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2008-UP-211 - State v. Gordon

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State, Respondent,

v.

Joshua Devar Gordon, Appellant.


Appeal From Edgefield County
 John C. Few, Circuit Court Judge


Unpublished Opinion No.  2008-UP-211
Submitted March 3, 2008 – Filed March 31, 2008


AFFIRMED


Appellate Defender Eleanor D. Cleary, South Carolina Commission, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Senior Assistant Attorney General Harold M. Coombs, Jr., Office of the Attorney General, of Columbia; and Solicitor Donald V. Myers, of Lexington, for Respondent.

PER CURIAM: Joshua Gordon (Gordon) appeals his conviction for trafficking in crack cocaine and resisting arrest.  On appeal, Gordon argues the trial court erred in admitting into evidence crack cocaine seized at the time of his arrest because the State failed to establish a complete chain of custody.  We affirm.  

FACTS

Investigator Roosevelt Young (Young) of the Edgefield County Sheriff’s Department arrested Gordon pursuant to an arrest warrant. Subsequent to the arrest, Young took possession of a substance believed to be crack cocaine from Gordon’s mouth and pocket.  The items recovered from Gordon were placed in a “best kit” along with a form detailing all pertinent information.[1]  A best kit is a tamper evident[2] plastic bag, in which evidence obtained from a crime scene is placed.

After the evidence was placed within the best kit, Investigator Warren Miller sealed the best kit.  According to Agent Nathan McCoy (McCoy), a chemical analyst in the field of drug analysis for SLED, once sealed the best kit could not be opened without tearing it.  Thus, it would be apparent if an individual attempted to tamper with the best kit. 

After Gordon’s arrest, Young transported the best kit from the crime scene to an evidence safe in Young’s office.  From there, Young hand-delivered the best kit to the SLED Drug Identification Unit in Columbia.  Young testified the best kit and its contents were not changed or altered, and no one else had access to it from the time when the kit was sealed at the crime scene to when it was delivered to Columbia.  Upon arriving at SLED, Young gave the kit to a SLED administrative employee so the evidence could be logged into SLED’s computer.  The employee returned the kit back to Young, and Young placed the kit into the evidence box.

McCoy testified he subsequently retrieved the kit from the evidence box.  After performing an inspection of the best kit, McCoy concluded no one had tampered with the best kit.  McCoy also determined the seal was intact.  After breaking the seal, McCoy performed chemical tests on the contents of the best kit and concluded the substance in the best kit was crack cocaine. 

Gordon objected to McCoy’s testimony regarding the substance to be crack cocaine, arguing the State failed to prove the chain of custody of the best kit because the administrative employee was not identified.  The trial court denied this objection and allowed the evidence to come in at trial.  Consequently, Gordon was convicted of trafficking in crack cocaine and resisting arrest and sentenced to twenty-five years for the trafficking charge and one year for the resisting arrest charge.  This appeal follows.

STANDARD OF REVIEW

The admission of evidence rests in the sound discretion of the trial court.  State v. Johnson, 318 S.C. 194, 196, 456 S.E.2d 442, 443 (Ct. App. 1995).  The trial court’s decision will not be overturned unless controlled by an error law resulting in undue prejudice.  Id.                     

LAW/ANALYSIS

The sole issue on appeal is whether the State established a complete chain of custody of the best kit.  Specifically, Gordon contends the testimony of everyone who handled the evidence, including that of the administrative employee who received the best kit to log it into SLED’s computer, was necessary to establish the chain of custody.  We disagree.

 If a party wishes to offer into evidence fungible items such as drug samples, that party must establish a chain of custody as far as practicable.  State v. Taylor, 360 S.C. 18, 22-23, 598 S.E.2d 735, 737 (Ct. App. 2004).  If the analyzed substance has passed through several hands, the evidence must not leave it to conjecture as to who had it and what was done with it between the taking of the evidence and its analysis.  Id.  However, the proof of chain of custody need not negate all possibility of tampering; rather, it must establish a complete chain of evidence as far as practicable.  Id. 

In the present case, there is sufficient evidence to conclude the trial court did not abuse its discretion in ruling the State had established a complete chain of custody of the best kit.  Young testified he took the crack cocaine from Gordon’s person and placed it in the best kit.  Miller testified that the best kit was thereafter sealed.  Young then locked the best kit in an evidence locker and later transported the best kit to SLED.  Young testified the best kit was neither changed nor altered from the time the kit was sealed at the crime scene and brought to SLED.

Young hand-delivered the best kit to an administrative employee who received the best kit to log it into SLED’s computer.  Young then personally placed the best kit in the evidence box.  McCoy testified he retrieved the kit from the evidence box.  McCoy also stated the best kit had not been tampered with and the seal was intact.  The foregoing testimony clearly demonstrates the State established a chain of custody of the crack cocaine seized from Gordon until it was analyzed by McCoy.  We do not find the State’s failure to produce the administrative employee to testify fatal.  See S.C. Dep’t of Soc. Servs. v. Cochran, 364 S.C. 621, 629-30, 614 S.E.2d 642, 646-47 (1995) (holding every individual associated with the evidence need not be identified nor be available to testify in order to establish a chain of custody and affirming the family court’s determination that a chain of custody of blood samples had been established even though the identity of the courier who transported the samples from the collection site to the testing facility was unknown when samples arrived at the testing facility sealed and intact).    

CONCLUSION

Accordingly, the trial court’s decision is

AFFIRMED.[3]

HUFF, KITTREDGE, and WILLIAMS, JJ., concur.


[1] According to testimony, this information includes: a control number used throughout the chain of custody, the name of the suspect from which the evidence was retrieved, a description of the contents recovered, and the name of the law enforcement officer who recovered the evidence. 

[2] Tamper evident means that if the best kit has been tampered with, for example, by a person attempting to gain access to the bag, the kit will show signs of tampering. 

[3] We decide this case without oral arguments pursuant to Rule 215, SCACR.