                    COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judge Coleman and Senior Judge Cole
Argued at Richmond, Virginia


PHILLIP D. WALLER, A/K/A
 PHILLIP D. JACKSON
                                           MEMORANDUM OPINION * BY
v.       Record No. 1873-95-2             JUDGE SAM W. COLEMAN III
                                              AUGUST 12, 1997
COMMONWEALTH OF VIRGINIA


               FROM THE CIRCUIT COURT OF LOUISA COUNTY
                    F. Ward Harkrader, Jr., Judge

            John R. Maus for appellant.

            H. Elizabeth Shaffer, Assistant Attorney
            General (James S. Gilmore, III, Attorney
            General, on brief), for appellee.



     The defendant, Phillip D. Waller, was convicted in a jury

trial of distribution of cocaine.   He was sentenced to twenty

years in prison, with ten years suspended, and fined $5,000.     On

appeal, he asserts that the Commonwealth failed to prove the

chain of custody of the substance that was determined to be

cocaine after it was delivered to the Division of Forensic

Science state laboratory.   Thus, he contends that the trial court

erred by admitting into evidence that substance which the

laboratory determined to be cocaine and the Certificate of

Analysis.   We hold that the trial court did not err and,

accordingly, we affirm the conviction.

     A party who offers into evidence an object or item must

     *
       Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
prove that the object or item is authentic -- that the item is

what it purports to be.   1 Charles E. Friend, The Law of Evidence

in Virginia § 13-5 (4th ed. 1993).     The proponent of such

tangible evidence authenticates it by proving "with reasonable

certainty" a continuous unbroken chain at each relevant link or

interval at which the authenticity of the evidence may be called

into question.   Robinson v. Commonwealth, 212 Va. 136, 138, 183

S.E.2d 179, 180 (1971).   The party must also establish that the

evidence continues to be the same item in all relevant or

essential characteristics.
     Where the nature, quantity, quality, or physical or chemical

characteristics of the item are relevant, "authentication

requires proof . . . 'that the item [has] not been altered,

substituted, or contaminated prior to analysis, in any way that

would affect the results of the analysis.'"     Reedy v.

Commonwealth, 9 Va. App. 386, 387, 388 S.E.2d 650, 650-51 (1990)

(quoting Washington v. Commonwealth, 228 Va. 535, 550, 323 S.E.2d

577, 587 (1984), cert. denied, 471 U.S. 1111 (1985)).      Although

the proponent has the burden of proving an unbroken chain of

custody or possession with reasonable certainty, the party "is

not required to exclude every conceivable possibility of

substitution, alteration, or tampering. . . .    All that is

required in order to establish a chain of custody is that the

[proponent's] evidence 'afford reasonable assurance that the

exhibits at trial are the same and in the same condition as they




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were when first obtained.'"    Pope v. Commonwealth, 234 Va. 114,

121, 360 S.E.2d 352, 357 (1987), cert. denied, 485 U.S. 1015

(1988) (citations omitted).

     Although the proponent must prove with reasonable assurance

an unbroken chain and that the evidence has not been altered or

tampered with in any relevant respect, the legislature has

determined, as a matter of policy, that for evidence analyzed in

specified laboratories, including the Division of Forensic

Science, a duly attested report by the person examining or

analyzing the evidence shall be prima facie proof of the chain of
custody, including the fact that the evidence has not been

altered or tampered with from the time it was delivered to the

lab until it was released.    Code § 19.2-187.01; 1 Cirios v.

Commonwealth, 7 Va. App. 292, 300, 373 S.E.2d 164, 168 (1988)
     1
       Code § 19.2-187.01. Certificate of analysis as evidence
of chain of custody of material described therein. -- A report of
analysis duly attested by the person performing such analysis or
examination in any laboratory operated by (i) the Division of
Consolidated Laboratory Services, the Division of Forensic
Science or any of its regional laboratories, or by any laboratory
authorized by either Division to conduct such analysis or
examination, . . . shall be prima facie evidence in a criminal
. . . 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. Any such certificate
of analysis purporting to be signed by any such person shall be
admissible as evidence in such hearing or trial without any proof
of the seal or signature or of the official character of the
person whose name is signed to it. The signature of the person
who received the material for the laboratory on the request for
laboratory examination form shall be deemed prima facie evidence
that the person receiving the material was an authorized agent
and that such receipt constitutes proper receipt by the
laboratory for purposes of this section.



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(quoting Babbitt v. Miller, 192 Va. 372, 379, 64 S.E.2d 718, 722

(1951)).   Thus, in order to relieve every examiner, analyst, or

person who may have had possession of the evidence at the

specified laboratories from being required to testify in every

case in order to establish the chain of custody for each item of

evidence, the legislature has provided that if the analyst

certifies that he or she examined or analyzed a particular item,

a rebuttable presumption shall exist that the object or item

returned to the court is the same one that was delivered to the

lab and analyzed and that it was not changed, altered, or

contaminated in any relevant way.   Thus, while Code § 19.2-187.01

provides for a presumption of regularity based upon an

attestation by the examiner, that presumption may be rebutted.

Furthermore, Code § 19.2-187.1 expressly provides:
          The accused in any hearing or trial in which
          a certificate of analysis is admitted into
          evidence pursuant to § 19.2-187 or
          § 19.2-187.01 shall have the right to call
          the person performing such analysis or
          examination or involved in the chain of
          custody as a witness therein, and examine him
          in the same manner as if he had been called
          as an adverse witness.


     In the present case, the Commonwealth proved that

Investigator Lowe received custody of a substance from a person

who had purchased the substance from the defendant, that Lowe

marked the substance for identification, and that he personally

delivered the substance to a security officer at the forensic

laboratory.   The evidence proved that W. E. Beasley, the chief



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security officer, signed for receipt of the substance at the lab.

Investigator Lowe later retrieved from the lab a package

containing a substance bearing the same identifying numbers which

he had placed on the package when he delivered it to the lab.

Lowe accounted for the substance until it was introduced into

evidence at trial along with the accompanying Certificate of

Analysis.

     The defendant, in an effort to rebut the presumption of

regularity as to the chain of custody while the substance was at

the forensic laboratory, called Donald C. King as a witness.

King was the forensic scientist who attested to the Certificate

of Analysis and certified that he had examined the substance and

determined it to be cocaine.   King testified to and accounted for

the substance at all times after one of the security officers

delivered it to him for analysis.   Through King, the defendant

did not present any evidence that the substance had been tampered

with, contaminated, adulterated, or substituted for, or that

another person had any contact with the substance after it was

delivered to him and before he analyzed it.   Although the

evidence proved that the assistant director of the lab had a key

to the locked drawer in which King stored the substance, the

defendant presented no evidence that rebutted the presumption of

regularity by proving that the assistant director had tampered

with or accessed the substance.
     In addition, the defendant established through King the




                               - 5 -
names of the other persons at the lab who were in the chain of

custody or had possession of the substance after Investigator

Lowe delivered it.   The defendant did not, however, call any of

those persons as witnesses or make any effort to determine

whether they had or were aware of any mishandling, tampering,

adulteration, contamination, substitution, or irregularity that

would break the chain of custody.   Nevertheless, the defendant's

argument is that he rebutted the prima facie proof of the chain

of custody when he proved that the analyst King, whom Code

§ 19.2-187.1 declares to be an adverse witness, could not account

for the substance while it was in the possession of other persons

at the forensic lab and he could not verify that those persons or

someone else did not alter, contaminate, or substitute the

substance during the time that King could not account for it.
     A defendant does not rebut the presumption of an unbroken

chain of custody by failing to offer proof of who had possession

of the substance at a given time or by failing to account for how

the person handled the substance at that time.   Had the defendant

proved that the laboratory had lost the substance, misplaced, or

could not account for it, or that the substance was readily

accessible to persons other than those at the laboratory who

should have been in the chain of custody, then the presumption

may have been sufficiently rebutted to exclude the evidence or to

require the Commonwealth to explain the break in the chain.

However, a defendant cannot rebut the presumption by offering



                               - 6 -
evidence that tends to prove only a single link in the chain and

by then claiming that the evidence fails to prove or account for

the other links.

     Next, the defendant argues that the description of the

substance that was analyzed at the laboratory and returned to the

court so differed from the description of the substance that was

delivered to the lab that there can be no "reasonable assurance"

that they were the same substance.     Therefore, he argues that the

varying descriptions between the two substances rebuts the prima

facie case established by the attested certificate and that the

trial court erred by admitting the substance and Certificate of

Analysis into evidence.   The argument fails because the

descriptions are not so dissimilar that they prove that the

substance analyzed was different from that submitted.    Moreover,

the identifying numbers and initials of those persons who

delivered and analyzed the substance and their testimony that the

substance appeared to be that which they delivered and analyzed

was sufficient to prove with "reasonable assurance" that they

were the same.   The fact that Investigator Lowe chose the

descriptive terms, "two (2) off white rock like substances" and

on another occasion "two off-white tannish substances" and that

King characterized it as "white solid material" is insufficient

to rebut the presumption.   As King explained, the varying

descriptions were nothing more than two people using slightly

different terminology to describe the same substance.    The



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identifying numbers, the testimony of the witnesses, and the

presumption provided by Code § 19.2-187.01 that the substance

delivered to the lab was the same one that was returned to the

court, proves that the substance analyzed as cocaine was the

substance purchased from the defendant.

     Accordingly, the trial judge did not err by admitting the

cocaine or the Certificate of Analysis into evidence.

                                                        Affirmed.




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