                                   COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Felton, Judge Petty and Senior Judge Coleman
Argued at Salem, Virginia


CALVIN LOVELL HURT
                                                                   MEMORANDUM OPINION* BY
v.        Record No. 0560-05-3                                      JUDGE WILLIAM G. PETTY
                                                                       NOVEMBER 7, 2006
COMMONWEALTH OF VIRGINIA


                         FROM THE CIRCUIT COURT OF BEDFORD COUNTY
                                    James W. Updike, Jr., Judge

                    Carter B. Garrett (Garrett & Garrett, P.C., on brief), for appellant.

                    Rosemary V. Bourne, Assistant Attorney General (Robert F.
                    McDonnell, Attorney General, on brief), for appellee.


          Appellant, Calvin Lovell Hurt, appeals his conviction following a jury trial for possession of

cocaine with the intent to distribute in violation of Code § 18.2-248. Hurt contends the trial court

erred by denying his motion to strike, which he based on the Commonwealth’s alleged failure to

establish the chain of custody of the cocaine. Hurt also argues that the evidence presented at trial

was insufficient to support a finding of intent to distribute cocaine. For the reasons discussed

below, we disagree with Hurt and affirm his conviction.

                                               I. BACKGROUND

          “Under familiar principles of appellate review, we examine the evidence in the light most

favorable to the Commonwealth, the prevailing party below, granting to it all reasonable inferences

fairly deducible therefrom.” Powell v. Commonwealth, 31 Va. App. 167, 169, 521 S.E.2d 787, 788

(1999).


          *
              Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       On August 13, 2003, Bedford County Sheriff’s Investigator Franklin Harmony and Sergeant

Brian McAlexander arrested Hurt on an outstanding capias. As Hurt was being arrested, Harmony

saw something fall away from Hurt’s left side. After the officers handcuffed Hurt, Harmony turned

around and saw what he believed to be two bags of narcotics lying on the bumper of the car next to

where Hurt had been standing. Harmony called McAlexander’s attention to the items on the

bumper, which McAlexander described as “two plastic sandwich bags.” Harmony then picked up

the bags, and he and McAlexander examined them. McAlexander stated that one bag “contained a

brown plant material that looked to me to be marijuana. The other one contained material that

appeared to be crack cocaine.” Harmony described the packaging as “crinkled plastic.” The

Division of Forensic Science later confirmed that the bags contained, respectively, 1.7 grams of

marijuana and 4.82 grams of crack cocaine, which was divided into fourteen individual, separately

wrapped rocks.1

                                       A. Chain of Custody

       Harmony turned the bags over to McAlexander, who subsequently delivered the evidence to

Investigator Boyd Royer, the evidence custodian for the City of Bedford Police Department. Royer

testified that, to the best of his recollection, he received the evidence from McAlexander with its

seal intact and bearing Harmony’s signature. Royer also stated that his procedure upon receiving

evidence was to log it into the computer and lock it into the evidence room; in this case, Royer

also placed the bag into a “separate narcotics filing cabinet” used to store “suspected narcotics as

an extra security measure.” Royer and supervisor Lieutenant Bennett were the only people who

had access to the evidence room.




       1
          Hurt was indicted for possession of marijuana as well as for possession of cocaine with
intent to distribute. The Commonwealth nolle prosequied the marijuana charge.
                                               -2-
       Harmony later testified that he retrieved the evidence from the evidence storage room for the

purpose of packaging it for delivery to the forensic science laboratory, and completed the request for

laboratory examination form. Harmony could not recall whether he received the evidence from

Royer or Bennett. After preparing the laboratory examination form, Harmony gave the evidence to

Royer, who was responsible for transporting it to the laboratory. Royer took the evidence to the

laboratory and submitted it for examination. Harmony, McAlexander, and Royer each testified that

he did nothing to affect or change the nature or character of the evidence while it was in his

possession.

       Chris Bryant, a forensic chemist supervisor at the Western Regional Laboratory of the

Division of Forensic Science, also testified at trial. Bryant stated that she analyzed both samples,

found them to be marijuana and cocaine, and prepared a certificate of analysis consistent with

her findings. Royer picked the samples up from the laboratory after the analysis was completed.

                                        B. Intent to Distribute

       Based on his training and experience as a narcotics officer, Harmony testified that two

factors he typically used to distinguish narcotics for personal use from narcotics for distribution

were (1) the amount of drugs, and (2) the way the drugs were packaged. Here, Harmony testified

that, in his expert opinion, the amount of drugs, the way in which they were packaged, and the

lack of drug paraphernalia in Hurt’s possession at the time of his arrest, indicated that the drugs

were for distribution rather than personal use.

       Forensic chemist Bryant testified that in her position, she had observed the various ways

crack cocaine is packaged. Her experience allowed her to observe various packaging through the

receipt of evidence and through preparing various materials to look like packaged crack cocaine

for the purpose of reverse buys. Bryant believed the crack cocaine in this case was more

consistent with distribution because each of the fourteen rocks weighed approximately 0.3 gram:

                                                  -3-
“They would all be then single units, possibly all considered the same price, because they all

weighed, approximately, the same amount.”

                                         C. Motion to Strike

       At the end of the Commonwealth’s evidence, Hurt made a motion to strike arguing that

Harmony’s uncertainty about whether he received the evidence for packaging from Bennett or

Royer constituted a break in the chain of custody. He contended that, since Bennett, who

potentially had custody of the evidence, did not testify, the Commonwealth failed to establish

that the substance seized from him was crack cocaine. Hurt also moved to strike on the

sufficiency of the evidence to establish the intent to distribute.

       The trial court denied both motions. In its ruling on the motion to strike based on chain

of custody, the trial court noted that the evidence had been admitted without objection, but

stated, “the Commonwealth is still required to prove that the substance which the

Commonwealth alleges was in the defendant’s possession was, in fact, cocaine,” a determination

that is for the jury. The trial court treated the motion “not as an issue of admissibility but rather a

motion to strike and in that respect the court rules that sufficient evidence has been made as to a

jury issue” for each side to argue its respective position.

                                            II. ANALYSIS

       While Hurt argues that the trial court erred by denying the motions to strike, the

Commonwealth argues that Hurt waived his chain of custody argument pursuant to Rule 5A:18

by failing to object to the evidence at the time it was introduced. In the alternative, the

Commonwealth contends that there is sufficient evidence to show that the cocaine entered into

evidence at the trial was the same substance retrieved by Harmony. The Commonwealth further

maintains that there was sufficient evidence of intent to distribute to support the jury’s finding.




                                                 -4-
                                      A. Standard of Review

       This Court must “presume the judgment of the trial court to be correct” and reverse only

if the trial court’s decision is “plainly wrong or without evidence to support it” when examining

the sufficiency of the evidence below. Davis v. Commonwealth, 39 Va. App. 96, 99, 570 S.E.2d

875, 876-77 (2002); see Code § 8.01-680. We do not, therefore, “substitute our judgment for

that of the trier of fact.” Wactor v. Commonwealth, 38 Va. App. 375, 380, 564 S.E.2d 160, 162

(2002). The credibility of the witnesses, the weight accorded testimony, and the inferences

drawn from proven facts are matters to be determined by the fact finder. Long v.

Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473, 476 (1989). “Instead, the

relevant question is whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979).

                                       B. Chain of Custody

       We reject the Commonwealth’s argument that Hurt waived his entire chain of custody

argument by failing to object to the admission of the evidence. Although he referred to the

concept of the chain of custody in his motion to strike, Hurt brought the issue of the sufficiency

of the evidence to the trial court’s attention. The trial court heard argument from the parties and

ruled that, while an objection to admissibility was improper at that point, a motion to strike was

not. The trial court reasoned that the motion to strike in this case required it to determine

whether the Commonwealth had provided evidence sufficient for a reasonable jury to find,

beyond a reasonable doubt, that the substance seized from Hurt was cocaine. See Jones v.

Commonwealth, 21 Va. App. 435, 441, 464 S.E.2d 558, 561 (1995) (en banc) (rejecting a similar

procedural default argument when the appellant made a motion to set aside the verdict based on a

chain of custody issue).

                                                -5-
       Generally, an argument regarding the chain of custody arises in the context of an

objection to the admissibility of evidence. See, e.g., Crews v. Commonwealth, 18 Va. App. 115,

442 S.E.2d 407 (1994). In this case, however, the trial court was presented with a different

question: whether the Commonwealth presented sufficient evidence at trial for a reasonable trier

of fact to find a requisite element of the offense. To convict an accused of possession with intent

to distribute, the Commonwealth must prove beyond a reasonable doubt that, inter alia, the

accused “possessed . . . a controlled substance.” Code § 18.2-248(A). Thus, while the term

“chain of custody” is most often used in discussing the admissibility of evidence, it also has

relevance to whether the Commonwealth has met its burden of proving that the substance Hurt

possessed was the same substance subsequently tested, found to be cocaine, and admitted into

evidence at trial. “The purpose of the chain of custody rule is to establish that the evidence

obtained by the police was the same evidence tested.” Robertson v. Commonwealth, 12

Va. App. 854, 857, 183 S.E.2d 417, 419 (1991).

       Before the trial court, Hurt argued that the Commonwealth failed to prove he possessed

cocaine because of the uncertainty in the testimony over whether Harmony had received the

evidence for packaging from Royer, who testified at trial, or Bennett, who did not.2 Therefore,

we must determine on appeal whether the absence of Bennett’s testimony precluded a reasonable

jury from determining that the evidence sent to the laboratory was the same substance seized at

the scene. In declining to agree with appellant, we are mindful that “the Commonwealth need

only exclude reasonable hypotheses of innocence that flow from the evidence, not those that



       2
         On brief, Hurt also points to vagueness in the evidence concerning whether Harmony or
McAlexander sealed and identified the evidence prior to giving it to the evidence custodian. The
procedure the officers used to seal the suspected narcotics in an evidence bag or otherwise mark
the items for identification was not developed during the officers’ trial testimony. We are
constrained by Rule 5A:18 to consider only those arguments made before the trial court. See
Weidman v. Babcock, 241 Va. 40, 44, 400 S.E.2d 164, 167 (1991).
                                                -6-
spring from the imagination of the defendant.” Hamilton v. Commonwealth, 16 Va. App. 751,

755, 433 S.E.2d 27, 29 (1993).

       We hold that there was sufficient credible evidence for the jury to find that Hurt

possessed cocaine as charged, despite the absence of Bennett’s testimony. While neither

Harmony nor McAlexander specifically identified the drugs admitted into evidence as one of the

items they recovered from the car’s bumper, the jury heard Harmony and McAlexander testify

that they examined the bag of crack cocaine at the scene. The jury also heard Harmony describe

the packaging as a crinkled sandwich bag containing fourteen individually wrapped rocks of

crack cocaine.

       Moreover, the evidence custodian, Royer, testified that the Commonwealth’s exhibit was

the same bag that he had received from McAlexander, in a sealed condition, bearing Harmony’s

initials. Since the evidence had been identified with Harmony’s initials, the jury was entitled to

infer that it was the same evidence originally submitted by McAlexander. The forensic chemist,

Bryant, corroborated the officers’ testimony when she described the cocaine and the manner in

which it was packaged when she received it. The cocaine was admitted into evidence as well,

giving the jury an opportunity to observe the appearance of the substance as well as the manner

in which it was packaged. Taken as a whole, all of this evidence formed a sufficient basis upon

which a reasonable jury could conclude that the cocaine admitted at trial was the same substance

Harmony seized from Hurt. Accordingly, the trial court did not err by denying the motion to

strike the evidence.

                                      C. Intent to Distribute

       Hurt also argues that there was insufficient evidence to support the jury’s determination

that he possessed the cocaine with the intent to distribute. In the absence of direct evidence of

drug distribution, “intent to distribute ‘must be shown by circumstantial evidence.’” Askew v.

                                                -7-
Commonwealth, 40 Va. App. 104, 108, 578 S.E.2d 58, 60 (2003) (quoting Servis v.

Commonwealth, 6 Va. App. 507, 524, 371 S.E.2d 156, 165 (1988)). “In determining whether a

defendant is guilty of possession with the intent to distribute, the trier of fact is entitled to weigh

all the circumstances in a given case.” Stanley v. Commonwealth, 12 Va. App. 867, 869, 407

S.E.2d 13, 14 (1991). The amount of drugs seized from the accused, if greater than that

ordinarily possessed for personal use, “may be sufficient to establish an intent to distribute.”

Askew, 40 Va. App. at 109, 578 S.E.2d at 60-61. Other factors to be considered are the absence

of paraphernalia indicating personal drug use and the method used to package the drugs. Rice v.

Commonwealth, 16 Va. App. 370, 372-73, 429 S.E.2d 879, 880-81 (1993).

        The Commonwealth presented expert testimony from both Harmony, who is a trained

narcotics officer, and forensic chemist Chris Bryant, who is familiar with the packaging of crack

cocaine for sale. Harmony testified that the amount of cocaine was inconsistent with personal

use, and both Harmony and Bryant testified that the manner in which the cocaine was packaged

– fourteen roughly equal, individually packaged rocks – was typical of the way crack cocaine is

packaged for sale. Furthermore, Harmony testified that he did not find any drug paraphernalia,

such as a crack pipe or other smoking device, in Hurt’s possession at the time of arrest. Thus,

the evidence was sufficient for the jury to determine that Hurt intended to sell the crack cocaine.

                                          III. CONCLUSION

        Based on the above discussion, we hold that the Commonwealth presented sufficient

evidence at trial to support Hurt’s conviction for possession of cocaine with the intent to

distribute. Therefore, we affirm.

                                                                                             Affirmed.




                                                 -8-
