COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Bray and Overton 

Argued at Norfolk, Virginia 

MURRELL EDWARD PATRICK 

 OPINION BY 

v. Record No. 1372-97-1 JUDGE JOSEPH E. BAKER 

 JUNE 30, 1998 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF GLOUCESTER COUNTY 

John M. Folkes, Judge 

 Charles E. Haden for appellant. 

 Leah A. Darron, Assistant Attorney General 

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

for appellee. 

 Murrell Edward Patrick (appellant) was convicted in a bench 

trial in the Gloucester County Circuit Court (trial court) of 

statutory rape in violation of Code § 18.2-61. On appeal, he 

contends the trial court erroneously (1) qualified a witness with 

no expertise in population genetics to testify as a DNA expert, 

(2) admitted DNA evidence for which proof of the chain of custody 

was lacking, (3) failed to appoint a DNA expert to help him 

prepare his defense, resulting in a fundamentally unfair trial, 

(4) denied his motion to reconsider based on a certificate of 

analysis allegedly showing the presence of DNA from a third 

person on the victim's body, and (5) found the evidence 

sufficient to prove penetration. For the reasons that follow, we 

affirm the conviction. 

 At about 4:30 a.m. on September 28, 1996, Deputy Dennis 

Dowling responded to a specified address in Gloucester County to 
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investigate a domestic disturbance. When he arrived, he found 

appellant and appellant's girlfriend, Mary, arguing in the front 

yard. Mary's eleven-year-old sister (victim) and their mother 

came out of the house. "[Victim's] clothes were very disheveled, 

her pants were hanging down, and . . . [she was] screaming that 

[appellant] had raped her. . . . She was clinging to her mother, 

extremely shaken, hysterically crying, barely coherent, but she 

kept screaming over and over that [appellant] had done this to 

her."1

 Deputy Dowling told appellant he was under arrest; 

appellant fled on foot, but Dowling wrestled him to the ground 

and sprayed him with "Cap stun," a mucous membrane irritant, to 

subdue him. 

 Appellant was taken to the police station, where he waived 

his constitutional rights and agreed to make a statement. When 

asked if he raped victim, he said he did not rape anyone. When 

asked whether he had intercourse with victim, appellant replied, 

"She's eleven years old. I'm not saying anything." 

 Victim was taken to the hospital, where Dr. Villamer Parilla 

used a physical evidence recovery kit (PERK) to collect samples 

from inside and outside victim's vagina. The swabs provided for 

this purpose were sealed in separate, properly-labeled envelopes 

provided with the PERK, initialled, sealed in a box, and given to 

 1Appellant objected on hearsay grounds when Officer Dowling 

testified to this out-of-court statement, but the trial court 

admitted the statement as an excited utterance. On appeal, 

appellant has not assigned error to the admission of the 

statement. 
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Investigator Randy Oakley at the hospital. Blood, hair and 

saliva samples taken from appellant in Oakley's presence were 

sealed, initialled, and given to Oakley. Oakley placed the 

sealed evidence kits in the unlocked refrigerator in the 

department's crime lab and sealed the refrigerator "in evidence 

tape with [his] initials to make sure that no one else went into 

the refrigerator." Oakley retrieved the kits on October 3, 1996. 

 Although several other people had access to the crime lab, 

Oakley could observe from the individual packages that their 

contents had not been tampered with during the time they were in 

the refrigerator. 

 Jeffrey Ban, the section chief in charge of DNA testing at 

the state's Division of Forensic Science laboratory, performed 

RFLP DNA analysis of the "vaginal/cervical" swabs taken from 

victim and the blood taken from appellant. Ban qualified as an 

expert without objection from appellant. Ban explained the 

process of collecting and analyzing evidence and concluded that 

appellant could not be eliminated as the contributor of the 

seminal fluid found in victim's vagina. He testified that 

appellant's DNA profile was "extremely rare" and that only one or 

two other people in the United States would have it, providing a 

likelihood of less than one in 100 million that a caucasian male 

other than appellant could have contributed the seminal fluid. 

The certificate of analysis Ban prepared was admitted into 

evidence without objection. 
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 On cross-examination, Ban said he assumed the swabs he 

tested came from inside victim's vagina "[b]ecause the swab that 

I actually received . . . was marked on the envelope [in which my 

laboratory associate Barbara] Llewellyn repackaged the evidence 

and sent it to me as a vaginal/cervical swab." Llewellyn had 

previously opened the envelope to perform a PCR DNA test. Ban 

testified that the PCR test is used as a screening test and when, 

as here, it does not eliminate a defendant, it is followed by the 

more discriminating RFLP DNA test. Llewellyn's certificate of 

analysis was not admitted into evidence, but Ban testified that 

it confirmed the presence of spermatozoa on victim's thighs and 

external genitalia, as well as in her vaginal/cervical smears. 

Ban analyzed only the vaginal/cervical swabs. 

 Victim testified at trial but refused to give any testimony 

against appellant. She testified that appellant was living with 

victim's adult sister, Mary, who, according to appellant's 

attorney, was carrying appellant's baby at the time of trial. 

 Appellant moved to strike the Commonwealth's evidence. He 

argued that proof of sperm in victim's vagina without other 

evidence of penetration was insufficient to prove rape because 

"there can be an ejaculation externally with sperm entering the 

vagina." The trial court denied the motion and convicted 

appellant of rape. 

 After sentencing, appellant filed a motion to reconsider 

based on a certificate of analysis of the initial DNA test, a PCR 
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test, not introduced by the Commonwealth at trial. He contended 

the initial DNA test, performed by forensic scientist Barbara 

Llewellyn, had concluded that "the DNA profile obtained from the 

non-sperm fraction of the pubic area swabs of the victim (Item 2) 

was consistent with a mixture of the DNA profiles of [appellant, 

victim], and a third individual." Appellant conceded that the 

certificate of analysis containing these results had been 

introduced into evidence at the preliminary hearing. At trial, 

appellant's counsel used a portion of Llewellyn's PCR DNA test 

results while cross-examining DNA expert Ban, but did not 

question Ban regarding the portion of the certificate showing the 

possible presence of bodily fluids from a third person. The PCR 

certificate was never offered into evidence at trial. The trial 

court denied the motion, and this appeal followed. 

Procedural Bar

 Rule 5A:18 provides that "[n]o 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 

applies to bar even constitutional claims. See Deal v. 

Commonwealth, 15 Va. App. 157, 161, 421 S.E.2d 897, 900 (1992). 

 The main purpose of requiring timely specific 

objections is to afford the trial court an 

opportunity to rule intelligently on the 

issues presented, thus avoiding unnecessary 

appeals and reversals. In addition, a 

specific, contemporaneous objection gives the 

opposing party the opportunity to meet the 
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objection at that stage of the proceeding. 

Weidman v. Babcock, 241 Va. 40, 44, 400 S.E.2d 164, 167 (1991) 

(citation omitted). 

 "[T]he ends of justice exception is narrow and is to be used 

sparingly . . . ." Brown v. Commonwealth, 8 Va. App. 126, 132, 

380 S.E.2d 8, 11 (1989). "In order to avail oneself of the 

exception, a defendant must affirmatively show that a miscarriage 

of justice has occurred, not that a miscarriage might have 

occurred." Redman v. Commonwealth, 25 Va. App. 215, 221, 487 

S.E.2d 269, 272 (1997). 

 Appellant concedes that his trial counsel failed (1) to 

object to the trial court's qualifying Ban as an expert witness 

on DNA, (2) to object to the admission of the DNA test results 

into evidence, and (3) to request the appointment of a DNA expert 

to assist in the preparation of his defense. He contends, 

however, that the ends of justice exception should be applied to 

permit our consideration of these issues. We disagree. The 

record does not show affirmatively that a miscarriage of justice 

occurred and, therefore, provides insufficient grounds for 

invocation of the ends of justice exception. 

Motion to Reconsider

 We also conclude that the trial court did not err in denying 

appellant's motion to reconsider. That motion was based on the 

claim that the PCR DNA test result "obtained from the non-sperm 

fraction of the pubic area swabs of the victim (Item 2) was 
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consistent with a mixture of the DNA profiles of [appellant, 

victim], and a third individual." However, as appellant's 

counsel on appeal admitted, appellant's trial counsel did not 

offer that test result into evidence at trial and did not 

cross-examine the Commonwealth's DNA expert on that information, 

despite the fact that the certificate previously was introduced 

at appellant's preliminary hearing. 

 Moreover, even if the trial court had agreed to consider 

this evidence, it would not have changed the result. We 

interpret the certificate to show that genetic material from a 

third party was found on appellant's pubic area swabs, rather 

than on those of victim, as appellant contends. The PCR 

certificate of analysis shows the DNA of a third person on "the 

pubic area swabs." Those swabs are referred to as coming from 

"Item 2," and Item 2 is identified elsewhere in the certificate 

as appellant's PERK rather than victim's, which is Item 1. 

Furthermore, that DNA came from "the non-sperm fraction" of the 

"pubic area swabs," which indicates that the gender of the third 

person is unknown and, statistically speaking, that it was just 

as likely to have come from a woman as from a man. Accordingly, 

the evidence, if accepted, would have shown, at most, that a 

third person of unknown gender had some sexual contact with 

appellant, not with victim. 

 Therefore, we cannot conclude that the trial court abused 

its discretion in denying appellant's motion to reconsider. See
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Murphy v. Commonwealth, 246 Va. 136, 148, 431 S.E.2d 48, 55 

(1993). 
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Sufficiency of the Evidence to Prove Penetration

 Although appellant concedes that the evidence proved he had 

some sexual contact with victim, he contends it was insufficient 

to prove penetration, a necessary element of rape. 

 Under familiar principles of appellate review, we examine 

the evidence in the light most favorable to the Commonwealth, 

granting to it all reasonable inferences fairly deducible 

therefrom. See Martin v. Commonwealth, 4 Va. App. 438, 443, 358 

S.E.2d 415, 418 (1987). The judgment of a trial court will be 

disturbed only if plainly wrong or without evidence to support 

it. See id. The credibility of a witness' testimony and the 

inferences to be drawn from proven facts are matters solely for 

the fact finder's determination. See Long v. Commonwealth, 8 Va. 

App. 194, 199, 379 S.E.2d 473, 476 (1989). 

 "Circumstantial evidence is as competent and is entitled to 

as much weight as direct evidence, provided it is sufficiently 

convincing to exclude every reasonable hypothesis except that of 

guilt." Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 

876 (1983). 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). Whether a hypothesis of innocence is reasonable is a 

question of fact. See Cantrell v. Commonwealth, 7 Va. App. 269, 

290, 373 S.E.2d 328, 339 (1988). Penetration, like any other 
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element, "may be proved by circumstantial evidence and is not 

dependent on direct testimony from the victim that penetration 

occurred." Morrison v. Commonwealth, 10 Va. App. 300, 301, 391 

S.E.2d 612, 612 (1990) (holding that although the victim never 

testified directly that penetration occurred, her testimony 

regarding sexual contact and doctor's testimony that some object 

penetrated her vagina were sufficient to prove accused guilty of 

rape). 

 Here, the circumstantial evidence was sufficient to prove 

penetration. Based on the DNA evidence introduced, the trial 

court was entitled to conclude that appellant's semen was found 

in victim's vagina and that it was deposited there when appellant 

"raped [victim]," which required him to penetrate victim's vagina 

with his penis. 

 Although appellant offers what he contends are reasonable 

hypotheses of innocence, we conclude that these hypotheses do not 

flow from the evidence. First, appellant contends his semen 

could have been deposited on appellant's external genitalia and 

could have been forced into victim's vagina when she was 

penetrated by a third person. Appellant's contention does not 

constitute a reasonable hypothesis of innocence flowing from the 

evidence because no evidence was introduced at trial regarding 

the possible presence on victim of genetic material from a third 

party. The certificate of analysis from the PCR DNA test is 

contained in the record only as an attachment to appellant's 
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motion to reconsider. In addition, as discussed above, we 

interpret this evidence as showing genetic material from a third 

person of unknown gender on appellant's pubic area swabs, rather 

than on those of victim. Therefore, such evidence would not have 

provided the foundation for a reasonable hypothesis of innocence 

if it had been admitted at trial. 

 Appellant also argues that sperm is highly motile and could 

independently have found its way into victim's vagina after being 

deposited by appellant outside the vagina. Regardless of whether 

this is a medical possibility, appellant offered no evidence to 

this effect at trial; therefore, it does not constitute a 

reasonable hypothesis of innocence flowing from the evidence. 

 For these reasons, we affirm appellant's conviction. 

 Affirmed.