M. Kevin Bailey, Lynchburg, for appellant.
Katherine Quinlan Adelfio, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.
Present: HUMPHREYS and BEALES, JJ., and ANNUNZIATA, S.J.
[62 Va.App. 582] Derrick Renard Powell, appellant, was tried bye a judge of the Circuit Court for the City of Lynchburg and found guilty of distribution of an imitation Schedule I or II substance, in violation of Code § 18.2-248. Appellant appeals the judgment of conviction on the following grounds: 1) the trial court erred in finding that the evidence was sufficient to convict appellant of distribution of an imitation controlled substance because the Commonwealth failed to prove beyond a reasonable doubt that the substance was not a controlled substance subject to abuse; 2) the trial court erred in finding that the evidence was sufficient to convict appellant of distribution of an imitation controlled substance because the Commonwealth failed to prove beyond a reasonable doubt that the form of the substance was such that it would be mistaken for cocaine; and 3) the trial court erred in finding that the evidence was sufficient to convict appellant of distribution of an imitation controlled substance because the Commonwealth failed to prove beyond a reasonable doubt that appellant made any express or implied representations that the substance was cocaine. For the reasons that follow, we affirm.
[62 Va.App. 583] Background
" In examining a challenge to the sufficiency of the evidence, appellate courts will review the evidence in the light most favorable to the party prevailing at trial and consider any reasonable inferences from the proven facts." Towler v. Commonwealth, 59 Va.App. 284, 290, 718 S.E.2d 463, 466 (2011); see also Sullivan v. Commonwealth, 280 Va. 672, 676, 701 S.E.2d 61, 63-64 (2010). Moreover, " [t]he credibility of the witnesses and the weight accorded the evidence are matters solely for the fact finder who has the opportunity to see and hear that evidence as it is presented." Sandoval v. Commonwealth, 20 Va.App. 133, 138, 455 S.E.2d 730, 732 (1995). " That responsibility lies with the fact finder because ‘ [t]his [C]ourt[,] sitting as an appellate court, and knowing nothing of the evidence or of the witness, except as it appears on the paper, [is] incompetent to decide on the credibility of the testimony.’ " Commonwealth v. McNeal, 282 Va. 16, 22, 710 S.E.2d 733, 736 (2011) (quoting Brown v. Commonwealth, 29 Va. (2 Leigh) 769, 777 (1830)).
Seen in the light most favorable to the Commonwealth, the evidence showed that on December 22, 2011, Investigator Daniel Bailey and Detective Trent were working undercover in an unmarked police vehicle. Bailey was assigned to the narcotics department of
the Lynchburg Police Department for over five years, during which time he handled over 100 arrests and investigations involving the sale of narcotics. While driving through an open air drug market in Lynchburg, Bailey and Trent saw appellant standing on a sidewalk. When appellant " made a [waving] motion with his hand as [if] to flag [the officers] to pull the car over," Trent, who was driving, complied. When the vehicle was stationary at the side of the road, appellant walked up to Bailey, who was sitting in the passenger seat of the car. Bailey rolled down the window and asked appellant " if he was straight." Bailey explained that " straight" is " common slang" used in drug transactions to indicate that the seller has narcotics to sell. Appellant responded that he " had what [Bailey] needed and asked what [Bailey] wanted." Bailey responded he wanted " a four." Bailey [62 Va.App. 584] explained a " four" is " slang for forty dollars['] worth of cocaine."
After a short conversation about whether Bailey and Trent were with the police, appellant told Bailey he could get " the four" from his residence. Appellant then went into a house and returned to the car within two minutes. He handed Bailey a " white rock substance" in " a knotted baggie," and Bailey gave him forty dollars. The exchange took " [a] matter of seconds," and Bailey did not examine the substance closely before he and his partner drove away. Later, upon examination, he discovered appellant had sold him a white pill, cut in half.
At trial, Bailey testified that crack cocaine is a " hard form of powder cocaine." Bailey stated that the substance, wrapped in the knotted plastic baggie, that appellant handed him appeared " to the naked eye" to be crack cocaine. He explained that, in his experience, most drug transactions happen " very fast" and " last[ ] thirty seconds at most." Bailey further explained that " in the sale of narcotics, there are no disclaimers that say [']this is actually crack cocaine[.']" A buyer must " take [the seller's] word" that the substance purchased is crack cocaine.
Kelly Howerter, a forensic scientist at the Virginia Department of Forensic Science examined and analyzed the substance appellant sold Bailey. She testified " just looking at it ... it was a plastic bag corner that just had a white substance inside of it." She described the substance inside the bag as half of a white oblong tablet and stated it did not resemble cocaine. She identified the substance as the Schedule VI controlled substance quetiapine. When the Commonwealth recalled Bailey as a witness, he testified that he had never heard of quetiapine being sold illicitly.
Appellant made a motion to strike at the end of the evidence based, in part, on the use of slang in the transaction to purchase cocaine and the absence of evidence establishing that appellant understood the term was a reference to cocaine. He further argued that the drug sold was, in fact, a Schedule VI [62 Va.App. 585] controlled substance and, at most, his conduct supported a misdemeanor ...