From Casetext: Smarter Legal Research

Sullivan v. Commonwealth

Court of Appeals of Virginia. Argued at Norfolk, Virginia
Jun 14, 1994
Record No. 1785-92-1 (Va. Ct. App. Jun. 14, 1994)

Opinion

Record No. 1785-92-1

Decided: June 14, 1994

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON, Walter J. Ford, Judge

Affirmed.

J. Ashton Wray for appellant.

Eugene Murphy, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.

Present: Judges Baker, Benton and Bray


MEMORANDUM OPINION

Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.


In this appeal from his bench trial conviction for possession of cocaine, Victor J. Sullivan (appellant) contends that the Commonwealth failed to establish a proper chain of custody of a straw alleged to have cocaine residue on it, and that, even if the chain of custody was properly proved, the evidence was insufficient to support his conviction. We disagree and affirm the conviction.

Upon familiar principles, when the sufficiency of the evidence is challenged, we state the facts 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). Because the parties are fully knowledgeable of the facts, we state only those necessary to an understanding of this opinion.

On April 21, 1991, at approximately 2:15 a.m., appellant lost control of his vehicle and drove into a guard rail at a high rate of speed. A passerby arrived and told appellant to remain in his car as he had suffered a head injury and a contusion above the eye which was bleeding. Witnesses stated that appellant remained conscious but not very coherent.

Troopers Mark Wendell (Wendell) and D. B. Washington (Washington) arrived at the scene at approximately 3:15 a.m., smelled alcohol about appellant's person, and noticed that appellant staggered and appeared dazed when he exited his car. Wendell arrested appellant for driving under the influence of alcohol. Washington searched appellant and in appellant's front coat pocket found a two and one-half inch clear straw containing a white residue. Washington gave the straw to Wendell. Wendell placed the straw in a plastic bag, sealed it, and initialed the entire bag. A case number was placed on "a three-by-five card with item one" indicated on the bag. On April 25, 1991, Wendell turned the bag over to Sergeant P. M. Wren (Wren), the evidence custodian. Wendell testified that he observed Wren place this item into a locker. The bag was still sealed when Wendell gave the bag to Wren.

On July 29, 1991, Sergeant Ingleman, another officer assigned to the locker area, returned the bag containing the straw to Wendell. Wendell then transported the bag to the forensic laboratory in Norfolk. A lab analysis was performed and returned positive for cocaine residue. On August 30, 1992, Wendell obtained the evidence from the same technician. Wendell testified that the straw he turned in on July 29 was the same one he picked up on August 30. Washington also testified that it appeared to be the same straw he had removed from appellant's coat pocket.

I. CHAIN OF CUSTODY

The Commonwealth only had "to show with reasonable certainty that [the straw with cocaine residue] was neither altered nor substituted." Duncan v. Commonwealth, 2 Va. App. 717, 729, 347 S.E.2d 539, 546 (1986).

[T]he practicalities of proof do not require the Commonwealth to negate all or to exclude every possibility of substitution, alteration or tampering. It need only establish that it is reasonably certain that substitution, alteration or tampering did not occur.

Smith v. Commonwealth, 219 Va. 554, 559, 248 S.E.2d 805, 808 (1978). Here, the straw with cocaine residue produced at trial was established with a reasonable degree of certainty to be the same straw found in appellant's coat pocket.

Upon the return of the plastic bag from the evidence locker area, Wendell testified that it was sealed in the same way as when he had originally sealed it at the scene. This testimony precluded the need for every individual who had access to the locker to testify as to the absence of alteration or tampering. The evidence supports a finding that the straw with cocaine residue was in the same condition and was the same as the one taken from appellant's front coat pocket. "[T]he Commonwealth was required to establish with 'reasonable assurance' that the evidence analyzed and presented at trial was in the same condition as it was when obtained by police." 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)). Here, the Commonwealth has met the reasonable certainty requirement.

II. SUFFICIENCY

To prove possession of cocaine, the Commonwealth had to prove "that [appellant] was aware of both the presence and character of the substance and that it was subject to his dominion and control." Powers v. Commonwealth, 227 Va. 474, 476, 316 S.E.2d 739, 740 (1984). "Such 'possession may be proved by "evidence of acts, declarations or conduct of the accused from which an inference may be fairly drawn that he knew of the existence of narcotics at the place where they were found." ' " Josephs v. Commonwealth, 10 Va. App. 87, 99-100, 390 S.E.2d 491, 498 (1990) (en banc) (quoting Andrews v. Commonwealth, 216 Va. 179, 182, 217 S.E.2d 812, 814 (1975)). Appellant does not deny that the straw containing the cocaine residue was found in his coat pocket and concedes that he had dominion and control of the substance. His explanation of how the straw got into his pocket without his knowledge was that a person he could not name had access to it and must have placed it there. The trial court rejected that explanation. The evidence was thus sufficient to support an inference that appellant knowingly possessed the cocaine.

Determining the credibility of appellant's explanation lies within the fact finder's discretion. Barker v. Commonwealth, 230 Va. 370, 373, 337 S.E.2d 729, 732 (1985). We hold that the record sufficiently supports appellant's conviction.

For the reasons stated, the judgment of the trial court is affirmed.

Affirmed.


Summaries of

Sullivan v. Commonwealth

Court of Appeals of Virginia. Argued at Norfolk, Virginia
Jun 14, 1994
Record No. 1785-92-1 (Va. Ct. App. Jun. 14, 1994)
Case details for

Sullivan v. Commonwealth

Case Details

Full title:VICTOR J. SULLIVAN v. COMMONWEALTH OF VIRGINIA

Court:Court of Appeals of Virginia. Argued at Norfolk, Virginia

Date published: Jun 14, 1994

Citations

Record No. 1785-92-1 (Va. Ct. App. Jun. 14, 1994)