                      COURT OF APPEALS OF VIRGINIA


Present: Judges Annunziata, Bumgardner and Senior Judge Hodges
Argued at Alexandria, Virginia


DANIEL EDWARD JACKSON
                                           MEMORANDUM OPINION * BY
v.      Record No. 0075-98-4               JUDGE WILLIAM H. HODGES
                                              FEBRUARY 23, 1999
COMMONWEALTH OF VIRGINIA


                FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
                         Thomas D. Horne, Judge

             Elwood Earl Sanders, Jr., Director
             Capital/Appellate Services (Public Defender
             Commission, on briefs), for appellant.

             Marla Graff Decker, Assistant Attorney General
             (Mark L. Earley, Attorney General; Lisa R.
             McKeel, Assistant Attorney General, on brief),
             for appellee.


        Daniel Edward Jackson (appellant) was convicted in a jury

trial of arson.     He contends that the trial court erred by (1)
allowing expert opinion evidence as to whether evidence at the

fire scene was consistent with the use of an accelerant, and (2)

admitting Commonwealth's Exhibit 6 over a chain of custody

objection.     For the following reasons, we find no error and

affirm the conviction.
                                 Facts

        On February 8, 1997, Mickey Gaines was awakened at 4:00 a.m.

by a "loud bang."     Gaines saw that her stepfather's garage was on

fire.     Gaines testified that earlier during the week of the fire,

her stepfather, Frank Coram, had accused appellant of stealing
     *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
several hundreds of dollars worth of coins from Coram's garage

and had called the sheriff.   After the accusation, appellant

drove off in Gaines's car.    Gaines did not speak to appellant

again between the day of the argument and the day of the fire.

     The garage had no electricity, was not wired for

electricity, and had no heating source.    No gasoline or oil was

stored in the garage.    The motorcycles kept in the garage had a

small amount of gasoline in their tanks.

     Assistant Fire Marshal Mike Taylor investigated the fire.

Taylor examined the fire patterns and looked for patterns of heat

and ignition sources, debris, and burn patterns.   Taylor found

patterns on the floor "indicative of some form of ignitable

liquid that can be a flammable or combustible liquid that had

been poured."   He also found evidence of "a flammable or

combustible liquid that had been poured."   Underneath the step,

Taylor found "charring which was indicative of a fire that's

looking for more fuel.   The fire is hungry.   It's looking for

fuel and it's actually following a liquid that has run underneath

that wood where it would not normally travel."   Taylor also found

burn marks in a carpeted area that were indicative of the use of

an ignitable liquid.
     Fire Marshal Captain Patrick Brandenburg took a wooden

debris sample that showed characteristics of an ignitable liquid,

which was later tested and found to contain a petroleum product.

     On February 12, 1997, Taylor and Brandenburg went to

interview appellant at David Necessary's house, but found that



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appellant abruptly exited a back door.   They later found

appellant crouched behind a dumpster.    Appellant denied any

knowledge of the fire.   However, appellant told Charles Hill of

his plan to "burn a shed down with some old engines in it."

Appellant later told Hill that he had burned down the shed.

Appellant told Gregory Necessary that he "got even on somebody"

and had "burned them out."   Appellant acknowledged possession of

the can of gasoline behind the wood pile at David Necessary's

house.
     At trial, Taylor explained that the burn patterns were

"consistent with the presence of accelerants," which in this

case, he could narrow down to an ignitable liquid.   Brandenburg

also testified that the burn patterns were consistent with the

use of accelerants.

                                I.

     Appellant contends that the trial court committed reversible

error by allowing expert witnesses, Taylor and Brandenburg, to

testify that the burn patterns they observed and photographed at

the scene of the fire were consistent with the "presence" of an

accelerant, i.e., a flammable liquid.    Appellant argues that this

expert testimony violated the "ultimate issue of fact" rule.    We

disagree.

     In Virginia, "[a]n expert witness may express an opinion

relative to the existence or nonexistence of facts not within the

common knowledge, but 'the admission of expert opinion upon the

ultimate issue of fact is impermissible because it invades the



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function of the fact finder.'"     Zelenak v. Commonwealth, 25 Va.

App. 295, 299, 487 S.E.2d 873, 875 (1997) (en banc) (quoting

Llamera v. Commonwealth, 243 Va. 262, 264, 414 S.E.2d 597, 598

(1992)).    Whether fire is incendiary or accidental is an ultimate

issue of fact to be determined by the fact finder.     See Ramsey v.

Commonwealth, 200 Va. 245, 250-51, 105 S.E.2d 155, 159 (1958).

However,

            [t]he witness may detail the facts and
            observations which came to his attention
            while investigating the fire and may give his
            or her conclusions or opinions on such
            matters as where the fire started, the cause
            or source of ignition, how it proceeded, and
            whether and why certain accidental causes can
            be eliminated. However, the court must
            "permit the jurors to draw their own
            conclusions as to the cause" of the fire.
Callahan v. Commonwealth, 8 Va. App. 135, 139, 379 S.E.2d 476,

479 (1989) (citation omitted).

     The testimony of Taylor and Brandenburg as to the "presence"

of an accelerant at the fire scene did not constitute the

ultimate issue of fact.   Rather, their testimony related to

observations which came to their attention while investigating

the fire.   Their testimony did not constitute an opinion as to

the cause of the fire.    Accordingly, the trial court did not err

in admitting the testimony of Taylor and Brandenburg regarding

the "presence" of an accelerant.

                                  II.

     Brandenburg testified that on February 8, 1997, he collected

a sample of wooden debris from the entrance door seal and step



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area at the fire scene to be tested for the presence of a

flammable liquid.   While wearing gloves, Brandenburg placed the

sample in a sterile metal can, and marked the can with a case

number, his initials, and the date.    Brandenburg sealed the can,

but did not tape it at that time because he intended to perform a

"fire canine" check on the sample within a couple of days.

Thereafter, Brandenburg secured the can in his vehicle.   He then

transported it to the Leesburg fire marshal's office and locked

it in an evidence locker in a secure evidence room.   Brandenburg,

the Chief Fire Marshal and Captain Mitchell were the only persons

who possessed keys to the locker.
     After a canine test of the sample on February 10, 1997,

Brandenburg sealed the can, taped it with orange tape, and locked

it in the evidence locker.   During the canine test, Brandenburg

did not remove any of the contents of the can.   On February 19,

1997, Brandenburg transported the sample to the Northern Regional

Forensic Laboratory located in Fairfax, Virginia ("the Fairfax

laboratory").   The Fairfax laboratory received the sealed sample

under Brandenburg's signature and kept the sample at the lab

until September 9, 1997.   During the time the sample remained at

the Fairfax laboratory, Robin McLaughlin, a forensic scientist,

performed a test on the sample to determine whether a flammable

liquid was present.

     On September 9, 1997, Eileen Davis, the forensic section

chief in the trace evidence division of the Commonwealth of

Virginia Forensic Science Laboratory located in Richmond,



                               - 5 -
Virginia ("the Richmond laboratory"), received the sample, which

had been at the Fairfax laboratory, from Taylor.    Taylor had

travelled to the Fairfax laboratory and retrieved the sample,

which he then brought to Davis in Richmond.    When Taylor received

the sample at the Fairfax laboratory, it was in a can sealed with

yellow evidence tape.   The orange tape that had been placed on

the can by Brandenburg in February 1997 had been breached when

the Fairfax laboratory tested the sample.    The Fairfax laboratory

placed the yellow tape on the can after it tested the sample.     On

September 9, 1997, Davis again tested a previously extracted

portion of the sample, which the Fairfax laboratory had placed in

a small glass vial inside the can.     Based upon her review of

McLaughlin's notes, Davis confirmed that she performed the same

type of test on the extract as McLaughlin had performed at the

Fairfax laboratory, with similar results.    Davis then rendered a

report stating that the extract contained gasoline.    Davis

returned the sample to Taylor on September 9, 1997.    Taylor

transported the sample back to the Leesburg fire marshal's office

and secured it in a locked evidence locker until the morning of

trial.   On the morning of trial, Taylor removed the can from the

evidence locker and transported it to the courthouse.
     The trial court refused to admit the certificates of

analysis produced by the Fairfax laboratory and the Richmond

laboratory into evidence because the Commonwealth failed to file

them within seven days prior to trial as required by Code

§ 19.2-187.   However, the trial court marked the certificates of



                               - 6 -
analysis as Commonwealth's Exhibits 12 and 13 for identification

purposes only and ruled that based upon the certificates, the

Commonwealth was entitled to the prima facie presumption of the

chain of custody provided by Code § 19.2-187.01.    The trial court

allowed Davis to testify regarding her testing of the sample and

her knowledge of the testing which was performed at the Fairfax

laboratory.   The trial court ruled that the fact finder was

entitled to weigh the evidence, including Davis's testimony.

     Appellant contends that the trial court erred in relying

upon Code § 19.2-187.01 to prove the chain of custody of the

sample.   In addition, appellant argues that the chain of custody

was fatally flawed because Davis could not determine whether

McLaughlin's alteration of the sample during its testing affected

Davis's results.
     "[T]he 'admissibility of evidence is within the broad

discretion of the trial court,' and the defendant bears the

burden of proving the trial court's admission of evidence

constitutes reversible error."     Alvarez v. Commonwealth, 24 Va.

App. 768, 776, 485 S.E.2d 646, 650 (1997) (citations omitted).

                In order to introduce evidence of the
           chemical properties of the [sample] admitted
           into evidence, the Commonwealth was required
           to present "proof of the chain of custody" of
           the [sample], "including 'a showing with
           reasonable certainty that the item [had] not
           been altered, substituted, or contaminated
           prior to analysis, in any way that would
           affect the results of the analysis.'"
           However, in proving the chain of custody, the
           Commonwealth "[']is not required to exclude
           every conceivable possibility of
           substitution, alteration or tampering.'" The


                                 - 7 -
          Commonwealth must, instead, account for every
          "'vital link in the chain of possession.'"

Id. at 776-77, 485 S.E.2d at 650 (citations omitted).

     Here, Brandenburg collected the sample, marked and sealed

the can, secured it in a locked evidence locker, and then

personally delivered it to the Fairfax laboratory.    Brandenburg's

testimony accounted for the sample until he left it at the

Fairfax laboratory.   The Fairfax laboratory received the sample

under Brandenburg's signature on February 19, 1997, and it

remained there until Taylor retrieved it on September 9, 1997,

and personally transported it to Richmond, where Davis again

tested the extract and then gave the sample back to Taylor, who

accounted for it until it was presented at trial.    The trial

court did not err in allowing the Commonwealth to rely on the

certificates of analysis to establish prima facie evidence of the
chain of custody of the sample from the time Brandenburg left it

at the Fairfax laboratory until Taylor retrieved and transported

it to the Richmond laboratory.     See id. at 777-78, 485 S.E.2d at

651 (holding that although certificates of analysis were not

timely filed, the Commonwealth was entitled to rely upon Code

§ 19.2-187.01 to avoid establishing chain of custody within the

laboratory).   In Alvarez, we recognized that "[u]nlike Code
§ 19.2-187, § 19.2-187.01 does not require filing of the

certificate seven days prior to trial as a prerequisite to




                                 - 8 -
admission for purposes of proving custody with the laboratory."

Id. at 777, 485 S.E.2d at 651. ¹

     Here, the authorized agents attested to the analysis of the

sample introduced into evidence.   Therefore, the certificates of

analysis were admissible to prove the chain of custody within the

laboratories.    Thus, because the evidence was sufficient to prove

the chain of custody and the certificates of analysis were

properly relied upon by the trial court to prove the chain of

custody within the laboratories, the trial court did not err in

admitting the sample and Davis's testimony regarding her analysis

of the sample.   Taking the evidence regarding the chain of

custody into account, the fact finder was entitled to determine

what weight, if any, was to be given to Davis's testimony in

light of the fact that she re-tested a sample previously tested

at the Fairfax laboratory.   "The weight which should be given to

evidence and whether the testimony of a witness is credible are



     ¹
          Code § 19.2-187.01 specifically provides that

          "[a] report of analysis duly attested by the
          person performing such analysis or
          examination in any [authorized]
          laboratory . . . shall be prima facie
          evidence in a criminal or civil proceeding as
          to the custody of the material described
          therein from the time such material is
          received by an authorized agent of such
          laboratory until such material is released
          subsequent to such analysis or examination."

Alvarez, 24 Va. App. at 777-78, 485 S.E.2d at 651 (quoting Code
§ 19.2-187.01).




                                - 9 -
questions which the fact finder must decide."   Bridgeman v.

Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598, 601 (1986).

     Accordingly, the trial court's judgment is affirmed.

                                                   Affirmed.




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