COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Bray and Annunziata 

Argued at Alexandria, Virginia 

JESSE LEE BLACKWELL 

 MEMORANDUM OPINION* BY 

v. Record No. 2087-99-2 CHIEF JUDGE JOHANNA L. FITZPATRICK 

 JUNE 20, 2000 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

James B. Wilkinson, Judge 

 Patricia P. Nagel, Assistant Public Defender 

(David Johnson, Public Defender, on brief), 

for appellant. 

 Steven A. Witmer, Assistant Attorney General 

(Mark L. Earley, Attorney General, on brief), 

for appellee. 

 

* Pursuant to Code § 17.1-413, recodifying Code 

§ 17-116.010, this opinion is not designated for publication.

 Jesse Lee Blackwell (appellant) was convicted in a bench 

trial of possession with intent to distribute heroin, in 

violation of Code § 18.2-248, and possession with intent to 

distribute heroin within one thousand feet of a public school, 

in violation of Code § 18.2-255.2. On appeal, he argues that 

the evidence was insufficient as a matter of law because there 

was a break in the chain of custody of the drugs. For the 

following reasons, we affirm. 
I. 

 Under familiar principles of appellate review, we examine 

the evidence in the light most favorable to the Commonwealth, 

the prevailing party below, granting to that evidence all 

reasonable inferences fairly deducible therefrom. See Juares v. 

Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997). 

So viewed, the evidence established that on December 3, 1998, 

Officer Michael Musselwhite (Musselwhite) was conducting a drug 

activity surveillance in the area of Sixteenth and Decatur 

Streets in the City of Richmond. Watching through binoculars 

and a video camera from less than one block away, Musselwhite 

saw appellant "hanging out" with other individuals. 

At approximately 12:08 [Musselwhite] 

observed another subject, later identified 

as Charles Hall, walk over to the vacant 

lot, pick up a brown piece of paper, take 

several small items out of the brown bag. 

[Appellant] walked to the vacant lot, stood 

right in front of Mr. Hall. Mr. Hall put 

these items into [appellant's] hand. At 

that point [appellant] put the small items 

into a red candy box. At that point 

[appellant] then walked over to the corner 

of the vacant lot, placed the candy box on 

the ground. From that time, 12:08 to 

approximately 2:00 p.m., [Musselwhite] 

observed [appellant] make several hand to 

hand transactions, taking items from his 

candy box, handing them to several different 

individuals for U.S. currency. 

At 2:00 p.m., Musselwhite called an "arrest team" into the area. 

Based on the information provided by Musselwhite, the "arrest 

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team" detained appellant and retrieved the red candy box, which 

contained "numerous knotted baggies containing a tan powder." 

 Musselwhite watched Officer Kenneth Peterson (Peterson) 

walk to the box, reach down, pick it up, and then give 

Musselwhite "a thumb's up." Peterson delivered the box to 

Musselwhite ten to fifteen minutes later after Musselwhite had 

packed up his gear and left the surveillance location. 

Musselwhite maintained custody of the box until he took it, 

together with its contents, to the state lab for analysis. 

Laboratory analysis established that the powder contained in the 

candy box was heroin. Musselwhite returned to the crime scene 

and determined that it was within one thousand feet of Blackwell 

Elementary School. 

 At trial, defense counsel objected to the introduction of 

the certificate of analysis, contending that the Commonwealth 

failed to establish a proper chain of custody. Counsel argued 

that there was a break in the chain of custody because the candy 

box was out of Musselwhite's observance for approximately ten to 

fifteen minutes and Peterson did not testify about what occurred 

during that time period. The trial court overruled the 

objection. 

 At the conclusion of the evidence, defense counsel moved to 

strike the evidence, arguing the following: 

We have evidence of a person coming up and 

talking to [appellant]. And, the officer 

testified you couldn't tell what was 

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changing hands or if anything changed hands. 

On one occasion he didn't even see currency 

in the other person's hand. On one occasion 

he did, but he couldn't tell what if 

anything was in [appellant's] hand other 

than possibly a small object. Judge, I 

would testify (sic) the evidence introduced 

is insufficient based upon that in terms of 

distribution in this case and all the 

circumstances -- 

The trial court denied appellant's motion to strike, stating: 

[I]t's a case where the officer observed 

everything. He was watching hand to hand 

transactions without any explanation. . . . 

They watched him put the red box down and 

from time to time go to the red box. And, 

finally when they moved in they found drugs 

in the red box. They were in packages which 

are used for distribution of drugs. 

Clearly, it was 900 feet of the school, 

which is within 1,000 feel of the 

school. . . . The Court also finds as a fact 

as far as the chain is concerned the officer 

said he directed the other officer to the 

place to pick up the baggies, maintained it 

10 or 15 minutes until he returned it to 

this officer. I see no difficulty at all 

with the chain. It was submitted to the lab 

and the lab filed the report back with this 

Court to the Clerk's Office . . . . 

Accordingly, the trial court found appellant guilty as charged. 

II. 

 The Commonwealth contends that appellant is procedurally 

barred from challenging the chain of custody of the drugs. The 

Commonwealth argues that the admissibility of the certificate of 

analysis was not raised in appellant's petition for appeal. 

Additionally, the Commonwealth argues that appellant did not 

raise the chain of custody in his motion to strike the evidence 

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and, thus, his challenge to the sufficiency of evidence on the 

chain of custody is barred by Rule 5A:18. We agree. 

 Because appellant did not raise the admissibility of the 

certificate of analysis in his petition for appeal, that 

question is not properly before us. "Only questions presented 

in the petition for appeal will be noticed by the Court of 

Appeals." Rule 5A:12(c). Additionally, appellant failed to 

challenge the sufficiency of the evidence regarding the chain of 

custody when he made his motion to strike the evidence at the 

conclusion of trial. Accordingly, he is barred from relying 

upon that argument on appeal. See Rule 5A:18; see also Jones v. 

Commonwealth, 21 Va. App. 435, 441, 464 S.E.2d 558, 561 (1995) 

(en banc) (noting that an objection to the admissibility of 

drugs on the ground of insufficient proof of chain of custody 

does not properly raise the issue of whether the evidence was 

sufficient to sustain the conviction). 

 Moreover, we find no reasons to invoke the "ends of 

justice" exception to Rule 5A:18. The evidence established that 

Musselwhite saw appellant remove items from a red candy box and 

make hand to hand transactions. From his surveillance post, 

Musselwhite directed Peterson to the box. Peterson picked up 

the box and gave Musselwhite a "thumb's up" sign. When 

Musselwhite reached the area ten to fifteen minutes later, he 

received the box from Peterson. The box was out of 

Musselwhite's sight only when it was in Peterson's possession. 

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There was no evidence that Peterson mishandled the evidence or 

that it may have been tampered with. Regarding appellant's 

challenge to the chain of custody, the record does not reflect 

any reason to invoke the ends of justice exception to Rule 

5A:18. 

 Next, we determine whether the evidence, viewed in the 

light most favorable to the Commonwealth, as the prevailing 

party below, was sufficient to prove possession with intent to 

distribute drugs. Because direct proof of intent to distribute 

is often impossible to produce, it may, and frequently must, be 

shown by circumstantial evidence. See Servis v. Commonwealth, 6 

Va. App. 507, 524, 371 S.E.2d 156, 165 (1988). "The quantity of 

a controlled substance is a factor which may indicate the 

purpose for which it is possessed." Barlow v. Commonwealth, 26 

Va. App. 421, 429, 494 S.E.2d 901, 905 (1998). When the 

Commonwealth relies on circumstantial evidence, it must "exclude 

every reasonable hypothesis of innocence," Pemberton v. 

Commonwealth, 17 Va. App. 651, 655, 440 S.E.2d 420, 422 (1994), 

but need not disprove every remote possibility of innocence. 

See Cantrell v. Commonwealth, 7 Va. App. 269, 289, 373 S.E.2d 

328, 338 (1988). 

 In the instant case, appellant was seen making hand to hand 

transactions after retrieving items from a small candy box. In 

one of the transactions, Musselwhite saw appellant receive money 

in the exchange. When the box was recovered, it contained seven 

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individually-wrapped packets of heroin. All of these 

transactions occurred within nine hundred feet of Blackwell 

Elementary School. From these circumstances, the trial court 

could conclude beyond a reasonable doubt that appellant 

possessed heroin with intent to distribute and did so within one 

thousand feet of a public school. Accordingly, appellant's 

convictions are affirmed. 

 Affirmed. 

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