COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Humphreys and Senior Judge Overton
Argued at Chesapeake, Virginia
JERMAINE ALONZO AUSTIN
OPINION BY
v. Record No. 1754-99-2 JUDGE SAM W. COLEMAN III
AUGUST 1, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Robert W. Duling, Judge
Elwood Earl Sanders, Jr., Appellate Defender
(Public Defender Commission, on briefs), for
appellant.
Steven A. Witmer, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Jermaine Alonzo Austin was indicted for distribution of
cocaine in violation of Code § 18.2-248. At trial, Austin moved
to strike the evidence, arguing that the evidence failed to
prove he distributed cocaine or that the cocaine found on his
person was once part of the drugs allegedly distributed. The
trial judge granted the motion to strike the charge of
distribution of cocaine but convicted Austin of possession of
cocaine in violation of Code § 18.2-250. On appeal, Austin
argues that the trial judge erred in convicting him of
possession of cocaine because that offense is not a
lesser-included offense of the charge for which he was tried.
We disagree and affirm the conviction.
BACKGROUND
At approximately 6:50 p.m., Richmond Police Officer William
Bingham was conducting surveillance on Admiral Gravely Boulevard.
Bingham was positioned in a wooded area across the street from
Austin. Bingham, using a "20 power spotting scope," observed
Austin, holding a plastic bag containing a white rock-like
substance, approach a van. He then observed Austin give the
driver of the van some of the substance in the bag; in turn, the
driver gave Austin money.
Bingham radioed other officers to apprehend Austin, informing
the officers that Austin placed the plastic bag, which contained
the remainder of the substance, in his right pants pocket. The
officers retrieved from Austin's pocket the plastic bag containing
the white rock-like substance, $280, and a beeper. The rock-like
substance tested positive for cocaine.
ANALYSIS
Austin, relying on Rhodes v. Commonwealth, 223 Va. 743, 292
S.E.2d 373 (1982), contends that possession of cocaine is not a
lesser-included offense of distribution of cocaine. Thus, he
argues he had no notice of and no reason to defend against the
possession charge for which he was convicted. He further contends
that our decision in Patterson v. Commonwealth, 19 Va. App. 698,
702, 454 S.E.2d 367, 369-70 (1995), which holds that possession is
a lesser-included offense of distribution, and the Supreme Court's
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earlier decision in Spear v. Commonwealth, 221 Va. 450, 457, 270
S.E.2d 737, 742 (1980), which states that "intentional possession
. . . is a lesser included offense of manufacturing," are in
conflict with and distinguishable from Rhodes and, thus, the
Supreme Court's holding in Rhodes controls.
An accused may be acquitted of a greater
offense but convicted of a lesser offense,
if the lesser offense is "substantially
charged" in the indictment. Ashby v.
Commonwealth, 208 Va. 443, 444-45, 158
S.E.2d 657, 658 (1968). "A lesser included
offense is an offense which is composed
entirely of elements that are also elements
of the greater offense." Kauffmann v.
Commonwealth, 8 Va. App. 400, 409, 382
S.E.2d 279, 283 (1989).
Patterson, 19 Va. App. at 701, 454 S.E.2d at 369.
Austin's reliance on Rhodes is misplaced. In Rhodes, the
defendant was suspected of manufacturing phencyclidine (PCP).
During the investigation, police officers followed the defendant
to his parents' farmhouse. In the woods surrounding the house,
the officers found several items commonly used in the manufacture
of PCP. The officers obtained and executed a search warrant for
the farmhouse and discovered many articles used in manufacturing
PCP, various chemicals used in manufacturing the drug, and thirty
grams of finished PCP in several abandoned vehicles on the
property. The defendant was apprehended in his car at a truck
stop. In the defendant's car, the officers found a plastic bag
containing cigarettes laced with PCP.
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The defendant was charged with manufacturing PCP, based on
the evidence found at the farmhouse and in the abandoned vehicles,
and was charged with possession of PCP, based on the evidence
found in his car. The offenses were tried separately, and the
defendant was acquitted of the possession charge. At the trial
for the manufacturing charge, the Commonwealth was permitted to
introduce evidence of the defendant's possession of the PCP laced
cigarettes. The defendant was convicted of manufacturing PCP.
On appeal, Rhodes argued that the trial court erred in
admitting the evidence of the PCP laced cigarettes. He argued
that the Commonwealth was collaterally estopped from using the
evidence because he had been acquitted of the possession charge.
The Supreme Court affirmed the conviction, holding that the
conviction did not violate the Double Jeopardy Clause because the
"defendant was not, in the manufacturing case, on trial for the
crime of possession of PCP found in his car." 223 Va. at 748, 292
S.E.2d at 376. While the Court stated that, "[p]ossession and
manufacturing are two separate and distinct offenses, each of
which requires proof of a fact which the other does not," id., the
statement was made in the context of the facts of that case, which
involved separate and distinct offenses committed on separate
occasions. The Court specifically noted that the possession
charge required proof of facts and circumstances that were
separate and distinct from those of the manufacturing charge. The
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Court expressly noted that the case was distinguishable "from one
in which a defendant, accused of the manufacture or distribution
of controlled drugs, is also charged with possession of the same
drugs, at the same time and place." Id. at 748 n.1, 292 S.E.2d at
376 n.1. We find that Rhodes is distinguishable from and not
controlling of the instant case.
In Patterson, 19 Va. App. at 702, 454 S.E.2d at 369-70, we
held that possession of a controlled substance is a
lesser-included offense of manufacture of a controlled substance.
We concluded that, in order to plant, cultivate, grow, or harvest
marijuana, one must necessarily possess the marijuana. All of the
elements of possession of a controlled substance are included
within the elements of manufacturing a controlled substance.
In Spear, 221 Va. 450, 270 S.E.2d 737, the defendant was
charged with manufacturing with intent to distribute
methamphetamine. He was convicted after a jury trial of
"manufacturing methamphetamine, or possession of methamphetamine
with intent to manufacture methamphetamine." The defendant argued
that the trial court erred in instructing the jury that, if they
found that the defendant manufactured methamphetamine or possessed
methamphetamine with the intent to manufacture, they should find
him guilty. The defendant argued that it was impossible to
determine from the verdict whether he was convicted of
manufacturing methamphetamine or possession with intent to
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manufacture methamphetamine. The Supreme Court reversed the
conviction, holding that "[m]anufacturing and possession with
intent to manufacture are not one and the same" and the trial
court had erred in granting an instruction which allowed the jury
to find the defendant guilty of manufacturing upon proof that he
possessed with the intent to manufacture. 221 Va. at 457, 270
S.E.2d at 741-42. However, in further addressing the distinctions
between the offenses, the Court stated that "the intentional
possession of methamphetamine is a lesser included offense of
manufacturing." Id. at 457, 270 S.E.2d at 742.
Although neither Rhodes nor Spears addresses whether
possession is a lesser-included offense of distribution, Patterson
and the rationale in Spears support the conclusion that possession
of a controlled substance is a lesser-included offense of
distribution of that controlled substance. Code § 18.2-248
prohibits and makes unlawful the distribution of a controlled
substance. See generally Andrews v. Commonwealth, 216 Va. 179,
182, 217 S.E.2d 812, 814 (1975) (stating that to establish
distribution of a controlled substance, the Commonwealth must
prove that the defendant knew the nature and character of the
materials he was charged with distributing). Code § 18.2-250
makes it unlawful for any person to knowingly or intentionally
possess a controlled substance. See Gillis v. Commonwealth, 215
Va. 298, 301, 208 S.E.2d 768, 771 (1974) ("To establish possession
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of a controlled substance, it generally is necessary to show that
the defendant was aware of the presence and character of the
particular substance and was intentionally and consciously in
possession of it."). Proof of the elements of the offense of
feloniously, knowingly, and intentionally distributing a
controlled substance necessarily encompasses proof of the
possession of that same controlled substance. Therefore, the
offense of possessing a controlled substance as proscribed by Code
§ 18.2-250 is a lesser-included offense of distribution of a
controlled substance as proscribed by Code § 18.2-248.
We find that the trial judge did not err in convicting Austin
of possession of cocaine. Accordingly, we affirm the conviction.
Affirmed.
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