COURT OF APPEALS OF VIRGINIA 

Present: Judge Bray, Senior Judges Duff and Overton 

Argued at Alexandria, Virginia 

AL BAACE ABDULLA AL-GHANI 

 MEMORANDUM OPINION* BY 

v. Record No. 0264-98-4 JUDGE NELSON T. OVERTON 

 MAY 18, 1999 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA 

John E. Kloch, Judge 

Jeffrey T. Barbour (Office of the Public 

Defender, on brief), for appellant. 

Jeffrey S. Shapiro, Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 In a bench trial, appellant was convicted of attempting to 

possess cocaine, and was given a two year suspended sentence. 

On appeal, appellant contends that the trial court erred: (1) 

in refusing to sanction the Commonwealth for failing to preserve 

the imitation cocaine sold to appellant by an undercover police 

officer; (2) in finding the evidence sufficient to prove beyond 

a reasonable doubt that appellant committed the charged offense; 

(3) in rejecting appellant's entrapment defense; and (4) in 

denying appellant's motion for a new trial based upon the trial 

 

 *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, 

this opinion is not designated for publication. 

 
judge's failure to recuse himself. Finding no error, we affirm 

appellant's conviction. 

 The parties are fully conversant with the record in this 

case. Because this memorandum opinion carries no precedental 

value, no recitation of the facts is necessary. 

I. 

 In Galbraith v. Commonwealth, 18 Va. App. 734, 739, 446 

S.E.2d 633, 636-37 (1994), this Court stated that 

 [u]nless appellant can show bad faith on 

the part of the prosecution, or that the 

missing evidence would be exculpatory, 

failure to preserve potentially relevant 

evidence does not constitute a denial of due 

process. Arizona v. Youngblood, 488 U.S. 

51, 58 (1988). . . . "Determining the 

intentions of the police in failing to 

preserve evidence requires consideration of 

the nature of the evidence. If it is clear 

that, had the evidence been properly 

preserved, it would have formed a basis for 

exonerating the defendant, then absent a 

showing to the contrary we must assume that 

the police were not acting in good faith. 

However, in Youngblood, the Supreme Court 

held that the 'Due Process Clause requires a 

different result when we deal with the 

failure of the State to preserve evidentiary 

material of which no more can be said than 

that it could have been subjected to tests, 

the results of which might have exonerated 

the defendant.'" 

(quoting Tickel v. Commonwealth, 11 Va. App. 558, 562-63, 400 

S.E.2d 534, 537 (1991)). 

 In the present case, appellant has demonstrated no evidence 

of bad faith on the part of the police. Posing as a street 

level drug dealer, Officer Tony Sidnor sold appellant a piece of 

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white chocolate which was similar in texture, color, and size to 

crack cocaine sold on the streets. The record shows that the 

police may or may not have recovered the white chocolate after 

appellant's arrest. Sidnor, who directed the operation, did not 

tell the arresting officers what to do with the white substance. 

Officer Sharma, a member of the arrest team, confirmed that he 

received no instructions regarding the recovery of the 

substance, and he was unaware of the disposition of the 

substance. The record reflects that the substance was last seen 

in the possession of appellant. These circumstances do not 

indicate the existence of bad faith on the part of the police. 

 Moreover, appellant has not shown that if the white 

chocolate had been preserved, it would have formed a basis for 

exonerating him. At most, appellant can assert that the 

substance was potentially exculpatory in that it may have 

differed in appearance or texture from Sidnor's description of 

the substance he sold to appellant. As discussed below, 

however, the evidence was sufficient to support a conclusion 

beyond a reasonable doubt that appellant intended to purchase 

actual cocaine. Therefore, appellant suffered no violation of 

his due process rights. 

 Appellant also contends that the failure to preserve the 

evidence violated his rights under the Confrontation Clause of 

the Sixth Amendment. Cases invoking violations of the 

confrontation clause fall into two general categories: (1) 

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cases involving admissions of out-of-court statements; and (2) 

cases involving restrictions on the scope of cross-examination. 

See Delaware v. Fensterer, 474 U.S. 15, 18-19 (1985). This case 

plainly does not fall into either category. 

 The Virginia Supreme Court has stated: 

A defendant's rights under the confrontation 

clause are trial rights which are designed 

to prevent the improper restriction of 

cross-examination. These rights "[do] not 

include the power to require the pretrial 

disclosure of any and all information that 

might be useful in contradicting unfavorable 

testimony." Pennsylvania v. Ritchie, 480 

U.S. 39, 53 (1987). These rights are 

"satisfied if defense counsel receives wide 

latitude at trial to question witnesses." 

Id.

Goins v. Commonwealth, 251 Va. 442, 456, 470 S.E.2d 114, 124 

(1996). Appellant was virtually unrestricted in his 

cross-examination of Sidnor. We find no Sixth Amendment 

violation. 

 Nor do we find merit in appellant's claim that Virginia's 

discovery rules required the Commonwealth to preserve the 

substance sold to appellant by Sidnor. Rule 3A:11(b)(1) permits 

discovery by the accused of certain items "that are known by the 

Commonwealth's attorney to be within the possession, custody or 

control of the Commonwealth." The record does not indicate that 

the imitation cocaine was actually recovered by the police from 

appellant upon his arrest, or that it was in the Commonwealth's 

possession, custody, or control. 

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 Appellant also contends that the Commonwealth violated Code 

§ 18.2-253 and that the appropriate sanction for this violation 

is the dismissal of the charge against him. Code § 18.2-253 

provides that "[a]ll controlled substances, imitation controlled 

substances, marijuana or paraphernalia the lawful possession of 

which is not established or the title to which cannot be 

ascertained, which have come into the custody of a peace officer 

or have been seized in connection with violations of this 

chapter," shall be disposed of in the manner described by the 

statute. However, except in circumstances inapplicable to this 

case, "[n]o such substance or paraphernalia used or to be used 

in a criminal prosecution under this chapter shall be disposed 

of as provided by this section until all rights of appeal have 

been exhausted . . . ." Code § 18.2-253(B). 

 In United States v. Belcher, 762 F. Supp. 666 (W.D. Va. 

1991), the Commonwealth destroyed alleged marijuana the 

defendant was charged with having manufactured. The 

Commonwealth had performed no testing on the substance prior to 

destroying it. The Belcher court applied due process principles 

and, finding a constitutional violation to exist, ruled that the 

charge should be dismissed. Id. at 672-73. 

 As noted above, however, appellant suffered no due process 

violation in the present case. "'While violations of state 

procedural statutes are viewed with disfavor, . . . neither the 

Virginia Supreme Court nor the legislature has adopted an 

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exclusionary rule for such violations . . . where no deprivation 

of the defendant's constitutional rights occurred.'" West v. 

Commonwealth, 16 Va. App. 679, 692, 432 S.E.2d 730, 738 (1993) 

(citation omitted). "[A]bsent an express statutory provision 

for suppression," the Virginia Supreme Court has "steadfastly 

refused to extend [the exclusionary] rule to encompass evidence 

seized pursuant to statutory violations . . . ." Janis v. 

Commonwealth, 22 Va. App. 646, 651, 472 S.E.2d 649, 652, aff'd 

on reh'g en banc, 23 Va. App. 696, 479 S.E.2d 534 (1996). 

 Code § 18.2-253 does not provide that the Commonwealth's 

failure to dispose of imitation controlled substances in the 

manner prescribed should result in the suppression of evidence 

or the imposition of other sanctions against the Commonwealth. 

Therefore, the trial judge did not err in refusing to dismiss 

the charge due to the Commonwealth's apparent failure to abide 

by Code § 18.2-253. 

II. 

 "On appeal, 'we review the evidence in the light most 

favorable to the Commonwealth, granting to it all reasonable 

inferences fairly deducible therefrom.'" Archer v. 

Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) 

(citation omitted). 

 Where the defendant is charged with attempting to commit a 

crime, 

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the Commonwealth must prove the accused had 

a specific intent to commit that crime. 

Moreover, to convict an accused of 

possession of a particular unlawful 

substance, the Commonwealth must prove that 

the accused was aware of the character of 

the particular substance at issue. "'The 

purchase of a noncontrolled substance that 

the defendant subjectively believes to be a 

controlled substance can constitute an 

attempt to possess . . .' provided the 

government 'proves the defendant's 

subjective intent to purchase . . . actual 

narcotics beyond a reasonable doubt.'" 

Smith v. Commonwealth, 16 Va. App. 626, 627-28, 432 S.E.2d 1, 2 

(1993) (citations omitted). 

 "Intent is a subjective state of mind, and proof of it is 

ofttimes difficult. Frequently, it must be proved by 

circumstantial evidence alone." Rodriguez v. Commonwealth, 18 

Va. App. 277, 282, 443 S.E.2d 419, 423 (1994) (en banc), aff'd, 

249 Va. 203, 454 S.E.2d 725 (1995). Circumstantial evidence may 

establish the elements of a crime, provided it excludes every 

reasonable hypothesis of innocence. See Tucker v. Commonwealth, 

18 Va. App. 141, 143, 442 S.E.2d 419, 420 (1994). 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). 

 Appellant's asserted hypothesis of innocence--that he 

intended to purchase imitation cocaine from Sidnor--did not flow 

from the evidence. Appellant agreed to purchase a two dollar 

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"piece," a street jargon reference to crack cocaine. He agreed 

to the purchase before Sidnor showed him the substance. While 

Sidnor and appellant discussed the sale, there was no indication 

that the item proposed for sale was anything other than actual 

cocaine. 

 Moreover, the circumstances surrounding the transaction 

were consistent only with a sale of actual cocaine. The 

packaging and appearance of the white chocolate was consistent 

with real cocaine. The transaction took place surreptitiously, 

after appellant and Sidnor agreed to the terms of the 

transaction. A two dollar sale of cocaine, although rare, was 

not unprecedented in Sidnor's experience. Considering the facts 

and circumstances, the evidence was sufficient to prove beyond a 

reasonable doubt that appellant possessed the intent to purchase 

cocaine and that appellant committed the charged offense. 

III. 

 "Entrapment is the conception and planning of an offense by 

a police agent, and his or her procurement of its commission by 

'one who would not have perpetrated it except for the trickery, 

persuasion, or fraud' of the police." Howard v. Commonwealth, 

17 Va. App. 288, 293, 437 S.E.2d 420, 424 (1993) (citation 

omitted). "There is nothing improper in the use, by the police, 

of decoys, undercover agents, and informers to invite the 

exposure of willing criminals and to present an opportunity to 

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one willing to commit a crime." Stamper v. Commonwealth, 228 

Va. 707, 715, 324 S.E.2d 682, 687 (1985). 

 While Sidnor provided the opportunity for appellant to 

commit the crime, there was no evidence that appellant would not 

have attempted to purchase cocaine except through the 

persuasion, trickery, or fraud of the police. That Sidnor sold 

the "cocaine" to appellant for only two dollars, which was all 

the money appellant said he possessed, did not prove that the 

crime was the result of entrapment. Indeed, appellant's "ready 

commission of the criminal act amply demonstrate[d his] . . . 

predisposition." Jacobson v. United States, 503 U.S. 540, 550 

(1992). Therefore, the trial judge did not err in rejecting 

appellant's entrapment defense. 

IV. 

 Canon 3(C) of the Canons of Judicial Conduct provides: 

C. Disqualification. 

(a) A judge shall disqualify himself in any 

proceeding in which his impartiality might 

reasonably be questioned. 

(1) To this end, he should abstain from 

performing or taking part in any judicial 

act in which his personal interests are 

involved. He should not act in a 

controversy where a near relative is a 

party. He should not suffer his conduct to 

justify the impression that any person can 

improperly influence him or unduly enjoy his 

favor, or that he is affected by his 

kinship, rank, position or influence of any 

party or other person. 

(2) A judge should inform himself about his 

personal and fiduciary financial interests, 

and make a reasonable effort to inform 

himself about the personal financial 

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interests of his spouse and minor children 

residing in his household. 

In a similar case involving a former Commonwealth's 

Attorney's refusal to recuse himself as trial judge, this Court 

stated that 

 [t]he requirement of this Canon is clear; 

a judge must diligently avoid not only 

impropriety but a reasonable appearance of 

impropriety as well. Exactly when a judge's 

impartiality might reasonably be called into 

question is a determination to be made by 

that judge in the exercise of his or her 

sound discretion. Judges are presumed to be 

aware of the provisions of Canon 3, and 

their decisions will not be disturbed absent 

an abuse of that discretion. 

Davis v. Commonwealth, 21 Va. App. 587, 591, 466 S.E.2d 741, 743 

(1996) (citation omitted). 

The record reveals that the trial judge, a former 

Commonwealth's Attorney in Alexandria, gave full and fair 

consideration to appellant's pretrial motion, as well as to the 

objections raised by appellant during trial. The mere fact that 

a trial judge makes rulings adverse to a defendant, standing 

alone, is insufficient to establish bias requiring recusal. See

Stamper, 228 Va. at 714, 324 S.E.2d at 686; Stevens v. 

Commonwealth, 8 Va. App. 117, 123, 379 S.E.2d 469, 473 (1989). 

At the post-trial hearing, the judge indicated that he was aware 

of no bias or prejudice he may have harbored against appellant, 

and the record does not demonstrate otherwise. Therefore, 

appellant has demonstrated no basis upon which to reverse the 

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trial judge's decision, exercised in his discretion, not to 

recuse himself. 

 For the foregoing reasons, appellant's conviction is 

affirmed. 

 Affirmed.

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