                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Beales, Alston and Senior Judge Frank
              Argued at Norfolk, Virginia
UNPUBLISHED




              JAMES MELVIN HOWARD
                                                                             MEMORANDUM OPINION* BY
              v.     Record No. 0780-17-1                                    JUDGE RANDOLPH A. BEALES
                                                                                    JUNE 5, 2018
              COMMONWEALTH OF VIRGINIA


                               FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
                                               John W. Brown, Judge

                               Carmelou G. Aloupas (Aloupas Law, P.L.L.C., on briefs), for
                               appellant.

                               Victoria Johnson, Assistant Attorney General (Mark R. Herring,
                               Attorney General, on brief), for appellee.


                     The Circuit Court of the City of Chesapeake convicted James Melvin Howard (“appellant”)

              of one count of possessing a Schedule I narcotic and one count of possessing a Schedule II narcotic,

              both violations of Code § 18.2-250. On appeal, appellant challenges the sufficiency of the evidence

              supporting these convictions. Appellant argues that the Commonwealth failed to prove that he

              knowingly and intentionally possessed two different controlled substances, heroin and fentanyl,

              when both substances were contained within a single capsule that appeared visually uniform. As a

              result, appellant argues that both of his convictions must be reversed.

                                                         I. BACKGROUND

                     During appellant’s bench trial, Chesapeake Police Officers Matthew Elliot and Nicole

              Kath testified that they were on duty on May 16, 2015 when they stopped appellant’s vehicle for

              running a stop sign. Officer Elliot testified that he approached appellant’s vehicle from the rear,


                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
and, upon reaching the vehicle, he smelled the odor of marijuana. Officer Elliot asked appellant,

the vehicle’s sole occupant, to step outside while Officer Kath searched appellant’s vehicle for

contraband. While Officer Kath searched appellant’s vehicle, Officer Elliot and appellant waited

by the officers’ patrol vehicle, which was located approximately 15-20 feet behind appellant’s

vehicle. There, Officer Elliot smelled marijuana on appellant. Officer Kath testified that she

joined Officer Elliot and appellant near the officers’ patrol vehicle after she concluded her search

of appellant’s vehicle. Officer Kath stated that she also smelled marijuana on appellant, and she

proceeded to search him as a result.

          Officer Kath testified that, during her search of appellant, she “located in his cargo pocket

[of his pants] a suspected capsule of heroin.” Officer Kath stated that the capsule contained “a

brownish, off-white powdery substance,” which was later determined to be a mixture of heroin, a

Schedule I narcotic, and fentanyl, a Schedule II narcotic. Officer Kath testified that the powder

within the capsule was “all the same color” and that she “couldn’t distinctively say that this half

was white and this half was brown. It was just all a brownish capsule.” Officer Kath then

arrested appellant. The officers did not ask appellant any questions about the capsule or its

contents, and appellant did not volunteer any statements.

          Officer Kath also testified about appellant’s conduct while she performed the search. She

stated:

                 [H]is head was turned down. He was watching everything I was
                 doing on his right side. I found it [the capsule] in his right cargo
                 pocket. He was looking down at it when I found it. He seemed
                 completely surprised and put his head back up after I located it at
                 the bottom of the cargo pocket, again, by itself.

Officer Kath further testified that she had previously instructed appellant to place his hands on

top of his head and to interlock his fingers. Despite these instructions, appellant kept taking his

hands off of his head and looking towards the pocket where Officer Kath found the heroin and

                                                  -2-
fentanyl capsule. Officer Kath testified, “I had to repeatedly tell him to keep his hands on top of

his head.”

       At trial, the parties stipulated to the admissibility of the Commonwealth’s certificate of

analysis, which showed that the capsule contained heroin and fentanyl. In addition, the parties

stipulated that “the lab analyst would indicate that, visually speaking, she could not tell the

difference between fentanyl or heroin inside the cap[sule] as far as determining that there was

one narcotic versus two inside the capsule until she tested it out.” In stipulating that the two

narcotics were visually uniform, the prosecutor stated, “I think Officer Kath’s testimony even

backed that up.”

       At the conclusion of the trial, the judge convicted appellant of two counts of possession.

In making his finding, the judge considered that “[c]learly, here what’s found in his [appellant’s]

own pocket is in his actual physical exclusive possession. The knowledge of where it was and

whether he was asserting dominion and control over it is clearly established.” Regarding

appellant’s knowledge of the substances inside the capsule, the trial judge found that “the

possession of it in the pocket of a pair of pants that he was wearing at the time is certainly

circumstantial evidence of knowledge, and that possession could certainly give an inference that

he knew what it was.” The trial judge also considered the evidence that appellant “kept looking

down in his right pocket . . . and he kept taking his hands off his head during the times that he

had been told not to.” In concluding, the trial judge stated:

               So the Court finds that the defendant knowingly possessed a
               controlled substance which was originally, by visual examination
               by the police officer, consistent with their training and experience
               to be heroin. They did not know fentanyl was in there either, but
               the analysis shows that it was. The Court finds him guilty of both
               the possession of heroin and possession of fentanyl . . . .

This appeal followed. Appellant’s single assignment of error to this Court alleges that the trial

court erred “in Convicting Appellant of Two Counts of Possession of Schedule I/II Narcotics
                                                -3-
(Heroin and Fentanyl), When Both Substances were Contained Within One Capsule, the

Contents of the Capsule Were Visually Uniform, and No Evidence was Presented that Appellant

Knew the Capsule Contained More Than One Substance.”

                                              II. ANALYSIS

        Appellant’s assignment of error presents two questions for our analysis: (i) whether the

mens rea requirement of Code § 18.2-250 requires a defendant to know the exact number of

controlled substances that are in his possession, and (ii) whether the evidence in this case was

sufficient to support multiple convictions under that statute.

                                         A. Standard of Review

        When considering the sufficiency of the evidence on appeal, “a reviewing court does not

‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable

doubt.’” Crowder v. Commonwealth, 41 Va. App. 658, 663, 588 S.E.2d 384, 387 (2003) (quoting

Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). “We must instead ask whether ‘any rational

trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’” Id.

(quoting Kelly v. Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) (en banc)).

“This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve

conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts

to ultimate facts.” Kelly, 41 Va. App. at 257-58, 584 S.E.2d at 447 (quoting Jackson, 443 U.S. at

319).

        Interpreting the mens rea requirement of Code § 18.2-250, however, is a pure question of

law that we review de novo. See McGinnis v. Commonwealth, 68 Va. App. 262, 266, 808 S.E.2d

200, 202 (2017). When interpreting a statute’s language:

                [W]e must give effect to the legislature’s intention as expressed by
                the language used unless a literal interpretation of the language
                would result in a manifest absurdity. If a statute is subject to more

                                                   -4-
               than one interpretation, we must apply the interpretation that will
               carry out the legislative intent behind the statute.

Sierra v. Commonwealth, 59 Va. App. 770, 776, 722 S.E.2d 656, 659 (2012) (quoting Scott v.

Commonwealth, 58 Va. App. 35, 48, 707 S.E.2d 17, 24 (2011)).

                                     B. Statutory Interpretation

       Appellant’s assignment of error challenges his conviction based upon his alleged lack of

knowledge of the number of controlled substances that the capsule contained. The plain

language of Code §18.2-250 states in relevant part:

               (A) It is unlawful for any person knowingly or intentionally to
               possess a controlled substance . . . .

                  ....

               (a) Any person who violates this section with respect to any
               controlled substance classified in Schedule I or II of the Drug
               Control Act shall be guilty of a Class 5 felony . . . .

(Emphasis added). Subsequent subparts establish a corresponding level of punishment for

narcotics classified under Schedules III – VI. See Code § 18.2-250(A)(b–c). Therefore, based

upon the plain language of Code § 18.2-250, a defendant can be convicted of multiple counts of

possession under the statute if he knowingly and intentionally possesses more than one

controlled substance. Given the General Assembly’s considerable efforts to combat the problem

of illegal drugs, this was certainly the legislature’s intent. The General Assembly selected “a”

controlled substance and “any” controlled substance as the statute’s unit of prosecution.1 By


       1
          In Johnson v. Commonwealth, 292 Va. 738, 793 S.E.2d 321 (2016), our Supreme Court
affirmed this Court’s unpublished opinion in Johnson v. Commonwealth, No. 1138-14-2, 2015
Va. App. LEXIS 211 (Va. Ct. App. July 7, 2015), which upheld the defendant’s three
convictions for felony failure to appear in violation of Code § 19.2-128(B). In Johnson, the
defendant faced felony charges of forgery, uttering, and attempting to obtain money by false
pretenses. Johnson, 292 Va. at 740, 793 S.E.2d at 322. Because Johnson was absent from his
preliminary hearing, he was subsequently indicted and convicted for three separate counts of
failure to appear – one conviction for each underlying indictment – despite the fact that the

                                                -5-
doing so, the legislature selected a term that would permit a defendant to be charged for each

controlled substance he possesses. Notably, the General Assembly chose not to limit the number

of charges or convictions that a defendant could receive if multiple controlled substances were

packaged in a single container or a single capsule. If the legislature had intended to do so, then it

would have drafted the statute with different language, for example, so that “one or more”

controlled substances was the unit of prosecution – thereby permitting a single conviction to

encompass multiple controlled substances. However, the General Assembly chose not to draft

the statute in that way, and we must give effect to its apparent intent derived from the statute’s

plain language to punish defendants for each controlled substance that they possess. See

Johnson v. Commonwealth, 292 Va. 738, 742, 793 S.E.2d 321, 323 (2016) (“We must presume

that the General Assembly chose, with care, the words that appear in a statute, and must apply

the statute in a manner faithful to that choice.”). Therefore, the simple fact that, in the current

case, two controlled substances were packaged in a single capsule does not change the General

Assembly’s intent to convict and punish separately for the possession of each controlled

substance within that capsule.



defendant missed a single hearing. Id. In determining whether the General Assembly intended
such an outcome, the Court stated:

               The plain language of Code § 19.2-128 indicates that the
               legislature intended to establish each felony charge as the unit of
               prosecution for a failure to appear. The legislature selected the
               term “a” felony, thereby indicating that each felony charge could
               serve as the predicate of a failure to appear conviction. Instead of
               using the singular “a” felony, the legislature could have stated, for
               example, that a defendant charged with “one or more felonies”
               who fails to appear is guilty of a Class 6 felony. It did not.

Id. at 741-42, 793 S.E.2d at 323. Similar to the Supreme Court’s statutory interpretation in
Johnson, the unit of prosecution for Code § 18.2-250 – “a controlled substance” and “any
controlled substance” – indicates that a defendant can likewise receive multiple charges and
convictions for possessing more than one controlled substance, even if those controlled
substances are packaged in a single container or a single capsule.
                                               -6-
        Furthermore, appellant’s assignment of error implicates Code § 18.2-250’s general mens

rea requirement that we analyzed in Sierra v. Commonwealth, 59 Va. App. 770, 722 S.E.2d 656

(2012). In Sierra, we considered “whether [the statute] requires a defendant to know the exact

substance he is possessing . . . .” Id. at 775, 722 S.E.2d at 658 (emphasis added). As stated supra,

appellant argues that the trial court erred by entering multiple convictions where the evidence failed

to show that he was aware that there was more than one controlled substance inside the capsule.

While we acknowledge there is some difference between appellant’s argument and the issue we

addressed in Sierra, we find that Sierra’s reasoning is at least persuasive (albeit not completely on

point) in resolving this case.

        In Sierra, the defendant was in possession of eight pills, two of which contained

methylphenidate (a controlled substance). Id. at 774, 722 S.E.2d at 658. Sierra testified that he

received the pills from another individual when he was experiencing back pain. Id. “Sierra claimed

that he did not know the pills he received were Concerta [a brand name for methylphenidate], but

thought they were aspirin and Tylenol.” Id. at 774-75, 722 S.E.2d at 658. However, contrary to his

claimed ignorance, the trial court found that the evidence showed that Sierra was aware of the

nature and character of those pills. Sierra kept the methylphenidate pills in a separate pocket from

the other six pills. Id. at 784, 722 S.E.2d at 663. In addition, the methylphenidate pills were

visually distinct from the others. Id. Based on this evidence, the trial court convicted Sierra of

knowingly and intentionally possessing a controlled substance.

        On appeal, Sierra challenged the sufficiency of the evidence showing that he knowingly and

intentionally possessed methylphenidate. Id. at 775, 722 S.E.2d at 658. In affirming his

conviction, we stated that “the plain language of Code § 18.2-250 requires a defendant to know

that the substance he possesses is in fact a controlled substance, but that it does not require him

to know precisely what controlled substance it is.” Id. at 775, 722 S.E.2d at 658 (emphasis

                                                 -7-
added). Rather, the actual substance in a defendant’s possession “is an actus reus element the

Commonwealth must prove pursuant to [the statute], but it is not an element to which the mens

rea requirement . . . applies.” Id. at 778, 722 S.E.2d at 660. Therefore, while a defendant may

be ignorant of the exact substance that he possesses, his ignorance is not a defense where he had

the general mens rea to possess a controlled substance. Consequently, given our holding in

Sierra and given the General Assembly’s intent in enacting this statute to combat the scourge of

drugs, it logically follows that a defendant who had the general mens rea to possess a controlled

substance – but actually possessed more than one controlled substance in the same container – is

likewise not entitled to a reversal of each conviction.

       Appellant argues that we must reach the opposite conclusion in resolving this appeal. He

argues that “[w]hen faced . . . with 1 capsule containing 2 substances, and the requirement that

the Commonwealth establish that Appellant intentionally and consciously possessed [the

capsule] ‘with knowledge of its nature and character,’ . . . the holding of Sierra falls short.”2

(Emphasis in original). Appellant argues, “No Evidence was Presented that Appellant Knew the

Capsule Contained More Than One Substance.” (Emphasis added). To carry appellant’s

argument to its logical conclusion, because appellant did not intend to possess more than one


       2
          While appellant does not actually make a double jeopardy argument in his brief, his
argument is somewhat similar to a double jeopardy challenge. The Double Jeopardy Clause of
the United States Constitution protects against “(1) a second prosecution for the same offense
after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple
punishments for the same offense.” Payne v. Commonwealth, 257 Va. 216, 227, 509 S.E.2d 293,
300 (1999) (emphasis added). “In the single-trial setting, ‘the role of the constitutional guarantee
is limited to assuring that the court does not exceed its legislative authorization by imposing
multiple punishments for the same offense.’” Johnson, 292 Va. at 741, 793 S.E.2d at 322-23
(quoting Blythe v. Commonwealth, 222 Va. 722, 725, 284 S.E.2d 796, 798 (1981)). “When
considering multiple punishments for a single transaction, the controlling factor is legislative
intent.” Id. at 741, 793 S.E.2d at 323 (quoting Kelsoe v. Commonwealth, 226 Va. 197, 199, 308
S.E.2d 104, 104 (1983)). As we noted supra, however, the clear intent of Code § 18.2-250, as
enacted by the General Assembly, is to punish a defendant for any controlled substance that he
possesses. Here, appellant possessed a Schedule I narcotic and a Schedule II narcotic – both of
which warrant a separate conviction under the statute.
                                                 -8-
controlled substance (presumably the heroin), he lacked the general mens rea to be convicted of

what the capsule actually contained, and, therefore, he argues, both of his convictions for each

narcotic must be reversed and dismissed on appeal. Therefore, the more drugs the capsule

contained that appellant has in his possession, the more this Court is required to reverse each of

appellant’s convictions, according to appellant’s argument. It would be ironic indeed if the fact

that he was in possession of two controlled substances, instead of one, enabled him to succeed in

getting his convictions overturned.

       In short, we are not persuaded by the logic of appellant’s argument. Holding as appellant

suggests, and reversing both of his convictions, would completely fly in the face of the intent of

the General Assembly in enacting this legislation to fight the spread of illegal drugs in Virginia.

See Sierra, 59 Va. App. at 776, 722 S.E.2d at 659 (“[W]e must give effect to the legislature’s

intention as expressed by the language used unless a literal interpretation of the language would

result in a manifest absurdity.” (quoting Scott, 58 Va. App. at 48, 707 S.E.2d at 24)). To interpret

the statute as appellant argues would be to encourage drug dealers to mix various narcotics into

one container in order to thwart prosecution under Code § 18.2-250 for more than one felony

charge of possession of multiple narcotics in the same capsule, pill, or other container.

       We decided Sierra in 2012, and since then, in 2014, the General Assembly amended

Code § 18.2-250. See 2014 Va. Acts chs. 674, 719. In amending the statute, the General

Assembly did nothing to overturn our holding in Sierra or our interpretation of Code

§ 18.2-250’s mens rea component. Therefore, given that the General Assembly has been aware

of this Court’s interpretation of Code § 18.2-250 since 2012, it has clearly decided not to

overturn our holding by amending the statute’s general mens rea requirement. See Wright v.

Commonwealth, 52 Va. App. 690, 727, 667 S.E.2d 787, 805 (2008) (en banc) (“The legislature

is presumed to know the law when enacting legislation” or amending legislation). Therefore, in

                                                 -9-
line with our reasoning in Sierra, given that the evidence showed that appellant knowingly and

intentionally possessed the capsule with the general mens rea that it contained at least one illegal

controlled substance, appellant is criminally liable for whatever illegal controlled substances the

capsule contained.

       Here, “[v]iewing the evidence in the light most favorable to the Commonwealth, as we must

since it was the prevailing party in the trial court,” Riner v. Commonwealth, 268 Va. 296, 330, 601

S.E.2d 555, 574 (2004), we conclude that a rational factfinder could conclude that the evidence was

sufficient to convict appellant of possession of heroin and possession of fentanyl – both of which

were contained in the capsule.

       The evidence was undisputed that appellant actually possessed the capsule that contained

heroin and fentanyl. The capsule was in the pocket of appellant’s pants. Officer Kath testified

that, while she was searching appellant, he continually looked down towards the pocket where

the capsule was found. See Young v. Commonwealth, 275 Va. 587, 591, 659 S.E.2d 308, 310

(2008) (stating that a defendant’s guilty knowledge “may be shown by evidence of the acts,

statements or conduct of the accused”). In addition, as Officer Kath searched this area, appellant

continued to remove his hands from the top of his head despite the admonitions from the officers

not to do so. These continued movements, while being searched by a law enforcement officer,

required Officer Kath to repeatedly remind appellant to keep his hands on the top of his head.

Even more probative was appellant’s constant looking down toward the pocket where the

capsule containing the heroin and fentanyl was found. It is well established that other

“circumstantial evidence may also support a finding of a defendant’s knowledge of the nature

and character of the substance in his possession, such as the drug’s distinctive odor or

appearance, or statements or conduct of others in his presence that would tend to identify it.” Id.




                                               - 10 -
From this evidence, the trial judge, as a rational factfinder, could find that appellant knew that

the capsule was located in his pocket and that he was aware of its illicit nature and character.

           While no previous Virginia appellate cases have addressed the exact circumstances of

this case, we believe that our holding is supported by persuasive precedent from the appellate

courts of some of our sister states. See, e.g., State v. Woodard, No. CA2016-09-084, 2017 Ohio

App. LEXIS 3052 (Ohio Ct. App. July 24, 2017); State v. Hall, 692 S.E.2d 446 (N.C. Ct. App.

2010). Both of these cases affirmed the appellants’ multiple convictions for the possession of

illegal controlled substances, where two controlled substances were packaged in a single baggie

or pill.

           In State v. Hall, the North Carolina Court of Appeals affirmed Hall’s two convictions for

“possession of 3-4 Methylenedioxymethamphetamine, a schedule I controlled substance that is

also known as ‘ecstasy,’ and ketamine, a schedule III controlled substance.”3 Hall, 692 S.E.2d at

448. Police stopped Hall’s vehicle, and when the officer conducting the stop detected the odor of

marijuana, a drug-sniffing dog was used to confirm that probable cause existed to search the

vehicle. Id. The officer then searched the vehicle for contraband and found “two green pills”

that the officer believed to be ecstasy based upon his professional experience. Id. Hall denied

ownership of the pills. Id. Subsequent analysis of the pills determined that each of the two pills

contained both ecstasy and ketamine. Id.

           On appeal, Hall conceded that there was “sufficient evidence to submit at least one

charge to the jury.” Id. at 449. However, she argued that “the trial court erred by entering

sentences for both possession of ecstasy and possession of ketamine when both controlled


           3
          The applicable North Carolina statute states, “Except as authorized by this Article, it is
unlawful for any person . . . [t]o possess a controlled substance.” N.C. Gen. Stat. § 90-95(a)(3).
In Hall, the North Carolina Court of Appeals also stated, “Possession of a controlled substance
has two essential elements: (1) the substance must be possessed, and (2) the substance must be
knowingly possessed.” 692 S.E.2d at 449 (emphasis added).
                                                - 11 -
substances were contained in a single pill,” thereby violating her rights under the Double

Jeopardy Clause of the Fifth Amendment. Id. at 450. In resolving the case, the North Carolina

Court of Appeals affirmed both of her convictions and stated that “[a]ny amount of ecstasy and

any amount of ketamine found in Defendant’s possession would have been sufficient to charge

Defendant with possession of both controlled substances.” Id. at 451. Despite Hall’s arguments,

the court found that the fact that both drugs were contained within a single pill did not prevent a

conviction for possession of each illegal drug, although the court affirmed both convictions

largely on a double jeopardy analysis.

       More applicable to our case is the Ohio Court of Appeals decision in State v. Woodard.

In that case, Woodard was indicted for felony possession of heroin and felony “aggravated

possession of drugs,” which charge related to his possession of fentanyl.4 2017 Ohio App.

LEXIS 3052, at *1. Woodard, an inmate in an Ohio prison was observed by a guard as he made

a hand-to-hand exchange with a fellow inmate. Id. at *2. In this exchange, Woodard passed the

other inmate a “baggie of drugs.” Id. at *1. That baggie contained both heroin and fentanyl. Id.




       4
         The statute implicated in Woodard, Ohio Revised Code Section 2925.11(A), contains a
general mens rea requirement similar to that in Virginia Code § 18.2-250. “No person shall
knowingly obtain, possess, or use a controlled substance or a controlled substance analog.” Ohio
Rev. Code § 2925.11(A). Regarding the charges faced by Woodard, the court stated:

               Pursuant to R.C. 2925.11(C)(6), “[i]f the drug involved in the
               violation is heroin or a compound, mixture, preparation, or
               substance containing heroin, whoever violates division (A) of this
               section is guilty of possession of heroin.” Where the “drug
               involved in the violation is a compound, mixture, preparation, or
               substance included in schedule I or II, with the exception of
               marihuana, cocaine, L.S.D., heroin, hashish, and controlled
               substance analogs, whoever violates division (A) of this section is
               guilty of aggravated possession of drugs.” R.C. 2925.11(C)(1).

Woodard, 2017 Ohio App. LEXIS 3052, at *8-9.
                                         - 12 -
at *2. When the officers attempted to recover the baggie of drugs from the inmate who received

them, that individual attempted to swallow the baggie. Id. When confronted by the guards,

appellant denied passing anything to the inmate besides “just a little weed.” Id. at *3. On

appeal, the Ohio Court of Appeals found that the evidence was sufficient to support both of

appellant’s convictions for possession of the heroin and possession of the fentanyl.

Significantly, appellant’s own statement that he passed “just a little weed,” to the other inmate

established his knowledge that the baggie contained at least one illegal drug. “Although

appellant mischaracterized the controlled substance he handed over to [the other inmate], the fact

remains appellant knowingly possessed controlled substances in violation of [the statute].” Id. at

*11. Furthermore, the Ohio Court of Appeals likewise held in Woodard that the evidence was

sufficient to affirm both of Woodard’s convictions for possession of the heroin and possession of

the fentanyl, despite his statement that he only possessed a single drug in the baggie.

       Both the decision by the North Carolina Court of Appeals in Hall and the decision by the

Ohio Court of Appeals in Woodard support the decision that we reach here, affirming two

convictions for possession where both of the illegal controlled substances in appellant’s

possession were contained in the same capsule.

                                          III. CONCLUSION

       In 2012, we addressed Code § 18.2-250’s general mens rea requirement in Sierra, and we

held that the Commonwealth was not required to prove that a defendant knew the exact substance

he possessed to obtain a conviction. Rather, in terms of a defendant’s mens rea, we held that the

Commonwealth is only required to prove that the defendant knowingly and intentionally possessed

a controlled substance. The General Assembly has amended the statute since our decision and made

no changes to the statute that would overturn or otherwise change this Court’s decision in Sierra.

Here, given the General Assembly’s intent in enacting the statute to combat the spread of illegal

                                                - 13 -
drugs and given our decision in Sierra and the decisions of courts of appeals in our sister states in

cases similar to ours (particularly the decision of the Ohio Court of Appeals in State v. Woodard),

we conclude that the Commonwealth is not required to prove that a defendant knows each

controlled substance that a capsule contains in order to support convictions for both controlled

substances contained in the capsule under Code § 18.2-250 – as long as the defendant knows that

the capsule contains at least one controlled substance.

        The evidence here was sufficient, based upon appellant’s furtive movements while being

searched and his continuing to look towards the pocket where Officer Kath eventually found the

capsule, for a rational factfinder to conclude appellant was aware of the capsule’s presence and

knew that it contained at least one controlled substance. Therefore, for all of these reasons, we

affirm appellant’s convictions both for possession of heroin and possession of fentanyl.

                                                                                              Affirmed.




                                                 - 14 -
