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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




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.
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