                  COURT OF APPEALS OF VIRGINIA


Present: Judges Baker, Bray and Overton
Argued at Norfolk, Virginia


MURRELL EDWARD PATRICK
                                                OPINION BY
v.        Record No. 1372-97-1            JUDGE JOSEPH E. BAKER
                                              JUNE 30, 1998
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF GLOUCESTER COUNTY
                      John M. Folkes, Judge
          Charles E. Haden for appellant.

          Leah A. Darron, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellee.



     Murrell Edward Patrick (appellant) was convicted in a bench

trial in the Gloucester County Circuit Court (trial court) of

statutory rape in violation of Code § 18.2-61.   On appeal, he

contends the trial court erroneously (1) qualified a witness with

no expertise in population genetics to testify as a DNA expert,

(2) admitted DNA evidence for which proof of the chain of custody

was lacking, (3) failed to appoint a DNA expert to help him

prepare his defense, resulting in a fundamentally unfair trial,

(4) denied his motion to reconsider based on a certificate of

analysis allegedly showing the presence of DNA from a third

person on the victim's body, and (5) found the evidence

sufficient to prove penetration.   For the reasons that follow, we

affirm the conviction.

     At about 4:30 a.m. on September 28, 1996, Deputy Dennis

Dowling responded to a specified address in Gloucester County to
investigate a domestic disturbance.        When he arrived, he found

appellant and appellant's girlfriend, Mary, arguing in the front

yard.       Mary's eleven-year-old sister (victim) and their mother

came out of the house.      "[Victim's] clothes were very disheveled,

her pants were hanging down, and . . . [she was] screaming that

[appellant] had raped her. . . .      She was clinging to her mother,

extremely shaken, hysterically crying, barely coherent, but she

kept screaming over and over that [appellant] had done this to

her." 1     Deputy Dowling told appellant he was under arrest;

appellant fled on foot, but Dowling wrestled him to the ground

and sprayed him with "Cap stun," a mucous membrane irritant, to

subdue him.

        Appellant was taken to the police station, where he waived

his constitutional rights and agreed to make a statement.        When

asked if he raped victim, he said he did not rape anyone.        When

asked whether he had intercourse with victim, appellant replied,

"She's eleven years old.      I'm not saying anything."

        Victim was taken to the hospital, where Dr. Villamer Parilla

used a physical evidence recovery kit (PERK) to collect samples

from inside and outside victim's vagina.       The swabs provided for

this purpose were sealed in separate, properly-labeled envelopes

provided with the PERK, initialled, sealed in a box, and given to
        1
      Appellant objected on hearsay grounds when Officer Dowling
testified to this out-of-court statement, but the trial court
admitted the statement as an excited utterance. On appeal,
appellant has not assigned error to the admission of the
statement.



                                   - 2 -
Investigator Randy Oakley at the hospital.   Blood, hair and

saliva samples taken from appellant in Oakley's presence were

sealed, initialled, and given to Oakley.   Oakley placed the

sealed evidence kits in the unlocked refrigerator in the

department's crime lab and sealed the refrigerator "in evidence

tape with [his] initials to make sure that no one else went into

the refrigerator."   Oakley retrieved the kits on October 3, 1996.

Although several other people had access to the crime lab,

Oakley could observe from the individual packages that their

contents had not been tampered with during the time they were in

the refrigerator.
     Jeffrey Ban, the section chief in charge of DNA testing at

the state's Division of Forensic Science laboratory, performed

RFLP DNA analysis of the "vaginal/cervical" swabs taken from

victim and the blood taken from appellant.   Ban qualified as an

expert without objection from appellant.   Ban explained the

process of collecting and analyzing evidence and concluded that

appellant could not be eliminated as the contributor of the

seminal fluid found in victim's vagina.    He testified that

appellant's DNA profile was "extremely rare" and that only one or

two other people in the United States would have it, providing a

likelihood of less than one in 100 million that a caucasian male

other than appellant could have contributed the seminal fluid.

The certificate of analysis Ban prepared was admitted into

evidence without objection.




                               - 3 -
     On cross-examination, Ban said he assumed the swabs he

tested came from inside victim's vagina "[b]ecause the swab that

I actually received . . . was marked on the envelope [in which my

laboratory associate Barbara] Llewellyn repackaged the evidence

and sent it to me as a vaginal/cervical swab."    Llewellyn had

previously opened the envelope to perform a PCR DNA test.    Ban

testified that the PCR test is used as a screening test and when,

as here, it does not eliminate a defendant, it is followed by the

more discriminating RFLP DNA test.     Llewellyn's certificate of

analysis was not admitted into evidence, but Ban testified that

it confirmed the presence of spermatozoa on victim's thighs and

external genitalia, as well as in her vaginal/cervical smears.

Ban analyzed only the vaginal/cervical swabs.
     Victim testified at trial but refused to give any testimony

against appellant.   She testified that appellant was living with

victim's adult sister, Mary, who, according to appellant's

attorney, was carrying appellant's baby at the time of trial.

     Appellant moved to strike the Commonwealth's evidence.       He

argued that proof of sperm in victim's vagina without other

evidence of penetration was insufficient to prove rape because

"there can be an ejaculation externally with sperm entering the

vagina."   The trial court denied the motion and convicted

appellant of rape.

     After sentencing, appellant filed a motion to reconsider

based on a certificate of analysis of the initial DNA test, a PCR




                               - 4 -
test, not introduced by the Commonwealth at trial.   He contended

the initial DNA test, performed by forensic scientist Barbara

Llewellyn, had concluded that "the DNA profile obtained from the

non-sperm fraction of the pubic area swabs of the victim (Item 2)

was consistent with a mixture of the DNA profiles of [appellant,

victim], and a third individual."   Appellant conceded that the

certificate of analysis containing these results had been

introduced into evidence at the preliminary hearing.    At trial,

appellant's counsel used a portion of Llewellyn's PCR DNA test

results while cross-examining DNA expert Ban, but did not

question Ban regarding the portion of the certificate showing the

possible presence of bodily fluids from a third person.    The PCR

certificate was never offered into evidence at trial.   The trial

court denied the motion, and this appeal followed.
                         Procedural Bar

     Rule 5A:18 provides that "[n]o ruling of the trial court

. . . will be considered as a basis for reversal unless the

objection was stated together with the grounds therefor at the

time of the ruling, except for good cause shown or to enable the

Court of Appeals to attain the ends of justice."   Rule 5A:18

applies to bar even constitutional claims.   See Deal v.

Commonwealth, 15 Va. App. 157, 161, 421 S.E.2d 897, 900 (1992).
          The main purpose of requiring timely specific
          objections is to afford the trial court an
          opportunity to rule intelligently on the
          issues presented, thus avoiding unnecessary
          appeals and reversals. In addition, a
          specific, contemporaneous objection gives the
          opposing party the opportunity to meet the



                              - 5 -
             objection at that stage of the proceeding.


Weidman v. Babcock, 241 Va. 40, 44, 400 S.E.2d 164, 167 (1991)

(citation omitted).

     "[T]he ends of justice exception is narrow and is to be used

sparingly . . . ."     Brown v. Commonwealth, 8 Va. App. 126, 132,

380 S.E.2d 8, 11 (1989).    "In order to avail oneself of the

exception, a defendant must affirmatively show that a miscarriage

of justice has occurred, not that a miscarriage might have

occurred."     Redman v. Commonwealth, 25 Va. App. 215, 221, 487

S.E.2d 269, 272 (1997).

     Appellant concedes that his trial counsel failed (1) to

object to the trial court's qualifying Ban as an expert witness

on DNA, (2) to object to the admission of the DNA test results

into evidence, and (3) to request the appointment of a DNA expert

to assist in the preparation of his defense.      He contends,

however, that the ends of justice exception should be applied to

permit our consideration of these issues.       We disagree.   The

record does not show affirmatively that a miscarriage of justice

occurred and, therefore, provides insufficient grounds for

invocation of the ends of justice exception.
                         Motion to Reconsider

     We also conclude that the trial court did not err in denying

appellant's motion to reconsider.    That motion was based on the

claim that the PCR DNA test result "obtained from the non-sperm

fraction of the pubic area swabs of the victim (Item 2) was




                                 - 6 -
consistent with a mixture of the DNA profiles of [appellant,

victim], and a third individual."     However, as appellant's

counsel on appeal admitted, appellant's trial counsel did not

offer that test result into evidence at trial and did not

cross-examine the Commonwealth's DNA expert on that information,

despite the fact that the certificate previously was introduced

at appellant's preliminary hearing.

     Moreover, even if the trial court had agreed to consider

this evidence, it would not have changed the result.    We

interpret the certificate to show that genetic material from a

third party was found on appellant's pubic area swabs, rather
than on those of victim, as appellant contends.    The PCR

certificate of analysis shows the DNA of a third person on "the

pubic area swabs."   Those swabs are referred to as coming from

"Item 2," and Item 2 is identified elsewhere in the certificate

as appellant's PERK rather than victim's, which is Item 1.

Furthermore, that DNA came from "the non-sperm fraction" of the

"pubic area swabs," which indicates that the gender of the third

person is unknown and, statistically speaking, that it was just

as likely to have come from a woman as from a man.    Accordingly,

the evidence, if accepted, would have shown, at most, that a

third person of unknown gender had some sexual contact with

appellant, not with victim.

     Therefore, we cannot conclude that the trial court abused

its discretion in denying appellant's motion to reconsider.     See




                               - 7 -
Murphy v. Commonwealth, 246 Va. 136, 148, 431 S.E.2d 48, 55

(1993).




                              - 8 -
          Sufficiency of the Evidence to Prove Penetration

      Although appellant concedes that the evidence proved he had

some sexual contact with victim, he contends it was insufficient

to prove penetration, a necessary element of rape.

      Under familiar principles of appellate review, we examine

the evidence in the light most favorable to the Commonwealth,

granting to it all reasonable inferences fairly deducible

therefrom.      See Martin v. Commonwealth, 4 Va. App. 438, 443, 358

S.E.2d 415, 418 (1987).     The judgment of a trial court will be

disturbed only if plainly wrong or without evidence to support

it.   See id.    The credibility of a witness' testimony and the

inferences to be drawn from proven facts are matters solely for

the fact finder's determination.      See Long v. Commonwealth, 8 Va.

App. 194, 199, 379 S.E.2d 473, 476 (1989).

      "Circumstantial evidence is as competent and is entitled to

as much weight as direct evidence, provided it is sufficiently

convincing to exclude every reasonable hypothesis except that of

guilt."   Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864,

876 (1983).     However, "the Commonwealth need only exclude

reasonable hypotheses of innocence that flow from the evidence,

not those that spring from the imagination of the defendant."

Hamilton v. Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 29

(1993).   Whether a hypothesis of innocence is reasonable is a

question of fact.      See Cantrell v. Commonwealth, 7 Va. App. 269,

290, 373 S.E.2d 328, 339 (1988).     Penetration, like any other



                                  - 9 -
element, "may be proved by circumstantial evidence and is not

dependent on direct testimony from the victim that penetration

occurred."     Morrison v. Commonwealth, 10 Va. App. 300, 301, 391

S.E.2d 612, 612 (1990) (holding that although the victim never

testified directly that penetration occurred, her testimony

regarding sexual contact and doctor's testimony that some object

penetrated her vagina were sufficient to prove accused guilty of

rape).
     Here, the circumstantial evidence was sufficient to prove

penetration.    Based on the DNA evidence introduced, the trial

court was entitled to conclude that appellant's semen was found

in victim's vagina and that it was deposited there when appellant

"raped [victim]," which required him to penetrate victim's vagina

with his penis.

     Although appellant offers what he contends are reasonable

hypotheses of innocence, we conclude that these hypotheses do not

flow from the evidence.    First, appellant contends his semen

could have been deposited on appellant's external genitalia and

could have been forced into victim's vagina when she was

penetrated by a third person.    Appellant's contention does not

constitute a reasonable hypothesis of innocence flowing from the

evidence because no evidence was introduced at trial regarding

the possible presence on victim of genetic material from a third

party.   The certificate of analysis from the PCR DNA test is

contained in the record only as an attachment to appellant's



                                - 10 -
motion to reconsider.   In addition, as discussed above, we

interpret this evidence as showing genetic material from a third

person of unknown gender on appellant's pubic area swabs, rather

than on those of victim.   Therefore, such evidence would not have

provided the foundation for a reasonable hypothesis of innocence

if it had been admitted at trial.

     Appellant also argues that sperm is highly motile and could

independently have found its way into victim's vagina after being

deposited by appellant outside the vagina.   Regardless of whether

this is a medical possibility, appellant offered no evidence to

this effect at trial; therefore, it does not constitute a

reasonable hypothesis of innocence flowing from the evidence.
     For these reasons, we affirm appellant's conviction.

                                                         Affirmed.




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