Williams v. Com.

• Decision Date: 14 December 2010
• Docket Number: Record No. 0201-10-2.
• Citation: 57 Va.App. 341,702 S.E.2d 260
• Parties: Christopher James WILLIAMS v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

702 S.E.2d 260

57 Va.App. 341

Christopher James WILLIAMS

v.COMMONWEALTH of Virginia.

Record No. 0201-10-2.

Court of Appeals of Virginia, Richmond.

Dec. 14, 2010.

Keith N. Hurley (Keith N. Hurley, P.C., on brief), Richmond, for appellant.

Erin M. Kulpa, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.

Present: FELTON, C.J., and FRANK and KELSEY, JJ.

FRANK, Judge.

Christopher James Williams, appellant, was convicted, in a bench trial, of possessing a controlled drug not obtained by a valid prescription, in violation of Code § 18.2-250. On appeal, he contends: (1) the evidence was insufficient because the Commonwealth failed to prove he had no valid prescription to obtain the drug; (2) Code § 18.2-263, relied upon by the Commonwealth, is unconstitutionally vague because it fails to state a standard of proof for the accused to overcome the government's burden of proof; and (3) that Code § 18.2-263 violates his due process rights by shifting the Commonwealth's burden to appellant to prove his innocence. For the reasons stated, we affirm the trial court's judgment.

BACKGROUND

Appellant was in possession of three pills, each containing Oxycodone and Acetaminophen. The preparation is a Schedule II prescription drug. The shape, color, and manufacturer's markings of the pills were consistent with a pharmaceutical prescription.

Appellant did not contest that he possessed the pills. He filed a pretrial motion to dismiss the charge, arguing that Code § 18.2-263 was unconstitutional.¹ The Commonwealthargued the existence of a valid prescription was an affirmative defense, rather than an element of the offense. The trial court found the statute constitutional and denied appellant's motion to dismiss. Other than the provisions of Code § 18.2-263, the Commonwealth produced no evidence that appellant did not possess a valid prescription. Appellant argues the absence of a valid prescription is an element of the offense and must be proved by the Commonwealth.

ANALYSIS

On appeal, appellant challenges the constitutionality of Code § 18.2-263 on two grounds. First, appellant contends the statute is unconstitutionally vague because it fails to state a standard of proof required for him to prove he had a valid prescription. Second, he argues the statute violates the Due Process Clause of both the United States and Virginia Constitutions by shifting the burden to appellant to prove his innocence. Appellant, assuming the statute is unconstitutional, then challenges the sufficiency of the evidence, because without the benefit of Code § 18.2-263, the Commonwealth did not prove he had no valid prescription to possess the pills. As the constitutionality of Code § 18.2-263 is dispositive of the sufficiency argument, we will first address the constitutionality of that statute.

Vagueness

Appellant notes that while Code § 18.2-263 allocates the burden of proof to the accused to prove he had a valid prescription, it does not indicate whether that burden is by preponderance of the evidence, or beyond a reasonable doubt. Appellant concludes a person of ordinary intelligence wouldnot know what standard of proof is required. Therefore, he posits, this ambiguity could encourage arbitrary and discriminatory enforcement.

The Commonwealth responds that because appellant never argued this issue to the trial court and because the trial court never ruled on the vagueness issue, we cannot review this argument.² We agree.

Because appellant did not obtain a ruling from the trial court on his pretrial motion, "there is no ruling for [this Court] to review" on appeal, and his argument is waived under Rule 5A:18. Fisher v. Commonwealth, 16 Va.App. 447, 454, 431 S.E.2d 886, 890 (1993). 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.

Although Rule 5A:18 contains exceptions for good cause or to meet the ends of justice, appellant does not argue these exceptions and we will not invoke them sua sponte. See Edwards v. Commonwealth, 41 Va.App. 752, 761, 589 S.E.2d 444, 448 (2003) ( en banc ).

Because there was no ruling on the vagueness argument, the argument is waived and we will not consider it on appeal.³

Due Process

Appellant also contends that Code § 18.2-263 impermissively shifts the Commonwealth's burden of proof to him, violating the Due Process Clause of the United States and Virginia Constitutions.

On appeal, we review arguments regarding the constitutionality of a statute de novo. Shivaee v. Commonwealth, 270 Va. 112, 119, 613 S.E.2d 570, 574 (2005) (citing Wilby v. Gostel, 265 Va. 437, 440, 578 S.E.2d 796, 798 (2003)). When the constitutionality of a statute is challenged, we are guided by the principle that " 'all acts of the General Assembly are presumed to be constitutional.' " Va. Society for Human Life v. Caldwell, 256 Va. 151, 156-57, 500 S.E.2d 814, 816 (1998) (quoting Hess v. Snyder Hunt Corp., 240 Va. 49, 52, 392 S.E.2d 817, 820 (1990)). " Therefore, 'a statute will be construed in such a manner as to avoid a constitutional question wherever this is possible.' " Yamaha Motor Corp. v. Quillian, 264 Va. 656, 665, 571 S.E.2d 122, 127 (2002) (quoting Eaton v. Davis, 176 Va. 330, 339, 10 S.E.2d 893, 897 (1940)).

"This presumption is 'one of the strongest known to the law.' " Boyd v. County of Henrico, 42 Va.App. 495, 507, 592 S.E.2d 768, 774 (2004) ( en banc ) (quoting Harrison v. Day, 200 Va. 764, 770, 107 S.E.2d 594, 598 (1959)). Under the presumption, "courts must 'resolve any reasonable doubt' regarding the constitutionality of a law in favor of its validity." Id. (citations omitted). "To doubt is to affirm.' " Id. (quoting Peery v. Bd. of Funeral Dirs., 203 Va. 161, 165, 123 S.E.2d 94, 97 (1961)).

Due process requires the prosecution "to prove beyond a reasonable doubt every fact necessary to constitute the crime charged." Mullaney v. Wilbur, 421 U.S. 684, 685, 95 S.Ct. 1881, 1883, 44 L.Ed.2d 508 (1975). Mullaney held that any rule which has the ultimate effect of shifting the burden of persuasion to the accused upon a critical issue is constitutionally infirm. Id. at 701, 95 S.Ct. at 1890-91.

In order to resolve whether there is a due process violation in this case, we first must address the threshold issue of whether the absence of a valid prescription is an affirmative defense or a negative element of the offense. If it is the latter, the burden of proof is on the Commonwealth, and it cannot be shifted to the accused.

It is a familiar principle of law that ambiguous penal statutes must be strictly construed against the Commonwealth. Stevenson v. City of Falls Church, 243 Va. 434, 436, 416 S.E.2d 435, 437 (1992). If we are required to apply statutory construction, we will construe a statute to promote the end for which it was enacted, if we may reasonably reach such an interpretation from the language used. VEPCO v. Board of County Supervisors, 226 Va. 382, 387-88, 309 S.E.2d 308, 311 (1983). Therefore, a statute should be read to give reasonable effect to the words used " 'and to promote the ability of the enactment to remedy the mischief at which it is directed.' " Mayhew v. Commonwealth, 20 Va.App. 484, 489, 458 S.E.2d 305, 307 (1995) (quotingJones v. Conwell, 227 Va. 176, 181, 314 S.E.2d 61, 64 (1984)). " 'Where a particular construction of a statute will result in an absurdity, some other reasonable construction which will not produce the absurdity will be found.' " Id. (quoting Miller v. Commonwealth, 180 Va. 36, 41, 21 S.E.2d 721, 723 (1942)).

Mayhew also notes:

When construing penal statutes which contain qualifications, exceptions or exemptions to their application, the limiting language may be viewed as a negative element of the offense which the prosecution must disprove. Alternately, the court may determine that the exemption is a statutory defense, which the accused can assert to defeat the prima facie case of the prosecution. Regular Veterans [ Association, Ladies Auxiliary v. Commonwealth ], 18 Va.App. [683,] 688, 446 S.E.2d [621,] 624 [ (1994) ] (... [The accused bears] the burden of producing evidence [of the negation of circumstances] sufficient to raise a reasonable doubt of [his] guilt).

In determining whether specific limiting language is an element of the offense or a statutory defense, a court should look both to the intent of the statute as a whole and the ability of the respective parties to assert the existence or absence of the underlying facts sustaining the applicability of the limitation. Accordingly, we should considerthe wording of the exception and its role in relation to the other words in the statute; whether in light of the situation prompting legislative action, the exception is essential to complete the general prohibition intended; whether the exception makes an excuse or justification for what would otherwise be criminal conduct, i.e., sets forth an affirmative defense; and whether the matter is peculiarly within the knowledge of the defendant.

Commonwealth v. Stoffan , 323 A.2d 318, 324 (Pa.Super.Ct.1974); See also State v. Williamson , 206 N.W.2d 613, 618 (Wis.1973) (It is undoubtedly the general rule that the state must prove all the essential facts entering into the description of the offense. But it has been held in many cases that when a negation of a fact lies peculiarly within the knowledge of the defendant it is incumbent on him to establish that fact).

Id. at 489-90, 458 S.E.2d at 307-08 (internal quotations and some citations omitted).

The Supreme Court of Virginia, in Stillwell v. Commonwealth, 219 Va. 214, 218-19, 247 S.E.2d 360, 363 (1978), reviewed the purpose of The Drug Control Act, i.e. the situation prompting legislative action, noting:

In its enactment of The Drug Control Act the General Assembly recognized that, except in very rare and most unusual cases, there can be no lawful possession, sale or

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