Powell v. Commonwealth

PRESENT: Lemons, C.J., Goodwyn, Millette, Mims, McClanahan,
and Powell, JJ., and Lacy, S.J.

DERRICK RENARD POWELL
OPINION BY
v. Record No. 132028 CHIEF JUSTICE DONALD W. LEMONS
January 8, 2015
COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

In this appeal, we consider whether the evidence was

sufficient to sustain a conviction for distribution of an

imitation Schedule I or II controlled substance where the

substance actually distributed was a Schedule VI controlled

substance. We also consider whether the evidence was

sufficient to establish that the substance was in a form such

that it could be mistaken for a Schedule I or II controlled

substance, and whether the defendant made any express or

implied representations that the substance was a Schedule I or

II controlled substance.

I. Facts and Proceedings

Derrick Renard Powell ("Powell") was tried by the Circuit

Court of the City of Lynchburg ("trial court") upon an

indictment charging distribution of an imitation Schedule I or

II controlled substance, in violation of Code § 18.2-248.

Powell was found guilty and sentenced to three years'

imprisonment, with one year and ten months suspended.

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 At trial, Detective Daniel M. Bailey ("Bailey") testified

that he was working undercover in Lynchburg on December 22,

2011, when he drove through an area he described as "an open

air drug market." He observed Powell on the side of the road,

and as Bailey drove by, Powell made a waving motion with his

hand to get Bailey to pull over. Bailey rolled down his window

and when Powell walked up to him, Bailey asked him if "he was

straight." Bailey testified that phrase "is a common slang in

the drug trade to see if he had any product on him. Anything

for sale."

Bailey testified that Powell stated that "he had what I

needed and asked what I wanted." Bailey responded that he

needed "a four," which is slang for 40 dollars worth of

cocaine. Powell then went into his house, which was close by;

and when he returned, he dropped a clear plastic baggie

containing "a white rock[-like] substance" into Bailey's hand,

and Bailey gave him 40 dollars in cash. Bailey testified that

he took the substance back to his office and thereafter mailed

it to the lab.

Bailey testified that the substance was a "[h]ard white

rock[-like] substance," and that crack cocaine is also a hard,

white, rock-like substance. When Bailey was shown the

substance in court, he testified that to his "naked eye" it

looked like crack cocaine. On cross-examination, Bailey

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admitted that when he got back to the police station after the

exchange and examined the substance, he realized that it was a

white pill cut in half. He also testified that it was packaged

in a "knotted baggie."

Kelly Howerter ("Howerter") is a forensic scientist with

the Virginia Department of Forensic Science who analyzed the

substance Powell sold to Bailey. She testified that the

substance was quetiapine, which is a Schedule VI controlled

substance in Virginia. See Code § 54.1-3455(2). When the

Commonwealth's Attorney asked what quetiapine was, Howerter

testified it was out of her realm of experience, but that she

believed it was some kind of "antibiotic type prescription

pill." * Howerter testified that the substance was white and

solid, and was one half of an oblong shaped pill. She

testified that she had never seen crack cocaine in a pill form,

but what she received looked like "a plastic bag corner that

just had a white substance inside of it." Howerter testified

that she was unaware if quetiapine was ever mixed with cocaine.

The Commonwealth rested, and Powell made a motion to

strike. He argued that he could not be convicted of

*
Quetiapine is actually a type of antipsychotic drug approved
for the treatment of schizophrenia, bipolar disorder, and along
with an antidepressant for treatment of major depressive
disorder. See National Institutes of Health, Quetiapine,
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a698019.html
(last visited Nov. 3, 2014).

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distributing an imitation controlled substance because the

substance was already a controlled substance, so he could only

be a convicted of a misdemeanor for selling a Schedule VI drug.

The trial court denied the motion to strike, reasoning that:

[T]he gravamen of this offense is
possession of a[n] imitation of a
controlled substance and the intent to
distribute that substance passing it off as
a controlled substance and the focus is not
on what the imitation consists of but
rather what is being imitated with the
controlled substance or the imitation
controlled substance and what the intent of
the defendant is trying to pass that
substance off as.

The defense rested and Powell renewed his motion. Powell

reiterated his previous argument that the substance at issue

was already a controlled substance. He also argued that he

never said or indicated that he was selling Bailey cocaine, and

he argued that the substance did not have the appearance of

cocaine since it was just a white pill cut in half. The trial

court denied the motion to strike and found Powell guilty of

the charge.

Powell appealed his conviction to the Court of Appeals of

Virginia. The Court of Appeals issued a published opinion in

which it affirmed Powell's conviction. Powell v. Commonwealth,

62 Va. App. 579, 750 S.E.2d 229 (2013). First, the Court of

Appeals held that Powell's "representations regarding the

substance, together with the packaging of the substance in a

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plastic knotted baggie, made it likely that the substance would

be mistaken for crack cocaine as required by Code § 18.2-247."

Id. at 588, 750 S.E.2d at 233. Second, the Court of Appeals

held that although the substance was a controlled substance,

because it was a Schedule VI substance, such classification

established that it was not subject to abuse. Id. at 590, 750

S.E.2d at 234. Accordingly, the Court of Appeals concluded

that the trial court did not err in holding the evidence was

sufficient to convict Powell of distributing an imitation

controlled substance. Id. at 591, 750 S.E.2d at 234.

Powell filed a petition for appeal in this Court, and we

awarded him an appeal on the following assignments of error:

1. Under Section 18.2-247(B)(ii) of the Code of Virginia,
1950, as amended, the trial court erred in finding that
the evidence was sufficient to establish that the
substance Appellant gave to Investigator Bailey was not a
controlled substance subject to abuse, and, in affirming
the trial court's decision, the Court of Appeals erred in
both applying a statutory construction to Section 18.2-
247(B)(ii) to link the phrase "subject to abuse" to the
Drug Control Act (Section 54.1-3400 et seq.) and in its
application of the statutory construction.

2. Under Section 18.2-247(B)(1) of the Code of Virginia,
1950, as amended, the trial court erred in finding that
the evidence was sufficient to establish that the
substance was in a form such that it would be mistaken for
cocaine, and the Court of Appeals erred in affirming the
trial court's decision.

3. Under Section 18.2-247(B)(2) of the Code of Virginia,
1950, as amended, the trial court erred in finding that
the evidence was sufficient to establish that Appellant
made any express or implied representations that the

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 substance was cocaine, and the Court of Appeals erred in
affirming the trial court's decision.

II. Analysis

A. Standard of Review

"When reviewing a defendant's challenge to the sufficiency

of the evidence to sustain a conviction, this Court reviews the

evidence in the light most favorable to the Commonwealth, as

the prevailing party at trial, and considers all inferences

fairly deducible from that evidence." Allen v. Commonwealth,

287 Va. 68, 72, 752 S.E.2d 856, 858-59 (2014) (internal

quotation marks, alterations, and citation omitted). "The

lower court will be reversed only if that court's judgment is

plainly wrong or without evidence to support it." Id. at 72,

752 S.E.2d at 859 (internal quotation marks omitted). To the

extent we must interpret a statute, that is a question of law

that we review de novo. See Woodard v. Commonwealth, 287 Va.

276, 280, 754 S.E.2d 309, 311 (2014).

B. Code § 18.2-247(B)(ii)

Powell was convicted of violating Code § 18.2-248, which

makes it a felony to distribute an imitation controlled

substance. The term "imitation controlled substance" is

defined in Code § 18.2-247(B) to mean:

(i) a counterfeit controlled substance or
(ii) a pill, capsule, tablet, or substance
of any form whatsoever which is not a
controlled substance subject to abuse, and

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 1. Which by overall dosage unit appearance,
including color, shape, size, marking and
packaging or by representations made, would
cause the likelihood that such a pill,
capsule, tablet, or substance in any other
form whatsoever will be mistaken for a
controlled substance unless such substance
was introduced into commerce prior to the
initial introduction into commerce of the
controlled substance which it is alleged to
imitate; or

2. Which by express or implied
representations purports to act like a
controlled substance as a stimulant or
depressant of the central nervous system
and which is not commonly used or
recognized for use in that particular
formulation for any purpose other than for
such stimulant or depressant effect, unless
marketed, promoted, or sold as permitted by
the United States Food and Drug
Administration.

(Emphasis added.) There was no allegation or evidence

presented that Powell distributed a "counterfeit controlled

substance." In this case, the Commonwealth was required to

prove that the substance Powell distributed was "a pill,

capsule, tablet, or substance in any form whatsoever which is

not a controlled substance subject to abuse." (Emphasis added.)

On appeal, Powell does not dispute that he distributed a

substance to Bailey. There is also no dispute that the

substance Powell distributed was quetiapine, a Schedule VI

controlled substance. The initial issue before this Court is

limited to the question whether quetiapine, which is a Schedule

7
VI controlled substance, is "a controlled substance subject to

abuse" within the intendment of Code § 18.2-247(B)(ii).

Powell argues that quetiapine is a controlled substance

subject to abuse, and that the Court should apply the plain

meaning of those words instead of relying upon statutory

construction to determine the meaning of the phrase "subject to

abuse." Powell argues that the Court of Appeals should not

have looked to the "phraseology" of the Drug Control Act, Code

§ 54.1-3400, et seq., to interpret the meaning of the "subject

to abuse" clause, and instead should have used the "plain,

dictionary meaning" of that phrase.

Powell relies on the Court of Appeals' decision in Rhodes

v. Commonwealth, 12 Va. App. 473, 475, 404 S.E.2d 522, 523

(1991), to support his argument that the phrase "subject to

abuse" should be given its plain, dictionary meaning. Powell

is correct that in Rhodes, the Court of Appeals looked to

Webster's Dictionary to determine the meaning of the phrase

"subject to abuse," and held that the phrase meant "ha[ving] a

disposition or tendency to be misused or is liable to being

misused." Id. However, in Rhodes, the Court of Appeals was

interpreting a former version of Code § 18.2-247 that was

worded differently than it is today.

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 In 1991, Code § 18.2-247(B) stated that:

The term "imitation controlled substance"
when used in this article means a pill,
capsule, tablet, or substance in any form
which is not a controlled substance, which
is subject to abuse.

(1988 Repl. Vol.)(emphasis added). Under this section, as it

existed in 1991, in order to prove that a defendant had

distributed an imitation controlled substance, the Commonwealth

first had to prove that the substance distributed was not a

controlled substance, and second, that the substance was itself

subject to abuse. Rhodes, 12 Va. App. at 474-75, 404 S.E.2d at

523. Because the substance involved in Rhodes could not, by

statute, be a controlled substance, there was no reason for the

Court of Appeals to refer to the Drug Control Act for any

further assistance in defining the phrase "subject to abuse."

The phrase "subject to abuse" did not refer to a controlled

substance; rather, it referred to an imitation substance which

was not a controlled substance, and therefore the Court of

Appeals properly applied the plain meaning of the phrase

instead of looking to the Drug Control Act.

The General Assembly, however, amended Code § 18.2-247 in

1992. Code § 18.2-247(B), as amended in 1992, stated:

The term "imitation controlled substance"
when used in this article means a pill,
capsule, tablet, or substance in any form
whatsoever which is not a controlled
substance subject to abuse.

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(Cum. Supp. 1992)(emphasis added). See also 1992 Acts ch. 756.

Not long after this amendment was made, the Court of Appeals

had another opportunity to interpret Code § 18.2-247(B) in

Werres v. Commonwealth, 19 Va. App. 744, 454 S.E.2d 36 (1995).

In Werres, the Court of Appeals correctly pointed out:

The 1992 Amendment to Code § 18.2-247(B)
removed the comma and the words "which is"
preceding the words "subject to abuse."
This amendment effectively deleted the
entire subordinate clause. By deleting the
comma and the subordinate clause, the
legislature significantly changed not only
the sentence's structure, but also its
meaning. The legislature thereby
substantively changed the definition of the
statutory offense.

Id. at 747, 454 S.E.2d at 38. The Court of Appeals held that

under the revised definition of an imitation controlled

substance, the Commonwealth was now required to prove that the

substance was "not a controlled substance subject to abuse."

Id. at 748, 454 S.E.2d at 38.

This portion of Code § 18.2-247(B) has remained unchanged

since 1992. Under Code § 18.2-247(B) as it currently exists,

the phrase "subject to abuse" refers to a controlled substance.

Therefore, we must determine whether the substance at issue,

quetiapine, is a "controlled substance subject to abuse." Code

§ 18.2-247(A) states explicitly that "[w]herever the terms

'controlled substances' and 'Schedules I, II, III, IV, V and

10
VI' are used in Title 18.2, such terms refer to those terms as

they are used or defined in the Drug Control Act (§ 54.1-3400

et seq.)." Accordingly, we are required to look to the Drug

Control Act in order to determine the meaning of a "controlled

substance subject to abuse."

The Board of Pharmacy is charged with administering

Article 5 of the Drug Control Act and adding or removing

substances from the various schedules. Code § 54.1-3443(A).

Code § 54.1-3443(A) lists the various factors that should be

considered when determining on which schedule to place a

particular substance. One of those factors is "the actual or

relative potential for abuse." Code § 54.1-3443(A)(1). Any

substance which the Board determines has a potential for abuse

is required to be controlled. Code § 54.1-3443(B). Schedules

I-V controlled substances all include a potential for abuse,

with Schedule I substances having the highest potential for

abuse, and Schedule V substances the lowest. See Code §§ 54.1-

3445 through 54.1-3454. There is no mention, however, of the

potential for abuse in factors for inclusion in Schedule VI.

See Code § 54.1-3455(1)-(3)(defining the covered classes of

drugs or devices to be controlled by Schedule VI by reference

to stimulant or depressant content, toxicity, safety, need for

supervision by a licensed practitioner, and labeling

requirements).

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 By excluding the factor of "potential for abuse" in

Schedule VI, but including it in Schedules I-V, the General

Assembly has indicated to the Board that any substance with a

potential for abuse should be included on Schedule I-V, and not

on Schedule VI. Any controlled substances the Board lists on

Schedule VI are therefore not characterized by a potential for

abuse. Rightly or wrongly, after considering the numerous

factors set out in Article 5 for placement on the various

Schedules, the Board determined that quetiapine did not have a

potential for abuse and listed it on Schedule VI instead of any

of the other Schedules that included a potential for abuse.

Powell distributed the quetiapine, which is a controlled

substance, to Bailey. However, because it is a Schedule VI

controlled substance it is not a controlled substance subject

to abuse as defined by the Drug Control Act. Accordingly, the

Commonwealth met its burden of proving that the substance

Powell distributed was "a pill, capsule, tablet, or substance

in any form whatsoever which is not a controlled substance

subject to abuse." Code § 18.2-247(B)(ii).

C. Code § 18.2-247(B)(1)

Powell's second assignment of error challenges the

sufficiency of the evidence to establish that the substance was

in a form such that it would be mistaken for cocaine. Code §

18.2-247(B)(1). Powell argues that the half-tablet of

12
quetiapine was not so similar in appearance that it would be

mistaken for cocaine. However, the Commonwealth's evidence

proved that the substance was a hard, white substance and was

packaged in a knotted plastic baggie.

Detective Bailey testified that crack cocaine is "a hard

form of powder cocaine." He was shown the substance that

Powell sold him in court, in the same packaging he received

from Powell, and was asked what it looked like to his "naked

eye." Bailey responded, "[c]rack cocaine." This evidence,

which we view in the light most favorable to the Commonwealth

on appeal, was sufficient to permit the trier of fact to find

beyond a reasonable doubt that the Commonwealth established

that the substance, by appearance and packaging, would likely

be mistaken for crack cocaine.

D. Code § 18.2-247(B)(2)

In his third assignment of error, Powell argues that the

evidence was insufficient to establish that he made any express

or implied representations that the substance was cocaine. He

argues there was no evidence he made any express

representations that the substance was cocaine. He also argues

there was no evidence of any such implied representation

either, as the Commonwealth did not prove that Powell

understood what Bailey wanted when he asked for a "four."

13
 The Commonwealth's evidence proved that Bailey was driving

through an "open air drug market" when Powell waved him down.

Bailey asked if he was "straight," which is common slang in the

drug trade to ask whether a person has any "product" for sale.

Powell responded that he had what Bailey needed. Bailey told

Powell that needed a "four." Detective Bailey testified that a

"four" is a common term used in the drug trade to mean 40

dollars worth of cocaine. At that point, Powell did not ask

what a "four" was or indicate in any way that he did not

understand what Bailey was requesting. Instead, he agreed to

deal with Bailey, and went inside his house to retrieve the

substance. Minutes later, Powell came back to the car and

dropped a white, rock-like substance into Bailey's hand in

exchange for 40 dollars. This evidence, viewed in the light

most favorable to the Commonwealth, demonstrates that Powell

implied that the substance he was selling Bailey was 40 dollars

worth of cocaine.

III. Conclusion

We will affirm the judgment of the Court of Appeals

holding that the evidence was sufficient to establish that

Powell distributed an imitation controlled substance in

violation of Code § 18.2-248(A).

Affirmed.

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JUSTICE MILLETTE, with whom JUSTICE GOODWYN and SENIOR JUSTICE
LACY join, dissenting.

I respectfully dissent. The majority opinion errs in

holding that Schedule VI includes only substances that are not

subject to abuse on the basis that Schedule VI does not contain

the explicit "potential for abuse" requirement found in

Schedules I through V. This analysis ignores the requirements

of Schedule VI on their own and within the greater statutory

context, which shows that substances that are subject to abuse

may, and sometimes must, be categorized under Schedule VI.

Schedule VI includes:

Every drug, not included in Schedules [I through V],
which because of its toxicity or other potentiality
for harmful effect, or the method of its use, or the
collateral measures necessary to its use, is not
generally recognized among experts . . . as safe for
use except by or under the supervision of a
practitioner."

Code § 54.1-3455(2) (emphasis added). An unsafe method of

using a drug includes "actual or relative potential for abuse."

Code § 54.1-3443(A)(1). The Board of Pharmacy may thus

categorize under Schedule VI a substance that is subject to

abuse, even if such potential abuse does not rise to the level

as set forth in Schedules I through V. Code § 54.1-3455(2).

Also, some substances with a potential for abuse must be

categorized under Schedule VI. The majority opinion overlooks

15
that Schedules I through V contain requirements in addition to

a "potential for abuse" that must be independently satisfied in

order to be categorized under those Schedules. See Virginia

Marine Res. Comm'n v. Chincoteague Inn, 287 Va. 371, 385, 757

S.E.2d 1, 8 (2014) (courts avoid reading statutory language as

surplusage). In particular, Schedule I requires a substance to

have "no accepted medical use in treatment in the United States

or lack[] accepted safety for use in treatment under medical

supervision." Code § 54.1-3445(2). Schedules II through V

require a substance to have a "currently accepted medical use

in treatment in the United States." Code §§ 54.1-3447(2);

54.1-3449(2); 54.1-3451(2); 54.1-3453(2). And Schedules II

through V all require that the substance, when abused, lead to

some degree of physical or psychological dependence. Code

§§ 54.1-3447(3); 54.1-3449(3); 54.1-3451(3); 54.1-3453(3).

A substance can have a potential for abuse but fail to

possess one of these additional requirements for categorization

under Schedules I through V. Yet the Board of Pharmacy must

still include such a substance in one of the Schedules because

of its potential for abuse. Code § 54.1-3443(B). Such a

substance can only be categorized under Schedule VI. Code

§ 54.1-3455(2).

Thus, Schedule VI encompasses both substances that are and

are not subject to the abuse. The only evidence the

16
Commonwealth introduced at trial to prove that Quetiapine is

"not a controlled substance subject to abuse" is that

Quetiapine is a Schedule VI controlled substance. Because this

evidence is insufficient as a matter of law to prove that

Quetiapine is not subject to abuse, the evidence was

insufficient to sustain Powell's conviction of distributing an

imitation controlled substance. Code §§ 18.2-247(B)(ii); 18.2-

248. I would therefore reverse the judgment of the Court of

Appeals and vacate Powell's conviction.

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