COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Elder and Clements
Argued at Richmond, Virginia
MARCUS ANTONIO CAMPBELL
MEMORANDUM OPINION * BY
v. Record No. 1485-00-2 CHIEF JUDGE JOHANNA L. FITZPATRICK
OCTOBER 2, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Thomas N. Nance, Judge
Carol A.N. Breit for appellant.
Susan M. Harris, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Marcus Antonio Campbell (appellant) appeals his conviction
of possession of cocaine. 1 He contends the trial court erred
when it admitted the lab report into evidence and the evidence
was insufficient to prove he possessed the cocaine. For the
following reasons, we affirm appellant's conviction.
I. BACKGROUND
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
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
1
Appellant was also convicted of obstruction of justice,
attempting to elude the police, and disregarding a stop sign,
but those convictions are not before the Court.
reasonable inferences fairly deducible therefrom. See Juares v.
Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997).
The trial court's judgment will not be set aside unless plainly
wrong or without evidence to support it. Hunley v.
Commonwealth, 30 Va. App. 556, 559, 518 S.E.2d 347, 349 (1999).
In the light most favorable to the Commonwealth, the
evidence established that Officer Jack Hurley observed appellant
fail to stop his vehicle at a clearly posted stop sign. Hurley
activated his lights and signaled appellant to pull over.
Appellant fled, and Hurley pursued appellant for a period of
eight to ten minutes. During this time, appellant drove
erratically. He disregarded traffic control signs and went the
wrong way on one-way streets. Appellant lost control of his
vehicle, crashed into a fence and fled on foot. Hurley ran
after appellant and saw him toss two objects to the ground that
landed between two parked vehicles, fifteen to twenty feet away
from the crash site. Hurley was approximately thirteen to
fifteen feet behind appellant at the time he threw the items to
the ground. After a chase of another block and a half, Hurley
caught appellant. He returned to the crash site with appellant
in custody and found two motorcycle officers standing in the
place where the objects were discarded. He saw the two items
between the two parked vehicles he had observed during the
chase. There were no other objects and no other people in the
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area except for the police officers. He retrieved the items and
took them into his possession.
Appellant, a convicted felon, denied he dropped or threw
anything between the vehicles. He stated he ran because he
believed he was an habitual offender.
At the close of the Commonwealth's case, appellant made a
motion to strike and argued that the lab report had not been
admitted into evidence and that the evidence was insufficient to
show he had possession of the cocaine. Appellant's motion was
denied.
II. ADMISSION OF THE ITEMS AND LAB CERTIFICATE
"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, 555, 466 S.E.2d 116, 117
(1996). "'The purpose of the chain of custody rule is to
establish that the evidence obtained by the police was the same
evidence tested.'" Id. at 555, 466 S.E.2d at 117 (quoting
Robertson v. Commonwealth, 12 Va. App. 854, 857, 406 S.E.2d 417,
419 (1991)).
Appellant contends that the Commonwealth failed to move to
introduce the certificate of analysis into evidence and,
therefore, there was no evidence that the items found on the
street were cocaine.
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Officer Hurley testified that he saw appellant drop the
items on the street. Hurley kept these items in his exclusive
possession and control until he submitted them to the lab for
testing. The certificate of analysis, the lab report finding
that the items were cocaine, was properly filed with the trial
court. Appellant objected to the Commonwealth's introduction of
the lab report. The trial judge conditionally admitted the lab
report at the time of the objection, "mark[ing] it for
identification until you have an opportunity to voir dire," on
the chain of custody.
Thereafter, appellant's counsel questioned Officer Hurley
about where he retrieved the items, but did not ask any
questions about the chain of custody of the drugs or about the
lab report. Without these questions there was no evidence to
consider contrary to admitting the lab report. As appellant's
counsel did not voir dire as to these subjects, we cannot say
that the trial court erred by admitting the certificate of
analysis.
III. SUFFICIENCY OF THE EVIDENCE
To support a conviction based on
constructive possession, the Commonwealth
must point to evidence of acts, statements
or conduct of the accused or other facts and
circumstances which tend to show the
defendant was aware of both the presence and
character of the substance and that it was
subject to his dominion and control. Where
the Commonwealth's case rests entirely upon
circumstantial evidence, as in this case,
the evidence not only must be consistent
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with guilt, but it also must exclude every
reasonable hypothesis of innocence.
Staton v. Commonwealth, 36 Va. App. 282, 287, 549 S.E.2d 627,
629 (2001) (citing Clodfelter v. Commonwealth, 218 Va. 619,
622-23, 238 S.E.2d 820, 822 (1977)).
In assessing witness credibility, the fact finder may
accept the parts of a witness' testimony it finds believable and
reject other parts as implausible. Moyer v. Commonweath, 33 Va.
App. 8, 28, 531 S.E.2d 580, 590 (2000) (en banc). Similarly,
"[d]etermining the credibility of witnesses who give conflicting
accounts is within the exclusive province of the [fact finder],
which has the unique opportunity to observe the demeanor of the
witnesses as they testify." Lea v. Commonwealth, 16 Va. App.
300, 304, 429 S.E.2d 477, 479 (1993).
Here, the evidence, viewed in the light most favorable to
the Commonwealth, established that Hurley saw appellant toss
items, the drugs, between two parked cars. Other officers were
at the place when the items were recovered. This case is
distinguishable from Gordon v. Commonwealth, 212 Va. 298, 183
S.E.2d 735 (1971), because in the instant case there is no
"fatal gap in the circumstantial evidence." Id. at 301, 183
S.E.2d at 737. This was not an area "on which numerous persons
were gathered," id., and Officer Hurley saw appellant drop the
items between the two parked cars where the drugs were
recovered.
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The trial court, as the finder of fact, was entitled to
conclude that Hurley was testifying truthfully and to rely on
his observations.
For these reasons, we affirm the trial court.
Affirmed.
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Marcus Antonio Campbell v. Commonwealth of Virginia
Combined Opinion