                     COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Moon, Judges Benton and Elder
Argued at Richmond, Virginia


TONY BERNARD BROWN
                                             MEMORANDUM OPINION * BY
v.        Record No. 0074-94-1                JUDGE LARRY G. ELDER
                                                  JUNE 27, 1995
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
                     E. Preston Grissom, Judge

          Stephen P. Givando (James T. Wise, on brief),
          for appellant.

          Eugene Murphy, Assistant Attorney General
          (James S. Gilmore, III, Attorney General,
          on brief), for appellee.



     Tony Bernard Brown (appellant) appeals his convictions for

one count of rape in violation of Code § 18.2-61; one count of

abduction in violation of Code § 18.2-47; one count of robbery in

violation of Code § 18.2-58; and one count of assault and battery

in violation of Code § 18.2-51.    On appeal, appellant contends

(1) the trial court erred in limiting his cross-examination of

the Commonwealth's DNA expert, (2) that there was insufficient

evidence to support his convictions because the DNA testing

procedure and evidence obtained therefrom were unreliable, and

(3) the Commonwealth failed to prove a proper chain of custody of

semen and blood samples.    Because we hold that the trial court

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
committed no error, we affirm appellant's convictions.

     On October 4, 1989, Heidi Purdy (the victim) was awakened by

an intruder in her Chesapeake house.   Although it was dark, the

victim could see the intruder's arm and ascertain that he was a

black male.   The intruder forced the victim to engage in vaginal

intercourse, and after unsuccessfully attempting to take the

victim's stereo system, he fled.   Nineteen months later,

appellant was arrested and charged with the rape, abduction,

robbery, and assault and battery of the victim.   At trial, the

victim positively identified appellant as someone with similar

characteristics as the man who raped her.
     A PERK kit was prepared on the night of the attack, and

testimony detailed the kit's chain of custody.    Mr. Richard

Guerrieri, an expert in DNA analysis who worked for the Tidewater

Regional Crime Laboratory, performed DNA analysis on biological

specimens taken from the kit.   On May 22, 1991, two vials of

blood drawn from appellant were also sent to the Tidewater

laboratory for the purpose of comparing the blood's DNA with the

DNA taken from the underwear worn by the victim on the night of

the attack.

     During the course of the trial Mr. Guerrieri testified that,

based on DNA testing, it was possible to eliminate 99.9999

percent of the black population as the perpetrator; the

percentage of the population that could have matched the DNA

pattern found by Guerrieri was .00013 percent.    The trial court




                                -2-
ruled that Mr. Guerrieri could not be confronted on cross-

examination with a scientific report that he did not accept as

authoritative in the scientific field.   At the court's request,

appellant made a proffer as to what the report would have shown.

Appellant presented no expert witnesses on his behalf.

     On May 5, 1993, at the conclusion of the evidence, the jury

found appellant guilty of rape, abduction, robbery, and assault

and battery, but not guilty of burglary.
                                I.

                    LIMIT ON CROSS-EXAMINATION

     First, we hold that the trial court did not err in limiting

appellant's ability to cross-examine Mr. Guerrieri, the

Commonwealth's DNA expert witness.    Appellant attempted to cross-

examine Mr. Guerrieri by using the Report of the Committee on DNA

Technology in Forensic Science ("the Report"), issued by the

National Research Council of the National Academy of Science in

April of 1992.   However, Mr. Guerrieri refused to recognize the

Report as a standard authority within his field of expertise.    We

are guided by the well-accepted rule, as recently articulated by

the Supreme Court of Virginia, that it is improper to allow the

"cross-examination of an expert with an article that the expert

does not recognize as standard and authoritative in a particular

field."   Griffett v. Ryan, 247 Va. 465, 473-74, 443 S.E.2d 149,

154 (1994).   Therefore, the trial court did not err in deciding

that Mr. Guerrieri could not be cross-examined with the use of



                                -3-
the Report.




              -4-
                                  II.

               RELIABILITY OF DNA TESTING PROCEDURE

     Appellant contends that the DNA testing procedure and

evidence obtained therefrom, and the population statistics used

to reach the testing results, are unreliable and insufficient to

support a finding that appellant was the perpetrator.    As the

Supreme Court of Virginia recently stated, "DNA testing is a

reliable scientific technique."     Satcher v. Commonwealth, 244 Va.

220, 241, 421 S.E.2d 821, 834 (1992), cert. denied, __ U.S. __,
113 S. Ct. 1319 (1993); Spencer v. Commonwealth, 238 Va. 275,

289, 384 S.E.2d 775, 782 (1989), cert. denied, 493 U.S. 1036

(1990).   Moreover, in 1990, the reliability of DNA evidence and

its admissibility as evidence in the courts of Virginia was

codified in Code § 19.2-270.5.

     In this case, Mr. Guerrieri, the Commonwealth's DNA expert,

detailed the procedures used to test the DNA samples and

testified as to the population data bases commonly used by

laboratories to reach statistical conclusions about the

probability of a DNA "match."    While appellant confronted Mr.

Guerrieri on cross-examination with matters that may have called

into question DNA testing's reliability and validity, "[a]ny

controversy over the results of the testing and the statistical

calculations goes to the weight of the evidence and is properly

left to the trier of fact."     State v. Anderson, 881 P.2d 29, 48

(1994).



                                  -5-
     Mr. Guerrieri testified that he could not eliminate

appellant as the source of the semen based on the DNA testing

results; the victim testified that she was attacked by a black

male (appellant was a black male); and appellant was similar in

size to the victim's attacker.    Viewing this credible evidence in

the light most favorable to the party prevailing below, we hold

that the Commonwealth established the intruder's identity beyond

a reasonable doubt.
                                 III.

                         CHAIN OF CUSTODY

     Lastly, assuming that appellant is not procedurally barred

from raising this issue on appeal by Rules 5A:18 or 5A:12, we

hold that the Commonwealth sufficiently established a chain of

custody for both the semen and blood samples.   Appellant

presented no evidence that either sample was contaminated or that

there was a break in the Commonwealth's chain of custody.   The

Commonwealth's proof of chain of custody included "a showing with

reasonable certainty that the item[s] [were] not 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, 388, 388 S.E.2d 650, 651 (1990)

(citation omitted).   Keeping in mind that "'[t]he Commonwealth is

not required to exclude every conceivable possibility of

substitution, alteration, or tampering,'" id. at 392, 388 S.E.2d

at 653, we hold that the trial court did not abuse its discretion



                                 -6-
in allowing the introduction of the DNA test results.

     For the foregoing reasons, we affirm appellant's

convictions.

                                                        Affirmed.




                               -7-
BENTON, J., dissenting.

                                  I.

     "The Due Process Clause protects the accused against

conviction except upon proof beyond a reasonable doubt of every

fact necessary to constitute the crime with which he is charged."

 In Re Winship, 397 U.S. 358, 364 (1970).    The evidence in this

case failed to prove beyond a reasonable doubt that Brown was the

perpetrator of the offense.
     The Commonwealth's DNA expert, Richard A. Guerrieri,

testified as follows:
          Q Now, it's important in calculating these
          figures that we understand exactly what they
          mean. And by that question what I am saying
          is you are not by any stretch of the
          imagination identifying Tony Brown as being
          the person who deposited that semen inside of
          [the victim's] underwear?

             A I'm not. Jurors, this technique is not
             done to identify an individual as the
             depositor of the stain. But rather I'm doing
             the test to determine if I can eliminate the
             person that I've been asked to compare.

             Q And not being able to eliminate means that
             he might be the contributor of the stain?

             A Essentially what it means in the instance
             we can eliminate a very large percentage of
             the population that could not have been the
             depositor. But, no, we could not eliminate
             Mr. Brown.


     The evidence in this case rises no higher than that

testimony.

     Based upon a statistical extrapolation, Guerrieri testified

that "Brown cannot be eliminated as a possible donor" of the


                                 -8-
material from which he extracted the DNA.   Although he testified

that statistically he "could eliminate 99.9999 percent of the

black population" of the United States as donors of the sample,

he also testified that the "[p]ercentage of [the black

population] who could have donated the stain with the exclusion

of . . . Brown would be approximately .00013 percent."   In short,

statistically, 130 persons out of each one million persons in the

black population of the United States could donate the stain.
     Moreover, Guerrieri gave no statistics for the probability

of a match within the Hispanic population or any other population

group that includes people with dark skins.   The victim testified

that she could only see her attacker's arm.   Based upon seeing

his arm, she reported to the police that her attacker was "a

black person."   Thus, the DNA statistical assumptions are based

upon the victim's assumption regarding the attacker.

     Furthermore, the statistical evidence did not take into

account DNA profiles of persons related to Brown.   Guerrieri

testified that his statistical "percentage is based on unrelated

individuals to Mr. Brown."   Thus, his testimony did not exclude

persons related to Brown.

     "[C]ircumstances of suspicion, no matter how grave or

strong, are not proof of guilt sufficient to support a verdict of

guilty."   Clodfelter v. Commonwealth, 218 Va. 619, 623, 238

S.E.2d 820, 822 (1977).   At best, the Commonwealth's proof relies

upon an inference drawn from statistical probability.    However,



                                -9-
it is fundamental that "even a probability of guilt . . . is

insufficient to support a criminal conviction."     Bishop v.

Commonwealth, 227 Va. 164, 170, 313 S.E.2d 390, 393 (1984).        On

its face, the evidence in the record "is insufficient to exclude

a reasonable hypothesis that someone other than [Brown] was the

criminal agent."   Christian v. Commonwealth, 221 Va. 1078, 1083,

277 S.E.2d 205, 208 (1981).   The victim's testimony that Brown

appeared to be the same height and weight as her attacker did not

exclude persons other than Brown.     Without some further proof

linking Brown to the attack, "the evidence is insufficient to

carry the Commonwealth's case from the realm of probability and

supposition into the area of proof beyond a reasonable doubt."
Hall v. Commonwealth, 225 Va. 533, 537, 303 S.E.2d 903, 905

(1983).   For these reasons, I would reverse the conviction.

                                II.

     The Commonwealth proffered Guerrieri as an expert "DNA

examiner."   After the trial judge ruled that Guerrieri was

qualified as a DNA expert, Guerrieri testified on direct

examination concerning the theory of DNA, the characteristics of

DNA, the details of DNA analysis, and aspects of population

genetics.

     Guerrieri also testified on cross-examination that the

population data he used to compute the probability of a "match"

were derived from a data base collected by the F.B.I.    He also

acknowledged that the Report of the National Research Council of



                               -10-
the National Academy of Science recommends the use of a

statistical approach different than that used by his laboratory.

     When the Commonwealth objected to the defense counsel

questioning Guerrieri regarding the N.A.S. Report, the trial

judge ruled that "[t]he question is whether or not [the N.A.S.

Report has] been recognized in the field of forensic science."

Guerrieri then responded as follows regarding the N.A.S. Report:
          Q I would ask first of all, are you familiar
          with the work of the National Research
          Counsel?
          A   Yes.

          Q And the council operating under the name
          of the National Academy of Science was
          commissioned back in 1990, I believe, to do a
          study of the DNA analysis and interpretation
          of the results, correct?

          A   That is correct.

          Q And that resulted in the publication of
          the study in 1992?

          A   Yes.

          Q And contained in that study -- first of
          all, the members of the National Research
          Council would have included the people who
          are experts in the fields of the DNA
          analysis, molecular biology, population
          genetics, all of those things?

          A   Yes, a variety of fields.

          Q And when they published that study, one of
          the recommendations contained within it was
          that a more conservative figure be used in
          calculating the likelihood of the random
          match. And their principle that they
          endorsed was known as the [ceiling]
          principle, correct?

          A   That was one of their recommendations,



                                 -11-
yes.




       -12-
                   *    *    *    *     *   *    *

           Q Is it not true that the National Academy
           of Science may well be the most prestigious
           collection of scientists in this country?

           A If you're asking in general, yes. If
           you're asking with applications for forensic
           science to what the work is, then I would
           have a different answer.

           Q You would give a different answer
           concerning forensic scientists?

           A   My answer would be no.

           Q Now, is that your opinion or is it an
           opinion that is shared throughout the
           community by other forensic scientists?
           A It's a universal opinion of forensic
           laboratories.


     In further response to questioning by the trial judge,

Guerrieri testified as follows:
          Q To clear my mind then, is the work
          recognized as a standard authority in your
          field of forensic science in relation to DNA
          testing?

           A It's debated. It's not universally
           accepted, but it's debated.

           Q Are you saying that it is standard or not
           standard?

           A No, it's not standard. It's just argued
           whether it should be accepted as being
           standard.


     The witness was proffered as an expert in DNA and testified

as such.   I believe that the trial judge's ruling denying counsel

the right to question Guerrieri regarding the N.A.S. Report was

based upon the erroneous premise that the N.A.S. Report had to be




                                 -13-
standard in the field of forensic science.   Guerrieri was

qualified, however, as an expert in DNA.   His testimony was

sufficient to establish that the N.A.S. Report was standard in

the field of DNA.   Thus, I would hold that the testimony was

sufficient to allow counsel to examine Guerrieri concerning the

N.A.S. Report.

     I dissent.




                               -14-
