FROM THE COURT OF APPEALS OF VIRGINIA.
M. Kevin Bailey 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. DERRICK RENARD POWELL. OPINION BY CHIEF JUSTICE DONALD W. LEMONS. JUSTICE MILLETTE, with whom JUSTICE GOODWYN and SENIOR JUSTICE LACY join, dissenting.
[289 Va. 22] DONALD W. LEMONS,
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 [289 Va. 23] 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. Taylor 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 [289 Va. 24] " 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 [289 Va. 25] 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" ...