Derrick Renard Powell v. Commonwealth of Virginia
62 Va. App. 579
| Va. Ct. App. | 2013Background
- Powell, tried in Lynchburg Circuit Court, was convicted of distributing an imitation Schedule I/II substance (Code § 18.2-248) after an undercover officer bought what he believed was a $40 "four" of crack cocaine.
- Undercover Investigator Bailey signaled and stopped; Powell returned from a house, handed a knotted plastic baggie with a white hard substance, and accepted $40. The exchange was seconds long in an open-air drug market.
- Bailey initially believed the packaged item was crack cocaine based on appearance, packaging, and common drug-slang usage. He discovered later it was half of a white pill.
- Forensic analysis identified the substance as quetiapine, a Schedule VI drug. The Commonwealth charged Powell with distributing an "imitation controlled substance."
- Powell argued the Commonwealth failed to prove (1) the item was not a controlled substance "subject to abuse," (2) the item’s form would be mistaken for cocaine, and (3) he made no express or implied representations that it was cocaine. The trial court denied motions to strike and to set aside the verdict; the Court of Appeals affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether evidence proved Powell distributed an "imitation controlled substance" under Code § 18.2-247/248 | Commonwealth: Powell sold a non-abusable Schedule VI drug packaged and presented so it would be mistaken for crack; the officer reasonably believed it was crack | Powell: Commonwealth failed to prove substance would be mistaken for cocaine or that he made express/implied representations | Held: Yes. Packaging, appearance, drug-slang request, and acceptance of $40 supported a finding the item was presented to imitate crack cocaine |
| Whether Commonwealth proved the substance was not a controlled substance "subject to abuse" | Commonwealth: Schedule VI classification and statutory scheme show Schedule VI substances are not "subject to abuse" as used in § 18.2-247 | Powell: Quetiapine is a controlled substance—Commonwealth must still prove it is not subject to abuse beyond a reasonable doubt | Held: Schedule VI status and statutory structure establish such substances are not "subject to abuse," so element satisfied |
| Whether representations (express or implied) were shown | Commonwealth: Implied representations arise from the transaction context, slang request for a "four," the quick hand-to-hand exchange, and the packaging | Powell: No explicit statement he sold cocaine; slang ambiguity insufficient | Held: Implied representations sufficed—seller’s conduct and packaging conveyed an intent to imitate cocaine |
| Sufficiency of the evidence standard and appellate review | Commonwealth: Review deference to factfinder; circumstantial evidence can be cumulative to meet burden | Powell: Appellate court should reverse if evidence insufficient or court misapplied statutes | Held: Applying light-most-favorable-to-prevailing-party standard, cumulative circumstantial evidence supported conviction; no legal error in statutory construction |
Key Cases Cited
- Werres v. Commonwealth, 19 Va. App. 744 (Va. Ct. App.) (imitation controlled substance may be shown by express or implied representation)
- Rhodes v. Commonwealth, 12 Va. App. 473 (Va. Ct. App.) (definition of "subject to abuse")
- Jenkins v. Commonwealth, 255 Va. 516 (Va.) (appellate court will not substitute its judgment for factfinder)
- Towler v. Commonwealth, 59 Va. App. 284 (Va. Ct. App.) (review of sufficiency: view evidence in light most favorable to prevailing party)
- Hudson v. Commonwealth, 265 Va. 505 (Va.) (circumstantial evidence may combine to prove guilt)