Seke v. Commonwealth

                   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"




                                -2-
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




                                -3-
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).



                                 -4-
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



                                -5-
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



                                  -6-
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



                                -7-
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




                                 -8-
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,




                                 -9-
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




                               -10-
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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