Gary Stevens v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: January 27, 2000
• Docket: 1522982
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judge Bray, Senior Judges Cole and Overton Argued at Richmond, Virginia

GARY STEVENS MEMORANDUM OPINION * BY v. Record No. 1522-98-2 JUDGE NELSON T. OVERTON JANUARY 27, 2000 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF FREDERICKSBURG John W. Scott, Jr., Judge

Timothy J. Wall (Rose & Wall, P.C., on brief), for appellant.

Eugene Murphy, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Gary Stevens, appellant, appeals his conviction for

distributing cocaine, in violation of Code § 18.2-248. The

issues on appeal are: (1) whether the trial court erred in

admitting the cocaine into evidence because the chain of custody

was not sufficiently established, and (2) whether the evidence

was sufficient to show that appellant distributed the cocaine.

Finding no error, we affirm the conviction.

FACTS

On July 9, 1997, Michelle Granger was working as a special

undercover agent for the Virginia ABC Board Enforcement Agency

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. in conjunction with the Fredericksburg police. She was directed

to purchase cocaine from targeted areas in the city. The police

equipped her car with a surveillance camera and she wore a "body

wire." They provided her with money with which to buy the

cocaine. They searched her and found no drugs on her person

prior to the sale.

She testified that she was driving slowly through a

targeted neighborhood when appellant signaled to her. She

stopped, and appellant asked her what she wanted. She replied,

"A forty." Appellant went into a house and returned. He told

her to get out of the car. Appellant led her to an alley beside

the house, where he opened a plastic bag containing several

pieces of cocaine and allowed her to pick the two pieces she

wanted. She placed the cocaine in her pocket and paid him two

twenty dollar bills. Granger returned to a prearranged meeting

place and gave the cocaine to Detective Ken Sekuterski of the

Fredericksburg Police Department.

Sekuterski testified that he watched Granger from a

distance and saw her enter the alley, but could not identify

appellant and could not see the transaction. He testified that

Granger met him immediately after the purchase and she gave him

one large piece of suspected cocaine. He placed it in an

evidence bag and sealed it. He noted on the bag that there was

one piece of cocaine. Sekuterski placed the cocaine in a sealed

evidence bag in his locker until he sent the bag to the

- 2 - Consolidated Laboratories by registered mail. Sekuterski and

another detective returned to the area thirty minutes later and

arrested appellant based on the physical and clothing

descriptions given by Granger. Two days later, she identified

appellant from a photo array of six pictures.

ANALYSIS

I.

"Establishing a chain of custody of exhibits is necessary

to afford reasonable assurance that the exhibits are the same

and in the same condition as they were when first obtained."

Horsley v. Commonwealth, 2 Va. App. 335, 339, 343 S.E.2d 389,

390 (1986) (citations omitted). The Commonwealth need not

"'exclude every conceivable possibility of substitution,

alteration or tampering.'" Robertson v. Commonwealth, 12 Va.

App. 854, 857, 406 S.E.2d 417, 419 (1991) (citation omitted).

"'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, 556, 466 S.E.2d 116, 117 (1996)

(citation omitted). "'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.'" Id.

at 556, 466 S.E.2d at 117 (citation omitted).

- 3 - Applying these principles, the Commonwealth proved with

reasonable assurance that the cocaine admitted into evidence was

the same substance that Granger obtained from appellant.

Granger was searched for drugs prior to the purchase, and none

were found. Sekuterski observed Granger make contact with

appellant and received the substance from her within minutes of

the sale. He immediately labeled and sealed the evidence bag

with the cocaine. He arrested appellant thirty minutes later,

based on Granger's description. Granger identified appellant

two days later from a photo spread.

While Granger remembered receiving two pieces of cocaine

and Sekuterski documented that he received one piece, it is mere

speculation that any tampering or substitution occurred. Her

memory merely differs from the detective's notes, which were

taken at the time of the event. The trial judge was entitled to

admit the cocaine and, as fact finder in appellant's bench

trial, determine what weight to afford that evidence. The

events transpired in a short period of time, and the totality of

the circumstances affords reasonable assurance that the admitted

cocaine was obtained from appellant. Given these facts and

circumstances, the trial court did not err in admitting the

cocaine.

II.

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

favorable to the Commonwealth, granting to it all reasonable

- 4 - inferences fairly deducible therefrom.'" Archer v.

Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)

(citation omitted). The trial judge accepted the evidence

identifying appellant as the person who sold Granger the cocaine

and rejected appellant's testimony that, while he had sold drugs

to others, he had not sold drugs to Granger. "In its role of

judging witness credibility, the fact finder is entitled to

disbelieve the self-serving testimony of the accused and to

conclude that the accused is lying to conceal his guilt."

Marable v. Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d

233, 235 (1998). "The credibility of the witnesses and the

weight accorded the evidence are matters solely for the fact

finder who has the opportunity to see and hear that evidence as

it is presented." Sandoval v. Commonwealth, 20 Va. App. 133,

138, 455 S.E.2d 730, 732 (1995).

Granger paid appellant forty dollars in exchange for a

substance believed to be cocaine. She delivered the substance

to Sekuterski within minutes of the sale. Sekuterski arrested

appellant within thirty minutes of the transaction based on

Granger's description. Granger identified appellant as the

seller two days after the transaction and again at trial. The

substance proved to be cocaine. The evidence supports the

conviction for distribution of cocaine.

- 5 - For the above stated reasons, we affirm appellant's

Affirmed.

- 6 -