COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Judges Huff, Athey and White
Argued at Salem, Virginia
RAYMOND TRAVIS SWINSON, SR.
MEMORANDUM OPINION* BY
v. Record No. 0351-22-3 JUDGE KIMBERLEY SLAYTON WHITE
JANUARY 31, 2023
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF AUGUSTA COUNTY
Paul A. Dryer, Judge
Jennifer T. Stanton, Senior Assistant Public Defender (Virginia
Indigent Defense Commission, on briefs), for appellant.
Craig W. Stallard, Senior Assistant Attorney General (Jason S.
Miyares, Attorney General, on brief), for appellee.
Raymond T. Swinson, Sr., (“Swinson”) appeals his conviction, following a jury trial, for
possession with the intent to distribute methamphetamine, in violation of Code § 18.2-248(C),
for which he was sentenced to ten years with seven suspended, and two years of supervised
probation. Swinson argues the trial court erred in denying his motion in limine to exclude the
evidence because the police obtained it in violation of Code § 46.2-1003(C). He contends that
subsection (C) of Code § 46.2-1003, which took effect March 1, 2021, applied retroactively, and
rendered inadmissible the evidence the police seized in 2019. He also contends that the court erred
in refusing his model jury instruction. Finally, he argues that the evidence was insufficient to
support his conviction.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Sufficiently similar statutes to Code § 46.2-1003 recently have been considered and decided
regarding whether they apply retroactively. Accordingly, we conclude that the trial court did not
err in denying the motion in limine. We assume without deciding that the trial court erred in
refusing Swinson’s jury instruction. However, applying the standard of review for
non-constitutional error, we find such error harmless. In addition, we find the evidence sufficient to
sustain Swinson’s conviction. The judgment of the trial court is affirmed.
BACKGROUND
I. The Traffic Stop
On the evening of July 23, 2019, Deputy Smith of the Augusta County Sheriff’s
Department initiated a traffic stop for a car displaying what he believed to be a defective front
bumper. Before the deputy could activate his lights or siren, the driver of the car stopped the car
along the side of the road. Deputy Smith activated his lights and proceeded with the traffic stop.
Swinson, who was the driver of the car, “jumped out and was on the cell phone.” He moved
back towards the trunk of the car and was “[v]ery amped up, fidgety, nervous, moving a lot.”
Deputy Smith told Swinson twice that he needed to get back in his car. Deputy Smith called for
a canine backup and then proceeded with the traffic stop. Swinson’s son, Raymond Swinson, Jr.,
was a passenger in the car.
Once the canine unit arrived, Swinson and his son were taken out of the car and the dog
performed an “open air” search. The dog alerted to the possible presence of drugs in the car.
Deputy Smith confronted Swinson and asked if he “had anything on him.” In response, Swinson
removed a cigarette pack from his shirt pocket which contained “two small bags with a
crystal-like substance in each.” A later analysis of the bags determined that the contents
contained 4.35 grams of methamphetamine. A search of the car produced a pipe on the
-2-
floorboard of the passenger side of the car. No baggies, cash, or scales were found in the car
during the search. Swinson did not have any excessive amounts of cash on his person.
After being advised of his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966),
Swinson told the deputy that he found the drugs and then later told them “that he had it sold
already and was on the way to deliver it for $50.”
II. The Trial
A. Motion in Limine
In a pre-trial hearing on the motion in limine, Swinson moved the court to exclude
evidence obtained from the encounter, arguing that the stop of the car was in violation of Code
§ 46.2-1003(C).
The General Assembly added subsection (C) to Code § 46.2-1003 in November 2020,
effective March 1, 2021. See 2020 Va. Acts Spec. Sess. I chs. 45, 51; see also Va. Const. art. IV,
§ 13 (providing effective date for laws enacted during special session); Code § 1-214(B) (same).
The subsection provides that “[n]o law-enforcement officer shall stop a motor vehicle” for illegal
use of defective or unsafe equipment. Code § 46.2-1003(C). Moreover, “[n]o evidence
discovered or obtained as the result of” such a stop, “including evidence discovered or obtained
with the operator’s consent, shall be admissible in any trial, hearing, or other proceeding.” Id.
The trial court ruled that Code § 46.2-1003(C) created both “a substantive right” and “a
procedural right.” The court found that, substantively, motorists could not be stopped “for the
sole reason of . . . defective equipment.” Procedurally, “evidence obtained in violation” of that
rule was “not admissible.” The trial court also ruled that under Code § 1-239, it was not
“practicable” to implement the “procedural change” to exclude evidence obtained during a stop
“nearly two years before the effective date” of the statute. The trial court denied the motion in
limine.
-3-
B. Witness Testimony
Investigator Hilliard, qualified as an expert, testified that the quantity of drugs found
would be sufficient for 40 hits and have a street value of over $400. Hilliard also testified that an
average user would consume between one-tenth of a gram and one gram per day. Hilliard said
that users typically store their drugs in a single bag, as opposed to multiple bags. According to
Hilliard, users will often purchase an “eight ball,” or 3.5 grams, for personal use. Hilliard
described other indicia of intent to distribute would be the existence of “O sheets,” or a list of
what each individual owes for the drugs they buy. He testified that in the past there would be an
actual written list on paper but now the list is often in the distributor’s cell phone. As the police
never confiscated Swinson’s cell phone, there was no evidence recovered of a digital list nor of a
paper list.
Elizabeth Wade, Swinson’s daughter, testified that in July 2019, her father and brother,
Ray, Jr., would often visit her and her three children. They did so on July 23. Previously, Wade
had observed Ray, Jr. with drugs, describing him as a “junkie,” saying “he would do anything he
could get his hands on [drugs].” Wade observed Ray, Jr. smoking meth the day before Swinson
was arrested. She had not seen her father use drugs before.
Swinson, a 53-year-old father of five with a seventh-grade education, testified on his own
behalf. He testified that he was on disability due to seizures he has suffered from since the age
of 17. Swinson testified that he walked “funny” because he had been kicked in the back “25 to
37 times” and had three chips in his back. He also testified that the seizure disorder affects him
in such a way that it makes him appear fidgety and extremely nervous. Swinson confirmed that
he and his son were driving from Harrisonburg to Chatham when they stopped at the Verona exit
to use the bathroom. When he got back in the car, Swinson noticed his son had a baggie in his
hand and he took it from him, saying “What are you doing with that, boy?” Swinson testified
-4-
that he was “freaking bad” and was wondering where his son got the stuff. Swinson testified that
he thought the baggies contained Epsom salt or “salt rock.” Swinson told the jury that Ray, Jr.
had been known to sell fake drugs to people.
Swinson asserted that as soon as he saw a police cruiser following him, he pulled over to
turn the baggie over to them. Swinson testified that prior to the field test, he did know that the
baggie he retrieved from his son contained meth. Swinson also testified that when he was asked
by the officer what he intended to do with the drugs, he was joking when he said that he was
going to sell the drugs for $50. He also said that he told the officers that he found the drugs on
the ground at the motel to protect his son from any lability.
C. Jury Instructions
Additionally, Swinson proffered Virginia Criminal Model Jury Instruction 22.350, which
read in its entirety:
To possess with intent to distribute requires that the defendant have
intent to distribute at the time of possession. In determining
whether there is possession with intent to distribute, you may
consider all facts and circumstances, including but not limited to:
the quantity possessed; the manner of packaging; the presence of
an unusual amount of cash; the denomination of the cash
possessed; the presence of equipment related to drug distribution;
the presence or absence of drug paraphernalia suggestive of
personal use; the presence of a firearm; the presence of a pager or
electronic communications device; the conduct and statements of
the defendant; the location at which the drugs were possessed; use
of the drug by persons other than the defendant at the time it was
seized; and the possession of more than one type of drug.
Where the defendant possesses a small quantity of drugs you may
infer that the defendant intends to possess the drugs for personal
use. However, possession of a small quantity of drugs, combined
with other facts and circumstances, may be sufficient to establish
intent to distribute.
The trial court gave the instruction but took out some of the factors enumerated. The
court excluded: (1) the presence of an unusual amount of cash, (2) the denomination of the cash
possessed, (3) the presence of equipment related to drug distribution, (4) the presence of a
-5-
firearm, (5) the presence of a pager or electronic communications device, and (6) the possession
of more than one type of drug.
Finding that the removed items would have been confusing for the jury, the trial court
stated:
The Court’s view on it is - - and I get it’s an extensive list but it
does pose the difficulty that there are certain cases in which you’re
not going to have all of those indicia and it may then be confusing
to the jury for them to say, “Oh, well, there wasn’t the presence of
a firearm”, or, “There wasn’t the presence of a pager or electronic
device”, so just going on the absence of one of those could be
confusing to the jury. I think the evidence supports the instruction
that the Court intends to give, which includes the indicia of
distribution that were testified to either by Deputy Smith or
Investigator Hilliard, or the defense’s own evidence that would be
suggestive of it. Your objection is duly noted.
The jury found Swinson guilty of possession with intent to distribute methamphetamine.
Swinson appeals.
ANALYSIS
Swinson alleges three assignments of error with multiple subparts. They are that the trial
court erred by: (1) finding Code § 46.2-1003(C) does not apply retroactively, (2) denying
Swinson’s motion to strike the possession with intent to distribute methamphetamine charge,
contesting the sufficiency of evidence for the knowledge and intent elements as well as
presenting a hypothesis of innocence, and (3) failing to give Virginia Criminal Model Jury
Instruction 22.350, regarding factors to be considered in determining intent to distribute, in its
entirety.
I. The trial court did not err in finding that Code § 46.2-1003(C) does not apply
retroactively.
The enactment of subsection C of Code § 46.2-1003 occurred after the date of Swinson’s
traffic stop but before the date of his trial. Swinson argues that Code § 46.2-1003(C) is
procedural in nature, applies retroactively, and therefore prohibits the Commonwealth from
-6-
introducing any evidence discovered as a result of the stop. This Court’s precedent compels us
to disagree.
A. Standard of Review
“When challenging the denial of a motion to suppress on appeal, the defendant bears the
burden of establishing that reversible error occurred.” Street v. Commonwealth, 75 Va. App.
298, 303-04 (2022) (quoting Mason v. Commonwealth, 291 Va. 362, 367 (2016)). “Whether a
statute should be applied retroactively is . . . a question of law that an appellate court reviews de
novo.” Id. at 304.
B. Retroactivity Generally Disfavored
Under our common law “interpreting a law to apply retroactively is ‘not favored, and . . .
a statute is always construed to operate prospectively unless a contrary legislative intent is
manifest.’” McCarthy v. Commonwealth, 73 Va. App. 630, 647 (2021) (alteration in original)
(quoting Berner v. Mills, 265 Va. 408, 413 (2003)); see also Booth v. Booth, 7 Va. App. 22, 26
(1988) (“[T]he general rule of statutory construction is that legislation only speaks
prospectively.”). “Every reasonable doubt is resolved against a retroactive operation of a statute,
and words of a statute ought not to have a retrospective operation unless they are so clear, strong
and imperative that no other meaning can be annexed to them.” Montgomery v. Commonwealth,
75 Va. App. 182, 190 (2022) (quoting Shilling v. Commonwealth, 4 Va. App. 500, 507 (1987)).
“[N]o Virginia case has ever held that a procedural amendment to a rule or statute applies to
attach different legal consequences to a procedure that took place before the amendment. Even
where an amendment to a law is procedural instead of substantive.” Id. at 193.
C. Code § 1-239 Applies to the Repeal of a Statute
Code § 1-239 generally prevents any court from interpreting a repeal as having a
retroactive effect. Code § 1-239 provides:
-7-
No new act of the General Assembly shall be construed to repeal a
former law, as to any offense committed against the former law, or
as to any act done, any penalty, forfeiture, or punishment incurred,
or any right accrued, or claim arising under the former law, or in
any way whatever to affect any such offense or act so committed
or done, or any penalty, forfeiture, or punishment so incurred, or
any right accrued, or claim arising before the new act of the
General Assembly takes effect; except that the proceedings
thereafter held shall conform, so far as practicable, to the laws in
force at the time of such proceedings; and if any penalty,
forfeiture, or punishment be mitigated by any provision of the new
act of the General Assembly, such provision may, with the consent
of the party affected, be applied to any judgment pronounced after
the new act of the General Assembly takes effect.
During oral argument, Swinson’s counsel argued that Montgomery neglected to consider
Code § 1-239. However, the analysis shows otherwise:
As Code § 1-239 makes clear, statutory changes that only affect
procedure should “conform, so far as practicable, to the laws in
force at the time of such proceedings.” Code § 1-239 does not
require courts to alter the legal consequences of a proceeding that
has already taken place, but to instead look at the law at the time of
the procedure and apply that law, no matter when the substance of
any cause of action arose or criminal offense took place.
Indeed, no Virginia case has ever held that a procedural
amendment to a rule or statute applies to attach different legal
consequences to a procedure that took place before the
amendment. Even where an amendment to a law is procedural
instead of substantive, courts will not impliedly alter the legal
consequences of a procedure that has already taken place at the
time of the statutory change.
Montgomery, 75 Va. App. at 193.
D. Our precedent precludes retroactivity here.
This Court recently examined whether a statute prohibiting police stops for expired
registration applied retroactively to suppress evidence obtained in violation of the statute. Like
Code § 46.2-1003(C), the statute in Hogle v. Commonwealth, 75 Va. App. 743 (2022), provided
that any evidence obtained as a result of such an illegal stop or seizure was inadmissible in court.
There we found that the exclusionary provision “did not entitle Hogle to the suppression of the
-8-
evidence obtained and discovered as a result of the stop of his vehicle in 2019 because the
subsection, by its express terms, did not apply retroactively to the time of the stop.” Id. at 752.
In Montgomery, we found that Code § 18.2-250.1(F), which concerned a search on the basis of
the odor of marijuana and has since been repealed, did not apply to a search that the police
conducted before the effective date of the subsection, which also provided that any evidence
obtained as a result of such an illegal stop or seizure was inadmissible in court. Montgomery, 75
Va. App. at 200.
Provided the stop of Swinson’s car based upon defective equipment would be unlawful
under the current Code § 46.2-1003(C), that provision did not take effect until March 1, 2021.
When Deputy Smith stopped Swinson in July of 2019, the evidence uncovered was not “‘the
result of a stop in violation of th[e] subsection’ ‘because one cannot violate a statute or break a
rule that does not exist. Because the [subsection] was not in effect at the time of the search, no
law enforcement officer could have violated it.’” Hogle, 75 Va. App. at 751-52 (alterations in
original) (quoting Montgomery, 75 Va. App. at 196).
In both Hogle and Montgomery, the same procedural argument was made and, as we
concluded there, the illegal seizure prong of Code § 46.2-1003(C) “is not procedural as it is
completely silent on the method of obtaining redress or the enforcement of the right it creates;
instead, the scope of the entire [subsection] is both substantive and procedural.” Id. at 752
(alteration in original) (quoting Montgomery, 75 Va. App. at 199). Thus, the seizure prohibition
in Code § 46.2-1003(C) “is a substantive change in the law and cannot be applied retroactively to
render” the stop of Swinson’s car illegal, because “the evidentiary prong of the statute, though
procedural, is only triggered by a . . . seizure that violated the substantive portion of the statute.”
Id. (alteration in original) (quoting Montgomery, 75 Va. App. at 199).
-9-
The exclusionary provision of Code § 46.2-1003(C) thus did not entitle Swinson to the
suppression of the evidence obtained and discovered as a result of the stop of his vehicle in 2019
because the subsection did not apply retroactively to the time of the stop.
II. The Commonwealth provided sufficient evidence on all elements for any reasonable
trier of fact to find Swinson guilty of possession with intent to distribute
methamphetamine.
Swinson contends that the trial court erred in (1) finding that he had knowledge of the
drugs, (2) finding that had the intent to distribute the drugs, and (3) rejecting his reasonable
hypothesis of innocence. Swinson’s assignments of error challenge the sufficiency of the
Commonwealth’s evidence.1 Code § 18.2-248(A) provides that it is “unlawful for any person to
manufacture, sell, give, distribute, or possess with intent to manufacture, sell, give or distribute a
controlled substance.”
A. Standard of Review
When reviewing whether the sufficiency of the evidence supports a conviction, the
evidence is viewed in the light most favorable to the Commonwealth including “all reasonable
inferences fairly deducible therefrom.” Cole v. Commonwealth, 294 Va. 342, 361 (2017)
(quoting Singleton v. Commonwealth, 278 Va. 542, 548 (2009)). Accordingly, this Court
“discard[s] the evidence of the accused in conflict with that of the Commonwealth, and regard[s]
as true all the credible evidence favorable to the Commonwealth and all fair inferences to be
drawn therefrom.” Cooper v. Commonwealth, 54 Va. App. 558, 562 (2009) (quoting Parks v.
Commonwealth, 221 Va. 492, 498 (1980)). Additionally, “[t]he judgment of the trial court is
presumed correct and will not be disturbed unless it is plainly wrong or without evidence to
1
In Swinson’s third assignment of error, he alleges that the trial court erred by denying
his motion to strike the possession with intent to distribute methamphetamine charge with three
subcategories contesting knowledge, intent, and the rejection of his hypothesis of innocence that
he did not possess the drugs for personal use.
- 10 -
support it.” McGowan v. Commonwealth, 72 Va. App. 513, 521 (2020) (alteration in original)
(quoting Smith v. Commonwealth, 296 Va. 450, 460 (2018)). “In such cases, ‘[t]he Court does
not ask itself whether it believes that the evidence at the trial established guilt beyond a
reasonable doubt.’” Id. (alteration in original) (quoting Secret v. Commonwealth, 296 Va. 204,
228 (2018)). “Rather, the relevant question is whether ‘any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.’” Vasquez v.
Commonwealth, 291 Va. 232, 248 (2016) (quoting Williams v. Commonwealth, 278 Va. 190, 193
(2009)). “If there is evidentiary support for the conviction, ‘the reviewing court is not permitted
to substitute its own judgment, even if its opinion might differ from the conclusions reached by
the finder of fact at the trial.’” McGowan, 72 Va. App. at 521 (quoting Chavez v.
Commonwealth, 69 Va. App. 149, 161 (2018)).
B. Knowledge
Swinson argues that the evidence is insufficient to prove that he had knowledge of the
nature and character of the substance on his person. “[T]he Commonwealth must point to
evidence of acts, statements, or conduct of the accused or other facts or circumstances which
tend to show that the defendant was aware of both the presence and character of the substance
and that it was subject to his dominion and control.” Maxwell v. Commonwealth, 275 Va. 437,
442 (2008) (quoting Drew v. Commonwealth, 230 Va. 471, 473 (1986)). “Actual or constructive
possession alone is not sufficient.” Young v. Commonwealth, 275 Va. 587, 591 (2008) (citing
Burton v. Commonwealth, 215 Va. 711, 713 (1975)). “Such knowledge may be shown by
evidence of the acts, statements or conduct of the accused.” Id.
When Deputy Smith asked if he “had anything on him,” Swinson immediately handed
over a cigarette pack containing two small baggies of methamphetamine. After being advised of
his rights, Swinson told law enforcement that he found the drugs and “that he had sold it already
- 11 -
and was on the way to deliver it for $50.” These facts clearly indicate that Swinson knew the
baggies contained methamphetamine or another controlled substance.
C. Intent
Swinson contends that the evidence was insufficient to show that he intended to distribute
the drugs. “[F]or a defendant to be convicted of possession of a controlled substance with the
intent to distribute, the Commonwealth must prove that the defendant possessed the controlled
substance contemporaneously with his intention to distribute that substance.” Stanley v.
Commonwealth, 12 Va. App. 867, 869 (1991). Intent to distribute is reasonably established by
the direct admission of a defendant, alternatively by circumstantial evidence. Cole, 294 Va. at
361.
Investigator Hilliard testified that Swinson possessed more than four times the amount of
drugs a typical methamphetamine user would possess. The drugs were possessed in two bags,
one containing a smaller amount being estimated as worth $50. Further, Swinson stated that he
had already sold the drugs for $50 and that he was on his way to deliver them. Considered in the
light most favorable to the Commonwealth, this evidence was sufficient to establish Swinson’s
intent to distribute methamphetamine.
D. Hypothesis of Innocence
Finally, Swinson contends that the trial court erred in rejecting his reasonable hypothesis
that the drugs were not for his personal use. “‘By finding [a] defendant guilty, therefore, the
factfinder “has found by a process of elimination that the evidence does not contain a reasonable
theory of innocence.”’” Ray v. Commonwealth, 74 Va. App. 291, 308 (2022) (alteration in
original) (quoting Edwards v. Commonwealth, 68 Va. App. 284, 301 (2017)). The fact finder
“was at liberty to disbelieve [the defendant’s] self-serving explanation as a mere effort at ‘lying
to conceal his guilt.’” Haskins v. Commonwealth, 44 Va. App. 1, 10 (2004) (quoting
- 12 -
Commonwealth v. Duncan, 267 Va. 377, 385 (2004)). A reasonable fact finder could conclude
that Swinson’s changing stories, including that he found the baggies by the motel, that he
thought it was Epsom salts, and finally that he took it from his son, was evidence that he was
lying to conceal his guilt. Therefore, the evidence was sufficient to support the jury’s rejection
of Swinson’s hypothesis of innocence and to support his conviction for distribution of
methamphetamine.
III. We assume without deciding that the trial court erred by failing to give defense’s
proposed jury instruction in its entirety but find that the error was harmless.
Swinson argues that the trial court erred by refusing to give an instruction (Virginia
Criminal Model Jury Instruction 22.350), in its entirety, regarding factors to be considered in
determining intent to distribute. He points to the fact that the court’s instruction only retained
factors that were present in evidence, and removed those which were not, potentially misleading
the jury. Additionally, the lack of such factors in evidence was a key element of Swinson’s
defense. However, even when the instruction was refused in error, this Court must decide
whether that error was harmless before reversing the conviction. Code § 8.01-678. Assuming
without deciding that the trial court erred in refusing Swinson’s jury instruction, that alleged
error was harmless in this case.
A. Standard of Review
When reviewing non-constitutional error, we apply Code § 8.01-678 which states in
relevant part:
When it plainly appears from the record and the evidence given at
the trial that the parties have had a fair trial on the merits and
substantial justice has been reached, no judgment shall be arrested
or reversed . . . [f]or any . . . defect, imperfection, or omission in
the record, or for any error committed on the trial.
However, if the court “‘cannot say, with fair assurance, . . . that the judgment was not
substantially swayed by the error, it is impossible to conclude that [the appellant’s] substantial
- 13 -
rights were not affected’ and the conviction must be reversed.” Graves v. Commonwealth, 65
Va. App. 702, 712 (2016) (alteration in original) (quoting Clay v. Commonwealth, 262 Va. 253,
260 (2001)). Harmless-error review is not a sufficiency-of-the-evidence analysis.
Commonwealth v. White, 293 Va. 411, 422 (2017). However, a non-constitutional error is found
harmless when “the evidence of guilt [is] so overwhelming that it renders the error insignificant
by comparison such that the error could not have affected the verdict.” Commonwealth v.
Kilpatrick, ___ Va. ___, ___ (Aug. 4, 2022).
This Court’s objective in reviewing jury instructions is “to see that the law has been
clearly stated and that the instructions cover all issues which the evidence fairly raises.” Dorman
v. State Indus. Inc., 292 Va. 111, 125 (2016) (quoting Cain v. Lee, 290 Va. 129, 134 (2015)).
“[W]hether a jury instruction accurately states the relevant law is a question of law that we
review de novo.” Watson v. Commonwealth, 298 Va. 197, 207 (2019) (quoting Payne v.
Commonwealth, 292 Va. 855, 869 (2016)). Although, “[a]s a general rule, the matter of granting
or denying jury instructions . . . rest[s] in the sound discretion of the trial court.” Dandridge v.
Commonwealth, 72 Va. App. 669, 679 (2021) (second and third alterations in original) (quoting
Lienau v. Commonwealth, 69 Va. App. 254, 264 (2018)). “[I]f there is evidence in the record to
support the defendant’s theory of defense, the trial judge may not refuse to grant a proper,
proffered instruction.” Id. at 680 (quoting King v. Commonwealth, 64 Va. App. 580, 587 (2015)
(en banc)). However, “a jury verdict based on an erroneous instruction need not be set aside if it
is clear that the jury was not misled.” Riverside Hosp., Inc. v. Johnson, 272 Va. 518, 537 (2006).
Typically, on appeal, we review the facts “in the ‘light most favorable’ to the
Commonwealth, the prevailing party in the trial court.” Hammer v. Commonwealth, 74 Va. App.
225, 231 (2022) (quoting Commonwealth v. Cady, 300 Va. 325, 329 (2021)). However, when
“the trial court refused to grant the instruction proffered by the accused, we view the facts in the
- 14 -
light most favorable to the defendant.” Avent v. Commonwealth, 279 Va. 175, 202 (2010)
(quoting Commonwealth v. Sands, 262 Va. 724, 729 (2001)). We therefore view the evidence in
the light most favorable to Swinson.
B. The trial court’s potential error in refusing Virginia Criminal Model Jury
Instruction 22.350, in its entirety, was harmless.
Swinson contends the trial court erred by failing to give Instruction 22.350 in its entirety
because the instruction as given wrongly emphasized only the factors that were present and
omitted those which were not. Evidence used to establish the intent to distribute is not an
exhaustive list. Wright v. Commonwealth, 278 Va. 754, 760 (2009). The Commonwealth need
not show proof of all the factors, and the absence of certain factors does not mean that the intent
to distribute cannot be established. Accordingly, even when viewed in the light most favorable
to Swinson, Avent, 279 Va. at 202, the weight of the evidence strongly indicates that a jury
would have found Swinson guilty of possession of methamphetamine with intent to distribute
even if the jury instruction was introduced as submitted.
Given Swinson’s statements and actions affirming his knowledge of the drugs, admitting
that he already had sold them, and declaring his intention to deliver them, we find that it “plainly
appears” Swinson “had a fair trial on the merits.” Code § 8.01-678. The overwhelming
admissible evidence of Swinson’s guilt for the possession of methamphetamine with the intent to
distribute requires us to conclude that the alleged “error did not influence the jury[] or had but
slight effect,” and was therefore harmless. Clay, 262 Va. at 260 (quoting Kotteakos v. United
States, 328 U.S. 750, 764 (1946)).
CONCLUSION
We find that the amendment of Code § 46.2-1003 does not apply retroactively, therefore
the stop and search of Swinson was permissible. Any possible error in failing to give Swinson’s
model jury instruction was harmless considering the “overwhelming” evidence presented of
- 15 -
Swinson’s guilt. Kilpatrick, ___ Va. at ___; Riverside, 272 Va. at 537. We find that the trial
court did not err in denying the motion to suppress and in finding that the evidence was sufficient
to prove Swinson’s guilt beyond a reasonable doubt. Therefore, we affirm.
Affirmed.
- 16 -