Jesus Manuel Lopez-Ramirez v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: August 1, 2023
• Docket: 0839222
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Raphael, White and Senior Judge Petty UNPUBLISHED

Argued at Richmond, Virginia

JESUS MANUEL LOPEZ-RAMIREZ MEMORANDUM OPINION* BY v. Record No. 0839-22-2 JUDGE WILLIAM G. PETTY AUGUST 1, 2023 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY David E. Johnson, Judge

(Cecilie B. Hamilton, on brief), for appellant. Appellant submitting on brief.

J. Brady Hess, Assistant Attorney General (Jason S. Miyares, Attorney General; Maureen E. Mshar, Assistant Attorney General, on brief), for appellee.

Jesus Lopez-Ramirez was convicted in the Chesterfield County Circuit Court on one count

of possession with intent to distribute a Schedule I or II narcotic, in violation of Code § 18.2-248,

possession of a firearm while in possession with intent to distribute a Schedule I or II narcotic, in

violation of Code § 18.2-308.4, and possession of a concealed weapon, in violation of Code

§ 18.2-308. Lopez-Ramirez asserts on appeal (1) that the trial court erred in admitting the certificate

of analysis over his objection to the Commonwealth’s failure to establish a chain of custody on the

contraband, (2) that the trial court erred in finding the evidence sufficient to support the convictions

for violating Code §§ 18.2-248 and 18.2-308.4, and (3) that the trial court erred in refusing to apply

the statutory exception to Code § 18.2-308. For the following reasons, we affirm the trial court.

* This opinion is not designated for publication. See Code § 17.1-413(A). BACKGROUND

“In accordance with familiar principles of appellate review, the facts will be stated in the

light most favorable to the Commonwealth, the prevailing party at trial.” Gerald v. Commonwealth,

295 Va. 469, 472 (2018) (quoting Scott v. Commonwealth, 292 Va. 380, 381 (2016)). Therefore,

we will “discard the evidence of the accused in conflict with that of the Commonwealth, and regard

as true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn

therefrom.” Kelley v. Commonwealth, 289 Va. 463, 467-68 (2015) (quoting Parks v.

Commonwealth, 221 Va. 492, 498 (1980)).

Chesterfield County Police Lieutenant James Lamb was on patrol at around 2:00 a.m. on

January 2, 2021, when he noticed the driver of a black Camaro, later identified as Lopez-Ramirez,

make a u-turn and drive on the shoulder of the roadway. The Camaro stopped on the shoulder and

then began traveling north. Lieutenant Lamb followed the Camaro and observed Lopez-Ramirez

cross the double yellow line and “immediately correct.” Lopez-Ramirez made a right-hand turn,

again crossed the double yellow line, and turned “right on red without slowing down or stopping.”

Lieutenant Lamb activated his lights and siren to execute a traffic stop. Lopez-Ramirez initially

slowed the vehicle, but then sped up and continued driving for one-and-a-half miles before

Lieutenant Lamb drove up to the side of Lopez-Ramirez’s vehicle, causing Lopez-Ramirez to bring

the Camaro to a stop.

Lieutenant Lamb approached Lopez-Ramirez on the driver’s side and noticed odors of

alcohol and marijuana emanating from the vehicle. A male passenger was in the front seat, and two

female passengers were in the back. Lieutenant Lamb asked Lopez-Ramirez for his identification

and inquired about the odors. Lopez-Ramirez handed Lieutenant Lamb a Mexican passport and

said that he had not consumed any alcohol. When Lieutenant Lamb instructed Lopez-Ramirez to

step out of the vehicle, the male passenger exited the car and ran away. Lieutenant Lamb conducted

-2- a pat down of Lopez-Ramirez and felt “a hard cylindrical object with a post sticking up a bit from

the pocket.” Lieutenant Lamb asked Lopez-Ramirez if the item would stick or poke him, and

Lopez-Ramirez responded that he did not know. Lieutenant Lamb removed the item from

Lopez-Ramirez’s pocket and discovered that it was a cylinder to a revolver, loaded with two rounds

of ammunition, and wrapped up in a plastic bag. Lieutenant Lamb asked where the rest of the gun

was, and Lopez-Ramirez responded that it was under the driver’s seat of the car.

Lieutenant Lamb recovered the rest of the firearm from underneath the seat and then

searched the vehicle. In plain view directly behind the driver’s seat, Lieutenant Lamb observed a

glass jar containing a white powdery substance with an orange spoon in it. Lieutenant Lamb also

found a digital scale with white powder residue in the driver’s side door pocket. Directly in front of

the shifter in plain view were one hundred “small baggies packaged in different packages, green,

and one had an eight ball in it.” Lieutenant Lamb was able to assemble the firearm within ten

seconds. “It literally snapped together.” Lieutenant Lamb also recovered a second firearm from the

passenger seat of the car and a quantity of marijuana on the passenger side floor. Although a

number of cell phones were recovered from the car, none of them were linked to Lopez-Ramirez,

and Lieutenant Lamb did not recover any quantities of cash “or anything like that” from

Lopez-Ramirez. Lopez-Ramirez was the registered owner of the vehicle.

Property and Evidence Unit Logistics Technician Amy Zahradka retrieved the evidence

from a secured locker, which could not be accessed by police officers after submitting their

evidence. Zahradka transported the evidence to the Department of Forensic Science for analysis.

The state lab prepared a certificate of analysis listing the evidence submitted as “one digital scale

with residue” and “one glass jar containing one ziplock bag containing compressed white powder

and one orange plastic spoon.” The certificate of analysis indicated that the digital scale contained

-3- cocaine residue and the glass jar held “15.46 grams of powder . . . found to contain cocaine.” The

spoon was not analyzed.

At trial, Lopez-Ramirez objected to the admission of the certificate of analysis and argued

that the chain of custody was not established. Thus, the trial court allowed the Commonwealth to

recall Lamb and inquire further as to the chain of custody on the property retrieved from the car.

Lamb explained that he collected the narcotics, the digital scale, and the firearms at the scene and

gave them to Officer Eppes. A property storage report admitted into evidence indicated that Officer

Eppes relinquished the property to the Chesterfield Police Property Division on the same day,

January 2, 2021. The property storage report listed two handguns, a digital scale, three bags of

packaging materials and batteries, a jar of powdery white substance, a bag of marijuana, and two

types of cartridges. Lopez-Ramirez again argued that the chain of custody was not established and

objected to the admission of the certificate of analysis. The trial court overruled the objection and

admitted the certificate.

Detective Nathan Necolettos testified as an expert in the use and distribution of narcotics.

Detective Necolettos opined that the amount of cocaine recovered from Lopez-Ramirez’s vehicle,

when coupled with the digital scale, the numerous baggies, and the firearms was inconsistent with

personal use.

After the Commonwealth rested its case, Lopez-Ramirez made a motion to strike.

Lopez-Ramirez argued that the evidence failed to prove he was aware of the nature and character of

the drugs or that he exercised dominion and control over them. He also argued that the evidence

failed to prove he possessed the scale or the baggies, and he asserted that the container exception to

the concealed weapon statute applied, since the cylinder was “enclosed and inside a bag and then

inside of his pocket.” The trial court denied the motion to strike as to the concealed weapon charge

and took the felonies under advisement.

-4- Lopez-Ramirez elected not to present evidence and, instead, renewed his motion to strike,

again asserting that the evidence failed to prove he possessed the contraband and arguing that the

container exception to the concealed weapon statute applied. After closing arguments, the trial

court denied the motion to strike and convicted Lopez-Ramirez of all three offenses.

Lopez-Ramirez noted this appeal.

ANALYSIS

I. Chain of Custody

Lopez-Ramirez first assigns error to the trial court’s admission of the certificate of analysis

over his objection that the Commonwealth failed to establish the necessary links in the chain of

custody. We disagree.

“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). “A court has abused its discretion if its decision was

affected by an error of law or was one with which no reasonable jurist could agree.” Belcher v.

Commonwealth, 75 Va. App. 505, 523 (2022) (quoting Tomlin v. Commonwealth, 74 Va. App. 392,

409 (2022)). “The burden is on appellant to show that the trial court’s admission of evidence

constitutes reversible error.” Pope, 60 Va. App. at 517 (quoting Dunn v. Commonwealth, 20

Va. App. 217, 220 (1995)).

“The purpose of the chain of custody rule is to establish that the evidence obtained by the

police was the same evidence tested.” Jeter v. Commonwealth, 44 Va. App. 733, 737 (2005)

(quoting Robertson v. Commonwealth, 12 Va. App. 854, 857 (1991)). “[W]here the substance

analyzed has passed through several hands the evidence must not leave it to conjecture as to who

had it and what was done with it between the taking and the analysis.” Robertson, 12 Va. App. at

857 (alteration in original) (quoting Horsley v. Commonwealth, 2 Va. App. 335, 338 (1986)). Thus,

-5- “to satisfy the chain of custody requirement, the proponent of the evidence must show ‘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.’” Jeter, 44 Va. App. at 737

(alteration in original) (quoting Crews v. Commonwealth, 18 Va. App. 115, 119 (1994)). The

Commonwealth “is not required to exclude every conceivable possibility of substitution, alteration

or tampering.” Alvarez v. Commonwealth, 24 Va. App. 768, 776 (1997) (quoting Robertson, 12

Va. App. at 857). However, it must be able to “account for every ‘vital link in the chain of

possession.’” Id. at 777 (emphasis added) (quoting Robinson v. Commonwealth, 212 Va. 136, 138

(1971)). Finally, we continue to recognize that “[t]here is a presumption of regularity in the

handling of exhibits by public officials.” Smith v. Commonwealth, 219 Va. 554, 559 (1978).

In this case, the Commonwealth’s evidence provided reasonable assurances that the items

collected from Lopez-Ramirez’s vehicle were the same items sent to the Department of Forensic

Science for testing. The evidence proved that on January 2, 2021, Lieutenant Lamb collected the

evidence from Lopez-Ramirez’s vehicle and handed it to Officer Eppes. Although Lieutenant

Lamb did not observe Eppes package the evidence, the property storage report demonstrates that

Eppes was the one who relinquished the items to the Chesterfield Police Property Division on the

same day. The evidence was secured in a police locker and could only be accessed thereafter by

officers assigned to the property division. On January 7, 2021, Zahradka retrieved those items from

the secured police evidence locker and transported them to the Department of Forensic Science for

analysis. When she reviewed the certificate of analysis during trial, Zahradka confirmed that the

items listed on the certificate were the same items she delivered to the lab for testing. The

certificate of analysis described the items as a “digital scale with residue,” and a “glass jar

containing one ziplock bag containing compressed white powder and one orange plastic spoon.”

The lab’s description of the evidence is consistent with Lieutenant Lamb’s description of the

-6- evidence seized from Lopez-Ramirez’s vehicle, including his report of a “jar of white powdery

substance with an orange spoon in it,” and shows that the evidence collected at the scene was the

same evidence that was submitted to the lab.

Lopez-Ramirez nevertheless argues that the evidence failed to prove the chain because no

testimony established “how the evidence was initially packaged, who actually packaged the

evidence, or who transported the property to evidence.” However, it is well settled that “[a] court

need not hear . . . from every witness who physically handled the samples for the certificate to be

admissible.” Anderson v. Commonwealth, 48 Va. App. 704, 717 (2006), aff’d, 274 Va. 469 (2007).

The Commonwealth “need only provide ‘reasonable assurance’ that the evidence obtained by the

police was the same evidence tested.” Id. (quoting Vinson v. Commonwealth, 258 Va. 459, 469

(1999)). Although Officer Eppes did not testify, the circumstantial evidence provided reasonable

assurances that the items collected by Lieutenant Lamb were the same items transported to the

Department of Forensic Science for analysis. There was no evidence that the items were tampered

with before their analysis and no evidence to call into question the presumption that the evidence

was properly handled. “[W]here 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, 44 Va. App. at 739 (quoting Reedy v. Commonwealth, 9

Va. App. 386, 391 (1990)).

Accordingly, the Commonwealth established every vital link in the chain of possession,

thereby demonstrating with reasonable certainty that the evidence was not altered, substituted, or

contaminated. The trial court did not abuse its discretion in admitting the certificate of analysis.

-7- II. Sufficiency of the Evidence

Lopez-Ramirez challenges the sufficiency of the evidence supporting his conviction for

possession with intent to distribute cocaine and, by extension, his conviction for possessing a

firearm while possessing with intent to distribute cocaine.1 Again, we disagree.

“In reviewing a challenge to the sufficiency of the evidence to support a conviction, ‘the

relevant question is whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.’” Melick v. Commonwealth, 69 Va. App. 122, 144 (2018) (quoting Kelly v.

Commonwealth, 41 Va. App. 250, 257 (2003) (en banc)). “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.’” Chavez v.

Commonwealth, 69 Va. App. 149, 161 (2018) (quoting Banks v. Commonwealth, 67 Va. App. 273,

288 (2017)). “This familiar standard gives full play to the responsibility of the trier of fact to fairly

resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from

basic facts to ultimate facts.” Raspberry v. Commonwealth, 71 Va. App. 19, 29 (2019) (quoting

Burrous v. Commonwealth, 68 Va. App. 275, 279 (2017)). “[W]e will affirm the judgment of the

trial court unless that judgment is ‘plainly wrong or without evidence to support it.’” Id. (quoting

Kelly, 41 Va. App. at 257).

Generally, there are two types of evidence presented during a trial—direct evidence and circumstantial evidence. Direct evidence is offered to prove as a fact the point in issue. Circumstantial evidence, by contrast, is offered to prove a fact not directly in issue, from which a fact in issue may reasonably be inferred.

1 Lopez-Ramirez does not argue that the evidence was insufficient to prove he possessed the firearm; nor does he argue that the evidence failed to prove the intent to distribute. He argues only that the evidence failed to prove he knowingly possessed the narcotics and the paraphernalia found in his vehicle. -8- Commonwealth v. Hudson, 265 Va. 505, 512 (2003). “[I]n an appellate court’s assessment of a

sufficiency challenge, circumstantial evidence ‘is as competent . . . as direct evidence’ to prove the

elements of a crime, ‘provided it is sufficiently convincing to exclude every reasonable hypothesis

except that of guilt.’” Young v. Commonwealth, 70 Va. App. 646, 653 (2019) (second alteration in

original) (quoting Simon v. Commonwealth, 58 Va. App. 194, 206 (2011)). The Commonwealth,

however, “need only exclude reasonable hypotheses of innocence that flow from the evidence, not

those that spring from the imagination of the defendant.” Simon, 58 Va. App. at 206 (quoting

Hamilton v. Commonwealth, 16 Va. App. 751, 755 (1993)). “The reasonable-hypothesis principle

. . . is ‘simply another way of stating that the Commonwealth has the burden of proof beyond a

reasonable doubt.’” Commonwealth v. Moseley, 293 Va. 455, 464 (2017) (quoting Hudson, 265 Va.

at 513).

“In order to convict a person of illegal drug possession, the Commonwealth must prove

beyond a reasonable doubt that the accused was aware of the presence and character of the drug and

that the accused consciously possessed it.” Yerling v. Commonwealth, 71 Va. App. 527, 532

(2020). “[P]roof of actual possession is not required; proof of constructive possession will suffice.”

Id. (alteration in original) (quoting Walton v. Commonwealth, 255 Va. 422, 426 (1998)).

“Constructive possession may be established when there are ‘acts, statements, or conduct of the

accused or other facts or circumstances which tend to show that the [accused] was aware of both the

presence and character of the substance and that it was subject to his dominion and control.’” Id.

(quoting Drew v. Commonwealth, 230 Va. 471, 473 (1986)). “While no single piece of evidence

may be sufficient, the combined force of many concurrent and related circumstances . . . may lead a

reasonable mind irresistibly to a conclusion.” Pijor v. Commonwealth, 294 Va. 502, 512-13 (2017)

(alteration in original) (quoting Muhammad v. Commonwealth, 269 Va. 451, 479 (2005)).

-9- Here, the totality of the circumstances supported the trial court’s conclusion that

Lopez-Ramirez was aware of the nature and character of the cocaine and that it was subject to his

dominion and control. The evidence established that Lamb was on patrol at 2:00 a.m. when he

observed Lopez-Ramirez driving erratically, as if impaired. When Lamb initiated a traffic stop,

Lopez-Ramirez did not immediately stop and continued driving for one-and-a-half miles before

submitting to Lamb’s show of authority. “[E]vidence of flight may be considered as evidence of

guilt along with other pertinent facts and circumstances.” Hope v. Commonwealth, 10 Va. App.

381, 386 (1990) (en banc). During the traffic stop the front passenger suddenly exited the vehicle

and ran away, and upon further investigation Lieutenant Lamb discovered that the Camaro, which

was registered to Lopez-Ramirez, contained drugs and drug paraphernalia in plain view and within

Lopez-Ramirez’s reach. Indeed, to his immediate left in the pocket of the driver’s door, was a

digital scale with cocaine residue on it. To his right, “directly in front of the shifter,” were one

hundred small plastic baggies, and within his “wingspan” directly behind him and in plain view was

a jar of cocaine with an orange spoon inside of it.

Further, Lieutenant Lamb discovered a firearm in the passenger seat, a partial firearm

underneath the driver’s seat, and the cylinder to the partial firearm in Lopez-Ramirez’s pocket. It

took Lieutenant Lamb only ten seconds to snap the cylinder to the partial firearm to make it

operable. “Pagers and firearms are among the equipment that has been recognized as tools of the

drug trade, the possession of which are probative of intent to distribute.” Askew v. Commonwealth,

40 Va. App. 104, 108 (2003). Expert testimony at trial established that the digital scale and the

amount of cocaine recovered from Lopez-Ramirez’s vehicle were inconsistent with personal use

and that the presence of the baggies and the orange spoon inside the jar of cocaine indicated

“preparation for distribution.”

- 10 - The entirety of these facts, viewed in the light most favorable to the Commonwealth, would

lead any reasonable fact finder irresistibly to the conclusion that Lopez-Ramirez consciously

possessed the cocaine found in his vehicle with the intent to distribute it.

Lopez-Ramirez nevertheless argues that the evidence did not exclude every reasonable

hypothesis of innocence because it did not “exclude the rear passengers as potential possessors of

the drugs.” However, “possession need not always be exclusive. The defendant may share it with

one or more.” Smallwood v. Commonwealth, 278 Va. 625, 630 (2009) (quoting Ritter v.

Commonwealth, 210 Va. 732, 741 (1970)). Indeed, “[p]ossession need not be actual, exclusive, or

lengthy in order to support a conviction; instead, the statute criminalizes constructive or joint

possession of illegal drugs of any duration.” Wells v. Commonwealth, 32 Va. App. 775, 781 (2000).

Additionally, while neither occupancy of the vehicle nor mere proximity to the contraband give rise

to a presumption of constructive possession, both are factors that “may be considered in deciding

whether an accused possessed the drug[s].” Yerling, 71 Va. App. at 532. The fact finder

“determines which reasonable inferences should be drawn from the evidence, and whether to reject

as unreasonable the hypotheses of innocence advanced by a defendant.” Moseley, 293 Va. at 464.

“Consequently, whether the evidence excludes all reasonable hypotheses of innocence is a ‘question

of facts,’ and like any other factual finding, it is subject to revers[al] on appeal only if plainly

wrong.” Young, 70 Va. App. at 654 (alteration in original).

The trial court’s rejection of Lopez-Ramirez’s claim of innocence and the inferences it drew

from the proven facts are not plainly wrong or without evidentiary support. The evidence proved

that Lopez-Ramirez possessed the cocaine with intent to distribute and that he possessed the firearm

while in possession of the drug with intent to distribute. Thus, we will not disturb the trial court’s

ruling on appeal.

- 11 - III. Concealed Weapon

Lastly, Lopez-Ramirez asserts that the trial court erred in refusing to apply the “carve out

exception for concealed weapons secured within containers” referenced in Code § 18.2-308.

“Where the ‘appellant argues that the trial court, under the facts adduced at trial, misapplied

a statutory exception to the prohibition on carrying a concealed weapon[,] . . . the argument presents

a mixed question of law and fact, which we review de novo on appeal.’” Eley v. Commonwealth, 70

Va. App. 158, 162 (2019) (alterations in original) (quoting Hodges v. Commonwealth, 64 Va. App.

687, 693 (2015)).

“If any person carries about his person, hidden from common observation, . . . any pistol,

revolver, or other weapon designed or intended to propel a missile of any kind by action of an

explosion of any combustible material . . . he is guilty of a Class 1 misdemeanor.” Code

§ 18.2-308(A). However, an exception applies to “[a]ny person who may lawfully possess a firearm

and is carrying a handgun while in a personal, private motor vehicle or vessel and such handgun is

secured in a container or compartment in the vehicle or vessel.” Code § 18.2-308(C)(8).

In Myers v. Commonwealth, 299 Va. 671, 682 (2021), the Virginia Supreme Court found

that Myers was entitled to the statutory exception for carrying a concealed weapon under Code

§ 18.2-308(C)(8). In that case, Myers was in his vehicle with two other people when the police

conducted a search and discovered a backpack containing a handgun. Id. at 675. Myers admitted

that the handgun belonged to him. Id. The Supreme Court reasoned that because the handgun was

found inside a zipped backpack, it was “secured” inside a container within his personal private

vehicle, which met the requirements of Code § 18.2-308(C)(8). Id. at 682. The Supreme Court held

that “[t]he ordinary meaning of ‘secured’ (when it is not considered an exact synonym of ‘locked’)

includes a fully latched rigid container as well as a fully zipped soft container, such as one made of

cloth, canvas, or leather.” Id.

- 12 - Here, unlike the scenario in Myers, the cylinder of the handgun was located on

Lopez-Ramirez’s person inside a plastic bag. There was no evidence that the cylinder was

“secured” within the meaning adopted by the Supreme Court in Myers, because there was no

evidence that the cylinder was “latched or otherwise fastened” inside the plastic bag. Id. at 681.

The cylinder was merely “wrapped up in a plastic bag” and partially sticking out of

Lopez-Ramirez’s pocket. When Lamb asked if the item might poke or stick him, Lopez-Ramirez

responded that he did not know. Moreover, there was no evidence that the remaining part of the

gun, which was under the driver’s seat and within arm’s reach of Lopez-Ramirez, was secured in

any way contemplated by the statute. It follows that, because the handgun was not entirely secured

inside a container or compartment inside Lopez-Ramirez’s vehicle, the statutory exception does not

apply. Thus, the trial court did not err in finding Lopez-Ramirez guilty of carrying a concealed

weapon.

CONCLUSION

For the foregoing reasons, we find that the trial court did not abuse its discretion in

admitting the certificate of analysis into evidence, that it did not err in finding the evidence

sufficient to support the convictions, and that it did not err in refusing to apply the container

exception to Code § 18.2-308. We affirm the judgment of the trial court.

Affirmed.

- 13 -