Lopez-Ramirez v. Commonwealth

Docket Number0839-22-2
Decision Date01 August 2023
CourtVirginia Court of Appeals


(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.

Present: Judges Raphael, White and Senior Judge Petty Argued at Richmond, Virginia



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.


"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 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 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.

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.

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, "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...

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