Richard Earl Gillard v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA

Present: Judges Felton, Kelsey and Senior Judge Willis
Argued at Richmond, Virginia

RICHARD EARL GILLARD
MEMORANDUM OPINION * BY
v. Record No. 0037-02-2 JUDGE WALTER S. FELTON, JR.
AUGUST 19, 2003
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
Oliver A. Pollard, Jr., Judge

Elliott B. Bender for appellant.

Steven A. Witmer, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.

Richard Gillard was convicted in a bench trial of multiple

offenses stemming from two separate incidents. From the April 22,

1998 incident, he was convicted of (1) possession of marijuana, in

violation of Code § 18.2-250.1; (2) possession of cocaine, in

violation of Code § 18.2-250; (3) possession of a firearm while in

possession of drugs, in violation of Code § 18.2-308.4; and

(4) possession of a concealed weapon, in violation of Code

§ 18.2-308. From the May 5, 1998 incident, Gillard was convicted

of (1) possession of cocaine, in violation of Code § 18.2-250; and

(2) possession of cocaine while in possession of a firearm, in

violation of Code § 18.2-308.4. In addition to the April 22 and

* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
May 5 offenses, Gillard was convicted on two counts of felony

failure to appear, in violation of Code § 19.2-128.

On appeal, Gillard presents several assignments of error.

First, he contends the evidence was insufficient to support his

convictions for the April 22, 1998 offenses of possession of a

controlled substance, possession of a gun while in the possession

of a controlled substance, possession of a concealed weapon, and

possession of marijuana. Second, he argues that the trial court

erred in admitting evidence of his possession of illegal drugs and

a weapon when the arresting officer did not have reasonable

articulable suspicion to seize him and did not have probable cause

or voluntary consent to conduct a search of him on May 5, 1998.

Third, Gillard contends the trial court erred in admitting

evidence of a controlled substance when the Commonwealth failed to

sufficiently establish the chain of custody of the drugs in

question. Furthermore, he asserts the trial court abused its

discretion by not allowing Sergeant Jones to testify regarding his

observations of the procedures for checking evidence into and out

of the police property room. Lastly, he argues that the evidence

was insufficient to support his conviction on November 16, 1998

for felony failure to appear.

For the following reasons, we affirm the judgment of the

trial court.

- 2 -
 I. BACKGROUND

A. APRIL 22, 1998 OFFENSES

At 9:30 p.m. on April 22, 1998, Petersburg Police Officer

Rick Crimonese observed a vehicle, driven by Richard Gillard,

run a stop sign. Officer Crimonese stopped the vehicle. He

approached it on the passenger side and asked the passenger,

Tito Coleman, to pass over Gillard's driver's license. Officer

Crimonese noted a strong odor of marijuana emanating from the

vehicle.

With Gillard's driver's license in hand, he returned to his

patrol car and ran a check on the license. Officer Crimonese

then wrote a summons for the stop sign violation. Officer

Crimonese returned to Gillard's car and gave him the summons.

He also told Gillard that he smelled a strong odor of marijuana

coming from the vehicle and asked him if he had any weapons or

illegal narcotics in his car. Gillard responded, "No."

Officer Crimonese asked Gillard to get out of the car,

brought him to the rear of the vehicle, and asked permission to

conduct a pat-down frisk. During the frisk, he discovered a

large bulge in Gillard's right front pants pocket. Officer

Crimonese asked Gillard to remove the object, which was six

hundred and sixty-six dollars in U.S. currency.

As a result of the strong odor of marijuana he previously

noted coming from inside the car, Officer Crimonese searched the

vehicle. During the course of the search, he found a loaded
- 3 -
handgun under the driver's seat. He then placed Gillard under

arrest for possessing a concealed weapon.

Following the arrest, Officer Crimonese completed the

search of the vehicle. He recovered from the center console

quantities of a white powder, later determined to be cocaine,

and a green plant-like substance, later determined to be

marijuana.

Officer Crimonese placed the drugs and gun in a property

locker at 1:20 a.m. on April 23, 1998. The drugs and gun were

removed from the locker later the same day by Detective J.D.

Thomas and placed in the police headquarters' evidence room. An

officer in the evidence room subsequently assigned an inventory

control number to the items.

B. MAY 5, 1998 OFFENSES

At approximately 2:40 a.m. on May 5, 1998, Sergeant E.S.

Jones of the Petersburg Police Department observed a speeding

taxicab and initiated a traffic stop. The traffic stop was

conducted in a high crime area of the city. The cab driver was

upset when Sergeant Jones approached. The cab driver

immediately informed him that some unknown individuals "bailed

out" of his cab without paying. Sergeant Jones began

questioning the remaining two passengers, Gillard and Coleman,

in an attempt to identify the people who jumped out of the cab.

Sergeant Jones did not recognize Gillard. Coleman was

asked his name, but he provided a name of someone else that
- 4 -
Sergeant Jones knew well. He then recognized Coleman. Knowing

that Coleman was wanted on outstanding felony warrants, Sergeant

Jones drew his service weapon and took him into custody. At

that moment another police unit arrived on the scene.

Thereafter, Sergeant Jones asked Coleman the identity of the

other person in the cab. Coleman responded, "I can't tell you

who he is. You know I can't do that. I can't tell you who he

is."

As a result of Coleman's response, Sergeant Jones walked

back to the taxicab and asked Gillard if he could speak to him.

He responded affirmatively. Sergeant Jones then asked Gillard

for identification and informed him he was going to "run" the

information to determine if he had any outstanding warrants.

Gillard provided him with a Virginia State University

identification card. From his portable radio, Sergeant Jones

radioed to a dispatcher the information found on the

identification card.

Knowing that Coleman had carried weapons in the past and

considering that Gillard was with Coleman, Sergeant Jones became

concerned Gillard might be carrying a weapon. As a result, he

asked Gillard if he was carrying a weapon. Gillard responded,

"No." Sergeant Jones then asked Gillard to step out of the

vehicle so that he could pat him down for his safety. Gillard

stepped out of the taxicab and stated, "Officer, I've got [sic]

something I need to tell you. Officer, I have a gun."
- 5 -
 Sergeant Jones then handcuffed Gillard and conducted a

pat-down frisk for weapons. A loaded .38 caliber handgun was

discovered in his coat. Gillard was then placed under arrest

for carrying a concealed weapon and transported to the

Petersburg City Jail. Once there, Gillard was read his Miranda

rights. A further search incident to the arrest revealed

several bags of cocaine in Gillard's possession.

Sergeant Jones packaged and sealed the drugs and placed

them, along with the gun, in a secure evidence locker at police

headquarters on May 5, 1998, the same day the evidence was

seized from Gillard. He also prepared a laboratory submission

request to the forensics lab. An inventory control number was

assigned to the drugs and gun by the evidence room officer.

C. EVIDENCE SUBMISSION TO FORENSICS LABORATORY

On May 6, 1998, the drugs seized from Gillard on April 22

and May 5, 1998, were removed from the evidence room by the

Petersburg Police Department and transported to the state

forensics laboratory for testing. Upon receipt of the drugs

from the police, the state laboratory assigned them forensic

science laboratory control numbers. The drugs remained at the

laboratory until June 25, 1998, when they were returned to the

police evidence room. The certificates of analysis reflected

that the results of the items tested matched the items submitted

for testing, based on the inventory control and forensic science

laboratory control numbers assigned.
- 6 -
 D. EVIDENCE ROOM OPERATION

At trial, Gillard recalled Sergeant Jones as a defense

witness and attempted to question him regarding the internal

operations of the police evidence room and evidence handling

procedures. The Commonwealth repeatedly objected to Sergeant

Jones' testimony, and the trial court sustained some objections,

narrowed some, and overruled others. The trial court finally

halted the questioning of Sergeant Jones regarding the internal

procedures of the evidence room, stating:

He can testify as to what is proper in terms
of his training and how he puts it [sic] the
property into a locker and what he knows
about checking it in and out. I am not
going to let him get into the internal
procedures of the property [room].

* * * * * * *

He has told you: I'm not familiar with the
internal procedures of the property [room].

* * * * * * *

You're trying to equate what a line officer
does in putting it in the locker and if he
wants to check it back out of the property
[room] for court or different purposes. You
are trying to equate that procedure with
what the property officer does for taking it
out and taking it to the lab. And that's
not appropriate.

Gillard asked the trial court to allow him to proffer for

the record what Sergeant Jones might possibly testify to

regarding his knowledge of the procedures and his observations.

However, the trial court ruled the proffer improper as only

- 7 -
being speculative as to what Sergeant Jones' testimony "might

possibly be."

E. FAILURE TO APPEAR 1

On November 16, 1998, Gillard was recognized to appear in

the Petersburg General District Court for a preliminary hearing

stemming from the April 22, 1998 offenses. He failed to appear

on that date, and a warrant for his arrest was issued on the

same day. Brenda Simmons, deputy clerk for the general district

court, testified on February 20, 2001 that the Petersburg

General District Court records reflected that Gillard was

recognized on bond to be present in that court on November 16,

1998 for a preliminary hearing on the felony warrants arising

out of the April 22, 1998 incident. 2 She further testified that

the records reflected that Gillard failed to appear in court

that day and that the judge ordered a felony failure to appear

warrant be issued that same date. Ms. Simmons also testified

that she could not recall whether Gillard was in court on

1
Gillard was convicted of two counts of failure to appear.
On October 29, 1998, he failed to appear in court for a
scheduled hearing. He subsequently pleaded guilty to that
charge. On November 16, 1998, Gillard again failed to appear in
court for a scheduled hearing and was subsequently convicted.
Gillard challenges the conviction for his November 16, 1998
failure to appear.
2
Ms. Simmons testified that on November 16, 1998 she made a
note on Gillard's April 22, 1998 warrant for arrest for
possession of cocaine with the intent to distribute that he
failed to appear on November 16, 1998. Additionally, she
testified that the district court judge noted on that document
that Gillard failed to appear on that date.
- 8 -
November 16, 1998. However, she did testify that the court

records, which she authenticated, did reflect Gillard failed to

appear on November 16, 1998.

II. ANALYSIS

A. APRIL 22, 1998 OFFENSES: SUFFICIENCY OF EVIDENCE

We first consider whether the evidence was sufficient to

support Gillard's convictions for the April 22, 1998 offenses.

When the sufficiency of the evidence is
challenged on appeal, it is well established
that we must view the evidence in the light
most favorable to the Commonwealth, granting
to it all reasonable inferences fairly
deducible therefrom. The conviction will be
disturbed only if plainly wrong or without
evidence to support it.

Jones v. Commonwealth, 13 Va. App. 566, 572, 414 S.E.2d 193, 196

(1992).

On the evening of April 22, 1998, Officer Crimonese stopped

Gillard for running a stop sign. Officer Crimonese noted a

strong odor of marijuana emanating from Gillard's car when he

approached. After issuing Gillard a summons, Officer Crimonese

began to investigate further the source of the marijuana odor.

He asked Gillard to step out of the car. Officer Crimonese

obtained permission to conduct a pat-down frisk, which yielded

six hundred and sixty-six dollars in U.S. currency. He then

conducted a search of Gillard's car from which the marijuana

odor emanated. The search yielded a loaded handgun from under

the driver's seat. Gillard was arrested for possession of a

- 9 -
concealed weapon. Incident to the arrest, a further search of

the car resulted in the recovery of cocaine and marijuana from

the center console.

"In determining whether a defendant constructively

possessed a firearm, the defendant's proximity to the firearm

and his occupancy and ownership of the vehicle must also be

considered." Logan v. Commonwealth, 19 Va. App. 437, 444, 452

S.E.2d 364, 369 (1994) (en banc). Officer Crimonese possessed

probable cause to search Gillard's vehicle based on the odor of

marijuana he smelled. During the search of Gillard's vehicle,

he found a gun under the driver's seat. Although Coleman was

left alone for a brief time period in the vehicle when Officer

Crimonese conducted a pat-down of Gillard, Officer Crimonese

testified that two other officers talked with Coleman while he

was talking with Gillard at the rear of Gillard's car. The

other officers arrived shortly after Gillard got out of his car.

There was no indication in the record of any furtive movements

by Coleman toward the driver's seat at any time during the stop.

From this evidence, the trial court could have reasonably

concluded that Gillard was aware of the presence and character

of the gun under the driver's seat of his car which he was

driving, and because of its proximity to Gillard, it was subject

to his dominion and control.

In addition to the discovery of the gun, marijuana and

cocaine were discovered in the vehicle's center console located
- 10 -
between the driver and passenger seats. To support a conviction

based upon constructive possession of drugs, "the Commonwealth

must point to evidence of acts, statements or conduct of the

accused or other facts or circumstances which tend to show that

the defendant was aware of both the presence and character of

the substance and that it was subject to his dominion and

control." Glasco v. Commonwealth, 26 Va. App. 763, 774, 497

S.E.2d 150, 155 (1998) (quoting Powers v. Commonwealth, 227 Va.

474, 476, 316 S.E.2d 739, 740 (1984)). While ownership or

occupancy of a motor vehicle in which illegal drugs are found

does not create a presumption that the owner or occupant

possessed the drugs,

"[o]wnership or occupancy of a vehicle or of
premises where illicit drugs are found is a
circumstance that may be considered together
with other evidence tending to prove that
the owner or occupant exercised dominion and
control over items in the vehicle or on the
premises in order to prove that the owner or
occupant constructively possessed the
contraband. Furthermore, proof that a
person is in close proximity to contraband
is a relevant fact that, depending on the
circumstances, may tend to show that, as an
owner or occupant of property or of a
vehicle, the person necessarily knows of the
presence, nature and character of a
substance that is found there."

Logan, 19 Va. App. at 444, 452 S.E.2d at 369 (quoting Burchette

v. Commonwealth, 15 Va. App. 432, 435, 425 S.E.2d 81, 83

(1992)).

- 11 -
 As previously noted, the record reflects no furtive

movements by Coleman from the time of the traffic stop until the

drugs were found in the center console. The two officers spoke

with Coleman while Officer Crimonese conducted a safety pat-down

of Gillard. During the pat-down, six hundred and sixty-six

dollars in U.S. currency was discovered in Gillard's pocket.

Combined with the odor of marijuana emanating from the vehicle

and the proximity of Gillard to the center console in his car,

the trial court could have reasonably concluded beyond a

reasonable doubt that Gillard was aware of the presence and

character of the drugs found in the console and that he

exercised dominion and control over them. The evidence was

sufficient to find Gillard guilty beyond a reasonable doubt for

his unlawful possession of a controlled substance, unlawful

possession of a gun while in possession of a controlled

substance, possession of a concealed weapon, and possession of

marijuana on April 22, 1998.

B. MAY 5, 1998 OFFENSES: VOLUNTARY CONSENT, REASONABLE
SUSPICION, PROBABLE CAUSE

We next consider whether the trial court erred in admitting

evidence of drug possession and possession of a gun relating to

Gillard's May 5, 1998 offenses. "In reviewing a trial court's

denial of a motion to suppress, 'the burden is upon [the

defendant] to show that th[e] ruling, when the evidence is

considered most favorably to the Commonwealth, constituted

- 12 -
reversible error.'" McGee v. Commonwealth, 25 Va. App. 193,

197, 487 S.E.2d 259, 261 (1997) (en banc) (citation omitted).

"[W]e review de novo the trial court's application of

defined legal standards such as probable cause and reasonable

suspicion to the particular facts of the case." Hayes v.

Commonwealth, 29 Va. App. 647, 652, 514 S.E.2d 357, 359 (1999)

(citation omitted). "In performing such analysis, we are bound

by the trial court's findings of historical fact unless 'plainly

wrong' or without evidence to support them and we give due

weight to the inferences drawn from those facts by resident

judges and local law enforcement officers." McGee, 25 Va. App.

at 198, 487 S.E.2d at 261 (citing Ornelas v. United States, 517

U.S. 690, 699 (1996)).

Gillard argues that the arresting officer, Sergeant Jones,

did not have a reasonable articulable suspicion to seize him and

did not have probable cause or voluntary consent to conduct a

search of him. We disagree.

"Fourth Amendment jurisprudence recognizes
three categories of police-citizen
confrontations: (1) consensual encounters,
(2) brief, minimally intrusive investigatory
detentions, based upon specific, articulable
facts, commonly referred to as Terry stops,
and (3) highly intrusive arrests and
searches founded on probable cause."
Wechsler v. Commonwealth, 20 Va. App. 162,
169, 455 S.E.2d 744, 747 (1995) (citation
omitted).

"A consensual encounter occurs when police
officers approach persons in public places
'to ask them questions,' provided 'a
- 13 -
 reasonable person would understand that he
or she could refuse to cooperate.'" Payne
v. Commonwealth, 14 Va. App. 86, 88, 414
S.E.2d 869, 870 (1992) (citations omitted).
"As long as the person to whom questions are
put remains free to disregard the questions
and walk away, there has been no intrusion
upon that person's liberty or privacy as
would under the Constitution require some
particularized and objective justification."
United States v. Mendenhall, 446 U.S. 544,
554, 100 S. Ct. 1870, 1877, 64 L. Ed. 2d 497
(1980).

Piggott v. Commonwealth, 34 Va. App. 45, 48-49, 537 S.E.2d 618,

619 (2000).

In contrast, even a brief detention for
investigative purposes constitutes a seizure
contemplated by the Fourth Amendment. See
Terry v. Ohio, 392 U.S. 1, 16, 88 S. Ct.
1868, 1877, 20 L. Ed. 2d 889 (1968). "In
order to justify such a seizure, an officer
must have a 'reasonable and articulable
suspicion of criminal activity on the part
of the defendant . . . .' A general
suspicion of some criminal activity is
enough, as long as the officer can, based on
the circumstances before him . . .
articulate a reasonable basis for his
suspicion." Hatcher v. Commonwealth, 14
Va. App. 487, 490, 419 S.E.2d 256, 258
(1992) (citations omitted). "[W]hen a court
reviews whether an officer had reasonable
suspicion to make an investigatory stop, it
must view the totality of the
circumstances . . . objectively through the
eyes of a reasonable police officer with the
knowledge, training, and experience of the
investigating officer." Murphy v.
Commonwealth, 9 Va. App. 139, 144, 384
S.E.2d 125, 128 (1989) (citation omitted).

Armed with the requisite suspicion, an
officer may stop a person "'in order to
identify him, to question him briefly, or to
detain him briefly, while attempting to
obtain additional information.'" DePriest
- 14 -
 v. Commonwealth, 4 Va. App. 577, 585, 359
S.E.2d 540, 544 (1987), cert. denied, 488
U.S. 985, 109 S. Ct. 541, 102 L. Ed. 2d 571
(1988) (quoting Hayes v. Florida, 470 U.S.
811, 816, 105 S. Ct. 1643, 1647, 84
L. Ed. 2d 705 (1985)). However, police
procedures and investigative methods
attendant to the detention must be
calculated to confirm or dispel the
suspicion quickly and with minimal
intrusion. Thomas v. Commonwealth, 16
Va. App. 851, 856-57, 434 S.E.2d 319, 323
(1993).

Wechsler v. Commonwealth, 20 Va. App. 162, 170-71, 455 S.E.2d

744, 748 (1995).

In viewing the totality of the circumstances, Gillard was

not subject to an unlawful seizure by Sergeant Jones. From the

outset, Sergeant Jones' encounter with the occupants of the

taxicab was lawful. The taxicab was lawfully stopped for

speeding. The taxi driver immediately informed Sergeant Jones

about "fare-jumpers" from his taxi. 3 Sergeant Jones properly

began questioning the cab driver, Gillard, and Coleman regarding

the identities of the "fare-jumpers."

During this conversation, Sergeant Jones recognized Coleman

as a person who had outstanding warrants against him. Sergeant

Jones lawfully arrested Coleman on the outstanding warrants and

placed him in his patrol car. He then questioned Coleman as to

3
Fare-jumpers are individuals who acquire the services of a
taxi and jump out without paying the fare upon reaching their
destination.

- 15 -
Gillard's identity. Coleman responded, "I can't tell you who he

is. You know I can't do that. I can't tell you who he is."

The surrounding circumstances of the "fare-jumpers" and

Coleman's response as to Gillard's identity gave rise to a

reasonable suspicion that criminal activity might be afoot, thus

warranting an investigatory detention of Gillard in order to

identify him and to obtain additional information from him.

"For an investigatory stop, officers need only articulate a

reasonable suspicion that criminal activity 'may be afoot.'"

Barkley v. Commonwealth, 39 Va. App. 682, 691, 576 S.E.2d 234,

238 (2003) (citing United States v. Arvizu, 534 U.S. 266, 273

(2002)). Actual proof that criminal activity is afoot is not

necessary, only that it may be afoot. Harmon v. Commonwealth,

15 Va. App. 440, 444, 425 S.E.2d 77, 79 (1992).

When Sergeant Jones approached Gillard, who was sitting in

the front seat of the taxicab, he asked Gillard if he could talk

with him. Gillard responded, "Yes." Sergeant Jones then

requested identification information from Gillard to permit the

officer to determine if there were outstanding warrants against

him. Gillard voluntarily produced his Virginia State University

identification card. Sergeant Jones radioed the information to

police dispatch while he stood next to Gillard. The record

check returned no outstanding warrants.

Sergeant Jones asked Gillard if he had any weapons on him.

He responded, "No." Sergeant Jones then asked, "Can I get a pat
- 16 -
down on you for weapons?" Gillard responded, "Okay," and

voluntarily stepped out of the taxicab. Gillard then stated,

"Officer, there's something I need to tell you. . . . Officer,

I have a gun on me." Gillard's voluntary statement during a

lawful investigatory detention provided Sergeant Jones with

probable cause to search him for a weapon. During that search,

Sergeant Jones found a gun. Incident to the subsequent lawful

arrest for possession of a concealed weapon, drugs were also

found. The trial court did not err in admitting evidence of

Gillard's drug possession and possession of a gun relating to

the May 5, 1998 offenses.

C. CHAIN OF CUSTODY

We next consider whether the trial court erred in admitting

evidence of a controlled substance in relation to the April 22,

1998 and May 5, 1998 offenses on the grounds that there was a

break in the chain of custody. "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." James v. Commonwealth, 18 Va. App. 746, 753, 446

S.E.2d 900, 904 (1994).

When the Commonwealth offers testimony
concerning the physical or chemical
properties of an item in evidence, or of any
foreign matter found on the item,
authentication requires proof of the chain
of custody, including "a showing with
reasonable certainty that the item [has] not
been altered, substituted, or contaminated
prior to analysis, in any way that would
- 17 -
 affect the results of the analysis."
Washington v. Commonwealth, 228 Va. 535,
550, 323 S.E.2d 577, 587 (1984), cert.
denied, 471 U.S. 1111, 105 S. Ct. 2347, 85
L. Ed. 2d 863 (1985). "[T]he requirement of
reasonable certainty is not met when some
vital link in the chain of possession is not
accounted for, because then it is as likely
as not that the evidence analyzed was not
the evidence originally received." Robinson
v. Commonwealth, 212 Va. 136, 138, 183
S.E.2d 179, 180 (1971) (emphasis omitted).

Reedy v. Commonwealth, 9 Va. App. 386, 387-88, 388 S.E.2d 650,

650-51 (1990).

The Commonwealth established with reasonable certainty that

there was no break in the chain of custody and that the

controlled substances seized from Gillard on April 22 and May 5,

1998, were not altered, substituted, or contaminated prior to

analysis.

Regarding the drugs seized in the late evening on April 22,

1998, testimony at trial established that Officer Crimonese

placed the drugs in a secure property locker in the early

morning hours of April 23, 1998. On the same day, Detective

J.D. Thomas removed the drugs from the secure property locker.

He transferred the items to the police headquarters' evidence

room where they were assigned an inventory control number. The

drugs were not removed from the evidence room until May 6, 1998,

when Detective Thomas and Officer Thomas Lauter transported them

to the state forensics laboratory for testing. The state

forensics laboratory assigned a laboratory control number upon

- 18 -
receipt of the items from the police officers. The drugs

remained in the lab until June 25, 1998 when they were returned

to the Petersburg Police Department and secured in the police

headquarters' evidence room. The certificate of analysis, dated

May 27, 1998 and admitted into evidence, reflects the forensic

state laboratory control number assigned when the items were

received from the officers, and the inventory control number

assigned to the drugs on April 23, 1998 when they were placed in

the police evidence room. The police property inventory control

sheet reflecting the movement of the items into and out of the

police evidence room was admitted into evidence.

Regarding the drugs seized on May 5, 1998, testimony at

trial established that on that date Sergeant Jones packaged and

sealed the drugs and placed them in a secure evidence locker.

It was taken to the police headquarters' evidence room by

Detective Thomas and secured there. The property room officer

assigned an inventory control number to the drugs. The drugs

remained secured in the evidence room until May 6, 1998, when

Detective Thomas and Officer Lauter transported the drugs to the

state forensics laboratory for testing. When the state

forensics laboratory received the items, a laboratory control

number was assigned to the drugs. The drugs remained at the

forensics laboratory until June 25, 1998 when they were returned

to the Petersburg Police Department and secured in the police

headquarters' evidence room. The certificate of analysis, dated
- 19 -
May 22, 1998 and admitted into evidence, reflects the assigned

forensic state laboratory control number and the inventory

control number that was assigned to the drugs on May 5, 1998

when they were first placed in the police evidence room. The

police property inventory control sheet reflecting the movement

into and out of the police evidence room was admitted into

evidence.

The record indicates the Commonwealth sufficiently

established the requisite chain of custody of the drugs and

demonstrates with reasonable certainty that the drugs analyzed

by the state forensics lab were the same drugs seized from

Gillard. See Washington, 228 Va. at 550, 323 S.E.2d at 587.

The trial court did not err in admitting the certificates of

analysis for the controlled substances.

D. ABUSE OF DISCRETION

We next consider whether the trial court abused its

discretion in not allowing Sergeant Jones to testify regarding

his observations and knowledge of the procedures for checking

evidence into and out of the police property room. "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." James, 18 Va. App. at 753,

446 S.E.2d at 904.

"Questions as to the competency or admissibility of

testimony . . . are referred to the decision of the judge. As
- 20 -
it is the province of the jury to consider what degree of credit

ought to be given to evidence, so it is for the court alone to

determine whether a witness is competent, or the evidence

admissible." Mullins v. Commonwealth, 113 Va. 787, 791, 75 S.E.

193, 195 (1912). "A witness is competent to testify . . . if he

'possesses the capacity to observe, recollect, communicate

events, and intelligently frame answers to the questions asked

of him or her with a consciousness of a duty to speak the

truth.'" Jones v. Commonwealth, 32 Va. App. 30, 44, 526 S.E.2d

281, 287-88 (2000) (quoting Greenway v. Commonwealth, 254 Va.

147, 153, 487 S.E.2d 224, 227 (1997)).

Officer Thomas Lauter testified that he was the forensic

and evidence supervisor for the Petersburg Police Department at

the time the items at issue in this case were received, removed

for testing by the forensic laboratory, and returned from the

laboratory. He testified as to the handling of the property

within the evidence room, including assignment of control

numbers and movement of the property to and from the state

forensics laboratory.

In the Commonwealth's case-in-chief, Sergeant Jones was

called to testify as to actions he had taken in handling the

evidence he had seized from Gillard during the early morning of

May 5, 1998. Gillard later recalled Sergeant Jones as a defense

witness. In his examination of Sergeant Jones as a defense

witness, Gillard repeatedly asked if Sergeant Jones was familiar
- 21 -
with the internal procedures of the Petersburg Police Department

evidence room, ostensibly to impeach the testimony of Officer

Lauter, the forensic and evidence room supervisor who testified

about those procedures. Sergeant Jones testified that he was

familiar only with the procedure used by officers to place items

into the evidence room when they had seized evidence.

Sergeant Jones repeatedly testified that he was not

familiar with the internal procedures of the evidence room.

When the trial court ruled that Sergeant Jones was not a

competent witness to testify as to the internal procedures,

Gillard sought to proffer what Sergeant Jones might have

testified relating to the internal procedures and what Sergeant

Jones may have observed concerning these procedures. Gillard

told the trial court he wanted "to make a record. I have to

proffer what would possibly come out." (Emphasis added).

Prior to terminating Gillard's examination of Sergeant

Jones as a defense witness, Gillard was permitted wide latitude

in questioning the witness as to what he had observed generally,

as to submitting evidence to the evidence room, removing it to

take it to the state forensics laboratory, and the experience he

had when the evidence was taken to the laboratory. When Gillard

sought to "proffer" evidence for the record, he told the trial

court he could only proffer "what would possibly come out," a

matter of speculation. Moreover, the attempted proffer was not

tied to any specific question propounded to the witness.
- 22 -
Gillard did not offer to the court the relevancy or materiality

of the evidence he sought to present to the trial court. The

trial court correctly terminated further examination of the

witness and properly refused to permit a proffer when Gillard

could only speculate what the testimony might be.

With no capacity to observe, recollect, communicate events,

and intelligently frame answers to questions about the internal

procedures of the property room, Sergeant Jones was not a

competent witness to testify regarding those procedures. See

Jones, 32 Va. App. at 44, 526 S.E.2d at 287-88. Moreover,

Gillard's attempt to proffer Sergeant Jones' testimony was

improper. See generally Wyche v. Commonwealth, 218 Va. 839,

842-43, 241 S.E.2d 772, 774-75 (1978); Lowery v. Commonwealth, 9

Va. App. 304, 307-08, 387 S.E.2d 508, 510 (1990). We hold that

under these circumstances, the trial court did not abuse its

discretion in terminating the examination of Sergeant Jones and

in refusing to permit Gillard to proffer speculative testimony.

E. NOVEMBER 16, 1998: FAILURE TO APPEAR

Lastly, we consider whether the evidence was sufficient to

support Gillard's conviction for failure to appear on November

16, 1998.

When the sufficiency of the evidence is
challenged on appeal, it is well established
that we must view the evidence in the light
most favorable to the Commonwealth, granting
to it all reasonable inferences fairly
deducible therefrom. The conviction will be

- 23 -
 disturbed only if plainly wrong or without
evidence to support it.

Jones, 13 Va. App. at 572, 414 S.E.2d at 196.

On November 16, 1998, Gillard was scheduled to appear in

the Petersburg General District Court for a preliminary hearing

related to his April 22, 1998 offense of possession of cocaine

with the intent to distribute. The record reflects that Gillard

received notice to appear in court on November 16, 1998.

However, he failed to appear at the hearing. As a result, the

trial judge noted the failure to appear on the April 22, 1998

warrant for arrest. In addition, on November 16, 1998, the

trial judge ordered Gillard's bond be revoked and that an arrest

warrant be issued for his failure to appear.

In order to convict Gillard of failure to appear, the

Commonwealth must first show that Gillard had notice that he was

required to be present in court on the given date and that he

did not appear in court on the scheduled court date. The

Commonwealth relies on the court records as evidence of

Gillard's failure to appear. Code § 8.01-389(A) provides that

"[t]he records of any judicial proceeding and any other official

records of any court of this Commonwealth shall be received as

prima facie evidence provided that such records are

authenticated and certified by the clerk of the court where

preserved to be a true record." "[T]he terms 'authenticated'

and 'certified' are basically synonymous" in this context.

- 24 -
Owens v. Commonwealth, 10 Va. App. 309, 311, 391 S.E.2d 605, 607

(1990).

The trial court properly admitted into evidence the deputy

clerk's testimony regarding the April 22, 1998 warrant of

arrest. The warrant of arrest reflects the district court

judge's finding that Gillard failed to appear and the judge's

order that Gillard's bond be revoked and that an arrest warrant

for failure to appear be issued. At trial, Ms. Simmons, deputy

clerk for the Petersburg General District Court, authenticated

the April 22, 1998 warrant for arrest. She testified that it

showed on its face Gillard failed to appear in court for a

preliminary hearing scheduled on November 16, 1998 and that a

warrant for Gillard's arrest was issued on that same day,

pursuant to the trial judge's order. She stated that she

recognized both the trial judge's handwriting and her own

handwriting on the warrant. The April 22, 1998 warrant for

arrest was authenticated by the deputy clerk, and her testimony

as to its content was therefore admissible as prima facie

evidence of Gillard's failure to appear.

With evidence of Gillard's failure to appear in court on

November 16, 1998, the Commonwealth was required to prove that

he had knowledge of the trial date. Knowledge of the trial

date, which includes dates to which the trial has been

continued, can be inferred from proof the trial date was set in

orders entered into the public record. Hunter v. Commonwealth,
- 25 -
15 Va. App. 717, 722, 427 S.E.2d 197, 200-01 (1993). Here, the

court records, including the April 22, 1998 warrant for arrest,

reflect that Gillard was recognized to appear in court on

November 16, 1998 as a condition of his bond. Thus, Gillard had

notice of his court date. Moreover, Gillard did not contest

that he had notice to appear in court on November 16, 1998. He

asserted only that the evidence failed to prove he was not in

court on that date.

With failure to appear and knowledge of the court date

proven, the Commonwealth was required additionally to prove that

Gillard willfully failed to appear. "'Any failure to appear

after notice of the appearance date [is] prima facie evidence

that such failure to appear [was] willful.'" Id. at 721, 427

S.E.2d at 200 (quoting Trice v. United States, 525 A.2d 176, 179

(D.C. 1987)). The Commonwealth, therefore, successfully carried

its burden of proving Gillard's failure to appear beyond a

reasonable doubt.

With the Commonwealth successfully carrying its burden, the

burden of going forward with the evidence shifted to Gillard to

show why his absence was not willful. No cause was shown.

Therefore, the evidence was sufficient to sustain Gillard's

conviction for failure to appear.

III. CONCLUSION

In summary, we find that (1) the evidence was sufficient to

support Gillard's convictions for possession of a controlled
- 26 -
substance, possession of a gun while in possession of a

controlled substance, possession of a concealed weapon, and

possession of marijuana on April 22, 1998; (2) the trial court

did not err in admitting evidence of possession of cocaine and

possession of a gun while in possession of cocaine relating to

Gillard's May 5, 1998 offenses; (3) the Commonwealth

sufficiently established the chain of custody of the drugs

seized from Gillard on April 22 and May 5, 1998 and that the

trial court did not err in admitting the certificates of

analysis for the controlled substances; (4) the trial court did

not abuse its discretion in preventing Sergeant Jones from

testifying about the internal procedures for checking evidence

into and out of the police property room; and (5) the evidence

was sufficient to convict Gillard for failure to appear on

November 16, 1998.

The judgment of the trial court is affirmed.

Affirmed.

- 27 -