Sierra v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Felton, Judges Petty and Beales
Argued at Chesapeake, Virginia

ROBERT ALEXANDER SIERRA
OPINION BY
v. Record No. 0032-11-1 JUDGE WILLIAM G. PETTY
MARCH 20, 2012
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
Randall D. Smith, Judge

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.

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.

1
Sierra’s assignment of error reads specifically:

The Trial Court erred in that the evidence was insufficient to find
defendant guilty beyond a reasonable doubt of knowingly and
intentionally possessing methylphenidate. The evidence was
insufficient to prove that defendant was aware of the character and
presence of the substance of the particular substance, i.e. Concerta.

Before the trial court, Sierra argued that “[n]amely, on the warrant it’s Concerta. On the
indictment it has the scientific name. My argument is the Commonwealth has to prove that he
knowingly and intentionally possessed that particular substance.”
 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.

2
The admissibility of Officer Person’s conclusion is not before us in this appeal.
3
Code § 54.1-3447 specifies the characteristics of a Schedule II controlled substance:

The Board shall place a substance in Schedule II if it finds that:
1. The substance has high potential for abuse;
2. The substance has currently accepted medical use in treatment in
the United States, or currently accepted medical use with severe
restrictions; and
3. The abuse of the substance may lead to severe psychic or
physical dependence.

The other six pills found on Sierra’s person were noted in the certificate of analysis as
being consistent, upon visual examination, with other lower-Schedule controlled substances.
4
Apparently, Sierra was a drummer in a band.
5
Concerta is one of the brand names of methylphenidate. Methylphenidate is prescribed
as a treatment for attention deficit hyperactivity disorder and narcolepsy. U.S. Nat’l Library of
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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.

Med., Methylphenidate, MedlinePlus (last updated Feb. 9, 2012), http://www.nlm.nih.gov/
medlineplus/druginfo/meds/a682188.html.
6
Any drug required by federal law to be dispensed only by a valid prescription is
considered a controlled substance. See Code § 54.1-3455 (setting forth the standards for
classifying a drug as a Schedule VI controlled substance, the lowest level of controlled
substance).
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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 (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 (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,

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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

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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 of the language of Code § 18.2-250 on its face certainly does not lead

to an absurd result. On the contrary, the policy behind such a statutory scheme is clear: the

General Assembly has chosen not to excuse a defendant who knows he is possessing a controlled

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substance, but is unaware or perhaps mistaken as to the precise identity of the specific substance

he is possessing (e.g., a defendant who thinks he is possessing heroin, when he is actually

possessing cocaine). A defendant who intentionally possesses a controlled substance, aware of

its nature and character as such, bears the risk of incurring whatever punishment the General

Assembly has prescribed for the possession of the specific substance he has. This is the policy

the legislature has embraced, and we will not substitute our own policy for that of the legislature.

See Uniwest Constr., Inc. v. Amtech Elevator Servs., Inc., 280 Va. 428, 440, 699 S.E.2d 223,

229 (2010) (“The public policy of the Commonwealth is determined by the General Assembly,

for ‘it is the responsibility of the legislature, not the judiciary, . . . to strike the appropriate

balance between competing interests . . . . Once the legislature has acted, the role of the

judiciary is the narrow one of determining what [it] meant by the words it used in the statute.’”

(alteration and omissions in original) (quoting Dionne v. Se. Foam Converting & Packaging,

Inc., 240 Va. 297, 304, 397 S.E.2d 110, 114 (1990))).

Indeed, more than one federal circuit court has interpreted a similar federal statute in the

same manner. 21 U.S.C. § 841(a) provides that “it shall be unlawful for any person knowingly

or intentionally—(1) to . . . possess with intent to manufacture, distribute, or dispense, a

controlled substance.” Subsection (b) of this statute then sets forth different penalties for

violations of subsection (a) with respect to different types and amounts of controlled substances.

Thus, this federal statute contains a similar structure to Code § 18.2-250 for purposes of

analyzing the particular mens rea requirement of these two statutes that is pertinent to our

discussion. 7

7
Of course, 21 U.S.C. § 841 is the federal statute proscribing possession of a controlled
substance with intent to manufacture, distribute, or dispense, while § 844 is the statute
proscribing simple possession of a controlled substance. See 21 U.S.C. § 844(a) (“It shall be
unlawful for any person knowingly or intentionally to possess a controlled substance unless such
substance was obtained directly, or pursuant to a valid prescription or order, from a practitioner,
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 Significantly, federal circuit courts have interpreted this statute to provide that “a

defendant who is in actual possession of a particular controlled substance, while intending to

distribute another, may be punished for the drug with which he is found to be in possession.”

United States v. Barbosa, 271 F.3d 438, 459 (3d Cir. 2001); see also United States v.

Valencia-Gonzales, 172 F.3d 344, 345 (5th Cir. 1999) (rejecting defendant’s challenge to his

sentence for possessing heroin even though the government stipulated defendant believed he was

possessing cocaine instead); United States v. Strange, 102 F.3d 356, 359, 361 (8th Cir. 1996)

(noting that defendants acted “with the requisite criminal intent and with every expectation of

receiving some type of illegal drug to distribute,” regardless of whether defendants knew a

package contained cocaine instead of marijuana). Indeed, “it is well-settled that to sustain a

conviction for possession with intent to distribute a controlled substance, it need not be proved

that the defendant had knowledge of the particular drug involved, as long as he knew he was

dealing with a controlled substance.” United States v. Gomez, 905 F.2d 1513, 1514 (11th Cir.

1990) (defendant mistakenly believed he was possessing marijuana instead of cocaine); see also

United States v. Collado-Gomez, 834 F.2d 280, 280 (2d Cir. 1987) (per curiam) (noting that

although 21 U.S.C. § 841(a) “require[s] the government to prove that a defendant knowingly and

intentionally possessed a controlled substance,” the government need not prove that the

defendant knew exactly what the controlled substance was); cf. United States v. Salazar, 5 F.3d

445, 446 (9th Cir. 1993) (noting in the context of importation of a controlled substance that

“[t]he base offense level for guideline sentencing may be determined by the volume of the drug

actually imported, whether or not the defendant knows either the volume or the nature of the

while acting in the course of his professional practice, or except as otherwise authorized by this
title or title III. . . .” (emphasis added)). However, the federal appellate courts have been more
direct in addressing the specific mens rea issue before us today in cases arising under § 841 than
they have in cases arising under § 844. This is of no significant consequence, since the language
and structure of 21 U.S.C. § 841 is essentially identical to that of Code § 18.2-250 for purposes
of examining the pertinent mens rea requirement of these sections.
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substance—if he knows only that he is importing a controlled substance”); United States v. Obi,

947 F.2d 1031, 1032 (2d Cir. 1991) (per curiam) (noting that “the mens rea requirement

concerning the possession of a controlled substance satisfies due process concerns and that

Congress, for purposes of deterrence, intended that narcotics violators run the risk of sentencing

enhancements concerning other circumstances surrounding the crime”).

As the Third Circuit explained:

The drug statutes require specific knowledge or intent as to a
general category of unlawful items. The specific unlawful items,
however, are found in the penalty section of the scheme. Thus, the
structure and plain text of § 841 affords no support for a
requirement that the Government must prove more than the
defendant’s knowledge that he was trafficking in a controlled
substance.

Barbosa, 271 F.3d at 458.

This same reasoning applies with equal force to Code § 18.2-250. In the words of the

Third Circuit, “to construe the statute otherwise would entail making drastic revisions to a

statutory scheme, which, in the first instance, lies in the hands of Congress.” Id. Accordingly, a

defendant’s “awareness that he was trafficking in what he believed was a controlled substance,

albeit a different type for which he was arrested, is all that is required to satisfy the mens rea

portion of the substantive offense.” Id. As the Eighth Circuit succinctly summarized, a

defendant “[does] not need to know the exact nature of the substance in his possession, only that

it was a controlled substance of some kind.” United States v. Martin, 274 F.3d 1208, 1210 (8th

Cir. 2001).

Sierra contends that Young v. Commonwealth, 275 Va. 587, 659 S.E.2d 308 (2008),

supports his position. In Young, the Supreme Court reiterated the general principle that to prove

knowing and intentional possession of a controlled substance, “‘[t]he Commonwealth must . . .

establish that the defendant intentionally and consciously possessed it with knowledge of its

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nature and character.’” 275 Va. at 591, 659 S.E.2d at 310 (emphasis in original) (quoting

Burton v. Commonwealth, 215 Va. 711, 713, 213 S.E.2d 757, 759 (1975)). By itself, this

language does not indicate whether a defendant must know precisely what substance he is

possessing, or whether he must simply know the substance’s nature and character as a controlled

substance. Thus, this language does not solve the question before us. 8

The Supreme Court in Young specifically rejected this Court’s holding in that case “that

possession of a controlled drug gives rise to an inference that the defendant was aware of its

character.” Id. at 590, 659 S.E.2d at 310. This Court, in affirming Young’s conviction, had

“relied on its decision in Josephs v. Commonwealth, 10 Va. App. 87, 390 S.E.2d 491 (1990) [(en

banc)], in which [it] held that ‘[p]ossession of a controlled drug gives rise to an inference of the

defendant’s knowledge of its character.’” Id. at 591, 659 S.E.2d at 310 (third alteration in

original) (citation omitted) (quoting Josephs, 10 Va. App. at 101, 390 S.E.2d at 498-99). The

8
Sierra cites other similar language that has also been used in stating this basic principle,
such as the following: “In order to convict a defendant of ‘possession’ of a narcotic drug, . . . it
generally is necessary to show that defendant was aware of the presence and character of the
particular substance and was intentionally and consciously in possession of it.” Ritter v.
Commonwealth, 210 Va. 732, 741, 173 S.E.2d 799, 805 (1970); see also Gillis v.
Commonwealth, 215 Va. 298, 301, 208 S.E.2d 768, 771 (1974). Like the language in Young,
however, this language is not dispositive of the specific question before us. It is not immediately
apparent whether “aware[ness] of the presence and character of the particular substance” simply
means knowledge that a particular substance is both present and is a controlled substance, or
whether it also means knowledge of exactly what the substance is.
Significantly, this language was taken from an A.L.R. article, cited in Ritter, which
addressed older statutory language containing no express mens rea requirement. See B. Finberg,
Annotation, What Constitutes “Possession” of a Narcotic Drug Proscribed by § 2 of the Uniform
Narcotic Drug Act, 91 A.L.R.2d 810, §§ 2, 5(a) (1965). Furthermore, the article simply
contrasted cases requiring a defendant to know “of the character of a substance in his possession
as a narcotic,” id. § 5(a) (emphasis added), with cases holding “that the defendant’s knowledge
was of no consequence, and that [mere] possession, actual or constructive, constitutes the crime
defined by the statute,” id. § 5(c). Thus, the Supreme Court’s adoption of the language contained
in this article does not indicate that it intended to imply that a defendant must know precisely
what controlled substance he is possessing. Rather, it seems to indicate simply that a defendant
must know of the character of a particular substance in his possession as being some type of
controlled substance. As we have explained, this mens rea requirement has now been expressed
clearly by the plain language of Code § 18.2-250.
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Supreme Court disagreed with and overruled this holding, “insofar as [it could] be read to imply

that bare possession, without more, may furnish proof, beyond a reasonable doubt, of the

essential element of guilty knowledge.” Id. at 592, 659 S.E.2d at 310. Because “the contents of

the pill bottle in [Young] gave no indication of their character,” 9 the Supreme Court held that the

evidence was insufficient to support Young’s conviction under Code § 18.2-250. Id. at 592, 659

S.E.2d at 311.

This case presents a different question from that presented in Young. The Supreme Court

in Young was not faced with the question of whether Code § 18.2-250 requires a defendant to

know simply that he is in possession of a controlled substance, or whether it exempts from its

proscriptions a defendant who knows he is possessing a controlled substance, yet who fails to

correctly ascertain exactly what substance he has. Today, we are faced with this specific

question. Based upon the plain language of Code § 18.2-250, and in light of both the policy

determinations the General Assembly has made and the well-established interpretation of similar

statutory language in the federal circuit courts, we hold that a defendant need know only that he

is possessing a controlled substance to be guilty of violating Code § 18.2-250. A claim by a

defendant that he knew he was possessing a controlled substance, but was unaware or mistaken

as to the precise identity of that substance, is not a defense under Code § 18.2-250. 10 Had the

General Assembly wished to make this a valid defense, it could easily have crafted the language

in the statute to express such an intent.

9
In contrast to the situation in Young, Officer Person testified that the appearance of the
pills in this case indicated their nature and character as prescription pills.
10
Sierra here claims that he did not know any of the pills were controlled substances.
However, as we discuss below, the trial court expressly found otherwise, and we cannot say that
such finding was error.
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 Having explained the mens rea requirement of Code § 18.2-250, we now proceed to

analyze whether the evidence in this case was sufficient to satisfy this requirement. We conclude

that it was.

Sierra was in possession of eight prescription pills, six contained in his pants pocket and

two separated into his shirt pocket. Officer Person testified that he concluded the pills were

prescription pills based on the shapes of the pills and the numbers on them. Although Sierra

testified that he thought the pills were aspirin and Tylenol, the trial court did not believe his

testimony, stating that “under the facts it would be obvious that they were some sort of

prescription and not aspirin, Tylenol, Advil.” Accordingly, the trial court found that Sierra knew

he was in possession of a controlled substance. We cannot say that the trial court’s conclusion in

this regard was “‘plainly wrong or without evidence to support it.’” Burrell, 58 Va. App. at 433,

710 S.E.2d at 517 (quoting Hickson, 258 Va. at 387, 520 S.E.2d at 645); see also Code

§ 8.01-680. Furthermore, the trial court was fully within its discretion when it found Sierra’s

testimony not credible, and thus it “was at liberty to discount [Sierra’s] self-serving statements as

little more than lying to ‘conceal his guilt,’ and could treat such prevarications as ‘affirmative

evidence of guilt.’” Armstead v. Commonwealth, 56 Va. App. 569, 581, 695 S.E.2d 561, 567

(2010) (quoting Coleman v. Commonwealth, 52 Va. App. 19, 25, 660 S.E.2d 687, 690 (2008)).

Therefore, we hold that the trial court did not err in finding the evidence sufficient to convict

Sierra of knowingly and intentionally possessing a controlled substance in violation of Code

§ 18.2-250.

III. CONCLUSION

For the foregoing reasons, we affirm Sierra’s conviction.

Affirmed.

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