Sierra v. Commonwealth

• Decision Date: 20 March 2012
• Docket Number: Record No. 0032–11–1.
• Citation: 722 S.E.2d 656,59 Va.App. 770
• Parties: Robert Alexander SIERRA v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

59 Va.App. 770

722 S.E.2d 656

Robert Alexander SIERRA

v.COMMONWEALTH of Virginia.

Record No. 0032–11–1.

Court of Appeals of Virginia, Chesapeake.

March 20, 2012.

A. Robinson Winn, Deputy Public Defender (Office of the Public Defender, on brief), for appellant.

John W. Blanton, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.

Present: FELTON, C.J., PETTY and BEALES, JJ.

PETTY, Judge.

Robert Alexander Sierra was convicted in a bench trial of possession of a controlled substance, in violation of Code § 18.2–250. On appeal, Sierra challenges the sufficiency of the evidence supporting his conviction, arguing that the evidence was insufficient to prove he was aware of the character and presence of the particular substance found in his possession. ¹ For the following reasons, we disagree with Sierra's arguments. Therefore, we affirm his conviction.

I. BACKGROUND

“On appeal, ‘we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom.’ ” Archer v. Commonwealth, 26 Va.App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va.App. 438, 443, 358 S.E.2d 415, 418 (1987)). So viewed, the evidence showed that on March 28, 2010, Officer B. Person of the Chesapeake Police Department stopped Sierra's car for a defective headlight. Officer Person eventually arrested Sierra for DUI and searched him incident to the arrest. Officer Person discovered eight prescription pills on Sierra's person, six in his pants pocket and two in his shirt pocket. Officer Person concluded the pills were prescription pills based on the shapes of the pills and the numbers on them.² Subsequent analysis showed that two of these pills contained methylphenidate, a Schedule II substance.³

Sierra testified that he had been performing at a bar earlier that evening ⁴ and that he had asked an individual for some Tylenol or aspirin because he had back pain. Sierra claimed that he did not know the pills he received were Concerta,⁵ but thought they were aspirin and Tylenol. According to Sierra, he simply “stuck them in [his] pocket” immediately before going on stage to perform.

The trial court opined that Sierra had not “given the most ... credible evidence,” stating that “under the facts it would be obvious that [the pills] were some sort of prescription and not aspirin, Tylenol, Advil.” Accordingly, the trial court expressly found that Sierra's explanation was not credible and that Sierra knew he was in possession of a controlled substance. ⁶ The trial court found Sierra guilty of violating Code § 18.2–250, and Sierra now appeals this conviction.

II. ANALYSIS

Sierra argues that the evidence was insufficient to prove that he knew he possessed methylphenidate, or Concerta. This appeal presents two questions for our analysis: (1) whether Code § 18.2–250 requires a defendant to know the exact substance he is possessing, and (2) whether the evidence here was sufficient to satisfy the appropriate mens rea standard under Code § 18.2–250. As we explain below, we conclude that the plain language of Code § 18.2–250 requires a defendant to know that the substance he possesses is in fact a controlled substance, but that it does not require him to know precisely what controlled substance it is. Furthermore, we also conclude that the trial court did not err in finding that Sierra knew he was in possession of a controlled substance.

“When reviewing the sufficiency of the evidence to support the verdict in a bench trial, ‘the trial court's judgment is entitled to the same weight as a jury verdict and will not be disturbed on appeal unless it is plainly wrong or without evidence to support it.’ ” Burrell v. Commonwealth, 58 Va. App. 417, 433, 710 S.E.2d 509, 517 (2011) (quoting Hickson v. Commonwealth, 258 Va. 383, 387, 520 S.E.2d 643, 645 (1999)); see also Code § 8.01–680. It is the prerogative of the trier of fact “ ‘to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.’ ” Brown v. Commonwealth, 56 Va.App. 178, 185, 692 S.E.2d 271, 274 (2010) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)). Accordingly, an appellate court simply considers whether “ any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319, 99 S.Ct. at 2789 (emphasis in original). While we review a trial court's findings of fact “with the highest degree of appellate deference,” Thomas v. Commonwealth, 48 Va.App. 605, 608, 633 S.E.2d 229, 231 (2006), “we review the trial court's statutory interpretations and legal conclusions de novo,” Sink v. Commonwealth, 28 Va.App. 655, 658, 507 S.E.2d 670, 671 (1998).

As we interpret the mens rea requirement of Code § 18.2–250, we are mindful that “ ‘[c]ourts apply the plain language of a statute unless the terms are ambiguous.’ ” Lynchburg Div. of Soc. Servs. v. Cook, 276 Va. 465, 480, 666 S.E.2d 361, 368 (2008) (quoting Boynton v. Kilgore, 271 Va. 220, 227, 623 S.E.2d 922, 926 (2006)). Indeed,

“we must give effect to the legislature's intention as expressed by the language used unless a literal interpretation of the language would result in a manifest absurdity. If a statute is subject to more than one interpretation, we must apply the interpretation that will carry out the legislative intent behind the statute.”

Scott v. Commonwealth, 58 Va.App. 35, 48, 707 S.E.2d 17, 24 (2011) (quoting Evans v. Evans, 280 Va. 76, 82, 695 S.E.2d 173, 176 (2010)). This is because “ ‘[t]he primary objective of statutory construction is to ascertain and give effect to legislative intent.’ ” Commonwealth v. Amerson, 281 Va. 414, 418, 706 S.E.2d 879, 882 (2011) (quoting Conger v. Barrett, 280 Va. 627, 630, 702 S.E.2d 117, 118 (2010)); see also B.P. v. Commonwealth, 38 Va.App. 735, 739, 568 S.E.2d 412, 413 (2002) (“We will not place a construction upon a statute which leads to an absurd result or one plainly contrary to the expressed intent of the General Assembly....”).

Code § 18.2–250 provides, in relevant part:

A. It is unlawful for any person knowingly or intentionally to possess a controlled substance unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of his professional practice, or except as otherwise authorized by the Drug Control Act (§ 54.1–3400 et seq.).

* * * * * *

(a) Any person who violates this section with respect to any controlled substance classified in Schedule I or II of the Drug Control Act shall be guilty of a Class 5 felony.

(b) Any person other than an inmate of a penal institution as defined in § 53.1–1 or in the custody of an employee thereof, who violates this section with respect to a controlled substance classified in Schedule III shall be guilty of a Class 1 misdemeanor.

(b1) Violation of this section with respect to a controlled substance classified in Schedule IV shall be punishable as a Class 2 misdemeanor.

(b2) Violation of this section with respect to a controlled substance classified in Schedule V shall be punishable as a Class 3 misdemeanor.

(c) Violation of this section with respect to a controlled substance classified in Schedule VI shall be punishable as a Class 4 misdemeanor.

(Emphasis added.)

The plain language of subsection (A) of this statute requires that an offender “knowingly or intentionally possess a controlled substance.” (Emphasis added.) The only differentiation in the statute between various types of controlled substances appears in later subparts, which prescribe different classifications of the level of offense based on the type of controlled substance a defendant actually possesses. Nowhere, however, in subparts (a)-(c) did the General Assembly insert a mens rea requirement. Rather, the General Assembly chose to specify a requisite degree of mens rea only in the general proscription against possessing controlled substances in the first paragraph of subsection (A). Thus, the plain language of Code § 18.2–250 indicates the legislature's intent to criminalize the knowing and intentional possession of “a controlled substance,” whatever that controlled substance may turn out to be. Based on what type of controlled substance is actually found in a defendant's possession, the legislature has demonstrated its intent to impose different levels of punishment for the possession of different types of controlled substances. The specific type of substance found in a defendant's possession is an actus reus element the Commonwealth must prove pursuant to subparts (a)–(c) of Code § 18.2–250(A), but it is not an element to which the mens rea requirement found earlier in Code § 18.2–250(A) applies.

To read the statute otherwise would be to insert additional words and requirements into the statutory text where they do not appear. However, “appellate courts ‘must ... assume ... the legislature chose, with care, the words it used when it enacted the relevant statute.’ ” Nicholson v. Commonwealth, 56 Va.App. 491, 503, 694 S.E.2d 788, 794 (2010) (omissions in original) (quoting Barr v. Town & Country Properties, Inc., 240 Va. 292, 295, 396 S.E.2d 672, 674 (1990)). Thus, if the legislative intent is apparent from the plain language of the statute, “it is not permissible to add to or subtract from the words used in the statute.” Posey v. Commonwealth, 123 Va. 551, 553, 96 S.E. 771, 771 (1918). “ ‘Courts are not permitted to rewrite statutes. This is a legislative function.’ ” Barr, 240 Va. at 295, 396 S.E.2d at 674 (quoting Anderson v. Commonwealth, 182 Va. 560, 566, 29 S.E.2d 838, 841 (1944)). Accordingly, we decline to arbitrarily add specific mens rea requirements to elements of an offense where the General Assembly has expressly prescribed what mens rea requirements it wishes to impose.

This plain reading...