Opinion
Record No. 1952-92-1
Decided: July 19, 1994
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH, L. Cleaves Manning, Judge
Affirmed.
Dianne G. Ringer, Assistant Public Defender, for appellant.
Janet F. Rosser, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Present: Chief Judge Moon, Judges Coleman and Fitzpatrick
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Jesse L. Brown (appellant) was convicted in a bench trial of the sale of heroin and cocaine in violation of Code Sec. 18.2-248. He contends that the trial court erred in: (1) admitting the drugs into evidence, and (2) denying his motion to strike the Commonwealth's evidence. Finding no error, we affirm the convictions.
BACKGROUND
On March 16, 1992, Special Agent Jeff Brackett (Brackett) was involved in an undercover narcotics operation in Portsmouth. Appellant approached Brackett's car and asked what he wanted. Brackett asked for a "boy" (heroin) and a "girl" (cocaine), gave appellant $40, and then circled the block at appellant's direction. Approximately five minutes later, Brackett returned to appellant's location, and appellant gave him the requested drugs. Brackett then left the scene of the transaction and turned over the two items to Detective G.E. Conners (Conners) of the Portsmouth Police Department, the "evidence person" for the operation.
At trial, Brackett described the package of drugs that he received from appellant as "two white pieces of paper." After each transaction Brackett turned over the drugs to Conners. Brackett had no other narcotics on his person prior to receiving the two items from appellant but could not recall other drug "buys" that he had made that day.
At trial, Conners testified that he placed both items in a baggie and marked the baggie for identification. He described these items as a "green baggie containing white powder" and a "white paper deck with red stars containing white powder." Conners locked the items in his evidence box and later placed the sealed baggie in his drug locker. He had the only key to this locker. Thereafter, he personally transported the evidence to the Division of Forensic Science Laboratory.
Paper decks are "little white pieces of paper, wrapped up, like BC Powders. [Drug sellers] wrap it up or tape it up and the suspected cocaine or heroin is inside the white pieces of paper."
Appellant objected to the admission of the drug evidence based on the discrepancy between Brackett's description of the evidence and the actual appearance of the evidence submitted by the Commonwealth. Brackett was then asked if he recognized the submitted evidence, and he replied:
"Yes, sir. I remember the stars on there. The green baggie I suspect was the cocaine. I just probably got confused, but this is — I remember the white baggie with the stars on it."
The trial court admitted the evidence as Commonwealth's Exhibit 1.
ADMISSION OF EVIDENCE
Appellant argues that the discrepancy in Brackett's description of the items he received from appellant and the appearance of the drugs submitted by the Commonwealth rendered the drugs inadmissible. "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." Blain v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988) (citing Coe v. Commonwealth, 231 Va. 83, 87, 340 S.E.2d 820, 823 (1986)). "On appeal, the judgment of the trial court is presumed correct," and the burden is on appellant to show that the trial court's admission of evidence constitutes reversible error. Johnson v. Commonwealth, 12 Va. App. 391, 396, 404 S.E.2d 384, 387 (1991) (citations omitted).
In laying a proper foundation for its evidence, the Commonwealth had the burden "to show with reasonable certainty that there has been no alteration or substitution of [the drugs received from appellant]." Horsley v. Commonwealth, 2 Va. App. 335, 338, 343 S.E.2d 389, 390 (1986) (citing Robinson v. Commonwealth, 212 Va. 136, 138, 183 S.E.2d 179, 180 (1971)). The Commonwealth, however, "is not required to exclude every conceivable possibility of substitution, alteration, or tampering." Pope v. Commonwealth, 234 Va. 114, 121, 360 S.E.2d 352, 357 (1987), cert. denied, 485 U.S. 1015 (1988).
Applying these standards to the case at bar, we conclude that the Commonwealth proved with reasonable certainty that the drugs submitted as Commonwealth's Exhibit 1 were the same items that Brackett bought from appellant. The evidence proved that Brackett had no other drugs on his person when he received the drugs from appellant. Within five minutes of receiving appellant's drugs, Brackett gave the drugs to Conners. Conners placed the packages of drugs in a baggie and labeled it for identification. Conners then placed the evidence in his evidence box, transferred the evidence to his drug locker, and personally transported the drugs to the Division of Forensic Science Laboratory. The Commonwealth sufficiently established all links in the chain of custody of Commonwealth's Exhibit 1. See Reedy v. Commonwealth, 9 Va. App. 386, 388, 388 S.E.2d 650, 651 (1990).
Brackett's description of the drug packages as "two white pieces of paper" adequately describes the heroin package. Brackett admitted that he may have been confused about the cocaine package, but he affirmatively recognized Commonwealth's Exhibit 1 as the items he had received from appellant. The trial judge, as finder of fact, was responsible for determining the credibility of Brackett's testimony. Schneider v. Commonwealth, 230 Va. 379, 382, 337 S.E.2d 735, 736-37 (1985). Accordingly, we cannot say that the trial court abused its discretion in admitting the drugs into evidence.
SUFFICIENCY OF EVIDENCE
Appellant also argues that the trial court improperly denied his motion to strike the Commonwealth's evidence. On appeal, this Court must "view the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom." Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). "[T]he finding of the judge, upon the credibility of the witnesses and the weight to be given their evidence, stands on the same footing as the verdict of a jury, and unless that finding is plainly wrong, or without evidence to support it, it cannot be disturbed." Yates v. Commonwealth, 4 Va. App. 140, 143, 355 S.E.2d 14, 16 (1987) (quoting Lane v. Commonwealth, 184 Va. 603, 611, 35 S.E.2d 749, 752 (1945)).
Sufficient evidence supports appellant's convictions. The evidence proved that appellant was engaged in a direct drug sale to an undercover police officer. The trial court was entitled to believe Brackett's and Conners's testimony as to the chain of custody. Further, the trial court could properly accept Brackett's explanation that he was confused in his description of the packages, and believe Brackett's affirmative recognition at trial of Commonwealth's Exhibit 1. Accordingly, the trial court's refusal to strike the Commonwealth's evidence was not plainly wrong or without evidence to support it.
For the reasons set forth above, we affirm the judgment of the trial court.
Affirmed.