Powell v. Commonwealth

• Decision Date: 08 January 2015
• Docket Number: Record No. 132028.
• Parties: Derrick Renard POWELL v. COMMONWEALTH of Virginia.
• Court: Virginia Supreme Court

289 Va. 20

766 S.E.2d 736

Derrick Renard POWELL

v.COMMONWEALTH of Virginia.

Record No. 132028.

Supreme Court of Virginia.

Jan. 8, 2015.

M. Kevin Bailey, Lynchburg, for appellant.

Benjamin H. Katz, Assistant Attorney General (Mark R. Herring, Attorney General; Katherine Quinlan Adelfio, Assistant Attorney General, on brief), for appellee.

PRESENT: LEMONS, C.J., GOODWYN, MILLETTE, MIMS, McCLANAHAN, and POWELL, JJ., and LACY, S.J.

Opinion

LEMONS, Chief Justice.

In this appeal, we consider whether the evidence was sufficient to sustain a conviction for distribution of an imitation Schedule I or II controlled substance where the substance actually distributed was a Schedule VI controlled substance. We also consider whether the evidence was sufficient to establish that the substance was in a form such that it could be mistaken for a Schedule I or II controlled substance, and whether the defendant made any express or implied representations that the substance was a Schedule I or II controlled substance.

I. Facts and Proceedings

Derrick Renard Powell (“Powell”) was tried by the Circuit Court of the City of Lynchburg (“trial court”) upon an indictment charging distribution of an imitation Schedule I or II controlled substance, in violation of Code § 18.2–248. Powell was found guilty and sentenced to three years' imprisonment, with one year and ten months suspended.

At trial, Detective Daniel M. Bailey (“Bailey”) testified that he was working undercover in Lynchburg on December 22, 2011, when he drove through an area he described as “an open air drug market.” He observed Powell on the side of the road, and as Bailey drove by, Powell made a waving motion with his hand to get Bailey to pull over. Bailey rolled down his window and when Powell walked up to him, Bailey asked him if “he was straight.” Bailey testified that phrase “is a common slang in the drug trade to see if he had any product on him. Anything for sale.”

Bailey testified that Powell stated that “he had what I needed and asked what I wanted.” Bailey responded that he needed “a four,” which is slang for 40 dollars worth of cocaine. Powell then went into his house, which was close by; and when he returned, he dropped a clear plastic baggie containing “a white rock[-like] substance” into Bailey's hand, and Bailey gave him 40 dollars in cash. Bailey testified that he took the substance back to his office and thereafter mailed it to the lab.

Bailey testified that the substance was a “[h]ard white rock[-like] substance,” and that crack cocaine is also a hard, white, rock-like substance. When Bailey was shown the substance in court, he testified that to his “naked eye” it looked like crack cocaine. On cross-examination, Bailey admitted that when he got back to the police station after the exchange and examined the substance, he realized that it was a white pill cut in half. He also testified that it was packaged in a “knotted baggie.”

Kelly Howerter (“Howerter”) is a forensic scientist with the Virginia Department of Forensic Science who analyzed the substance Powell sold to Bailey. She testified that the substance was quetiapine, which is a Schedule VI controlled substance in Virginia. See Code § 54.1–3455(2). When the Commonwealth's Attorney asked what quetiapine was, Howerter testified it was out of her realm of experience, but that she believed it was some kind of “antibiotic type prescription pill.”^* Howerter testified that the substance was white and solid, and was one half of an oblong shaped pill. She testified that she had never seen crack cocaine in a pill form, but what she received looked like “a plastic bag corner that just had a white substance inside of it.” Howerter testified that she was unaware if quetiapine was ever mixed with cocaine.

The Commonwealth rested, and Powell made a motion to strike. He argued that he could not be convicted of distributing an imitation controlled substance because the substance was already a controlled substance, so he could only be a convicted of a misdemeanor for selling a Schedule VI drug. The trial court denied the motion to strike, reasoning that:

[T]he gravamen of this offense is possession of a[n] imitation of a controlled substance and the intent to distribute that substance passing it off as a controlled substance and the focus is not on what the imitation consists of but rather what is being imitated with the controlled substance or the imitation controlled substance and what the intent of the defendant is trying to pass that substance off as.

The defense rested and Powell renewed his motion. Powell reiterated his previous argument that the substance at issue was already a controlled substance. He also argued that he never said or indicated that he was selling Bailey cocaine, and he argued that the substance did not have the appearance of cocaine since it was just a white pill cut in half. The trial court denied the motion to strike and found Powell guilty of the charge.

Powell appealed his conviction to the Court of Appeals of Virginia. The Court of Appeals issued a published opinion in which it affirmed Powell's conviction. Powell v. Commonwealth, 62 Va.App. 579, 750 S.E.2d 229 (2013). First, the Court of Appeals held that Powell's “representations regarding the substance, together with the packaging of the substance in a plastic knotted baggie, made it likely that the substance would be mistaken for crack cocaine as required by Code § 18.2–247.” Id. at 588, 750 S.E.2d at 233. Second, the Court of Appeals held that although the substance was a controlled substance, because it was a Schedule VI substance, such classification established that it was not subject to abuse. Id. at 590, 750 S.E.2d at 234. Accordingly, the Court of Appeals concluded that the trial court did not err in holding the evidence was sufficient to convict Powell of distributing an imitation controlled substance. Id. at 591, 750 S.E.2d at 234.

Powell filed a petition for appeal in this Court, and we awarded him an appeal on the following assignments of error:

1. Under Section 18.2–247(B)(ii) of the Code of Virginia, 1950, as amended, the trial court erred in finding that the evidence was sufficient to establish that the substance Appellant gave to Investigator Bailey was not a controlled substance subject to abuse, and, in affirming the trial court's decision, the Court of Appeals erred in both applying a statutory construction to Section 18.2–247(B)(ii) to link the phrase “subject to abuse” to the Drug Control Act (Section 54.1–3400 et seq. ) and in its application of the statutory construction.

2. Under Section 18.2–247(B)(1) of the Code of Virginia, 1950, as amended, the trial court erred in finding that the evidence was sufficient to establish that the substance was in a form such that it would be mistaken for cocaine, and the Court of Appeals erred in affirming the trial court's decision.

3. Under Section 18.2–247(B)(2) of the Code of Virginia, 1950, as amended, the trial court erred in finding that the evidence was sufficient to establish that Appellant made any express or implied representations that the substance was cocaine, and the Court of Appeals erred in affirming the trial court's decision.

II. Analysis

A. Standard of Review

“When reviewing a defendant's challenge to the sufficiency of the evidence to sustain a conviction, this Court reviews the evidence in the light most favorable to the Commonwealth, as the prevailing party at trial, and considers all inferences fairly deducible from that evidence.” Allen v. Commonwealth, 287 Va. 68, 72, 752 S.E.2d 856, 858–59 (2014) (internal quotation marks, alterations, and citation omitted). “The lower court will be reversed only if that court's judgment is plainly wrong or without evidence to support it.” Id. at 72, 752 S.E.2d at 859 (internal quotation marks omitted). To the extent we must interpret a statute, that is a question of law that we review de novo. See Woodard v. Commonwealth, 287 Va. 276, 280, 754 S.E.2d 309, 311 (2014).

B. Code § 18.2–247(B)(ii)

Powell was convicted of violating Code § 18.2–248, which makes it a felony to distribute an imitation controlled substance. The term “imitation controlled substance” is defined in Code § 18.2–247(B) to mean:

(i) a counterfeit controlled substance or

(ii) a pill, capsule, tablet, or substance of any form whatsoever which is not a controlled substance subject to abuse, and

1. Which by overall dosage unit appearance, including color, shape, size, marking and packaging or by representations made, would cause the likelihood that such a pill, capsule, tablet, or substance in any other form whatsoever will be mistaken for a controlled substance unless such substance was introduced into commerce prior to the initial introduction into commerce of the controlled substance which it is alleged to imitate; or

2. Which by express or implied representations purports to act like a controlled substance as a stimulant or depressant of the central nervous system and which is not commonly used or recognized for use in that particular formulation for any purpose other than for such stimulant or depressant effect, unless marketed, promoted, or sold as permitted by the United States Food and Drug Administration.

(Emphasis added.) There was no allegation or evidence presented that Powell distributed a “counterfeit controlled substance.” In this case, the Commonwealth was required to prove that the substance Powell distributed was “a pill, capsule, tablet, or substance in any form whatsoever which is not a controlled substance subject to abuse. ” (Emphasis added.) On appeal, Powell does not dispute that he distributed a substance to Bailey. There is also no dispute that the substance Powell distributed was quetiapine, a Schedule VI controlled substance. The initial issue before this Court is limited to the question whether quetiapine, which is a Schedule VI controlled substance, is “a controlled substance subject to abuse” within the intendment of Code § 18.2–247(B)(ii).

Powell...