                                           COURT OF APPEALS OF VIRGINIA


            Present: Judges Humphreys, Beales and Senior Judge Annunziata
PUBLISHED


            Argued by teleconference.


            DERRICK RENARD POWELL
                                                                                   OPINION BY
            v.      Record No. 1825-12-3                                  JUDGE ROSEMARIE ANNUNZIATA
                                                                                NOVEMBER 26, 2013
            COMMONWEALTH OF VIRGINIA


                            FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
                                           Patrick F. Yeatts, Judge

                            M. Kevin Bailey for appellant.

                            Katherine Quinlan Adelfio, Assistant Attorney General (Kenneth T.
                            Cuccinelli, II, Attorney General, on brief), for appellee.


                    Derrick Renard Powell, appellant, was tried by a judge of the Circuit Court for the City of

            Lynchburg and found guilty of distribution of an imitation Schedule I or II substance, in violation of

            Code § 18.2-248. Appellant appeals the judgment of conviction on the following grounds: 1) the

            trial court erred in finding that the evidence was sufficient to convict appellant of distribution of an

            imitation controlled substance because the Commonwealth failed to prove beyond a reasonable

            doubt that the substance was not a controlled substance subject to abuse; 2) the trial court erred in

            finding that the evidence was sufficient to convict appellant of distribution of an imitation controlled

            substance because the Commonwealth failed to prove beyond a reasonable doubt that the form of

            the substance was such that it would be mistaken for cocaine; and 3) the trial court erred in finding

            that the evidence was sufficient to convict appellant of distribution of an imitation controlled

            substance because the Commonwealth failed to prove beyond a reasonable doubt that appellant

            made any express or implied representations that the substance was cocaine. For the reasons that

            follow, we affirm.
                                               Background

        “In examining a challenge to the sufficiency of the evidence, appellate courts will review the

evidence in the light most favorable to the party prevailing at trial and consider any reasonable

inferences from the proven facts.” Towler v. Commonwealth, 59 Va. App. 284, 290, 718 S.E.2d

463, 466 (2011); see also Sullivan v. Commonwealth, 280 Va. 672, 676, 701 S.E.2d 61, 63-64

(2010). Moreover, “[t]he credibility of the witnesses and the weight accorded the evidence are

matters solely for the fact finder who has the opportunity to see and hear that evidence as it is

presented.” Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730, 732 (1995). “That

responsibility lies with the fact finder because ‘[t]his [C]ourt[,] sitting as an appellate court, and

knowing nothing of the evidence or of the witness, except as it appears on the paper, [is]

incompetent to decide on the credibility of the testimony.’” Commonwealth v. McNeal, 282 Va.

16, 22, 710 S.E.2d 733, 736 (2011) (quoting Brown v. Commonwealth, 29 Va. (2 Leigh) 769, 777

(1839)).

        Seen in the light most favorable to the Commonwealth, the evidence showed that on

December 22, 2011, Investigator Daniel Bailey and Detective Trent were working undercover in an

unmarked police vehicle. Bailey was assigned to the narcotics department of the Lynchburg Police

Department for over five years, during which time he handled over 100 arrests and investigations

involving the sale of narcotics. While driving through an open air drug market in Lynchburg,

Bailey and Trent saw appellant standing on a sidewalk. When appellant “made a [waving] motion

with his hand as [if] to flag [the officers] to pull the car over,” Trent, who was driving, complied.

When the vehicle was stationary at the side of the road, appellant walked up to Bailey, who was

sitting in the passenger seat of the car. Bailey rolled down the window and asked appellant “if he

was straight.” Bailey explained that “straight” is “common slang” used in drug transactions to

indicate that the seller has narcotics to sell. Appellant responded that he “had what [Bailey] needed

                                                   -2-
and asked what [Bailey] wanted.” Bailey responded he wanted “a four.” Bailey explained a “four”

is “slang for forty dollars[’] worth of cocaine.”

        After a short conversation about whether Bailey and Trent were with the police, appellant

told Bailey he could get “the four” from his residence. Appellant then went into a house and

returned to the car within two minutes. He handed Bailey a “white rock substance” in “a knotted

baggie,” and Bailey gave him forty dollars. The exchange took “[a] matter of seconds,” and Bailey

did not examine the substance closely before he and his partner drove away. Later, upon

examination, he discovered appellant had sold him a white pill, cut in half.

        At trial, Bailey testified that crack cocaine is a “hard form of powder cocaine.” Bailey

stated that the substance, wrapped in the knotted plastic baggie, that appellant handed him appeared

“to the naked eye” to be crack cocaine. He explained that, in his experience, most drug transactions

happen “very fast” and “last[] thirty seconds at most.” Bailey further explained that “in the sale of

narcotics, there are no disclaimers that say [‘]this is actually crack cocaine[.’]” A buyer must “take

[the seller’s] word” that the substance purchased is crack cocaine.

        Kelly Howerter, a forensic scientist at the Virginia Department of Forensic Science

examined and analyzed the substance appellant sold Bailey. She testified “just looking at it . . . it

was a plastic bag corner that just had a white substance inside of it.” She described the substance

inside the bag as half of a white oblong tablet and stated it did not resemble cocaine. She identified

the substance as the Schedule VI controlled substance quetiapine. When the Commonwealth

recalled Bailey as a witness, he testified that he had never heard of quetiapine being sold illicitly.

        Appellant made a motion to strike at the end of the evidence based, in part, on the use of

slang in the transaction to purchase cocaine and the absence of evidence establishing that appellant

understood the term was a reference to cocaine. He further argued that the drug sold was, in fact, a




                                                    -3-
Schedule VI controlled substance and, at most, his conduct supported a misdemeanor conviction

under Code § 18.2-248(F). The motion was denied. In his reasoning, the trial judge noted:

                I understand that [during] these transactions individuals aren’t using
                the word[ ] cocaine and, clearly, if anyone approached a drug dealer
                and said they needed cocaine it would be out of the ordinary, not a
                normal occurrence and that this slang and these words are used to
                mean something in the drug trade in this community and other
                communities like this and these drugs don’t come with written
                warranties and they don’t come with guarantees and they don’t come
                with documentation.

                [T]he Court has to look at all the evidence in this case, and what we
                have here is an exchange between [the defendant] and the undercover
                detective and language used, are you straight, I have what you need,
                and the detective indicating he needed a four. [Bailey] testified that
                in the drug trade that means forty dollars exchanged for a controlled
                substance. And that’s what he received or at least thought he was
                receiving in exchange for his forty dollars.

       Appellant subsequently argued in a motion to set aside the verdict that the Commonwealth

failed to prove, inter alia, that quetiapine was not a controlled substance subject to abuse. During

the course of the proceedings on the motion, the court found the Commonwealth satisfied both

sections (1) and (2) of Code § 18.2-247(B)(ii).1 The trial court denied the motion to set aside the


       1
           1 Code § 18.2-247(B) provides:

                The term “imitation controlled substance” when used in this article
                means (i) a counterfeit controlled substance or (ii) a pill, capsule,
                tablet, or substance in any form whatsoever which is not a
                controlled substance subject to abuse, and:

                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
                                                -4-
verdict, particularly noting that there was “no evidence before this Court that what was being sold

here[,] which essentially as I understand the case or the evidence to be[,] it was some sort of

antibiotic that there’s any effect of antibiotics that caused them to be subject to abuse.”

                                                Analysis

        Appellate courts “‘presume the judgment of the trial court to be correct’ and reverse only if

the trial court’s decision is ‘plainly wrong or without evidence’ to support it.” Seaton v.

Commonwealth, 42 Va. App. 739, 746, 595 S.E.2d 9, 12 (2004) (quoting Kelly v. Commonwealth,

41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) (en banc)). As stated previously, we view the

evidence in the light most favorable to the prevailing party below, relying on the fact finder’s

credibility determinations and the proven facts. Further, “[c]ircumstantial evidence is not viewed in

isolation. ‘While no single piece of evidence may be sufficient, the “combined force of many

concurrent and related circumstances, each insufficient in itself, may lead a reasonable mind

irresistibly to a conclusion.”’” Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786

(2003) (quoting Derr v. Commonwealth, 242 Va. 413, 425, 410 S.E.2d 662, 669 (1991)). Finally,

the Court may not substitute its own judgment for that of the finder of fact, even if it might have

reached a different conclusion. See Commonwealth v. Jenkins, 255 Va. 516, 520, 499 S.E.2d 263,

265 (1998); Crowder v. Commonwealth, 41 Va. App. 658, 663 n.1, 588 S.E.2d 384, 387 n.1 (2003).

        To the extent this Court must construe Code § 18.2-247 in considering the assignments of

error, the Court applies a “de novo standard of review when addressing a question of statutory

construction.” Courtney v. Commonwealth, 281 Va. 363, 366, 706 S.E.2d 344, 345 (2011). “The

rules of statutory construction provide that the ‘plain, obvious, and rational meaning of a statute is



                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.

                                                  -5-
always preferred to any curious, narrow or strained construction.’” Werres v. Commonwealth,

19 Va. App. 744, 746, 454 S.E.2d 36, 37 (1995) (quoting Branch v. Commonwealth, 14 Va. App.

836, 839, 419 S.E.2d 422, 424 (1992)). “The primary objective of statutory construction is to

ascertain and give effect to legislative intent.” Commonwealth v. Zamani, 256 Va. 391, 395,

507 S.E.2d 608, 609 (1998). Thus, this Court construes a statute “with reference to its subject

matter, the object sought to be attained, and the legislative purpose in enacting it; the provisions

should receive a construction that will render it harmonious with that purpose rather than one which

will defeat it.” Esteban v. Commonwealth, 266 Va. 605, 609, 587 S.E.2d 523, 526 (2003). “‘When

interpreting statutory language, [this Court] must assume that the legislature chose with care the

words it used and, where it includes specific language in one section but omits that language from

another section, [this Court] presume[s] that the exclusion of the language was intentional.’”

Saunders v. Commonwealth, 48 Va. App. 196, 203-04, 629 S.E.2d 701, 704 (2006) (quoting

7-Eleven, Inc. v. Dep’t of Envtl. Quality, 39 Va. App. 377, 397, 573 S.E.2d 289, 299 (2002)).

        Appellant contends the trial court erred in convicting him because the Commonwealth failed

to prove that the substance appellant sold was an imitation controlled substance that “would be

mistaken for cocaine” and that he did not make “any express or implied representations that the

substance was cocaine.” These arguments are without merit. To convict appellant of violating

Code § 18.2-248, the Commonwealth was required to prove he distributed an imitation controlled

substance. Code § 18.2-248(A). Code § 18.2-247(B)(ii)(1) defines an imitation controlled

substance as:

                a pill, capsule, tablet, or substance in any form whatsoever which is
                not a controlled substance subject to abuse, and . . . [w]hich 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.

(Emphasis added.)
                                                  -6-
       This Court further clarified the definition of an imitation controlled substance in Werres,

19 Va. App. at 747-48, 454 S.E.2d at 38, holding an imitation controlled substance is “any pill,

capsule, tablet, or substance in any form whatsoever that by express or implied representation is

intended or appears to imitate a controlled substance subject to abuse.” The Werres Court also

made clear that the Commonwealth must prove the “substance is ‘not a controlled substance subject

to abuse’” to satisfy the provisions of Code § 18.2-247. Id. at 748, 454 S.E.2d at 38.2

       We conclude that appellant’s representations regarding the substance, together with the

packaging of the substance in a plastic knotted baggie, made it likely that the substance would be

mistaken for crack cocaine as required by Code § 18.2-247. The Commonwealth’s evidence proved

that appellant sold Bailey quetiapine, a Schedule VI drug, that was consistent with crack cocaine’s

color, size, hard form and shape, while wrapped in the knotted plastic baggie. Indeed, the evidence

showed the substance appellant sold was not only mistakable for crack cocaine, but, during the heat

of a quick transaction, it was, in fact, mistaken for crack cocaine by an experienced undercover

police officer who did not realize the item was not crack cocaine until he had the opportunity to

closely examine it. The drug sale took place in an open air drug market and was initiated by

appellant by motioning the undercover officers to the side of the road as they drove through the

area. Bailey testified he asked for a “four” and such language is commonly used in the drug trade to

mean forty dollars’ worth of crack cocaine. The trial court found Bailey’s testimony to be credible

and gave due weight to his testimony that a “four” is common drug parlance for forty dollars’ worth

of crack cocaine. We will not disturb that finding. In response to Bailey’s request for a “four,”

appellant handed Bailey a knotted baggie containing “a white rock substance,” consistent with his



       2
         In Rhodes v. Commonwealth, 12 Va. App. 473, 404 S.E.2d 522 (1991), this Court
defined “subject to abuse” under Code § 18.2-247. “‘Subject to’ means ‘having a disposition or
tendency; liable (to).’ ‘Abuse’ means ‘to use wrongly; misuse.’” Id. at 475, 404 S.E.2d at 522
(quoting Webster’s New World Dictionary (2d College Ed. 1970)).
                                              -7-
request, and accepted forty dollars in payment. To the “naked eye,” the white substance in the

packaging appeared to be crack cocaine. It was not until Bailey had the opportunity to examine the

substance, after the officers left the scene, that Bailey discovered it was half of a white pill.

        Not only was the appearance of the substance consistent with crack cocaine when it was

wrapped in the plastic baggie, appellant implied it was crack cocaine when he responded to Bailey’s

request with what appeared to be forty dollars’ worth of crack cocaine and accepted forty dollars in

payment. See Werres, 19 Va. App. at 747-48, 454 S.E.2d at 38 (representations may be implied,

rather than express). His actions demonstrated he intended the packaged pill to imitate crack

cocaine. The pill’s appearance and packaging, coupled with appellant’s representations, established

the substance was presented in such manner as to cause Bailey to mistake the substance for crack

cocaine. Therefore, the evidence was sufficient to prove the substance was an imitation controlled

substance.

        Appellant further argues, however, that the trial court erred in finding that the evidence was

sufficient to convict him of distribution of an imitation controlled substance because the

Commonwealth failed to prove beyond a reasonable doubt that the substance was not a controlled

substance “subject to abuse.” This argument is also without merit.

        In addressing appellant’s motion to strike the verdict, the trial court rejected the argument

that the Commonwealth was required to prove the substance at issue “was not subject to abuse.”

Nevertheless, the trial court ultimately found that quetiapine, classified as a Schedule VI controlled

substance, is not subject to abuse.

        We likewise conclude that the substance the defendant sold was a Schedule VI controlled

substance and such classification, ipso facto, established that the substance was not subject to abuse.

Pursuant to the Drug Control Act (Code § 54.1-3400 et seq.), the Board of Pharmacy (“Board”)

categorizes known controlled substances into various schedules. Code §§ 54.1-3401, 54.1-3443. In

                                                   -8-
categorizing the substances, one of the factors the Board considers is “the actual or relative potential

for abuse” of a substance. Code § 54.1-3443(1). In designating what substances the Board should

place in Schedules I through V, the General Assembly explicitly addressed the potential for abuse,

each Schedule noting a lower risk of abuse relative to the previous Schedule. See Code

§§ 54.1-3445, 54.1-3447, 54.1-3449, 54.1-3451, 54.1-3453. Given the General Assembly’s

omission of the “potential for abuse” factor in articulating the factors the Board should consider

when placing substances in Schedule VI, it follows that Schedule VI substances are not “subject to

abuse” as contemplated in Code § 18.2-247.3 Therefore, as a matter of definition, established by the

legislature, quetiapine is a Schedule VI controlled substance, but one that is not subject to abuse.

Therefore, the trial court correctly held it was an imitation controlled substance.

        Accordingly, the trial court did not err by finding sufficient evidence that appellant

distributed an imitation controlled substance. We affirm appellant’s conviction.

                                                                                                 Affirmed.




        3
            Code § 54.1-3455 states that Schedule VI controlled substances include:

                 1. Any compound, mixture, or preparation containing any
                 stimulant or depressant drug exempted from Schedules III, IV or V
                 and designated by the Board as subject to this section.

                 2. Every drug, not included in Schedules I, II, III, IV or V, or
                 device 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
                 qualified by scientific training and experience to evaluate its safety
                 and efficacy as safe for use except by or under the supervision of a
                 practitioner licensed to prescribe or administer such drug or device.

                 3. Any drug not included in Schedules I, II, III, IV or V, required
                 by federal law to bear on its label prior to dispensing, at a
                 minimum, the symbol “Rx only,” or which bears the legend
                 “Caution: Federal Law Prohibits Dispensing Without a
                 Prescription” . . . .
                                                  -9-
