COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Huff, Judge O’Brien and Senior Judge Haley
UNPUBLISHED
Argued at Norfolk, Virginia
MICHAEL WILLIS JOHNSON
MEMORANDUM OPINION* BY
v. Record No. 1573-14-1 JUDGE MARY GRACE O’BRIEN
JANUARY 12, 2016
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
John W. Brown, Judge
Dalton L. Glass, Assistant Public Defender (Rachel E. Wentworth,
Assistant Public Defender, on brief), for appellant.
Susan Baumgartner, Assistant Attorney General (Mark R. Herring,
Attorney General, on brief), for appellee.
Following a bench trial on April 20, 2014, the Chesapeake Circuit Court found Michael
Willis Johnson (“appellant”) guilty of two felonies: possession of a Schedule I or II controlled
substance (oxycodone), in violation of Code § 18.2-250, and possession with the intent to
distribute a Schedule I or II controlled substance (cocaine), in violation of Code § 18.2-248. The
court also found appellant guilty of the misdemeanor charges of possession of marijuana, in
violation of Code § 18.2-250.1; possession of Tylenol with codeine, in violation of Code
§ 18.2-250; and driving with a suspended or revoked operator’s license, in violation of County
Ordinance 74-73 (74-4). The court sentenced appellant to serve nine years and 180 days
incarceration in the state penitentiary with eight years and ninety days suspended. This appeal
follows.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Appellant asserts three assignments of error:
I. The trial court erred in overruling appellant’s motion to suppress
statements made after he invoked his Fifth Amendment right to
remain silent.
II. The trial court erred in finding appellant guilty of possession of
Oxycodone, where there was insufficient evidence to show that
appellant was aware of the nature and presence of the substance.
III. The trial court erred in finding Johnson guilty of possession with
intent to distribute where there was insufficient evidence to
corroborate appellant’s statements.
I. BACKGROUND
On September 16, 2013, Officer Juan Wood stopped a Ford van because it had a
defective brake light. Appellant, the driver, was alone in the vehicle. When appellant rolled
down his window, Officer Wood immediately smelled a strong odor of burned marijuana.
Appellant told the officer that he had “just finished smoking it.” He gave the officer a Georgia
driver’s license and acknowledged that he knew his operator’s license was suspended.
Officer Wood searched appellant and found a partially-smoked marijuana blunt in one
pocket of his pants and a plastic bag with suspected powder cocaine in another pocket. At that
point, he handcuffed appellant, put him in the police vehicle, and searched the van. The officer
found a grinder and a small digital scale in an open, “cubby”-like area underneath the radio. He
also found several baggies that held suspected contraband. Two baggies contained small pills,
later determined to be oxycodone with acetaminophen, codeine with acetaminophen, and Tylenol
3. Another baggie contained 1.516 grams of cocaine.
Officer Wood returned to his patrol car and read appellant his Miranda rights. The
officer told appellant what he found in the van and began to ask him about the drugs. The officer
was wearing a body camera, which recorded the encounter.
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Approximately four and a half minutes into the conversation, Officer Wood offered to
contact a narcotics detective to speak to appellant about the possibility of appellant being used as
a confidential informant. According to the Commonwealth’s transcript of the video, appellant
responded by saying, “Like I said, I just got to take, I got to take everything.” The officer then
asked, “So you’re not going to talk to nobody? You don’t want to talk to the detective? I’m
asking?” Appellant said, “I don’t know what you mean by [unintelligible]” and did not answer
the officer’s question. The officer testified that when he asked appellant whether he wished to be
interviewed by a narcotics detective, appellant said “No, I don’t want to talk to anybody.”1
Officer Wood testified that he told appellant, “[T]hat’s your right. You don’t have to, but if you
do change your mind, let me know, and I can call them and have them either meet you here or
meet you at the jail.”
Officer Wood stepped away and began to talk to another officer. Appellant called to him
and asked, “Can you tell me what the baggie was? I don’t even know what that was. I’m just
curious.” Officer Wood turned back to appellant and showed him the drugs that the officer
found in the van. Appellant identified the pills as Percocet and Tylenol 3, but denied knowing
what the cocaine was. He continued to talk to Officer Wood on the way to the jail, and
ultimately admitted that he was going to sell the cocaine at work. Officer Wood testified that
appellant never requested counsel and never asserted his right to remain silent.
Appellant moved to suppress all of the statements that he made after he “indicated that he
wished to stop talking with Officer Wood.” After hearing evidence and reviewing the video
from Officer Wood’s body camera, the court found that appellant never made an unambiguous
assertion or invocation of his right to remain silent. The court held that appellant’s statement
1
During the suppression hearing, Officer Wood alternately characterized appellant’s
response to his offer as “I don’t want to talk to anybody,” and “I don’t want to talk to them about
it.” The exact words were not intelligible on the video.
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only referred to not wanting to talk to a narcotics detective about becoming a confidential
informant. The court noted that “after declining the narcotics interview, the defendant [was]
consistently pleading his case.” Accordingly, the court denied the motion to suppress.
II. ANALYSIS
A. Denial of Suppression Motion
1. Standard of Review
In reviewing a trial court’s ruling on a motion to suppress, this Court views the evidence
“in the ‘light most favorable to . . . the prevailing party below,’ . . . and the decision of the trial
judge will be disturbed only if plainly wrong.” Greene v. Commonwealth, 17 Va. App. 606,
608, 440 S.E.2d 138, 139 (1994) (quoting Commonwealth v. Grimstead, 12 Va. App. 1066,
1067, 407 S.E.2d 47, 48 (1991)). The defendant has the burden to show that the trial court’s
denial of his suppression motion was reversible error. Jones v. Commonwealth, 277 Va. 171,
177-78, 670 S.E.2d 727, 731 (2009).
“The issue whether a suspect invoked his right to counsel presents a mixed question of
law and fact.” Commonwealth v. Hilliard, 270 Va. 42, 49, 613 S.E.2d 579, 584 (2005). The trial
court’s findings of fact are only reviewed for “clear error,” and deference is given to the trial
court’s inferences that were drawn from the factual findings. Id. at 49-50, 613 S.E.2d at 584.
However, in the absence of a factual dispute, the issue of whether a defendant’s invocation of his
right to remain silent “was sufficiently unambiguous under the circumstances to preclude further
questioning by the law enforcement officers” is reviewed de novo. Stevens v. Commonwealth,
283 Va. 296, 302, 720 S.E.2d 80, 82 (2012). Because there is no substantive factual dispute as to
the conversation between appellant and Officer Wood, we review the trial court’s findings de
novo.
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2. The Trial Court Correctly Denied the Suppression Motion
In Miranda v. Arizona, 384 U.S. 436 (1966), the United States Supreme Court held that if
a suspect “indicates in any manner, at any time prior to or during questioning, that he wishes to
remain silent, the interrogation must cease.” Id. at 473-74. However, to invoke the right to
remain silent, a defendant must clearly and unambiguously communicate that he wishes to stop
the interrogation and remain silent. Midkiff v. Commonwealth, 250 Va. 262, 266, 462 S.E.2d
112, 115 (1995). “Miranda should not be read so strictly as to require the police to accept as
conclusive any statement, no matter how ambiguous, as a sign that the suspect desires to cut off
questioning.” Lamb v. Commonwealth, 217 Va. 307, 312, 227 S.E.2d 737, 741 (1976). A
suspect must indicate his desire to remain silent “sufficiently clearly that a reasonable police
officer in the circumstances would understand the statement” to be an invocation of his Fifth
Amendment rights. Davis v. United States, 512 U.S. 452, 459 (1994).
When determining whether a defendant made an unambiguous assertion of his Fifth
Amendment rights, a court is not limited to a single statement or considering only the words
spoken. Stevens, 283 Va. at 303-04, 720 S.E.2d at 83-84. The circumstances preceding the
request are also relevant. Id.; see also Hilliard, 270 Va. at 50, 613 S.E.2d at 584 (“Therefore,
appellate consideration of the circuit court’s denial of [appellant’s] motion to suppress is
restricted to a de novo review of the legal issue whether [appellant’s] words, taken in context,
were sufficient to invoke his right to counsel.” (emphasis added)).
In the present case, the context in which the statements were made supports the trial
court’s denial of appellant’s motion to suppress. Officer Wood was providing appellant the
opportunity to talk with a narcotics officer. Appellant’s assertion that he did not want to talk
must be considered in the framework of that conversation. As the trial court found, appellant
was only stating that he did not want Officer Wood to call the narcotics detective. He was not
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unambiguously asserting his right to remain silent. In fact, appellant indicated that he wanted to
keep talking to Officer Wood; appellant called him back to the car, asked him what was in the
baggie, and continued to speak with Officer Wood as the officer drove him to the jail. When
appellant said, “I don’t want to talk to anybody,” he was merely declining the offer to talk to a
narcotics detective. See Mitchell v. Commonwealth, 30 Va. App. 520, 527, 518 S.E.2d 330, 333
(1999) (holding that when a defendant told police “I ain’t got shit to say to y’all” then proceeded
to volunteer information, the statement did not constitute a clear and unambiguous invocation of
the Fifth Amendment right to remain silent).
Accordingly, appellant did not indicate his desire to remain silent “sufficiently clearly
that a reasonable police officer in the circumstances would understand the statement” to be an
invocation of Miranda. Davis, 512 U.S. at 459. We do not find that the court erred when it
determined that appellant did not unambiguously assert his right to remain silent and therefore
denied appellant’s motion to suppress his statements.
B. Assignments of Error II and III: Sufficiency of the Evidence
1. Standard of Review
Appellant argues that the trial court erred in finding him guilty of possession of
oxycodone because the evidence was insufficient to establish that he knew the nature of the
substance he possessed. He also asserts that the evidence was insufficient to establish that he
intended to distribute the cocaine found on his person and in the vehicle. “When reviewing the
sufficiency of the evidence to support a conviction, the Court will affirm the judgment unless the
judgment is plainly wrong or without evidence to support it.” Bolden v. Commonwealth, 275
Va. 144, 148, 654 S.E.2d 584, 586 (2008). On appeal, “the evidence and all reasonable
inferences flowing therefrom must be viewed in the light most favorable to the prevailing party
in the trial court.” Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003).
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An appellate court merely determines if “any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319
(1979).
2. Evidence Sufficient to Prove Possession of Oxycodone
To prove possession of a controlled substance, the Commonwealth must establish that the
defendant’s possession of the drug was knowing and intentional. Young v. Commonwealth, 275
Va. 587, 591, 659 S.E.2d 308, 310 (2008). While a defendant must be aware that the item he
possesses is in fact a controlled substance, “the plain language of Code § 18.2-250 . . . does not
require him to know precisely what controlled substance it is.” Sierra v. Commonwealth, 59
Va. App. 770, 775, 722 S.E.2d 656, 658 (2012).
In Sierra, the defendant was searched incident to an arrest for driving while intoxicated.
Id. at 774, 722 S.E.2d at 658. Eight prescription pills were found in his pants and shirt pockets.
Id. A chemical analysis revealed that two of the pills contained a Schedule II controlled
substance. Id. The defendant testified that earlier that evening he asked someone at a bar for
Tylenol or aspirin because of back pain. Id. He stated that he “thought [the pills] were aspirin
and Tylenol” and put them in his pocket. Id. at 775, 722 S.E.2d at 658. The trial court did not
find the defendant’s testimony credible and ruled that “it was obvious that [the pills] were some
sort of prescription.” Id. at 784, 722 S.E.2d at 663.
On appeal, we held that it was immaterial that the defendant did not know the exact
nature of the controlled substance in his possession. Id. “[T]he General Assembly has chosen
not to excuse a defendant who knows he is possessing a controlled substance, but is unaware or
perhaps mistaken as to the precise identity of the specific substance he is possessing (e.g., a
defendant who thinks he is possessing heroin, when he is actually possessing cocaine).” Id. at
779, 722 S.E.2d at 660.
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In the case before us, appellant argues that because he identified the pills in his
possession as “Percocet,” he cannot be convicted of possessing oxycodone. This argument is
without merit. When appellant identified the pills by their brand name, Percocet, he
demonstrated that he knew the nature and character of the substance. Percocet is a brand name
for oxycodone; oxycodone is the narcotic agent contained in the pill. Appellant identified the
pills by name in his conversation with the officer—“The pills, they are mine, the Percocet, the
Tylenol 3.” See Turner v. Commonwealth, 14 Va. App. 737, 739, 420 S.E.2d 235, 236 (1992)
(“[O]xycodone, also known as Percocet, [is] a Schedule II controlled substance.”). The
Commonwealth was not required to establish that appellant could specifically identify
oxycodone as the narcotic contained in Percocet; therefore, the evidence was sufficient to
establish that he knowingly possessed the drug. Accordingly, the trial court’s finding was not
“plainly wrong or without evidence to support it.” Bolden, 275 Va. at 148, 654 S.E.2d at 586.
3. Evidence Sufficient to Prove Intent to Distribute
Appellant argues that the evidence was insufficient to prove intent to distribute because
there was insufficient evidence to corroborate appellant’s statements. While corroboration of a
confession is required to support a conviction, the corroboration need only be “slight,” and need
not be “of all the contents of the confession, or even all the elements of the crime.” Allen v.
Commonwealth, 287 Va. 68, 74, 752 S.E.2d 856, 860 (2014) (quoting Watkins v.
Commonwealth, 238 Va. 341, 348, 385 S.E.2d 50, 54 (1989)).
Appellant confessed to the officer that his plan was to sell the cocaine to his co-workers.
He said he planned “to make some money out of it,” and at trial he conceded that he told Officer
Wood that he might “be exchanging or giving [the cocaine] away.” Clearly, these statements
establish his intent to dispense the controlled substance.
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Additionally, appellant was in possession of a small digital scale, located in a “cubby”
under the dashboard. There was no evidence that appellant had a pipe or other paraphernalia
necessary to smoke crack cocaine. There was evidence, however, that he possessed other drugs
in addition to the cocaine.
Determining appellant’s intent is a factual question, solely within the purview of the
factfinder. Ingram v. Commonwealth, 192 Va. 794, 801-02, 66 S.E.2d 846, 850 (1951). We
cannot say that the factfinder in this case was plainly wrong; the record amply supports the
court’s conclusion that the evidence was sufficient.
III. CONCLUSION
For the foregoing reasons, the decision of the trial court is affirmed.
Affirmed.
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