COURT OF APPEALS OF VIRGINIA
Present: Judges McClanahan, Petty and Beales
Argued at Salem, Virginia
CARLTON LEE WILEY
MEMORANDUM OPINION * BY
v. Record No. 0798-07-3 JUDGE RANDOLPH A. BEALES
MARCH 4, 2008
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CAMPBELL COUNTY
Von L. Piersall, Jr., Judge Designate
Scott R. Geddes (Scott R. Geddes, PC, on brief), for appellant.
(Robert F. McDonnell, Attorney General; Karri B. Atwood,
Assistant Attorney General; Joanne V. Frye, Assistant Attorney
General, on brief), for appellee. Appellee submitting on brief.
Carlton Lee Wiley (appellant) was convicted following a bench trial of two counts of
distribution of a Schedule I, II, III, or IV drug to a person under the age of 18, in violation of
Code § 18.2-255, and two counts of contributing to the delinquency of a minor, in violation of
Code § 18.2-371. This appeal addresses the sufficiency of the evidence to sustain appellant’s
convictions for violating Code § 18.2-255. 1 For the reasons that follow, we affirm those
convictions.
BACKGROUND
“Applying well-established principles of appellate review, we must consider the evidence
and all reasonable inferences fairly deducible therefrom in the light most favorable to the
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
This Court denied the part of appellant’s petition requesting that this Court review the
convictions for the two counts of contributing to the delinquency of a minor, so they are not now
before the Court in this appeal.
Commonwealth, the prevailing party below.” Walker v. Commonwealth, 272 Va. 511, 513, 636
S.E.2d 476, 477 (2006). “That principle requires us to discard the evidence of the accused in
conflict with that of the Commonwealth and to regard as true all the credible evidence favorable
to the Commonwealth and all fair inferences that may be drawn therefrom.” Guda v.
Commonwealth, 42 Va. App. 453, 455, 592 S.E.2d 748, 749 (2004).
On a Friday evening in September 2005, appellant’s seventeen-year-old daughter (A.W.)
had two friends over to her home, which she shared with appellant. 2 While the girls were getting
dressed in A.W.’s bedroom, appellant returned home and entered his daughter’s bedroom. A.W.
asked him to leave because one of her friends was only partially dressed. Appellant left but
returned several minutes later. According to A.W. and her friends, appellant appeared drunk.
According to C.L., one of A.W.’s friends, appellant gave C.L. a pill that he told her was
morphine. She testified that appellant told C.L. that she could not leave until she took the pill.
C.L. swallowed the pill and washed it down with some beer that appellant gave her. C.L.
described the pill that appellant gave her as small, oval shaped, and with an off-white color
having a yellowish tint to it. She said the pill made her feel like she was in “a daze” while at a
party that she and the other two girls attended later that night. C.L. remembered “sitting down
and . . . [not] really want[ing] to get up, [I] was just all laid back.” Appellant had also informed
C.L. that she would get sick if she took the pill on an empty stomach; C.L. remembered vomiting
the morning after taking the morphine pill.
After giving C.L. the morphine pill, A.W. said that appellant shortly thereafter gave her
two pills as well. She testified that appellant told her that one pill was a Darvocet and the other
was a muscle relaxer. A.W. took the pills and washed them down with some beer that appellant
2
In order to protect the identity of the three minor girls associated with this appeal, the
minor girls’ initials will be used in lieu of their full names.
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also gave her. A.W. said the Darvocet was long, oval, and pink. A.W. remembered feeling slow
and a little dizzy while at the party later that night.
The third girl present, N.H., did not take any pills or consume any alcohol because she
was pregnant. N.H. confirmed, though, that appellant “gave [C.L.] some pills at first” and then
gave A.W. one or two pills. N.H. said that, while at the party later that night, C.L. and A.W.
“were just out of it and not tired but just felt like they didn’t want to move. They said that they
felt heavy.”
Appellant’s pharmacist, Roger Akers, testified that he filled a morphine prescription for
appellant on September 1 and that those pills, which were manufactured by Endeo, were small,
oblong, and orange. However, Akers also said that the color of the morphine pills changes
depending on the manufacturer and that he had previously also carried an “off-white yellow”
color of morphine pills. Akers also filled Darvocet for appellant on August 30th. Akers stated
that the Darvocet pills that he carried were large and oblong and that all of the manufacturers he
had bought Darvocet from supplied him with hot pink pills. According to Akers, morphine is a
Schedule II substance and Darvocet is a Schedule IV substance. 3
Dr. David Burrows, a forensic toxicologist employed by the Virginia Department of
Forensic Science, testified that the effects of morphine are “nausea, drowsiness, dizziness” along
with “euphoria” and “feelings of well being.” Burrows confirmed that feelings of heavy limbs
and dizziness could be experienced after taking morphine. Burrows explained that Darvocet
could cause “drowsiness, dizziness, disorientation, nausea” and that “feeling like in slow
motion” would be consistent with the side effects of Darvocet. Burrows confirmed that
3
Akers testified, “A muscle relaxer is not a controlled substance.” Appellant was not
charged, therefore, with distribution of the muscle relaxer to his daughter.
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morphine is a Schedule II controlled substance and Darvocet is a Schedule IV controlled
substance.
Appellant denied giving any pills to the girls. Nevertheless, the trial court found
appellant guilty, noting “the evidence clearly shows that you had access to this [sic] sort of
controlled substances which witnesses, a young girl said that – that you said you were giving
them and that their reaction or physical reaction to later on was consistent with someone reacting
to those kinds of drugs.” The trial court sentenced appellant, on all counts, to an active term of
incarceration of five years and twelve months.
ANALYSIS
When considering the sufficiency of the evidence on appeal, “a reviewing court does not
‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable
doubt.’” Crowder v. Commonwealth, 41 Va. App. 658, 663, 588 S.E.2d 384, 387 (2003)
(quoting Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). “Viewing the evidence in the light
most favorable to the Commonwealth, as we must since it was the prevailing party in the trial
court,” Riner v. Commonwealth, 268 Va. 296, 330, 601 S.E.2d 555, 574 (2004), “[w]e must
instead ask whether ‘any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt,’” Crowder, 41 Va. App. at 663, 588 S.E.2d at 387 (quoting
Kelly v. Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003)). “This familiar
standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the
testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate
facts.” Jackson, 443 U.S. at 319.
Code § 18.2-255 states “it shall be unlawful for any person who is at least 18 years of age
to knowingly or intentionally (i) distribute any drug classified in Schedule I, II, III or IV or
marijuana to any person under 18 years of age who is at least three years his junior . . . .”
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Therefore, “The Commonwealth was required to prove that the defendant knowingly or
intentionally distributed a controlled drug. The purpose of this statute is to provide enhanced
punishment, where children are involved, to an activity which is illegal no matter what the age of
the purchaser.” Pannell v. Commonwealth, 9 Va. App. 170, 174, 384 S.E.2d 344, 346 (1989).
Here, as the trial court appropriately noted, the evidence demonstrates that appellant had
access to both morphine and Darvocet. Appellant’s pharmacist, Roger Akers, confirmed that he
had filled appellant’s prescriptions for both drugs prior to September 16, 2005. The only color
and shape of Darvocet that Akers carried in his pharmacy matched the description given by A.W.
of the pill appellant gave her. While Akers said that he had filled a prescription of morphine for
appellant with small orange pills, Akers also confirmed other pharmacists carried (and that he
had previously also carried) an off-white yellow morphine pill that was consistent with the pill
that C.L. described appellant gave to her.
Moreover, as the expert witness, toxicologist Dr. Burrows, explained, the side effects felt
by C.L. and A.W. (and witnessed by N.H.) were consistent with the side effects of morphine and
Darvocet. The side effects that the girls experienced, therefore, also substantiate their
recollection of appellant’s representation, which he made to them at the time he gave them the
pills, that he was actually giving C.L. morphine and A.W. Darvocet.
Appellant cites Hinton v. Commonwealth, 15 Va. App. 64, 421 S.E.2d 35 (1992), in
support of his argument that, since neither girl had sophisticated knowledge of either morphine
or Darvocet, neither girl could positively identify the pill appellant gave to her absent his
representation as to what the pills actually were, and, therefore, his convictions should be
overturned. In Hinton, this Court noted that the witness
did not identify the “cocaine” by describing its appearance, the
manner in which it affected her, her previous “familiarity or
experience” with the drug or provide other foundation for her
conclusion that it was, in fact, the substance purchased from
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defendant. Thus, [the witness’] testimony was simply insufficient
to prove that defendant distributed cocaine to her.
15 Va. App. at 66, 421 S.E.2d at 37. Here, though, the girls described with particularity the
appearance of the pills that appellant gave to them, which matched the descriptions given by
pharmacist Roger Akers, and described the manner in which the pills affected them, which was
corroborated by both Akers and the toxicologist expert witness, Dr. Burrows. These descriptions
were entirely consistent with appellant’s representation as to what the pills he gave to them
actually were. We have previously held that the types of circumstantial evidence recounted
above may be considered to prove the nature of a particular substance. See Hill v.
Commonwealth, 8 Va. App. 60, 63, 379 S.E.2d 134, 136 (1989) (listing “the physical appearance
of the substance involved,” “evidence that the substance produced the expected effects,” and
“evidence that the substance was called by the name of the [substance] by the defendant” among
the types of circumstantial evidence that may be considered). Consequently, the foundation not
present in Hinton is present in the case at bar. 4
In addition, the judge specifically stated that he believed the girls’ testimony, thereby
rejecting appellant’s claim of innocence. “The 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). Finally, “[i]n its role of judging witness credibility, the fact finder is
entitled to disbelieve the self-serving testimony of the accused and to conclude that the accused
4
Familiarity by the victim with the substance she is being given is not an element of the
offense prohibited by Code § 18.2-255. While we have previously held that users of a particular
drug, “if they have gained a familiarity or experience with a drug, may identify it,” Hill, 8
Va. App. at 63, 379 S.E.2d at 136, we note that testimony from a prior user is not necessary to
prove the identity of a particular substance. Certainly, as here, there could be many instances
where a minor child does not have independent or sophisticated knowledge of a controlled
substance being given to her by an adult. In short, the statute certainly does not require that a
minor child have such knowledge in order to obtain a conviction under the statute.
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is lying to conceal his guilt.” Marable v. Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d
233, 235 (1998).
Here, the evidence demonstrates that appellant had access to both morphine and
Darvocet, which he also told the girls he was giving to them. While the morphine pill that C.L.
said she received from appellant did not match the description of the morphine pills that
pharmacist Roger Akers testified that he dispensed to appellant on September 1, Akers noted that
other pharmacists carried the type of morphine pill described by C.L. He also confirmed that he
had previously carried it prior to September 1. The symptoms experienced by C.L. and A.W. are
consistent with the side effects often experienced after taking those drugs, according to the
toxicologist expert witness, Dr. David Burrows. The evidence reflects that morphine and
Darvocet fit into the schedules listed in Code § 18.2-255, and both Dr. Burrows and Akers
confirmed that morphine is a Schedule II controlled substance and that Darvocet is a Schedule
IV controlled substance. Therefore, based upon the totality of the evidence contained in this
record, we hold that a rational trier of fact could certainly conclude that appellant knowingly and
intentionally gave C.L. morphine, a Schedule II controlled substance, and that appellant
knowingly and intentionally gave A.W. Darvocet, a Schedule IV controlled substance.
CONCLUSION
Based upon the foregoing, we affirm appellant’s convictions.
Affirmed.
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