COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Senior Judge Cole
Argued at Richmond, Virginia
ANTHONY NYANKUM SEKE
OPINION BY
v. Record No. 0180-96-2 JUDGE LARRY G. ELDER
MARCH 11, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Walter W. Stout, III, Judge
Suzanne L. Nyfeler (Joseph W. Kaestner;
Patricia A. Phillips; Kaestner & Pitney,
P.C., on briefs), for appellant.
Daniel J. Munroe, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Anthony Nyankum Seke (appellant) appeals his convictions of
possession of a Schedule II controlled substance with the intent
to distribute in violation of Code § 18.2-248 and of
transportation of one or more ounces of cocaine into the
Commonwealth with the intent to distribute in violation of Code
§ 18.2-248.01. He contends that the evidence was insufficient to
support his convictions under both Code § 18.2-248 and Code
§ 18.2-248.01 because the Commonwealth failed to prove that he
intended to distribute cocaine within the Commonwealth. He also
contends that the evidence was insufficient to support his
conviction under Code § 18.2-248.01 because the Commonwealth
failed to prove that he transported cocaine "into" Virginia. For
the reasons that follow, we affirm.
I.
FACTS
Appellant was charged with possession of a Schedule II
controlled substance with the intent to distribute in violation
of Code § 18.2-248 and of transportation of one or more ounces of
cocaine into the Commonwealth with the intent to distribute in
violation of Code § 18.2-248.01.
At trial, the evidence proved that in the early morning
hours of June 23, 1995, appellant, a resident of North Carolina,
was returning to North Carolina with a companion from a one day
trip to New York City. Appellant was riding a Greyhound bus and
was transporting 358.06 grams of crack cocaine that he had
procured while in New York. Although appellant was bound for
North Carolina, the bus he was riding made a temporary stop at
the Greyhound bus station in Richmond, Virginia.
While the bus was stopped in Richmond, Special Agent Koushel
and Trooper Newby of the Virginia State Police boarded the bus to
question passengers in the hope of ferreting out drug couriers
transporting illegal contraband. After a series of events not
relevant to this appeal, Special Agent Koushel discovered
appellant's crack cocaine on the bus, and another officer
arrested appellant a short while later.
At the conclusion of the evidence, appellant moved to strike
on the ground that the Commonwealth had failed to prove either
that he intended to distribute the crack cocaine "inside"
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Virginia or that he had transported it "into" Virginia. No other
issue was raised. In particular, the issue of intent was raised
solely with respect to its geographical limits and not with
respect to the question of distribution. The trial court denied
his motion. A jury found appellant guilty as charged.
II.
INTENT TO DISTRIBUTE
In a prosecution under Code § 18.2-248 or Code
§ 18.2-248.01, the Commonwealth must prove that a defendant
either possessed or transported a controlled substance in
Virginia with the "intent to . . . distribute." Appellant
contends that both statutes implicitly require the Commonwealth
to prove that a defendant intended to distribute controlled
substances inside the Commonwealth and that the evidence at trial
did not prove that appellant had such an intent. We disagree
with appellant's construction of the statutes.
"When statutory construction is required we construe a
statute to promote the end for which it was enacted, if such an
interpretation can reasonably be made from the language used."
Woolfolk v. Commonwealth, 18 Va. App. 840, 847, 447 S.E.2d 530,
533 (1994). "While penal statutes must be strictly construed
against the Commonwealth, 'the plain, obvious, and rational
meaning of a statute is always preferred to any curious, narrow
or strained construction; a statute should never be construed so
that it leads to absurd results.'" Newton v. Commonwealth, 21
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Va. App. 86, 89, 462 S.E.2d 117, 119 (1995) (quoting Branch v.
Commonwealth, 14 Va. App. 836, 839, 419 S.E.2d 422, 424 (1992)).
We hold that the phrase "intent to . . . distribute" in both
Code § 18.2-248 and Code § 18.2-248.01 contains no geographic
limitation and that the Commonwealth is not required to prove the
place where a defendant intends to distribute illegal substances
in order to obtain a conviction under either code section. This
conclusion is consistent with the plain meaning of both statutes.
The language of both Code § 18.2-248 and Code § 18.2-248.01
contains no express geographical limitation applicable to the
intent element. The plain and obvious meaning of both statutes
is to prohibit the possession or transportation of illegal
substances in Virginia by a person whose intent is to distribute
1
them anywhere.
Appellant argues that Virginia must be the intended place of
distribution in a prosecution under these statutes because the
criminal jurisdiction of the Commonwealth's courts is limited to
1
Courts construing the phrase "intent to distribute" in
other jurisdictions have likewise held that the government is not
required to prove the place of the defendant's intended
distribution. See United States v. Muench, 694 F.2d 28, 33 (2d
Cir. 1982), cert. denied, 461 U.S. 908, 103 S. Ct. 1881, 76
L.Ed.2d 811 (1983) (holding that the Comprehensive Drug Abuse
Prevention and Control Act prohibits possession of a controlled
substance with the intent to distribute even if the defendant
intends to distribute the substance in a foreign country);
United States v. Gomez-Tostado, 597 F.2d 170, 172-73 (9th Cir.
1979) (same); State v. Bowers, 87 N.M. 74, 76, 529 P.2d 300, 302
(1974) (holding that state law prohibiting the possession of
marijuana with the intent to distribute does not require the
state to prove the place of the intended distribution).
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crimes committed in Virginia. We agree that the criminal
jurisdiction of the Commonwealth is limited to crimes committed
in the Commonwealth but disagree that such was not the case here.
The crimes proscribed by Code § 18.2-248 and Code § 18.2-248.01
are completed when illegal substances are either possessed or
transported in Virginia by someone who has the intent to
distribute them. Although "'[e]very crime to be punished in
Virginia must be committed in Virginia,'" Moreno v. Baskerville,
249 Va. 16, 18, 452 S.E.2d 653, 655 (1995) (quoting Farewell v.
Commonwealth, 167 Va. 475, 479, 189 S.E. 321, 323 (1937)), the
actual possession or transportation of controlled substances
inside Virginia "supplies the jurisdictional nexus and obviates
the need for proof of intent to distribute within [Virginia]."
United States v. Muench, 694 F.2d 28, 33 (2d Cir. 1982).
In light of our construction of Code § 18.2-248 and Code
§ 18.2-248.01, we hold that the evidence was sufficient to prove
that appellant intended to distribute cocaine.
III.
TRANSPORTATION "INTO" THE COMMONWEALTH
Appellant contends that the evidence was insufficient to
support his conviction under Code § 18.2-248.01. He asserts that
Code § 18.2-248.01 requires the Commonwealth to prove that he
intended to transport illegal substances to, and not merely
through, the Commonwealth. He argues that the evidence in this
case only proved that he was transporting his crack cocaine
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through the Commonwealth and into North Carolina. We disagree
with appellant's reading of Code § 18.2-248.01.
We hold that the Commonwealth is not required to prove that
a defendant's intended final destination is Virginia in order to
obtain a conviction under Code § 18.2-248.01. Instead, a
violation of Code § 18.2-248.01 is proved when a person enters
the Commonwealth while transporting any of the illegal substances
set forth in the statute. This conclusion is consistent with the
plain meaning of the statute. Code § 18.2-248.01 states that:
Except as authorized in the Drug Control Act
(§ 54.1-3400 et seq.) it is unlawful for any
person to transport by any means one ounce or
more of cocaine, coca leaves or any salt,
compound, derivative or preparation thereof
as described in Schedule II of the Drug
Control Act or any other Schedule I or II
controlled substance or five or more pounds
of marijuana into the Commonwealth with
intent to sell or distribute such substance.
(Emphasis added). The word "into" is commonly defined as "a
function word primarily denoting motion so directed as to
terminate, if continued, when the position denoted by in has been
reached." Webster's Third New International Dictionary 1184
(1981). Webster's also states that "into" usually follows:
a verb that carries the idea of motion or a
word implying or suggesting motion or passage
to indicate a place or thing entered or
penetrated . . . by movement from the
outside.
Id. (emphasis added). Thus, a violation of Code § 18.2-248.01
occurs at the moment a person transporting illegal substances
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penetrates the borders of the Commonwealth. A violation of the
statute does not depend upon the transporter's intended final
destination.
We disagree with appellant's contention that this
construction of Code § 18.2-248.01 places the statute in
violation of the Commerce Clause of the United States
Constitution. The Commerce Clause empowers Congress "[t]o
regulate Commerce with foreign Nations, and among the several
states and with the Indian Tribes." U.S. Const. art. I, § 8, cl.
3. "Although the Clause thus speaks in terms of powers bestowed
upon Congress, . . . it also limits the power of the States to
erect barriers against interstate trade." Lewis v. BT Investment
Managers, Inc., 447 U.S. 27, 35, 100 S. Ct. 2009, 2015, 64
L.Ed.2d 702 (1980). The basic purpose of this "dormant" aspect
of the Commerce Clause is to prevent states from enacting
protectionist measures intended to shield local industry from
interstate competition. See City of Philadelphia v. New Jersey,
437 U.S. 617, 623-24, 98 S. Ct. 2531, 2535, 57 L.Ed.2d 475
(1978). However,
[t]he limitation imposed by the Commerce
Clause on state regulatory power "is by no
means absolute," and "the States retain
authority under their general police powers
to regulate matters of 'legitimate local
concern,' even though interstate commerce may
be affected."
Maine v. Taylor, 477 U.S. 131, 138, 106 S. Ct. 2440, 2447, 91
L.Ed.2d 110 (1986) (quoting Lewis, 447 U.S. at 36, 100 S. Ct. at
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2015).
The United States Supreme Court has set forth the
methodology for scrutinizing state laws that impact interstate
commerce:
In determining whether a State has
overstepped its role in regulating interstate
commerce, this Court has distinguished
between state statutes that burden interstate
transactions only incidently, and those that
affirmatively discriminate against such
transactions. While statutes in the first
group violate the Commerce Clause only if the
burdens they impose on interstate trade are
"clearly excessive in relation to the
putative local benefits," Pike v. Bruce
Church, Inc., 397 U.S. 137, 142, 90 S. Ct.
844, 847, 25 L.Ed.2d 174 (1970), statutes in
the second group are subject to more
demanding scrutiny. . . . [O]nce a state law
is shown to discriminate against interstate
commerce "either on its face or in practical
effect," the burden falls on the State to
demonstrate both that the statute "serves a
legitimate local purpose," and that this
purpose could not be served as well by
available nondiscriminatory means.
Taylor, 477 U.S. at 138, 106 S. Ct. at 2447 (citations omitted).
We hold that Code § 18.2-248.01 does not violate the
Commerce Clause by prohibiting the transportation of certain
controlled substances either into or through the Commonwealth.
The statute is of the first class of laws referred to in Taylor
because it does not discriminate against interstate commerce.
Although the statute is facially limited to the shipment of drugs
originating from outside the Commonwealth, laws prohibiting the
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possession of controlled substances effectively prohibit their
transportation wholly within the Commonwealth as well. See Code
§ 18.2-248, § 18.2-250.
Moreover, Code § 18.2-248.01 serves a legitimate local
purpose and does not place a "clearly excessive" burden on
interstate commerce. Pursuant to its police power to protect the
public health and welfare, a state has the power to regulate and
control the sale, use, and traffic of habit-forming drugs. See
Robinson v. California, 370 U.S. 660, 664, 82 S. Ct. 1417, 1419,
8 L.Ed.2d 758 (1962) (citing Whipple v. Martinson, 256 U.S. 41,
45, 41 S. Ct. 425, 426, 65 L.Ed. 819 (1921)). State regulation
of habit-forming drugs may take "a variety of valid forms,"
including the establishment of criminal penalties for the
unauthorized manufacture, sale, or possession of such drugs. See
Robinson, 370 U.S. at 664-65, 82 S. Ct. at 1419-20. The burden
on interstate commerce is not excessive because the statute is
narrowly drawn to limit its impact on legitimate commerce. The
type of goods affected by Code § 18.2-248.01 is expressly
restricted to the specific controlled substances listed in the
statute. In addition, the statute does not interfere with the
lawful transportation of these substances that is authorized by
the Virginia Drug Control Act. See Code § 54.1-3415 (authorizing
a permitted manufacturer or wholesaler to distribute Schedule II
drugs, including cocaine, to specified individuals pursuant to an
"official written order"); see also State v. Dunn, 803 P.2d 917,
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920 (Ariz. App. 1990), cert. denied, 502 U.S. 827, 112 S. Ct. 94,
116 L.Ed.2d 66 (1991) (holding that a state law prohibiting the
importation of narcotics does not violate the Commerce Clause);
Guam v. Salas, No. 82-0061A, 1983 WL 29951, at *5 (D.Guam App.
Div. 1983) (same).
Appellant relies primarily on Williams v. Commonwealth to
support his argument that Code § 18.2-248.01 violates the
Commerce Clause. 169 Va. 857, 192 S.E. 795 (1937). In Williams,
the Virginia Supreme Court held that state regulations requiring
transporters of alcohol to obtain a permit and to post a bond
before traveling through the Commonwealth violated the Commerce
Clause. Id. at 866-67, 192 S.E. at 799. However, subsequent to
Williams, the United States Supreme Court held that similar
regulations in other states did not violate the Commerce Clause.
See Ziffirn, Inc. v. Reeves, 308 U.S. 132, 139-41, 60 S. Ct.
163, 167-68, 84 L.Ed. 128 (1939); Duckworth v. Arkansas, 314 U.S.
390, 393, 62 S. Ct. 311, 312-13, 86 L.Ed. 261 (1941). In light
of these decisions, the Virginia Supreme Court explicitly
overruled Williams in 1943. See Dickerson v. Commonwealth, 181
Va. 313, 330, 24 S.E.2d 550, 558 (1943), judgment aff'd by Carter
v. Commonwealth, 321 U.S. 131, 64 S. Ct. 464, 80 L.Ed. 605
(1944).
For the foregoing reasons, we affirm appellant's convictions
of possession of a Schedule II controlled substance with the
intent to distribute in violation of Code § 18.2-248 and of
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transportation of one or more ounces of cocaine into the
Commonwealth with the intent to distribute in violation of Code
§ 18.2-248.01.
Affirmed.
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