COURT OF APPEALS OF VIRGINIA
Present: Judges Chaney, Frucci and Senior Judge Annunziata UNPUBLISHED
Argued at Fairfax, Virginia
JASON THESTON PAYNE MEMORANDUM OPINION* BY v. Record No. 0824-23-4 JUDGE ROSEMARIE ANNUNZIATA SEPTEMBER 24, 2024 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF STAFFORD COUNTY J. Bruce Strickland, Judge
Kelsey Bulger, Deputy Appellate Counsel (Virginia Indigent Defense Commission, on briefs), for appellant.
Elizabeth Kiernan Fitzgerald, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.
Jason Theston Payne appeals his conviction for aggravated involuntary manslaughter
while driving under the influence in violation of Code § 18.2-36.1. He argues on appeal that the
trial court erred in overruling his objections to certificates of analysis and denying his motion to
strike. He also asserts that the trial court abused its discretion in sentencing him to a total of 15
years of active incarceration for that offense and felony driving under the influence under Code
§§ 18.2-266 and -270. Finding no error, we affirm the trial court’s judgment.
BACKGROUND
We recite the facts “in the ‘light most favorable’ to the Commonwealth, the prevailing
party in the trial court.” Hammer v. Commonwealth, 74 Va. App. 225, 231 (2022) (quoting
Commonwealth v. Cady, 300 Va. 325, 329 (2021)). In doing so, we “discard the evidence of the
accused in conflict with that of the Commonwealth, and regard as true all the credible evidence
* This opinion is not designated for publication. See Code § 17.1-413(A). favorable to the Commonwealth and all fair inferences to be drawn [from that evidence].” Ray v.
Commonwealth, 74 Va. App. 291, 307 (2022) (alteration in original) (quoting Bagley v.
Commonwealth, 73 Va. App. 1, 26 (2021)).
On October 24, 2021, Mohamed Hussein, his parents, and brother went to John Memorial
Park. Mohamed was 24 years old and Mohamud—his brother—was 23. River Road runs through
the park and contains a marked crosswalk. There are three traffic signs related to this crosswalk: a
road sign before the crosswalk warning drivers of pedestrians and bicyclists crossing, a sign next to
and directly pointing at the crosswalk with the same warning, and a stop sign for pedestrians using
the crosswalk. River Road has a 35 mile-per-hour speed limit at that crosswalk.
Mohamed and Mohamud, walking ahead of their parents, reached the crosswalk. They
stopped at the crosswalk and looked both ways for vehicles. Not seeing any, Mohamed crossed
first, and Mohamud was several feet behind him. As Mohamed walked across River Road, Payne
struck Mohamed with his pickup truck.1 Mohamud testified that Payne drove “very fast” and there
was no time to move out of the way. The impact threw Mohamed into a ditch on the side of the
road. Initially, Payne continued driving, but turned around and came back. Mohamud called 911
and his parents. Mohamed later died from the blunt force trauma to his head and chest.
Photographs of Payne’s truck showed damage to the front-left corner headlight area and dents over
the front-left tire wheel well, as well as significant damage to the windshield on the left side.
Deputy Jett of the Stafford County Sheriff’s Office responded to the scene. He noticed that
Payne had difficulty maintaining his balance or walking, and smelled a strong odor of alcohol on his
breath. When Jett asked Payne if he had consumed any alcohol, Payne admitted to drinking several
1 On cross-examination, Payne confronted Mohamud with his statement in a prior hearing that Mohamed was running at the time of the collision; Mohamud explained that he was confused by that question and emphasized that they were walking when Payne hit Mohamed. Deputy Russo later testified that Mohamud told him during an interview that the brothers stopped at the crosswalk and walked across the road. -2- 40-ounce beers and liquor drinks. Jett arrested Payne after he showed indications of intoxication on
field sobriety tests.2
When Jett asked Payne if he wanted to say anything to the magistrate, Payne stated that
“[t]wo pedestrians walked across the walkway out of my reach and I struck the male subject.”3
During his interview, Payne stated that he was traveling down River Road, that “there was a
crosswalk,” and that the “next thing he knew” he struck someone; he had not seen anyone
beforehand. In that interview he denied consuming any alcohol. When confronted with the odor of
alcohol on his breath, Payne claimed it was from the day prior. When asked again, he admitted to
drinking earlier that same day. Payne also alleged that he was driving 35 miles per hour at the time
of impact.
After Payne failed to provide sufficient breath samples for breath machine analysis, Jett
obtained a search warrant for his blood. Jett watched a hospital nurse open a Department of
Forensic Science (“DFS”) blood draw kit and unwrap a sealed needle.4 The nurse drew two vials of
Payne’s blood and placed a seal over their tops. She wrapped a sticker around the outside of the
vials, signed an integrity seal, and placed the vials with paperwork back into the bloodwork kit box.
She handed that box to Jett, who then mailed it to DFS for analysis.
DFS policy requires employees that receive such packages to inspect incoming vials and
“notate anything unusual.” DFS employee Daniel Chen received the mailed bloodwork package on
October 29, 2021. He noticed that one of the vials was broken; although unusual, DFS receives a
bloodwork kit with a broken vial two or three times a year, on average. Chen notified DFS expert
2 On appeal, Payne does not dispute that he was intoxicated when he struck Mohamed. 3 Jett read this statement to the magistrate; when the magistrate asked Payne under oath whether he had any additional statements, he answered that what Jett “said is exactly what I said.” 4 Deputy Kulbeth also watched the blood draw procedure. -3- forensic toxicologist Dr. Jon Dalgleish of the broken vial. Dalgleish checked the package; Chen
then discarded the broken vial and cleaned the remaining vial, following DFS procedures. Chen did
not document any damage, leaking, cracks, or issue with the seal for the unbroken vial. A forensic
scientist then analyzed the unbroken vial, and Dalgleish certified the results. Analysis of Payne’s
blood taken after the collision showed a blood alcohol content (“BAC”) of .25. Using retrograde
extrapolation, Dalgleish estimated that someone with Payne’s tested BAC result would have had a
.27 to .31 BAC at the time of the collision.
After discovering that Payne had sought hospital treatment the night before the collision,
Kulbeth obtained a search warrant for those records and the six tubes of Payne’s blood drawn
during that care. The tubes were sealed and in a plastic bag, and hospital records indicate the blood
samples were taken at 9:22 p.m.5 Kulbeth placed the tubes and a request for analysis into a bag; he
sealed that bag and wrote his initials on that seal. Kulbeth then placed it into a secure refrigerator
locker. “K. Stevenson” later hand-delivered the package to DFS employee Cody Glick on
November 12, 2022. A forensic scientist analyzed one of the vials. Dalgleish reviewed and
certified this analysis, which showed a BAC of .32. Dalgleish also reviewed Payne’s hospital
treatment records, including their own testing result of 371 mg/DL of ethanol in Payne’s blood.6
Dalgleish testified that a person with that level of blood alcohol would have symptoms
impacting their fine and gross motor skills, ranging from issues with balance and coordination to
loss of consciousness. Symptoms could also include seeing “double,” significantly impaired
peripheral vision, and slowed reaction times. Dalgleish testified that although tolerance lessens the
“outward physical appearance” of intoxication, it does not lessen the “slowing down” of the brain’s
internal processes.
5 This was approximately 17 hours before the collision. 6 Dalgleish opined that this result equaled a .30 to .33 BAC, consistent with his analysis. -4- Tarek Omar testified as a defense expert in mechanical and structural engineering. Using
the police crash report that contained Payne’s self-reported speed, photos of Payne’s truck, and the
autopsy, he ran analyses on a computer simulation to determine Mohamed’s speed at the time of the
accident. He opined that Mohamed ran into the side of Payne’s vehicle at “almost” nine miles per
hour. He admitted that, in reaching his results, he initially ran the analysis with the assumption that
Mohamed was running at three miles per hour, but those results showed far less damage to the truck
than what occurred. To achieve simulated damage consistent with that actually received by the
truck, Omar altered the simulation of Mohamed’s speed, but did not change the speed of Payne’s
truck. Although he based his conclusions on the placement of truck damage, he also admitted to not
knowing what damage may have existed before Payne struck Mohamed.
The jury found Payne guilty of aggravated involuntary manslaughter while driving under the
influence. Payne then also pleaded guilty to felony driving under the influence, third offense
within ten years.7 Before sentencing, Payne argued that he was a “good candidate for
rehabilitation” and that he took responsibility for his actions. The Commonwealth argued that
Payne had a consistent history of driving under the influence and that his actions showed a callous
disregard for others’ safety, resulting in Mohamed’s death. In sentencing Payne, the trial court
noted that Payne was already on bond for a similar offense when he struck and killed Mohamed,
and expressed its concern for public safety. The trial court sentenced Payne to 5 years’
incarceration for felony driving under the influence and 20 years’ incarceration with 10 years
suspended for aggravated involuntary manslaughter. This appeal followed.
7 Though Payne was indicted with both charges after the collision, the charges were severed pretrial. -5- ANALYSIS
I. Chain of Custody
At trial, Payne objected to the Commonwealth introducing into evidence the certificates of
analysis for the post-collision blood draw as well as the blood from Payne’s hospital treatment. He
argued that there were gaps in the chain of custody and that the Commonwealth failed to present
sufficient foundation for either certificate. He asserts on appeal that the trial court erred in
overruling his objections and allowing those certificates into evidence.
“The determination on a chain of custody challenge lies within the trial court’s broad
discretion and will not be overturned on appeal absent an abuse of that discretion.” Pope v.
Commonwealth, 60 Va. App. 486, 511 (2012) (citing Crews v. Commonwealth, 18 Va. App. 115,
118 (1994)). Under this standard, “only in those cases where ‘reasonable jurists could not differ’
has an abuse of discretion occurred.” Campos v. Commonwealth, 67 Va. App. 690, 702 (2017)
(quoting Thomas v. Commonwealth, 44 Va. App. 741, 753, adopted upon reh’g en banc, 45
Va. App. 811 (2005)).
When the Commonwealth seeks to introduce evidence that has been seized and analyzed,
the chain-of-custody rule exists “to establish that the evidence obtained by the police was the
same evidence tested.” Hargrove v. Commonwealth, 53 Va. App. 545, 553 (2009) (quoting
Brown v. Commonwealth, 21 Va. App. 552, 555 (1996)). The Commonwealth must present
evidence proving each “vital link in the chain of custody,” but it does not bear an absolute
burden of demonstrating that “all possibility of tampering” has been eliminated. Pope, 60
Va. App. at 511 (quoting Robinson v. Commonwealth, 212 Va. 136, 138 (1971)). As such, “[a]
court need not hear . . . from every witness who physically handled the samples for the
[evidence] to be admissible.” Anderson v. Commonwealth, 48 Va. App. 704, 717 (2006). The
Commonwealth “need only provide ‘reasonable assurance’ that the evidence obtained by the
-6- police was the same evidence tested.” Id. (quoting Vinson v. Commonwealth, 258 Va. 459, 469
(1999)). Thus, “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 of the evidence.” Jeter v. Commonwealth, 44 Va. App. 733, 739 (2005)
(quoting Reedy v. Commonwealth, 9 Va. App. 386, 391 (1990)).
A. The Post-Collision Blood Draw
On appeal, Payne argues that the “record is silent” as to who handled the package after Jett
mailed it. Although he concedes that such documentation is not normally necessary,8 he argues that
the Commonwealth needed to present such evidence in this case due to the presence of a broken
vial. We disagree.
Dalgleish testified that DFS has protocols for receiving evidence, cleaning vials, and
documenting issues. He further confirmed that those procedures were followed. Although one of
the vials was broken, that broken vial was not tested. Moreover, there was no evidence that the
tested vial was damaged, broken, or unsealed.
When a certificate of analysis notes that the container was not sealed on arrival, the
evidence fails to establish “that the vial in the unsealed container was the same vial which was
originally placed there by the person taking the blood sample,” and the resulting certificate of
analysis is not admissible. See Williams v. Commonwealth, 10 Va. App. 636, 639 (1990). But here,
the container itself was sealed, and the unsealed vial was not tested. Instead, DFS discarded the
unsealed vial and only tested the sealed, intact vial. Payne can point to no evidence in the record
that the tested vial was unsealed or damaged. Therefore, the trial court did not abuse its discretion
in admitting the certificate and allowing the jury to assign weight to the issue of the broken vial.
8 See Robertson v. Commonwealth, 12 Va. App. 854, 857 (1991) (holding that without evidence of mishandling, the Commonwealth does not need to present testimony from mail carriers to satisfy chain of custody for sealed evidence). -7- B. The Hospital Blood Vials
Payne argues that, because there was a 19-day gap between Kulbeth placing the sealed
hospital blood vials in the refrigerated evidence locker and its hand-delivery to DFS, the evidence
failed to establish a sufficient chain of custody. We disagree. Kulbeth took possession of the vials
from the hospital, packaged and sealed them with his initials, and then submitted them into the
evidence locker. He filled out a request for analysis that specifically noted that the vials were
sealed. Those items were then received by DFS 19 days later. Dalgleish testified that DFS
procedures require receiving employees to note any issues with received evidence, including broken
or unsealed vials. Dalgleish reviews that documentation when he certifies test results. He certified
the testing of the hospital vials. There is no evidence in the record that there were any issues with
the seals or that the evidence became unsecured between Kulbeth’s possession and DFS analysis.
Even though it was 19 days later, there is “‘reasonable assurance’ that the evidence obtained by
the police was the same evidence tested.” Anderson, 48 Va. App. at 717 (quoting Vinson, 258
Va. at 469). Therefore, the trial court did not err in admitting the evidence and allowing the jury
to account for the gap in time and determine the weight of that evidence.9
II. Sufficiency of the Evidence
After the Commonwealth rested, Payne made a motion to strike arguing that the evidence
failed to establish that his driving was gross, wanton, and showed reckless disregard for human life
as required for aggravated involuntary manslaughter. The trial court denied his motion. Payne
renewed his motion to strike after he presented his expert witness and argued the evidence failed to
9 We also note that any error in admitting this certificate is harmless. Dalgleish reviewed the medical records from that same hospital visit and determined that the hospital’s own testing showed a BAC of .30 to .33. Even had this certificate been excluded, the jury still would have had Payne’s BAC results. -8- prove that Payne caused Mohamed’s death because Mohamed ran into Payne’s truck; he also
reargued the aggravation issue. The trial court again denied his motion.
“When reviewing the sufficiency of the evidence, ‘[t]he judgment of the trial court is
presumed correct and will not be disturbed unless it is plainly wrong or without evidence to
support it.’” McGowan v. Commonwealth, 72 Va. App. 513, 521 (2020) (alteration in original)
(quoting Smith v. Commonwealth, 296 Va. 450, 460 (2018)). “In such cases, ‘[t]he Court does
not ask itself whether it believes that the evidence at the trial established guilt beyond a
reasonable doubt.’” Id. (alteration in original) (quoting Secret v. Commonwealth, 296 Va. 204,
228 (2018)). “Rather, the relevant question is whether ‘any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.’” Vasquez v.
Commonwealth, 291 Va. 232, 248 (2016) (quoting Williams v. Commonwealth, 278 Va. 190, 193
(2009)). “If there is evidentiary support for the conviction, ‘the reviewing court is not permitted
to substitute its own judgment, even if its opinion might differ from the conclusions reached by
the finder of fact at the trial.’” McGowan, 72 Va. App. at 521 (quoting Chavez v.
Commonwealth, 69 Va. App. 149, 161 (2018)).
A. Causation
“Any person who, as a result of driving under the influence[,] . . . causes the death of
another person, shall be guilty of involuntary manslaughter.” Code § 18.2-36.1 (emphasis
added). “In a prosecution brought under Code § 18.2-36.1, the Commonwealth is required to
prove ‘a causal connection between the driver’s intoxication and the death of another person.’”
Hall v. Commonwealth, 32 Va. App. 616, 632 (2000) (en banc) (quoting Pollard v.
Commonwealth, 20 Va. App. 94, 99 (1995)). “A proximate cause is ‘an act or omission that, in
natural and continuous sequence unbroken by a superseding cause, produces a particular event
and without which that event would not have occurred.’” Rich v. Commonwealth, 292 Va. 791,
-9- 800 (2016) (quoting Brown v. Commonwealth, 278 Va. 523, 529 (2009)). “Because an event can
have more than one proximate cause, criminal liability can attach to each actor whose conduct is
a proximate cause unless the causal chain is broken by a superseding act that becomes the sole
cause of the [event].” Id. (alteration in original) (quoting Brown, 278 Va. at 529). “Generally,
causation is an issue for the jury to decide.” Hall, 32 Va. App. at 632.
Payne argues that Mohamed ran into the crosswalk and Payne’s truck and that these are
superseding acts breaking the causal chain. We disagree. Payne alleges in his brief that “[t]he
only evidence in the record regarding Mr. Payne’s driving up until the collision suggests he was
traveling at an appropriate speed.” Instead, the record shows that Mohamud testified that Payne
drove “very fast” and at a speed that made it impossible to move out of his way as Payne drove
into the crosswalk and struck Mohamed. Although not an exact estimate of speed, the jury was
also entitled to review the damage to Payne’s truck and Mohamed’s injuries to conclude that
Payne drove faster than 35 miles per hour.
Payne relies on his own statement to police to support the conclusion that his speed was
35 miles per hour. But Payne was heavily intoxicated while driving and speaking to police, and
the jury was entitled to weigh those statements accordingly.10 Even if the jury had been required
to take Payne’s self-reported speed as fact, he also stated that Mohamed walked into the
intersection.
Nor does the damage to Payne’s truck prove his theory of the collision. Payne points to
the damage on the side—rather than the front—of Payne’s truck as evidence that Payne “simply
had no time to stop before the collision.” Although there are dents on the side of his truck above
the wheel well, the front-left corner of Payne’s truck was also damaged. The jury could infer
10 Given that Payne’s expert also presumed a 35 mile-per-hour speed in his analysis, the jury was similarly entitled to disregard his testimony. - 10 - that Payne struck Mohamed with the front-left corner of his truck, and the dents to the wheel
well occurred as secondary points of impact either before or after Mohamed struck the
windshield. The record further lacks any evidence as to the state of Payne’s truck before the
collision; the wheel well damage may not have resulted from striking Mohamed at all.
Even had the evidence proved that Mohamed had taken some negligent action before he
was hit, “[c]ontributory negligence has no place in a case of involuntary manslaughter.” Id. at
632 (quoting Bell v. Commonwealth, 170 Va. 597, 616 (1938)). “Only if the conduct of the
decedent amounts to an independent, intervening act alone causing the fatal injury can the
accused be exonerated from liability for his or her criminal negligence.” Id. at 633 (emphasis
added) (quoting Hubbard v. Commonwealth, 243 Va. 1, 14 (1992)).
The jury was entitled to conclude from the evidence that Payne’s heavy intoxication
resulted in delayed comprehension, reaction time, and limited vision and that his negligence was
a proximate cause of Mohamed’s death. We therefore find no error in the trial court’s decision
to deny the motion to strike and permit the jury to weigh the evidence and determine causation.
B. Aggravated Involuntary Manslaughter
“If, in addition, the conduct of the defendant was so gross, wanton and culpable as to
show a reckless disregard for human life, he shall be guilty of aggravated involuntary
manslaughter . . . .” Code § 18.2-36.1(B). Heavy intoxication will be sufficient to support such
a finding. See Stevens v. Commonwealth, 272 Va. 481, 488 (2006) (finding a .24 or .25 BAC
sufficient for aggravated involuntary manslaughter). Payne argues that his BAC alone was not
sufficient because there was no evidence that he was driving poorly. But under Virginia
Supreme Court precedent, his BAC “approximately three times the legal limit . . . alone justifies
a finding that [his] conduct was gross, wanton, and culpable.” Id. Thus, we find no error in the
trial court’s decision to deny the motion to strike.
- 11 - III. Sentencing
Finally, Payne asserts on appeal that the trial court abused its discretion in sentencing him
to a total of 15 years of active incarceration for aggravated involuntary manslaughter and felony
driving under the influence. He argues that the trial court did not properly consider his
mitigation evidence, “failed to acknowledge [Payne’s] strong family support,” and noted that it
“made no mention of [his] potential for rehabilitation.” We disagree.
We review a sentencing decision under an abuse-of-discretion standard. Cellucci v.
Commonwealth, 77 Va. App. 36, 45 (2023) (en banc). “A trial court abuses its discretion by
failing to consider a significant relevant factor, giving significant weight to an irrelevant or
improper factor, committing a clear error of judgment, or making a mistake of law.” Id. at 46
(citing Minh Duy Du v. Commonwealth, 292 Va. 555, 564-65 (2016)). “[B]arring clear evidence
to the contrary,” however, we “will not presume that a trial court purposefully ignored mitigating
factors in blind pursuit of a harsh sentence.” Guest v. Commonwealth, 78 Va. App. 187, 197
(2023) (quoting Bassett v. Commonwealth, 13 Va. App. 580, 584 (1992)); see also Cellucci, 77
Va. App. at 52 (“[T]he trial court was not obligated to find that the evidence highlighted by the
appellant actually mitigated his crime.”). And when a sentence “is within the statutory limits
fixed by the legislature, the assumption is that the sentence will not be disturbed on appeal.”
Cellucci, 77 Va. App. at 48 (citing Bassett, 13 Va. App. at 582).
At the time that Payne drove drunk and killed Mohamed, he was already on bond for
driving under the influence. He had three prior convictions for driving under the influence in his
record, the earliest being a 2007 conviction for driving under the influence, second offense
within ten years.
Before sentencing Payne, the trial court asked for a moment of quiet “to contemplate” the
evidence it heard. It noted that “the loss of Mohamed Hussein” “was not deserved,” “was not
- 12 - fair,” “was not just,” and “was entirely preventable.” The trial court shared its belief that
“[j]ustice unlike life must be fair” and that its decision “must be measured.” The trial court then
explicitly listed factors it considered in pursuit of a fair and measured decision: “the protection of
society against crime,” “deterrence of the offender from repeat offenses,” “deterrence from
others committing the offense,” “the rehabilitation of the offender,”11 “the punishment or
retribution for the offense,” “upholding respect for the law,” and “removing the offender from
society” when it is “necessary to protect the public from further criminal activity by the
defendant,” when “the defendant is in need of correctional treatment which can most effectively
or only be provided in confinement,” or when “less restrict[ive] measures have failed to correct
the offender or any other sentence would be disproportionate to the seriousness of the offense.”
Although the trial court acknowledged Payne’s struggle with alcoholism, the court
concluded “that we are here today because of acts that [Payne] chose to commit. Of decisions
that [Payne] made.” The record does not support a finding that “the trial court committed a clear
error in judgment when weighing the sentencing factors.” Payne’s sentence was within the
statutory ranges permitted by the legislature. Code §§ 18.2-10, -36.1, -270. Accordingly, we
find that the trial court did not err when considering the evidence and sentencing Payne to 15
years of active incarceration, given his apparent danger to the community and likelihood of
reoffending.
CONCLUSION
For the foregoing reasons, we affirm the trial court’s judgment.
Affirmed.
11 Payne argues in brief that the circuit court erred by failing to consider his mitigating evidence; namely, the likelihood of his rehabilitation predicated on family support. But the circuit court explicitly listed Payne’s capacity for rehabilitation as one relevant factor in its analysis, and Payne presents no further argument explaining how the trial court erred in its consideration of that issue. - 13 -