in the
trunk of Eckman's car. Eckman went home to sleep at 5:00 a.m.
and left for the Task Force office at 7:30 a.m. The drugs
remained locked in his trunk during this period, and only Captain
Richards, a fellow police officer and head of the motor pool, had
another set of keys to the car. At trial, Eckman testified that,
when he left for work, his car "showed no signs of entry." When Eckman arrived at the Task Force office, he removed the
paper bag containing the drugs from his trunk. They were in the
same place and the same condition as when he placed them there.
Eckman put the bag on his desk and completed paperwork. Later,
he packaged and sealed the items in an evidence bag and placed
the drugs in his evidence locker. He had the only key. The
drugs remained in Eckman's evidence locker until December 20,
1994, when he delivered them to the [laboratory] in Fairfax,
Virginia, and handed the drugs to Steve McNeil. Prior to trial,
on May 19, 1995, Eckman picked up the drugs from the laboratory.
The analyzed substance was eighteen grams of cocaine with a
street value of $1,800.
At trial, Eckman, Donohoe, and Norris testified that the
amount of cocaine and the method of packaging was inconsistent
with personal use. Eckman identified the drugs introduced at
3 trial as the same drugs seized from appellant and from the
container in his car. Appellant testified, never denied the
drugs were his, but stated that the cocaine was for his personal
use. He denied telling Donohoe that he would give cocaine to his
friends. He testified that he earned $600 to $700 per week and
spent $600 at least once per week on cocaine.
Appellant objected to the admission of the certificate of
analysis, arguing that the chain of custody was broken when the
drugs were left in Eckman's trunk and when they were delivered to
the laboratory. The trial court found that "the Commonwealth has
shown with reasonable certainty that there has been no alteration
or substitution of the items examined." Additionally, appellant argued that the Commonwealth failed
to prove his intent to distribute cocaine. The trial court found
that "the quantities involved, these statements of the
[d]efendant and his testimony here in [c]ourt today of his income
among other things all indicate an intent to distribute in the
[c]ourt's opinion beyond a reasonable doubt." CHAIN OF CUSTODY
"'The admissibility of evidence is within the broad
discretion of the trial court, and a ruling will not be disturbed
on appeal in the absence of an abuse of discretion.'" Brown v.
Commonwealth, 21 Va. App. 552, 555, 466 S.E.2d 116, 117 (1996)
(quoting Crews v. Commonwealth, 18 Va. App. 115, 118, 442 S.E.2d
407, 409 (1994)). The chain of custody rule requires "'a showing
4 with reasonable certainty that the item [has] not been altered,
substituted, or contaminated prior to analysis, in any way that
would affect the results of the analysis.'" Reedy v.
Commonwealth, 9 Va. App. 386, 387, 388 S.E.2d 650, 650-51 (1990)
(quoting Washington v. Commonwealth, 228 Va. 535, 550, 323 S.E.2d
577, 587 (1984), cert. denied, 471 U.S. 1111 (1985)). In proving
the chain of custody, however, the Commonwealth "'is not required
to exclude every conceivable possibility of substitution,
alteration or tampering.'" Robertson v. Commonwealth, 12 Va.
App. 854, 857, 406 S.E.2d 417, 419 (1991) (quoting Pope v.
Commonwealth, 234 Va. 114, 129, 360 S.E.2d 352, 357 (1987), cert.
denied, 485 U.S. 1015 (1988)). "'Where there is mere speculation
that contamination or tampering could have occurred, it is not an
abuse of discretion to admit the evidence and let what doubt
there may be go to the weight to be given the evidence.'" Brown,
21 Va. App. at 556, 466 S.E.2d at 117 (quoting Reedy, 9 Va. App.
at 391, 388 S.E.2d at 652).
In the instant case, the evidence established that, after
Eckman received the drugs, he placed them in a paper bag and
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COURT OF APPEALS OF VIRGINIA
Present: Judges Fitzpatrick, Annunziata and Senior Judge Duff Argued at Alexandria, Virginia
DENNIS LEE FELTNER MEMORANDUM OPINION * BY v. Record No. 2596-95-4 JUDGE JOHANNA L. FITZPATRICK OCTOBER 1, 1996 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CLARKE COUNTY James L. Berry, Judge Spencer D. Ault (Ault & Stein, P.C., on brief), for appellant.
Michael T. Judge, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Dennis Lee Feltner (appellant) was convicted in a bench
trial of possession of cocaine with intent to distribute in
violation of Code § 18.2-248. On appeal, he argues that the
trial court erred in: (1) finding that the chain of custody of
the drugs was not broken when a police officer left the drugs in
the trunk of his car and on his desk; (2) admitting the
certificate of analysis when the evidence failed to show that an
authorized agent received the drugs at the laboratory; and (3)
finding the evidence sufficient to convict him of possession of
cocaine with intent to distribute. For the reasons that follow,
we affirm the conviction.
* Pursuant to Code § 17-116.010 this opinion is not
designated for publication. BACKGROUND
In December 1994, Investigator Robert Eckman (Eckman) and
Lieutenant Harvey R. Norris (Norris), Frederick County Sheriffs
assigned to a Regional Drug Task Force, received information
that, on December 5, 1994, appellant, an employee of a fruit
stand in Clarke County, would travel to Maryland to pick up some
produce and "would also pick up some cocaine." On the night of
December 5, 1994, Eckman, Norris, and other officers set up
surveillance, saw the produce truck return to Clarke County at
3:00 a.m., and followed the truck into the fruit stand's parking
lot. Appellant denied that there were any drugs in the produce
truck and consented to a search of the truck and his person.
While patting appellant's leg, Norris felt something in his pant
pocket and asked what it was. Appellant responded, "You found
it." Norris removed twelve grams of cocaine from appellant's
pocket and gave the drugs to Eckman. Investigator Michael
Donohoe (Donohoe), searched appellant's personal vehicle after
receiving permission, and found a Tupperware container with two
baggies of a white substance on the front driver's side
floorboard. Donohoe gave the baggies to Eckman. Appellant identified the white substance as cocaine and told
Donohoe that he needed the cocaine to stay awake because he drove
during the night. Appellant also told Donohoe that "he would
pick up cocaine in Maryland for his friends in the area."
Appellant "never actually said that he sold" cocaine, but that
2 "he would collect the money and go get it."
Eckman took the drugs recovered from appellant and his car,
placed them in a brown paper bag, and locked them in the trunk of
his car. No other paper bags with similar substances were in the
trunk of Eckman's car. Eckman went home to sleep at 5:00 a.m.
and left for the Task Force office at 7:30 a.m. The drugs
remained locked in his trunk during this period, and only Captain
Richards, a fellow police officer and head of the motor pool, had
another set of keys to the car. At trial, Eckman testified that,
when he left for work, his car "showed no signs of entry." When Eckman arrived at the Task Force office, he removed the
paper bag containing the drugs from his trunk. They were in the
same place and the same condition as when he placed them there.
Eckman put the bag on his desk and completed paperwork. Later,
he packaged and sealed the items in an evidence bag and placed
the drugs in his evidence locker. He had the only key. The
drugs remained in Eckman's evidence locker until December 20,
1994, when he delivered them to the [laboratory] in Fairfax,
Virginia, and handed the drugs to Steve McNeil. Prior to trial,
on May 19, 1995, Eckman picked up the drugs from the laboratory.
The analyzed substance was eighteen grams of cocaine with a
street value of $1,800.
At trial, Eckman, Donohoe, and Norris testified that the
amount of cocaine and the method of packaging was inconsistent
with personal use. Eckman identified the drugs introduced at
3 trial as the same drugs seized from appellant and from the
container in his car. Appellant testified, never denied the
drugs were his, but stated that the cocaine was for his personal
use. He denied telling Donohoe that he would give cocaine to his
friends. He testified that he earned $600 to $700 per week and
spent $600 at least once per week on cocaine.
Appellant objected to the admission of the certificate of
analysis, arguing that the chain of custody was broken when the
drugs were left in Eckman's trunk and when they were delivered to
the laboratory. The trial court found that "the Commonwealth has
shown with reasonable certainty that there has been no alteration
or substitution of the items examined." Additionally, appellant argued that the Commonwealth failed
to prove his intent to distribute cocaine. The trial court found
that "the quantities involved, these statements of the
[d]efendant and his testimony here in [c]ourt today of his income
among other things all indicate an intent to distribute in the
[c]ourt's opinion beyond a reasonable doubt." CHAIN OF CUSTODY
"'The admissibility of evidence is within the broad
discretion of the trial court, and a ruling will not be disturbed
on appeal in the absence of an abuse of discretion.'" Brown v.
Commonwealth, 21 Va. App. 552, 555, 466 S.E.2d 116, 117 (1996)
(quoting Crews v. Commonwealth, 18 Va. App. 115, 118, 442 S.E.2d
407, 409 (1994)). The chain of custody rule requires "'a showing
4 with reasonable certainty that the item [has] not been altered,
substituted, or contaminated prior to analysis, in any way that
would affect the results of the analysis.'" Reedy v.
Commonwealth, 9 Va. App. 386, 387, 388 S.E.2d 650, 650-51 (1990)
(quoting Washington v. Commonwealth, 228 Va. 535, 550, 323 S.E.2d
577, 587 (1984), cert. denied, 471 U.S. 1111 (1985)). In proving
the chain of custody, however, the Commonwealth "'is not required
to exclude every conceivable possibility of substitution,
alteration or tampering.'" Robertson v. Commonwealth, 12 Va.
App. 854, 857, 406 S.E.2d 417, 419 (1991) (quoting Pope v.
Commonwealth, 234 Va. 114, 129, 360 S.E.2d 352, 357 (1987), cert.
denied, 485 U.S. 1015 (1988)). "'Where there is mere speculation
that contamination or tampering could have occurred, it is not an
abuse of discretion to admit the evidence and let what doubt
there may be go to the weight to be given the evidence.'" Brown,
21 Va. App. at 556, 466 S.E.2d at 117 (quoting Reedy, 9 Va. App.
at 391, 388 S.E.2d at 652).
In the instant case, the evidence established that, after
Eckman received the drugs, he placed them in a paper bag and
locked the bag in the trunk of his car for several hours. No
evidence suggested any break in of the car or that the condition
of the item had been changed. When Eckman retrieved the drugs
from his trunk, the paper bag was in the same place in his trunk
and appeared unchanged. Although Captain Richards had access to
Eckman's car, "he too was an employee of the police department."
5 Brown, 21 Va. App. at 556, 466 S.E.2d at 118. The access of
Captain Richards, "without more, did not constitute a break in
the chain of custody." Id. Appellant presented no evidence of
tampering or alteration. The suggestion that a break in the
chain of custody occurred while the drugs were in the trunk of
Eckman's car is based on mere speculation.
Appellant's additional contention that the chain of custody
was broken when the drugs were left on Eckman's desk is
procedurally barred. "No ruling of the trial court . . . will be
considered as a basis for reversal unless the objection was
stated together with the grounds therefor at the time of the
ruling, except for good cause shown or to enable the Court of
Appeals to attain the ends of justice." Rule 5A:18. We will not
consider an argument on appeal which was not presented to the
trial court. Jacques v. Commonwealth, 12 Va. App. 591, 593, 405
S.E.2d 630, 631 (1991) (citing Rule 5A:18). ADMISSIBILITY OF THE CERTIFICATE OF ANALYSIS
Appellant next contends that the trial court erred in
admitting the certificate of analysis into evidence when it
failed to show that an authorized agent received the drugs at the
laboratory.
We agree that to establish a proper chain of custody, it
must be shown that the laboratory received the material to be
analyzed. However, the statutory scheme for establishing proper
receipt is not the only method of proof available to the
6 Commonwealth. Code § 19.2-187.01 does not require the signature
of the person who received the evidence to be on the certificate
of analysis; rather, Code § 19.2-187.01 specifies that a
signature on the request for laboratory examination form is prima
facie evidence that the individual is an authorized agent of the
laboratory. 1 "Code § 19.2-187.01 does not 'specifically require'
the Commonwealth to identify the recipient of analyzed material
evidence only through a 'request for laboratory examination
form.' The agency relationship may be established by other
evidence." Harshaw v. Commonwealth, 16 Va. App. 69, 72, 427
S.E.2d 733, 736 (1993).
The trial court properly admitted the certificate of
analysis into evidence. The court could reasonably infer that
McNeil was an authorized agent of the lab, as Eckman testified
that he went to the lab and delivered the drugs to McNeil.
Appellant presented no evidence to rebut the Commonwealth's prima
facie case to show that McNeil was not an authorized agent of the
lab. Thus, because the signature of the recipient is not
1 Code § 19.2-187.01 provides, in pertinent part, as follows:
The signature of the person who received the material for the laboratory on the request for laboratory examination form shall be deemed prima facie evidencethat the person receiving the material was an authorized agent and that such receipt constitutes proper receipt by the laboratory for purposes of this section.
(Emphasis added.)
7 required for the certificate of analysis to be admissible, no
error occurred. SUFFICIENCY OF THE EVIDENCE
Lastly, appellant argues that the trial court erred in
finding the evidence sufficient to convict him of possession of
cocaine with intent to distribute.
"'Under familiar principles of appellate review, we examine
the evidence in the light most favorable to the Commonwealth,
granting to it all reasonable inferences fairly deducible
therefrom.'" Brown, 21 Va. App. at 555, 466 S.E.2d at 117
(quoting Crews, 18 Va. App. at 117, 442 S.E.2d at 408). "The
credibility of witnesses and the weight accorded their testimony
are matters solely for the trier of fact." Bell v. Commonwealth,
22 Va. App. 93, 99, 468 S.E.2d 114, 117 (1996).
"Possession with intent to distribute is a crime which
requires 'an act coupled with a specific intent.'" Stanley v.
Commonwealth, 12 Va. App. 867, 869, 407 S.E.2d 13, 15 (1991) (en
banc) (quoting Adkins v. Commonwealth, 217 Va. 437, 440, 229 S.E.2d 869, 871 (1976)). "'Possession of a quantity [of cocaine]
greater than that ordinarily possessed for one's personal use may
be sufficient to establish an intent to distribute it.'"
Gregory v. Commonwealth, 22 Va. App. 100, 110, 468 S.E.2d 117,
122 (1996) (quoting Iglesias v. Commonwealth, 7 Va. App. 93, 110,
372 S.E.2d 170, 180 (1988) (en banc)).
In the instant case, viewing the evidence in the light most
8 favorable to the Commonwealth, we hold that the evidence was
sufficient to establish that appellant possessed cocaine with the
intent to distribute. Appellant admitted picking up cocaine to
give to his friends for money. Eckman, Donohoe, and Norris all
testified that the amount of cocaine seized from appellant was
inconsistent with personal use. Additionally, Norris indicated
that the method of packaging was inconsistent with personal use.
Although, at trial, appellant denied earlier stating to police
that he picked up cocaine that he later gave to his friends, the
trial judge, as finder of fact, was entitled to disbelieve
appellant's testimony and accept that of the Commonwealth's
witnesses. Accordingly, the decision of the trial court is affirmed.
Affirmed.