                      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


                              - 4 -
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.

                                - 5 -
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

                                - 6 -
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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