COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judges Frank and Kelsey
Argued at Richmond, Virginia
CHRISTOPHER JAMES WILLIAMS
OPINION BY
v. Record No. 0201-10-2 JUDGE ROBERT P. FRANK
DECEMBER 14, 2010
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Michael C. Allen, Judge
Keith N. Hurley (Keith N. Hurley, P.C., on brief), for appellant.
Erin M. Kulpa, Assistant Attorney General (Kenneth T. Cuccinelli,
II, Attorney General, on brief), for appellee.
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 Commonwealth argued 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
1
Code § 18.2-250(A) provides in pertinent part:
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.).
Code § 18.2-263 provides:
In any complaint, information, or indictment, and in any action or
proceeding brought for the enforcement of any provision of this article or of the
Drug Control Act (§ 54.1-3400 et seq.), it shall not be necessary to negative any
exception, excuse, proviso, or exemption contained in this article or in the Drug
Control Act, and the burden of proof of any such exception, excuse, proviso, or
exemption shall be upon the defendant.
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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 would not 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).
2
In his motion to dismiss, appellant raised the vagueness challenge but failed to argue
vagueness before the trial court. The sole argument by appellant and the Commonwealth was the
due process issue. The trial court, in denying the motion, did not address the vagueness issue.
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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)).
3
The Commonwealth argues appellant had no standing to argue vagueness since he was
not injured by lack of the statute setting forth the standard of proof. As we have concluded this
issue is waived, we need not address standing.
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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 (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.
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)
(quoting Jones 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
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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 consider
the 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 distribution of drugs by
anyone, particularly of those drugs classified in Schedules I, II and
III . . . . With few exceptions, enumerated by statute, no one can
lawfully manufacture, possess, sell or distribute such drugs. . . .
The possession of drugs is confined to a small group of
professionals who are required to dispense the drugs under
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restricted and controlled conditions. By and large, it can be said
that the lawful possession of drugs is restricted to licensed
manufacturers, licensed pharmacists, and to individuals who have
possession as a result of a prescription given by an authorized
physician.
The General Assembly recognized that seldom, if ever, except in
these authorized instances, could there be any explanation for the
sale or possession of drugs.
Clearly, the legislature intended for Virginia’s drug laws to rigorously limit possession of
Schedule I, II, and III controlled substances.
We next observe that the “valid prescription” exemption of Code § 18.2-250 relates to a
fact that would be solely within the knowledge of the accused. If we accept appellant’s
contention that the Commonwealth must prove appellant had no valid prescription, the offense
would be virtually unprovable. Under appellant’s theory, to obtain a conviction under the facts
of this case, the Commonwealth would be required to prove that no medical professional,
wherever located, in this Commonwealth or elsewhere, had prescribed the drug to appellant.
This would involve a nationwide search of chain drugstores, as well as independent pharmacies,
hospitals, prison infirmaries, etc. Appellant, at oral argument, conceded that such an undertaking
would most likely be impossible. The General Assembly clearly did not intend such a result, nor
would they enact such an impotent statute.
While we acknowledge the requirement that we strictly construe ambiguous penal
statutes against the Commonwealth, Welch v. Commonwealth, 271 Va. 558, 563, 628 S.E.2d
340, 342 (2006), we are also aware “that the plain, obvious, and rational meaning of a statute is
always to be preferred to any curious, narrow, or strained construction,” Turner v.
Commonwealth, 226 Va. 456, 459, 309 S.E.2d 337, 338 (1983). Hence, “we will not apply ‘an
unreasonably restrictive interpretation of the statute’ that would subvert the legislative intent
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expressed therein.” Armstrong v. Commonwealth, 263 Va. 573, 581, 562 S.E.2d 139, 144
(2002) (quoting Ansell v. Commonwealth, 219 Va. 759, 761, 250 S.E.2d 760, 761 (1979)).
Under well-settled law, ‘“the burden is on the Commonwealth to prove every essential
element of the offense beyond a reasonable doubt.’” Bishop v. Commonwealth, 275 Va. 9, 12,
654 S.E.2d 906, 908 (2008) (quoting Powers v. Commonwealth, 211 Va. 386, 388, 177 S.E.2d
628, 629 (1970)). This fundamental precept has been the bedrock of Virginia’s criminal
jurisprudence since the inception of this Commonwealth. Id. “In a criminal case, the defendant
is entitled to an acquittal, unless his guilt is established beyond a reasonable doubt.” Savage v.
Commonwealth, 84 Va. 582, 585, 5 S.E. 563, 564 (1888).
“An affirmative defense,” however, raises “a separate issue which
may carry a separate burden of proof.” Ronald J. Bacigal,
Criminal Procedure § 17.28 (2007-2008 ed.). It is well settled that
a criminal defendant may be required to bear all or part of the
burden in establishing an affirmative defense “once the facts
constituting a crime are established beyond a reasonable doubt
. . . .” New York v. Patterson, 432 U.S. 197, 206 (1977).
In Virginia, a criminal defendant typically bears the burden of
“producing evidence in support of [an affirmative defense]
sufficient to raise a reasonable doubt of [his or her] guilt.” Regular
Veteran’s Assoc., Ladies Auxiliary v. Commonwealth, 18 Va.
App. 683, 688, 446 S.E.2d 621, 624 (1994) (citing McGhee v.
Commonwealth, 219 Va. 560, 562, 248 S.E.2d 808, 810 (1978)). 4
As is the case with any defense, “a defendant may shoulder this
burden of production by pointing to evidence adduced during the
government’s case, by introducing evidence to his own behoof, by
relying on some combination of the foregoing, or otherwise by
reference to any probative material in the record.” United States v.
Rodriguez, 858 F.2d 809, 814 (1st Cir. 1988). However, once the
defendant meets that burden, the Commonwealth, retaining the
ultimate burden of persuasion, may be required to disprove the
defense. See Simopoulos v. Commonwealth, 221 Va. 1059, 1069,
277 S.E.2d 194, 200 (1981), aff’d, 462 U.S. 506 (1983).
Tart v. Commonwealth, 52 Va. App. 272, 276-77, 663 S.E.2d 113, 115 (2008).
4
Tart noted “there is no uniform rule in Virginia regarding the burden of persuasion for
affirmative defenses.” 52 Va. App. at 276 n.1, 663 S.E.2d at 115 n.1.
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Under the Mayhew criteria, we hold that requiring the Commonwealth to prove this
negative would undermine the general prohibition intended by the legislature. The exception,
i.e. a valid prescription, justifies what would otherwise be criminal conduct. The presence of a
valid prescription is “peculiarly within the knowledge of the [appellant].” Mayhew, 20 Va. App.
at 490, 458 S.E.2d at 308. Thus, we conclude the presence of a valid prescription is an
affirmative defense for which the appellant has the burden of going forward with supporting
evidence. See id.
People v. Pegenau, 523 N.W.2d 325 (Mich. 1994), while not binding on this Court, offers
persuasive reasoning. In Pegenau, appellant was convicted of unlawful possession of Valium
and Xanax. The statute at issue was very similar to our Code § 18.2-250, and read, in pertinent
part:
A person shall not knowingly or intentionally possess a controlled
substance or an official prescription form or a prescription form
unless the controlled substance, official prescription form, or
prescription form was obtained directly from, or pursuant to, a
valid prescription or order of a practitioner while acting in the
course of the practitioner’s professional practice . . . .
Id. at 333-34 (emphasis omitted).
The Supreme Court of Michigan held that “the operative words defining the elements of
the crime are ‘A person shall not knowingly or intentionally possess a controlled substance . . . .’
The language concerning a prescription or other authorization refers to an exemption rather than
an element of the crime.” Id. at 334. The Pegenau court referred to another Michigan case,
People v. Henderson, 218 N.W.2d 2 (Mich. 1974), where the Supreme Court of Michigan
interpreted the concealed weapon statute. That statute prohibited carrying a concealed weapon in
an automobile unless the carrier held a license to do so. The Henderson court upheld language in
the statute that placed on the defendant the burden to prove any exemption to the statute. The
court concluded that any language in the statute referring to the absence of a license did not add
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an element to the crime, but merely acknowledged that a person may be authorized (by holding a
license) to carry a pistol. See id. at 8. 5 As in Pegenau, the operative words of Code § 18.2-250,
defining the offense, are “knowingly or intentionally possess a controlled substance.”
Thus, the exception language in Code § 18.2-250 is not an element of the offense, but
rather an affirmative defense. As a result, appellant was required to satisfy his burden of
producing or pointing to evidence that would allow him to invoke the exception. See Tart, 52
Va. App. at 280, 663 S.E.2d at 117. Due process does not prohibit the use of inferences as
procedural devices to shift to the accused the burden of producing some evidence contesting the
otherwise presumed or inferred fact. See Hodge v. Commonwealth, 217 Va. 338, 341, 228
S.E.2d 692, 695 (1976). The Hodge Court held the “presumption that an unlawful homicide is
murder in the second degree amounts to no more than an inference” which the trier of fact may
draw from proven facts. Id. at 343, 288 S.E.2d at 696. However, the ultimate “burden of proof
is always upon the Commonwealth, and this burden never shifts.” Id. at 342, 228 S.E.2d at 695.
Code § 18.2-263 is constitutionally valid, as it does not impermissibly shift the burden of proof
to appellant or violate his due process rights. The trial court correctly denied appellant’s motion
to dismiss.
Sufficiency
Finally, appellant argues the evidence was insufficient to convict him of violating Code
§ 18.2-250, because without the benefit of Code § 18.2-263, the Commonwealth failed to prove
he did not have a valid prescription to possess the Schedule II controlled substances.
5
While Henderson only applied to shifting the burden of production, the United States
Supreme Court, in Patterson v. New York, 432 U.S. 197 (1977), held that a statute placing the
burden of proof on the defendant does not violate due process as long as the fact the defendant is
required to prove does not determine an essential element of the offense. Id. at 210.
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However, this argument rises or falls with the constitutionality of Code § 18.2-263. We
have already determined that Code § 18.2-263 is valid. This conclusion disposes of appellant’s
sufficiency argument. Appellant was properly convicted under Code § 18.2-250.
CONCLUSION
We find that Code § 18.2-263 is constitutional and does not impermissibly shift the
burden of proof to appellant. The trial judge properly denied appellant’s motion to dismiss and
convicted appellant, and we affirm that judgment.
Affirmed.
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