Hargrove v. Com.

• Citation: 53 Va. App. 545,673 S.E.2d 896
• Decision Date: 17 March 2009
• Docket Number: Record No. 2410-07-2.
• Parties: Jeremiah S. HARGROVE v. COMMONWEALTH of Virginia.
• Court: Court of Appeals of Virginia

673 S.E.2d 896

53 Va. App. 545

Jeremiah S. HARGROVE v. COMMONWEALTH of Virginia.

Record No. 2410-07-2.

Court of Appeals of Virginia, Richmond.

March 17, 2009.

Catherine S. Rusz, Assistant Public Defender (Office of the Public Defender, on brief), for appellant.

Leah A. Darron, Senior Assistant Attorney General (Robert F. McDonnell, on brief), for appellee.

Present: FELTON, C.J., and FRANK and McCLANAHAN, JJ.

FELTON, Chief Judge.

Following a bench trial, Jeremiah S. Hargrove ("appellant") was convicted of possession of more than five pounds of marijuana with intent to distribute, in violation of Code § 18.2-248.1(a)(3), and possession of a firearm while in possession of more than one pound of marijuana with intent to distribute, in violation of Code § 18.2-308.4(C). Appellant contends the trial court erred by admitting into evidence the container of marijuana and certificate of analysis related to that evidence, arguing that "the chain of custody for the container of suspected marijuana was incomplete." He also contends the trial court erred in finding the evidence sufficient to support his conviction for possession of over five pounds of marijuana with intent to distribute, "absent sufficient evidence of [his] knowledge of the amount of marijuana contained in the package," and in finding the evidence sufficient to support his conviction for possession of a firearm while in possession of over one pound of marijuana with intent to distribute, "absent evidence that [he] exercised dominion and control over the firearm." For the following reasons, we affirm the judgment of the trial court, but remand to permit the trial court to correct an apparent clerical error in its conviction and sentencing orders pursuant to Code § 8.01-428(B).¹

I. BACKGROUND

On appeal, "[w]here the issue is whether the evidence is sufficient, we view the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom." Sandoval v. Commonwealth, 20 Va.App. 133, 135, 455 S.E.2d 730, 731 (1995). "The judgment of the trial court is presumed to be correct and will be reversed only upon a showing that it is `plainly wrong or without evidence to support it.'" Viney v. Commonwealth, 269 Va. 296, 299, 609 S.E.2d 26, 28 (2005) (quoting Code § 8.01-680).

So viewed, the evidence proves that, during a routine check at a Federal Express warehouse, a drug-sniffing dog alerted state police officers to a package suspected to contain drugs. The package was to be delivered to "Michelle Guzman" at a Richmond address. After obtaining a search warrant, the officers searched the package and found "a large quantity of ... what appeared to be marijuana." The officers turned the package over to Richmond City police detectives. Based on this information, Detective James Killingsworth obtained a search warrant for the residence to which the package was addressed. A Richmond detective, disguised as a Federal Express employee, delivered the package to the residence. Appellant came to the door and stated that "Michelle Guzman" was upstairs but that he could "accept the package for her."² He accepted the package, stating that he had been "waiting for this package."

Five to ten minutes later, police executed a search warrant for the residence. They found the unopened package in the pantry and a loaded firearm in the adjoining room "on the kitchen table" "under," "on[,] ... or next to [a] jacket." The officers also recovered two "digital ... scale[s]," paperwork, and mail bearing appellant's name from a bedroom in the residence. Appellant was arrested, read his Miranda rights, and questioned by Detective Killingsworth. He initially told Detective Killingsworth that "the package that he had received had jerseys in it," but later told the detective that "he knew the package had marijuana in it but he wasn't sure how much was in it." He told the detective that "an individual ... let's [sic] him know that a package is coming. [Appellant] then takes the package later and sits it outside and somebody else will pick it up.... And ... he does this in exchange for receiving just a small amount of marijuana back for just making the transaction." Appellant also told Detective Killingsworth that the firearm found on the kitchen table "was his and he had it for his protection."³

Detective Killingsworth placed the contents of the seized package into an evidence container, sealed it, and placed his initials on the seal. Thereafter, Detective Killingsworth accompanied Detective Wooten, who took the container to the police evidence storage facility where it was placed and secured. On October 10, 2006, the evidence container was received by the Division of Forensic Science laboratory located in Richmond, and there assigned a unique case number. On November 29, 2006, forensic lab analyst Corrie Meyer retrieved the container, sealed and initialed in a manner approved by the Division of Forensic Science, from a locked storage area within the Division of Forensic Science lab. Meyer broke the seal on the container, analyzed its contents, and prepared a certificate of analysis. The certificate of analysis identified the evidence container, its assigned laboratory number, and that the substance analyzed within the evidence container was 143 ounces (8.94 pounds) of marijuana. At trial, over appellant's objection, the trial court admitted the marijuana and the certificate of analysis into evidence. Appellant testified at trial that he was unaware that there was marijuana in the package. He testified that he thought it contained sports jerseys that he was receiving for someone else. At the conclusion of the trial, the trial court stated, "I find [appellant's] testimony wholly incredible," and convicted him of possession of more than five pounds of marijuana with intent to distribute and possession of a firearm while in possession of more than one pound of marijuana with intent to distribute. This appeal followed.

II. ANALYSIS

A. Chain of Custody

Appellant contends the trial court erred by admitting into evidence the marijuana seized by the police from his residence and the certificate of its analysis from the Division of Forensic Science. He argues that there was a break in the chain of custody in the handling of the evidence, from the time it was placed in the police evidence room to the time it was removed from the evidence storage locker for testing at the Division of Forensic Science laboratory. Appellant argues that, because there was no "testimony of the officer who delivered the container to [the Division of Forensic Science lab]" nor was there any evidence that an "authorized agent ... received the container on behalf of [the lab], ... a vital link in the possession and treatment of the evidence [was] left to conjecture."⁴

He contends, therefore, that the Commonwealth's evidence failed to prove that the evidence seized from his residence by the police was the same evidence, free from tampering, tested by Meyer at the Division of Forensic Science lab. He does not contest the chain of custody from the time the package was first recovered by law enforcement officers at the Federal Express warehouse until the sealed evidence container was locked in the police evidence room, nor does he contest the chain of custody from the time Meyer removed the container from the locked storage area of the Division of Forensic Science lab, analyzed its contents, and returned it to police custody for presentation at trial. The trial court found that the chain of custody was sufficiently established. It concluded that because the evidence container was received at the lab "sealed and intact," there was no evidence that it was subject to tampering between the time it left the police evidence room and the time that it was removed from the lab storage locker. We conclude that the trial court did not err in admitting the evidence container and the certificate of its analysis.

Where evidence is seized and analyzed, "`[t]he purpose of the chain of custody rule is to establish that the evidence obtained by the police was the same evidence tested.'" Brown v. Commonwealth, 21 Va.App. 552, 555, 466 S.E.2d 116, 117 (1996) (quoting Robertson v. Commonwealth, 12 Va.App. 854, 857, 406 S.E.2d 417, 419 (1991)).

"[A] chain of custody is properly established when the Commonwealth's evidence affords reasonable assurance that the exhibits at trial are the same and in the same condition as they were when first obtained." Whether the foundation is sufficient to properly establish the chain of custody is a question within the sound discretion of the trial court.

Anderson v. Commonwealth, 274 Va. 469, 479, 650 S.E.2d 702, 707-08 (2007) (quoting Vinson v. Commonwealth, 258 Va. 459, 469, 522 S.E.2d 170, 177 (1999)) (alteration in original), cert. denied, ___ U.S. ___, 128 S.Ct. 2473, 171 L.Ed.2d 769 (2008). In proving the chain of custody, "[t]he Commonwealth must ... account for every `vital link in the chain of possession.'" Alvarez v. Commonwealth, 24 Va.App. 768, 777, 485 S.E.2d 646, 650 (1997) (quoting Robinson v. Commonwealth, 212 Va. 136, 138, 183 S.E.2d 179, 180 (1971)) (internal quotation marks omitted). "When a `vital link' in the possession and treatment of the evidence is left to conjecture, the chain of custody is incomplete, and the evidence is inadmissible." Jeter v. Commonwealth, 44 Va.App. 733, 737, 607 S.E.2d 734, 737 (2005) (quoting Robertson, 12 Va.App. at 857, 406 S.E.2d at 419).

"A court need not hear, however, from every witness who physically handled the samples for the certificate [of analysis] to be admissible. Nor must the Commonwealth's evidence `exclude every conceivable possibility of substitution, alteration, or tampering.'" Anderson v. Commonwealth, 48 Va.App. 704, 717, 634 S.E.2d 372, 378 (2006) (quoting Pope v. Commonwealth, 234 Va. 114, 121, 360 S.E.2d 352, 357 (1987)), aff'd, 274 Va. 469, 650 S.E.2d 702 (2007), cert....