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 

to prove Jones possessed the cocaine.1

 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 
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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). 
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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 
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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 
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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 
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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, 
 -7- 

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 
 -8- 

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 
 -9- 

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 
 -10- 

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.
 -11- 

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.