Gary Stevens v. Commonwealth of Virginia ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judge Bray, Senior Judges Cole and Overton
Argued at Richmond, Virginia
GARY STEVENS
MEMORANDUM OPINION * BY
v. Record No. 1522-98-2 JUDGE NELSON T. OVERTON
JANUARY 27, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF FREDERICKSBURG
John W. Scott, Jr., Judge
Timothy J. Wall (Rose & Wall, P.C., on
brief), for appellant.
Eugene Murphy, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Gary Stevens, appellant, appeals his conviction for
distributing cocaine, in violation of Code § 18.2-248. The
issues on appeal are: (1) whether the trial court erred in
admitting the cocaine into evidence because the chain of custody
was not sufficiently established, and (2) whether the evidence
was sufficient to show that appellant distributed the cocaine.
Finding no error, we affirm the conviction.
FACTS
On July 9, 1997, Michelle Granger was working as a special
undercover agent for the Virginia ABC Board Enforcement Agency
*
Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
in conjunction with the Fredericksburg police. She was directed
to purchase cocaine from targeted areas in the city. The police
equipped her car with a surveillance camera and she wore a "body
wire." They provided her with money with which to buy the
cocaine. They searched her and found no drugs on her person
prior to the sale.
She testified that she was driving slowly through a
targeted neighborhood when appellant signaled to her. She
stopped, and appellant asked her what she wanted. She replied,
"A forty." Appellant went into a house and returned. He told
her to get out of the car. Appellant led her to an alley beside
the house, where he opened a plastic bag containing several
pieces of cocaine and allowed her to pick the two pieces she
wanted. She placed the cocaine in her pocket and paid him two
twenty dollar bills. Granger returned to a prearranged meeting
place and gave the cocaine to Detective Ken Sekuterski of the
Fredericksburg Police Department.
Sekuterski testified that he watched Granger from a
distance and saw her enter the alley, but could not identify
appellant and could not see the transaction. He testified that
Granger met him immediately after the purchase and she gave him
one large piece of suspected cocaine. He placed it in an
evidence bag and sealed it. He noted on the bag that there was
one piece of cocaine. Sekuterski placed the cocaine in a sealed
evidence bag in his locker until he sent the bag to the
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Consolidated Laboratories by registered mail. Sekuterski and
another detective returned to the area thirty minutes later and
arrested appellant based on the physical and clothing
descriptions given by Granger. Two days later, she identified
appellant from a photo array of six pictures.
ANALYSIS
I.
"Establishing a chain of custody of exhibits is necessary
to afford reasonable assurance that the exhibits are the same
and in the same condition as they were when first obtained."
Horsley v. Commonwealth, 2 Va. App. 335, 339, 343 S.E.2d 389,
390 (1986) (citations omitted). The Commonwealth need not
"'exclude every conceivable possibility of substitution,
alteration or tampering.'" Robertson v. Commonwealth, 12 Va.
App. 854, 857, 406 S.E.2d 417, 419 (1991) (citation omitted).
"'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.'" Brown v.
Commonwealth, 21 Va. App. 552, 556, 466 S.E.2d 116, 117 (1996)
(citation omitted). "'Where 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 to be given the evidence.'" Id.
at 556, 466 S.E.2d at 117 (citation omitted).
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Applying these principles, the Commonwealth proved with
reasonable assurance that the cocaine admitted into evidence was
the same substance that Granger obtained from appellant.
Granger was searched for drugs prior to the purchase, and none
were found. Sekuterski observed Granger make contact with
appellant and received the substance from her within minutes of
the sale. He immediately labeled and sealed the evidence bag
with the cocaine. He arrested appellant thirty minutes later,
based on Granger's description. Granger identified appellant
two days later from a photo spread.
While Granger remembered receiving two pieces of cocaine
and Sekuterski documented that he received one piece, it is mere
speculation that any tampering or substitution occurred. Her
memory merely differs from the detective's notes, which were
taken at the time of the event. The trial judge was entitled to
admit the cocaine and, as fact finder in appellant's bench
trial, determine what weight to afford that evidence. The
events transpired in a short period of time, and the totality of
the circumstances affords reasonable assurance that the admitted
cocaine was obtained from appellant. Given these facts and
circumstances, the trial court did not err in admitting the
cocaine.
II.
"On appeal, 'we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
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inferences fairly deducible therefrom.'" Archer v.
Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)
(citation omitted). The trial judge accepted the evidence
identifying appellant as the person who sold Granger the cocaine
and rejected appellant's testimony that, while he had sold drugs
to others, he had not sold drugs to Granger. "In its role of
judging witness credibility, the fact finder is entitled to
disbelieve the self-serving testimony of the accused and to
conclude that the accused is lying to conceal his guilt."
Marable v. Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d
233, 235 (1998). "The credibility of the witnesses and the
weight accorded the evidence are matters solely for the fact
finder who has the opportunity to see and hear that evidence as
it is presented." Sandoval v. Commonwealth, 20 Va. App. 133,
138, 455 S.E.2d 730, 732 (1995).
Granger paid appellant forty dollars in exchange for a
substance believed to be cocaine. She delivered the substance
to Sekuterski within minutes of the sale. Sekuterski arrested
appellant within thirty minutes of the transaction based on
Granger's description. Granger identified appellant as the
seller two days after the transaction and again at trial. The
substance proved to be cocaine. The evidence supports the
conviction for distribution of cocaine.
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For the above stated reasons, we affirm appellant's
conviction for distribution of cocaine.
Affirmed.
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