COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Fitzpatrick and Annunziata 

Argued at Alexandria, Virginia 

SAMUEL WISE CHANG 

 MEMORANDUM OPINION* BY 

v. Record No. 2599-95-4 JUDGE JOHANNA L. FITZPATRICK 

 NOVEMBER 5, 1996 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA 

Alfred D. Swersky, Judge 

 Cary Steven Greenberg (John M. Tran; 

Greenberg, Bracken & Tran, on briefs), for 

appellant. 

 Marla Graff Decker, Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 Samuel Wise Chang (appellant) was convicted in a jury trial 

of unlawfully distributing anabolic steroids and unlawfully 

prescribing Schedule III controlled substances. On appeal, he 

contends that the trial court erred in: (1) finding the evidence 

sufficient to support convictions for the unlawful distribution 

of anabolic steroids; (2) improperly instructing the jury 

regarding the elements of the offenses; (3) allowing the 

Commonwealth's expert witness to testify regarding the 

potentially harmful side effects of anabolic steroids; (4) 

allowing the Commonwealth's expert witness to testify regarding 

the hypothetical treatment of a patient; (5) finding the evidence 

sufficient to support convictions for the unlawful prescribing of 

 

 *Pursuant to Code § 17-116.101 this opinion is not 

designated for publication. 
 2 

hydrocodone; (6) allowing the Commonwealth's expert witness to 

testify regarding the appropriate use of anabolic steroids; (7) 

denying appellant's motion to suppress the evidence seized from 

appellant's office; and (8) denying appellant's motion to 

suppress the evidence recovered though the use of undercover body 

wires. For the following reasons, we affirm the trial court. 

 BACKGROUND

 Appellant is a general physician licensed to practice in 

Virginia. From the fall of 1992 through the spring of 1994, 

appellant prescribed to various individuals anabolic steroids 

including Decadurabolin, Halotestin, Testosterone Cypionate, 

Anadrol, and the drugs Vicodin and Hydrocodone. 

 The Alexandria Police Department obtained a search warrant 

for appellant's office after gathering information in an 

undercover investigation that included drug purchases by 

undercover police officers and others who wore "body wires." 

During the search of appellant's office, the police seized 

certain named patient files, as well as records of patients not 

specifically named in the search warrant. As a result of the 

undercover investigation, appellant was indicted on seventeen 

counts of unlawfully and feloniously distributing anabolic 

steroids, and seven counts of unlawfully prescribing a schedule 

III controlled substance. 

 On May 18, 1995, the trial court denied appellant's motions 

to suppress the evidence obtained from the search of appellant's 
 3 

office and evidence recovered through the use of body wires. 

 At trial, over appellant's objections, the court allowed the 

Commonwealth's witness, Dr. Frank Petrone (Dr. Petrone), to 

testify as an expert regarding (1) medically acceptable practices 

of dispensing anabolic steroids; (2) harmful side effects of 

abusing large quantities of anabolic steroids; and (3) the 

hypothetical treatment of a patient. Appellant's expert witness, 

Dr. Alvin Goldstein (Dr. Goldstein), testified that anabolic 

steroids, although recently in disfavor by the medical community, 

have "medically acceptable" applications, especially when 

administered in small doses. 

I. SUFFICIENCY OF THE EVIDENCE

 At trial, appellant moved to strike the evidence and to 

dismiss the misdemeanor counts because he claimed there was "no 

sufficient evidence for the jury to find that there was in fact 

bad faith in this doctor prescribing these medications for pain." 

 (Emphasis added). Appellant then moved to strike and dismiss 

the remaining felony counts, because "there's been nothing 

offered which would show a reasonable juror beyond a reasonable 

doubt that there was bad faith of [appellant] with respect to the 

. . . felony counts." (Emphasis added). Later, at the close of 

all the evidence, appellant made merely "a motion for the record 

for a motion to strike the evidence in all the counts." 

 On appeal, appellant contends that he should not have been 

convicted of unlawful distribution of anabolic steroids, in 
 4 

violation of Code § 18.2-248.5, because the evidence did not 

support a finding that he "distributed" (emphasis added) the 

steroids and that the evidence did not support his convictions of 

unlawfully prescribing hydrocodone in violation of Code 

§§ 18.2-260 and 54.1-3408. 

 The Court of Appeals will not consider an argument on appeal 

that was not presented to the trial court. Jacques v. 

Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d 630, 631 (1991) 

(citing Rule 5A:18). 

 Appellant argues that, even though he failed to preserve 

these issues in the trial court, the ends of justice exceptions 

to Rule 5A:18 should be applied. 

 "[T]o avail himself of the [ends of justice exception] the 

defendant ha[s] to affirmatively show [that] 'a miscarriage of 

justice [has] occurred, not . . . that a miscarriage might have 

occurred' [and it] requires that the error be clear, substantial 

and material." Brown v. Commonwealth, 8 Va. App. 126, 132, 380 

S.E.2d 8, 11 (1989) (quoting Mounce v. Commonwealth, 4 Va. App. 

433, 436, 357 S.E.2d 742, 744 (1987)). The record does not 

reflect a reason to invoke this exception. Accordingly, Rule 

5A:18 bars our consideration of these issues. 

II. JURY INSTRUCTIONS

 Next, appellant argues that the trial court improperly 

instructed the jury regarding the elements of distribution of 

anabolic steroids, by expanding the definition of "distribute" to 
 5 

include "administer[], prescribe[] or dispense[]," and did not 

properly instruct the jury regarding the "good faith" element of 

the offenses. 

 Appellant failed to object at trial to the "distribution" 

aspect of this instruction. "No 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. 

Accordingly, Rule 5A:18 also bars our consideration of this 

question on appeal, and the record reflects no reason to invoke 

the good cause or ends of justice exceptions to Rule 5A:18 

regarding this issue. Brown, 8 Va. App. at 132, 380 S.E.2d at 

11. 

 Both appellant and the Commonwealth submitted proposed 

instructions on "good faith." The judge considered the 

instructions proffered and, pursuant to appellant's request that 

the jury be instructed that a conviction could not be based on 

the civil negligence standard, fashioned a compromise instruction 

including the sentence "[m]ere negligence is not a lack of good 

faith." Appellant now argues that the jury should have been 

instructed on the definition of negligence. However, he did not 

make this argument at trial, nor did he request such an 

instruction at trial. Jacques, 12 Va. App. at 593, 405 S.E.2d at 

631; Rule 5A:18. 
 6 

 Furthermore, "[w]hile the ends of justice exception is 

narrow, the exception 'requires correction of an instruction 

which allows a jury to convict a defendant without proof of an 

element of a crime.'" Allen v. Commonwealth, 20 Va. App. 630, 

639, 460 S.E.2d 248, 252 (1995) (citations omitted). We hold 

that the trial court properly instructed the jury and no element 

of the crime was unproven. 

III. EXPERT WITNESS TESTIMONY

 Appellant next argues that the trial court erred in 

qualifying the Commonwealth's witness Dr. Petrone as an expert 

regarding the use of anabolic steroids; in allowing him to 

testify regarding adverse side effects of steroid abuse; and in 

allowing him to give an opinion based on a hypothetical patient. 

 After objecting to Dr. Petrone's credentials and testimony, 

appellant specifically questioned his own expert, Dr. Goldstein, 

regarding the "medically accepted uses of anabolic steroids" and 

whether he agreed with Dr. Petrone's statement that "as of 1992, 

there are no, absolutely no medically accepted uses of anabolic 

steroids." In addition, appellant asked Dr. Goldstein whether, 

hypothetically, anabolic steroids are appropriate for patients 

(1) with chronic fatigue, muscle fatigue or muscle weakness, or 

(2) wishing to gain weight because they are weak. 

 "The qualification of an expert is within the sound 

discretion of the trial court." Lane v. Commonwealth, 223 Va. 

713, 718, 292 S.E.2d 358, 361 (1982). 
 7 

 A trial court will not be reversed for 

allowing a witness to testify as an expert 

unless it appears clearly that he was not 

qualified in the field in which he gives 

evidence. The question of qualification is 

largely in the discretion of the trial judge 

 . . . . An expert in a criminal case "may 

give an opinion based [only] upon his own 

knowledge of facts disclosed in his testimony 

or . . . upon facts in evidence assumed in a 

hypothetical question," but the witness may 

not express an opinion as to the ultimate 

issue to be determined by the trier of fact. 

Price v. Commonwealth, 18 Va. App. 760, 764, 446 S.E.2d 642, 

644-45 (1994) (citations omitted). 

 "All that is necessary for a witness to qualify as an expert 

is that he have 'sufficient knowledge of his subject to give 

value to his opinion,' and that he be better qualified than the 

jury to form an inference from the facts." Id. at 86, 341 S.E.2d 

at 399 (citations omitted). "Any argument that [the expert] 

lacked experience in the field went to the weight that the trier 

of fact gave to [his] opinion, not to its admissibility." Id. 

 Dr. Petrone, an orthopedic surgeon, clearly had sufficient 

knowledge and experience to render an opinion in this case 

regarding the use and abuse of steroids, although he indicated 

that he did not approve of the use of steroids. Any objection to 

Dr. Petrone's qualification as an expert witness went to the 

weight to be given his testimony, and not its admissibility. 

Therefore, the trial court did not err in allowing Dr. Petrone to 

testify as an expert witness. 

 "[W]here an accused unsuccessfully objects to evidence which 
 8 

he considers improper and then on his own behalf introduces 

evidence of the same character, he thereby waives his objection, 

and we cannot reverse for the alleged error." Hubbard v. 

Commonwealth, 234 Va. 1, 9, 413 S.E.2d 875, 879 (1992) (citations 

omitted). 

 Additionally, appellant waived any objection to Dr. 

Petrone's testimony, because he asked his own expert during 

direct examination about the uses and possible side effects of 

anabolic steroids, and posed hypothetical questions to his own 

expert witness. Furthermore, several witnesses provided the 

information used by the Commonwealth in its hypothetical 

questions. Therefore, the Commonwealth's hypothetical questions 

were properly based on facts in evidence. Accordingly, appellant 

is barred from raising this issue on appeal. 

IV. SUPPRESSION OF EVIDENCE

A. Medical Files

 Appellant next contends that the seizure of the medical 

files from his office violated the Fourth Amendment prohibition 

against unreasonable searches and seizures, and that the seizure 

of these files does not fall under the plain view exception to 

the warrant requirement. 

 At trial, the evidence demonstrated that the Alexandria 

police had a valid warrant to search appellant's offices; and 

that the suspected criminal activity was distribution of Schedule 
 9 

III and V controlled substances.1

 Detective Steve Gurdak stated 

that he had to look through files to find the names of the 

patients who were listed in the warrant. He testified that "it 

appeared that almost any file I opened up had some notation about 

anabolic steroid use." The trial court found that "they were 

looking for unmarked files that had notes and notations that had 

to do with what Investigator Gurdak reasonably believed to be the 

distribution of anabolic steroids." The court found that the 

plain view doctrine authorized the police action. 

 In reviewing a trial court's motion to suppress, "[t]he 

burden is upon [appellant] to show that this ruling, when the 

evidence is considered most favorably to the Commonwealth, 

constituted reversible error." Fore v. Commonwealth, 220 Va. 

1007, 1010, 265 S.E.2d 729, 731, cert. denied, 449 U.S. 1017 

(1980). 

 "An officer may seize an item in plain view if the officer 

 

 1The police were authorized to search for and seize: 

 Any and all records of anabolic steroids 

dispensed or maintained within the office, 

any and all records of controlled narcotics 

dispensed or maintained within the office, 

any inventory of anabolic steroids or 

controlled narcotics stored in the office, 

any papers or other records associated with 

the distribution of anabolic steroids or 

controlled narcotics for other than 

legitimate medical treatments, medical 

records, files, billing or other records for 

the following specified patients: [eighteen 

names listed]. 
 10 

is lawfully in a position to see the item and it is 'immediately 

apparent that the item may be evidence of a crime.'" 

Commonwealth v. Ramsey, 19 Va. App. 300, 303, 450 S.E.2d 775, 777 

(1994) (citation omitted). 

 The police were lawfully in appellant's office, pursuant to 

a valid search warrant authorizing them to search the office for 

particular files and evidence of the distribution of anabolic 

steroids and controlled narcotics. To recover the specifically 

named patients' files, it was necessary for the officers to 

search several areas of the office and various drawers and files. 

 During the course of this search, they discovered additional 

items that were linked to the distribution of steroids and 

narcotics, including an unusually large supply of anabolic 

steroids. Thus, the evidence disclosed during a lawful search 

was in plain view and properly admitted. 

B. Body Wires

 Lastly, appellant argues that the trial court erred in 

denying his motion to suppress the evidence obtained by the use 

of an undercover body wire. Appellant claims that the officers 

did not obtain court approval for the interception of oral 

communications obtained through a body wire; that his 

conversations were not with co-conspirators; and that he was not 

discussing the commission of a crime. 

 "It shall not be a criminal offense under this chapter for a 

person to intercept a wire, electronic or oral communication, 
 11 

where such person is a party to the communication or one of the 

parties to the communication has given prior consent to such 

interception." Code § 19.2-62(B)(2) (emphasis added). "[I]t is 

not a violation for a person to disclose the contents of a 

communication . . . while testifying under oath in any criminal 

proceeding for an offense of extortion, bribery, or felony drug 

violation or any conspiracy or attempt to commit those offenses." 

Wilks v. Commonwealth, 217 Va. 885, 887, 234 S.E.2d 250, 251 

(1977). 

 Furthermore, "[however] strongly a defendant may trust an 

apparent colleague, his expectations in this respect are not 

protected by the Fourth Amendment when it turns out the colleague 

is a government agent regularly communicating with the 

authorities. In these circumstances, 'no interest legitimately 

protected by the Fourth Amendment is involved,' for that 

amendment affords no protection to 'a wrongdoer's misplaced 

belief that a person to whom he voluntarily confides his 

wrongdoing will not reveal it.'" Id. at 889-90, 234 S.E.2d 

at 253. 

 Every participant in the undercover operation who wore a 

body wire consented to the police intercepting the communications 

between the person and appellant prior to the conversations 

taking place. Therefore, we hold that the evidence was properly 

admissible. 

 Accordingly, for all the foregoing reasons, we affirm the 
 12 

decisions of the trial court. 

 Affirmed.