                      COURT OF APPEALS OF VIRGINIA


Present:  Chief Judge Moon, Judges Baker, Benton, Coleman,
          Elder, Bray, Fitzpatrick, Annunziata and Overton
Argued at Richmond, Virginia


RICKY LAMONT JONES
                                                   OPINION BY
v.           Record No. 0832-93-2            JUDGE SAM W. COLEMAN III
                                                 DECEMBER 19, 1995
COMMONWEALTH OF VIRGINIA

                         UPON REHEARING EN BANC

             FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                         Thomas N. Nance, Judge

              David P. Baugh for appellant.

              Marla Lynn Graff, Assistant Attorney General
              (James S. Gilmore, III, Attorney General, on brief),
              for appellee.



         Ricky Lamont Jones was convicted in a jury trial of

distribution of cocaine, a second or subsequent offense in

violation of Code § 18.2-248(C).     A panel of this Court reversed

the conviction on the ground that the evidence was insufficient
                                         1
to prove Jones possessed the cocaine.         See Jones v.
     1
       Prior to oral argument before the panel, the defendant filed
a motion to dismiss the conviction on the ground that the
predicate conviction used to enhance the punishment pursuant to
Code § 18.2-248(C) had been reversed after the petition for appeal
was filed. See Jones v. Commonwealth, 18 Va. App. 329, 443 S.E.2d
820 (1994). In his brief for the en banc rehearing, the defendant
also raised as an additional issue the reversal of the predicate
conviction during the pendency of the appeal. However, other than
stating the question, the defendant does not present an argument
or cite authority in support of his contention that an appellate
court may take notice of the status of a predicate offense when
that status changes during the pendency of the appeal. See
Buchanan v. Buchanan, 14 Va. App. 53, 56, 415 S.E.2d 237, 239
(1992) (holding that appeals court not required to decide an issue
not discussed or developed on brief).
     Nevertheless, we hold that we cannot address this question
Commonwealth, 19 Va. App. 393, 397, 451 S.E.2d 695, 697 (1994).

We granted the Commonwealth's petition for rehearing en banc and

upon rehearing we affirm the conviction.

     The questions presented on appeal are (1) whether a

conviction for an offense that was committed subsequent to the

charged offense can be used to enhance punishment under Code

§ 18.2-248(C), (2) whether the trial court erred by permitting

the police informant, who allegedly purchased cocaine from the

defendant, to testify that he could not remember anything about

the controlled buy, and (3) whether the evidence is sufficient to

support the conviction.
                            I. FACTS
            On June 14, 1991, Special Agent Barrett
          arranged for confidential informant Floyd
          Langhorne to purchase two ounces of cocaine.
           At about 3:00 p.m., while accompanied by
          Officer Reed, Barrett frisked Langhorne,
          drove him to an unspecified location west of
          the McDonald's Restaurant at 501 West Broad
          Street that was to be the site of the
          purchase, and gave him $2,500 with which to
          make the purchase. Langhorne returned to the
          police vehicle at 3:20 p.m. with two plastic
          bags of cocaine. Special Agent Barrett gave
          the cocaine to Special Agent Blanton, and
          appellant stipulated to the chain of custody
          of the cocaine from that point forward.

            Detectives Pence and Milhalcoe monitored
because it was not presented in the defendant's petition for
appeal and no appeal was granted on the issue. Rule 5A:12(C);
Goodwin v. Commonwealth, 11 Va. App. 363, 364 n.1, 398 S.E.2d 690,
690-91 n.1 (1990). Defects in a criminal conviction that occur
after an appeal has been granted and which may render the
convict's detention unlawful, must be raised other than by direct
appeal. See Code § 8.01-654(A); McClenny v. Murray, 246 Va. 132,
134, 431 S.E.2d 330, 330-31 (1993).



                               -2-
          Langhorne's activities in and around the
          McDonald's parking lot. From the top of a
          nearby building, Pence saw Langhorne walk
          through an alley and into the McDonald's
          parking lot. There, Langhorne met up with
          appellant, and the two walked to a car, which
          they entered. Two minutes later, Langhorne
          got out of the car, appellant drove away, and
          Langhorne walked back toward where Barrett
          and Reed were waiting. Pence photographed
          these events. From a car in a nearby parking
          lot, Detective Milhalcoe saw appellant drive
          alone in a car into the McDonald's parking
          lot. Although Milhalcoe saw Langhorne and
          appellant meet in the parking lot, he
          testified that they walked "momentarily" out
          of his sight. When they were out of his
          sight at the front of the restaurant, he
          could not see whether Langhorne went into the
          restaurant or met other persons. He also
          testified that other restaurant patrons were
          in the area. Appellant and Langhorne
          reappeared and entered appellant's car.
          Langhorne got out of the car after a "short
          time," appellant drove away, and Langhorne
          walked back toward where Barrett and Reed
          "were supposed to be."
            Neither Pence nor Milhalcoe testified that
          they actually saw Langhorne rejoin Barrett
          and Reed at their vehicle, and the evidence
          failed to show that the line of sight of
          Pence or Milhalcoe overlapped the line of
          sight of Barrett or Reed. Thus, the evidence
          fails to prove that Langhorne was under
          police surveillance at all times.


Jones, 19 Va. App. at 394-95, 451 S.E.2d at 695-96.
                               II.

                 SECOND OR SUBSEQUENT CONVICTION

     Code § 18.2-248(C) provides, in pertinent part, that upon a

first conviction for distributing a Schedule II controlled

substance a person shall be imprisoned for not less than five nor

more than forty years, but that "[u]pon a second or subsequent



                               -3-
conviction of such a violation" a person may be sentenced to

imprisonment for life or any period not less than five years.

The defendant argues that a conviction for an offense committed

subsequent to the charged offense does not qualify as "a second

or subsequent conviction" under the statute.

     The defendant concedes that a panel of this Court has

decided this issue adversely to his position, see Mason v.

Commonwealth, 16 Va. App. 260, 430 S.E.2d 543 (1993), but he

argues that the Court, sitting en banc, should overrule the
panel's decision in Mason.   We decline to do so, and we uphold

the decision in Mason that "[Code § 18.2-248(C)] contains no

provision that, in order for the enhanced penalty provision to

obtain, the defendant must have been convicted of the first

offense before committing the second offense."    Id. at 262, 430

S.E.2d at 543.
                                III.

             ADMISSIBILITY OF INFORMANT'S TESTIMONY

     Outside the presence of the jury, the Commonwealth called

Floyd Langhorne as a witness.   Langhorne claimed he had been ill,

and he denied having any recollection of the events for which the

defendant was on trial.   Over the defendant's objection that

Langhorne's testimony was irrelevant and prejudicial, the trial

court permitted Langhorne to testify that he had sustained head

injuries and could not remember any of the events surrounding his

purported drug purchase from the defendant.    Langhorne also

testified that he could not identify himself as one of the people

                                -4-
shown in a photograph that had been taken of his encounter with

the defendant near the McDonald's restaurant.

       The Commonwealth proved that Langhorne was a confidential

police informant who made a controlled drug purchase for the

police.   Thus, according to the Commonwealth's evidence, he was a

material witness.   He was the only witness for the Commonwealth

who participated in the transaction and who presumably had

personal knowledge of the particulars of the drug purchase.     See
Bland v. City of Richmond, 190 Va. 42, 46, 55 S.E.2d 289, 291

(1949).   Therefore, Langhorne's testimony that he had sustained

head injuries and could not remember the events of the day in

question was relevant to explain the absence of evidence from a

material witness, thereby avoiding the presumption that

Langhorne's testimony would have been adverse to the

Commonwealth.    See Russell v. Commonwealth, 216 Va. 833, 835-36,

223 S.E.2d 877, 878-79 (1976); Bland, 190 Va. at 46, 55 S.E.2d at

291.   Accordingly, the trial court did not err by permitting

Langhorne to testify that he did not recall the events.
                               IV.

                       SUFFICIENCY OF EVIDENCE

       We reject the Commonwealth's contention that the defendant

is procedurally barred by Rule 5A:18 from raising the question of

whether the evidence is sufficient to prove beyond a reasonable

doubt that the cocaine the officers obtained from Langhorne came

from the defendant.   Although the panel stated "that the issues

of sufficiency of the evidence and chain of custody are

                                 -5-
inextricably linked," Jones, 19 Va. App. at 397, 451 S.E.2d at

697, the panel did not hold that by objecting to the

admissibility of the drugs into evidence on the ground of

insufficient proof of the chain of custody, the defendant thereby

raised the issue of whether the evidence is sufficient to sustain

the conviction.   The panel held, and we agree, that the motion

"to set aside the verdict as contrary to the law and the evidence

. . . [based on] the chain of custody issue, in particular," id.,

required that the trial judge decide whether the evidence was

sufficient to prove beyond a reasonable doubt that the cocaine

the officers received from Langhorne had been purchased from the

defendant.   See Gabbard v. Knight, 202 Va. 40, 43, 116 S.E.2d 73,

75 (1960) ("While a motion to strike is an appropriate way of

testing the sufficiency of relevant evidence to sustain an

adverse verdict . . . [i]t has long been the practice in this

jurisdiction to test the sufficiency of such evidence by a motion

to set aside the verdict"); McGee v. Commonwealth, 4 Va. App.

317, 321, 357 S.E.2d 738, 740 (1987).

     We hold that the evidence is sufficient to prove beyond a

reasonable doubt that Langhorne purchased from the defendant the

cocaine he turned over to Special Agent Barrett.   Admittedly,

without Langhorne's testimony, the evidence proving that the

cocaine came from the defendant is purely circumstantial.

However, "[c]ircumstantial evidence alone is sufficient to

sustain a conviction."   Johnson v. Commonwealth, 2 Va. App. 598,



                                -6-
604-05, 347 S.E.2d 163, 167 (1986).     When circumstantial evidence

is relied upon "[t]here must be an unbroken chain of

circumstances `proving the guilt of the accused to the exclusion

of any other rational hypothesis and to a moral certainty.'"

Gordon v. Commonwealth, 212 Va. 298, 300, 183 S.E.2d 735, 737

(1971) (quoting Brown v. Commonwealth, 211 Va. 252, 255, 176

S.E.2d 813, 815 (1970)).    However, "the theory of innocence must

flow from the evidence, and not from the ruminations of defense

counsel."   Mullis v. Commonwealth, 3 Va. App. 564, 574, 351

S.E.2d 919, 925 (1987).

     "When the sufficiency of the evidence is challenged on

appeal, it is well established that we must view the evidence in

the light most favorable to the Commonwealth, granting to it all

reasonable inferences fairly deducible therefrom.    The conviction

will be disturbed only if plainly wrong or without evidence to

support it."     Jones v. Commonwealth, 13 Va. App. 566, 572, 414

S.E.2d 193, 196 (1992).

     The circumstantial evidence in this case points unerringly

to the fact that Ricky Lamont Jones was the person who sold

cocaine to Floyd Langhorne.    Special Agent Barrett arranged for

Langhorne to make a controlled drug buy.    Barrett, accompanied by

Officer Reed, frisked Langhorne to verify that he did not already

possess drugs.    Barrett then transported Langhorne to a location

west of the designated site where the purchase was to take place,

and gave Langhorne $2,500.    A short time after Langhorne left


                                  -7-
Agent Barrett and Officer Reed on foot, Officer Pence observed

Langhorne arrive at the designated site, meet the defendant, and

enter the defendant's car along with the defendant.

       Officer Pence then observed Langhorne exit the car and walk

back toward the place where Barrett and Reed were waiting.

Officer Milhalcoe also monitored Langhorne's activities in and

around the designated purchase site, and, although he momentarily

lost sight of Langhorne, like Officer Pence, he observed

Langhorne meet with the defendant, enter the defendant's car, and

then walk back toward the place where Barrett and Reed "were

supposed to be."
       Although the evidence does not show that the line of sight

of Pence or Milhalcoe overlapped the line of sight of Barrett or

Reed, it does show that Langhorne left Barrett and Reed walking

in the direction of the designated purchase site.   When Langhorne

arrived at the purchase site a few minutes later, he met with the

defendant, walked back in the direction where Barrett and Reed

were waiting, and possessed cocaine when he returned to Barrett

and Reed.   Although Officer Milhalcoe momentarily lost sight of

Langhorne, Officer Pence had Langhorne under surveillance the

entire time Langhorne was in and around the McDonald's parking

lot.   Thus, the evidence shows that Langhorne could not have

obtained the cocaine from a source other than the defendant.

       Moreover, the evidence shows that Langhorne had neither the

time nor the opportunity to purchase the drugs while en route to



                                 -8-
the designated site and then back to Barrett and Reed.   Both

Pence and Milhalcoe observed Langhorne walk back toward the place

where Barrett and Reed were waiting after meeting with the

defendant.   To suggest that Langhorne obtained the drugs from

another person along the route between the designated purchase

site and the location where Barrett and Reed were waiting is pure

speculation and conjecture.    The only reasonable conclusion that

flows from the evidence is that Langhorne purchased the cocaine

from Ricky Lamont Jones.   Thus, the evidence excludes every

reasonable hypothesis of innocence and proves beyond a reasonable

doubt that the defendant sold cocaine to Langhorne.
     The panel found the facts in Gordon to be analogous and

controlling.   We find that the facts in this case are

distinguishable from those in Gordon and that the holding in

Gordon is, therefore, not controlling.    In Gordon, a police

officer pursued a fleeing suspect and observed the suspect

carrying a manila envelope.    The officer momentarily lost sight

of the suspect.   When the suspect reappeared, he was no longer

carrying the envelope.   After apprehending the suspect, the

officer conducted a brief search of the surrounding area but

could not find the envelope.   Some minutes later, another police

officer found a manila envelope in front of some doctors' offices

located on a busy street the suspect had travelled while

attempting to flee.   The envelope contained drug paraphernalia

with traces of heroin.   While it was probable that the envelope


                                 -9-
the officer found near the busy public street was the same one

the suspect had carried, the evidence did not prove this fact.

No evidence indicated that the envelope Gordon possessed was the

same one found containing the drug paraphernalia.    Gordon, 212

Va. at 299-301, 183 S.E.2d at 736-37.

     In the present case, the evidence proves that Langhorne,

before meeting with Jones, did not possess any drugs and had

$2,500 in currency.   After meeting with Jones for the purpose of

purchasing drugs, he no longer had the $2,500, but possessed two

ounces of cocaine.    The fact that the officers did not have

Langhorne under surveillance the entire time he was away from

Agent Barrett and Officer Reed does not establish a reasonable

hypothesis that someone other than Jones was the source of the

cocaine.   Thus, the circumstantial evidence establishes that

Langhorne obtained drugs from Jones and an unbroken chain of

possession of the cocaine from Jones to Langhorne to Barrett.

Accordingly, we find the evidence sufficient and affirm the

conviction.
                                                          Affirmed.




                                -10-
Elder, J., with whom Benton, J., joins, dissenting.



     I respectfully dissent from the majority opinion for the

reasons stated in the panel decision, Jones v. Commonwealth, 19

Va. App. 393, 451 S.E.2d 695 (1994).   I would hold that the

evidence was insufficient and reverse and dismiss the conviction.




                              -11-
