Jesse Lee Blackwell v. Commonwealth of Virginia ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Bray and Annunziata
Argued at Alexandria, Virginia
JESSE LEE BLACKWELL
MEMORANDUM OPINION * BY
v. Record No. 2087-99-2 CHIEF JUDGE JOHANNA L. FITZPATRICK
JUNE 20, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
James B. Wilkinson, Judge
Patricia P. Nagel, Assistant Public Defender
(David Johnson, Public Defender, on brief),
for appellant.
Steven A. Witmer, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Jesse Lee Blackwell (appellant) was convicted in a bench
trial of possession with intent to distribute heroin, in
violation of Code § 18.2-248, and possession with intent to
distribute heroin within one thousand feet of a public school,
in violation of Code § 18.2-255.2. On appeal, he argues that
the evidence was insufficient as a matter of law because there
was a break in the chain of custody of the drugs. For the
following reasons, we affirm.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
I.
Under familiar principles of appellate review, we examine
the evidence in the light most favorable to the Commonwealth,
the prevailing party below, granting to that evidence all
reasonable inferences fairly deducible therefrom. See Juares v.
Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997).
So viewed, the evidence established that on December 3, 1998,
Officer Michael Musselwhite (Musselwhite) was conducting a drug
activity surveillance in the area of Sixteenth and Decatur
Streets in the City of Richmond. Watching through binoculars
and a video camera from less than one block away, Musselwhite
saw appellant "hanging out" with other individuals.
At approximately 12:08 [Musselwhite]
observed another subject, later identified
as Charles Hall, walk over to the vacant
lot, pick up a brown piece of paper, take
several small items out of the brown bag.
[Appellant] walked to the vacant lot, stood
right in front of Mr. Hall. Mr. Hall put
these items into [appellant's] hand. At
that point [appellant] put the small items
into a red candy box. At that point
[appellant] then walked over to the corner
of the vacant lot, placed the candy box on
the ground. From that time, 12:08 to
approximately 2:00 p.m., [Musselwhite]
observed [appellant] make several hand to
hand transactions, taking items from his
candy box, handing them to several different
individuals for U.S. currency.
At 2:00 p.m., Musselwhite called an "arrest team" into the area.
Based on the information provided by Musselwhite, the "arrest
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team" detained appellant and retrieved the red candy box, which
contained "numerous knotted baggies containing a tan powder."
Musselwhite watched Officer Kenneth Peterson (Peterson)
walk to the box, reach down, pick it up, and then give
Musselwhite "a thumb's up." Peterson delivered the box to
Musselwhite ten to fifteen minutes later after Musselwhite had
packed up his gear and left the surveillance location.
Musselwhite maintained custody of the box until he took it,
together with its contents, to the state lab for analysis.
Laboratory analysis established that the powder contained in the
candy box was heroin. Musselwhite returned to the crime scene
and determined that it was within one thousand feet of Blackwell
Elementary School.
At trial, defense counsel objected to the introduction of
the certificate of analysis, contending that the Commonwealth
failed to establish a proper chain of custody. Counsel argued
that there was a break in the chain of custody because the candy
box was out of Musselwhite's observance for approximately ten to
fifteen minutes and Peterson did not testify about what occurred
during that time period. The trial court overruled the
objection.
At the conclusion of the evidence, defense counsel moved to
strike the evidence, arguing the following:
We have evidence of a person coming up and
talking to [appellant]. And, the officer
testified you couldn't tell what was
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changing hands or if anything changed hands.
On one occasion he didn't even see currency
in the other person's hand. On one occasion
he did, but he couldn't tell what if
anything was in [appellant's] hand other
than possibly a small object. Judge, I
would testify (sic) the evidence introduced
is insufficient based upon that in terms of
distribution in this case and all the
circumstances --
The trial court denied appellant's motion to strike, stating:
[I]t's a case where the officer observed
everything. He was watching hand to hand
transactions without any explanation. . . .
They watched him put the red box down and
from time to time go to the red box. And,
finally when they moved in they found drugs
in the red box. They were in packages which
are used for distribution of drugs.
Clearly, it was 900 feet of the school,
which is within 1,000 feel of the
school. . . . The Court also finds as a fact
as far as the chain is concerned the officer
said he directed the other officer to the
place to pick up the baggies, maintained it
10 or 15 minutes until he returned it to
this officer. I see no difficulty at all
with the chain. It was submitted to the lab
and the lab filed the report back with this
Court to the Clerk's Office . . . .
Accordingly, the trial court found appellant guilty as charged.
II.
The Commonwealth contends that appellant is procedurally
barred from challenging the chain of custody of the drugs. The
Commonwealth argues that the admissibility of the certificate of
analysis was not raised in appellant's petition for appeal.
Additionally, the Commonwealth argues that appellant did not
raise the chain of custody in his motion to strike the evidence
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and, thus, his challenge to the sufficiency of evidence on the
chain of custody is barred by Rule 5A:18. We agree.
Because appellant did not raise the admissibility of the
certificate of analysis in his petition for appeal, that
question is not properly before us. "Only questions presented
in the petition for appeal will be noticed by the Court of
Appeals." Rule 5A:12(c). Additionally, appellant failed to
challenge the sufficiency of the evidence regarding the chain of
custody when he made his motion to strike the evidence at the
conclusion of trial. Accordingly, he is barred from relying
upon that argument on appeal. See Rule 5A:18; see also Jones v.
Commonwealth, 21 Va. App. 435, 441, 464 S.E.2d 558, 561 (1995)
(en banc) (noting that an objection to the admissibility of
drugs on the ground of insufficient proof of chain of custody
does not properly raise the issue of whether the evidence was
sufficient to sustain the conviction).
Moreover, we find no reasons to invoke the "ends of
justice" exception to Rule 5A:18. The evidence established that
Musselwhite saw appellant remove items from a red candy box and
make hand to hand transactions. From his surveillance post,
Musselwhite directed Peterson to the box. Peterson picked up
the box and gave Musselwhite a "thumb's up" sign. When
Musselwhite reached the area ten to fifteen minutes later, he
received the box from Peterson. The box was out of
Musselwhite's sight only when it was in Peterson's possession.
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There was no evidence that Peterson mishandled the evidence or
that it may have been tampered with. Regarding appellant's
challenge to the chain of custody, the record does not reflect
any reason to invoke the ends of justice exception to Rule
5A:18.
Next, we determine whether the evidence, viewed in the
light most favorable to the Commonwealth, as the prevailing
party below, was sufficient to prove possession with intent to
distribute drugs. Because direct proof of intent to distribute
is often impossible to produce, it may, and frequently must, be
shown by circumstantial evidence. See Servis v. Commonwealth, 6
Va. App. 507, 524, 371 S.E.2d 156, 165 (1988). "The quantity of
a controlled substance is a factor which may indicate the
purpose for which it is possessed." Barlow v. Commonwealth, 26
Va. App. 421, 429, 494 S.E.2d 901, 905 (1998). When the
Commonwealth relies on circumstantial evidence, it must "exclude
every reasonable hypothesis of innocence," Pemberton v.
Commonwealth, 17 Va. App. 651, 655, 440 S.E.2d 420, 422 (1994),
but need not disprove every remote possibility of innocence.
See Cantrell v. Commonwealth, 7 Va. App. 269, 289, 373 S.E.2d
328, 338 (1988).
In the instant case, appellant was seen making hand to hand
transactions after retrieving items from a small candy box. In
one of the transactions, Musselwhite saw appellant receive money
in the exchange. When the box was recovered, it contained seven
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individually-wrapped packets of heroin. All of these
transactions occurred within nine hundred feet of Blackwell
Elementary School. From these circumstances, the trial court
could conclude beyond a reasonable doubt that appellant
possessed heroin with intent to distribute and did so within one
thousand feet of a public school. Accordingly, appellant's
convictions are affirmed.
Affirmed.
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