                                             COURT OF APPEALS OF VIRGINIA


              Present: Chief Judge Huff, Judge O’Brien and Senior Judge Haley
UNPUBLISHED


              Argued at Norfolk, Virginia


              MICHAEL WILLIS JOHNSON
                                                                           MEMORANDUM OPINION* BY
              v.     Record No. 1573-14-1                                  JUDGE MARY GRACE O’BRIEN
                                                                                JANUARY 12, 2016
              COMMONWEALTH OF VIRGINIA


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

                               Dalton L. Glass, Assistant Public Defender (Rachel E. Wentworth,
                               Assistant Public Defender, on brief), for appellant.

                               Susan Baumgartner, Assistant Attorney General (Mark R. Herring,
                               Attorney General, on brief), for appellee.


                     Following a bench trial on April 20, 2014, the Chesapeake Circuit Court found Michael

              Willis Johnson (“appellant”) guilty of two felonies: possession of a Schedule I or II controlled

              substance (oxycodone), in violation of Code § 18.2-250, and possession with the intent to

              distribute a Schedule I or II controlled substance (cocaine), in violation of Code § 18.2-248. The

              court also found appellant guilty of the misdemeanor charges of possession of marijuana, in

              violation of Code § 18.2-250.1; possession of Tylenol with codeine, in violation of Code

              § 18.2-250; and driving with a suspended or revoked operator’s license, in violation of County

              Ordinance 74-73 (74-4). The court sentenced appellant to serve nine years and 180 days

              incarceration in the state penitentiary with eight years and ninety days suspended. This appeal

              follows.



                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       Appellant asserts three assignments of error:

          I.   The trial court erred in overruling appellant’s motion to suppress
               statements made after he invoked his Fifth Amendment right to
               remain silent.

         II.   The trial court erred in finding appellant guilty of possession of
               Oxycodone, where there was insufficient evidence to show that
               appellant was aware of the nature and presence of the substance.

        III.   The trial court erred in finding Johnson guilty of possession with
               intent to distribute where there was insufficient evidence to
               corroborate appellant’s statements.

                                       I. BACKGROUND

       On September 16, 2013, Officer Juan Wood stopped a Ford van because it had a

defective brake light. Appellant, the driver, was alone in the vehicle. When appellant rolled

down his window, Officer Wood immediately smelled a strong odor of burned marijuana.

Appellant told the officer that he had “just finished smoking it.” He gave the officer a Georgia

driver’s license and acknowledged that he knew his operator’s license was suspended.

       Officer Wood searched appellant and found a partially-smoked marijuana blunt in one

pocket of his pants and a plastic bag with suspected powder cocaine in another pocket. At that

point, he handcuffed appellant, put him in the police vehicle, and searched the van. The officer

found a grinder and a small digital scale in an open, “cubby”-like area underneath the radio. He

also found several baggies that held suspected contraband. Two baggies contained small pills,

later determined to be oxycodone with acetaminophen, codeine with acetaminophen, and Tylenol

3. Another baggie contained 1.516 grams of cocaine.

       Officer Wood returned to his patrol car and read appellant his Miranda rights. The

officer told appellant what he found in the van and began to ask him about the drugs. The officer

was wearing a body camera, which recorded the encounter.




                                               -2-
       Approximately four and a half minutes into the conversation, Officer Wood offered to

contact a narcotics detective to speak to appellant about the possibility of appellant being used as

a confidential informant. According to the Commonwealth’s transcript of the video, appellant

responded by saying, “Like I said, I just got to take, I got to take everything.” The officer then

asked, “So you’re not going to talk to nobody? You don’t want to talk to the detective? I’m

asking?” Appellant said, “I don’t know what you mean by [unintelligible]” and did not answer

the officer’s question. The officer testified that when he asked appellant whether he wished to be

interviewed by a narcotics detective, appellant said “No, I don’t want to talk to anybody.”1

Officer Wood testified that he told appellant, “[T]hat’s your right. You don’t have to, but if you

do change your mind, let me know, and I can call them and have them either meet you here or

meet you at the jail.”

       Officer Wood stepped away and began to talk to another officer. Appellant called to him

and asked, “Can you tell me what the baggie was? I don’t even know what that was. I’m just

curious.” Officer Wood turned back to appellant and showed him the drugs that the officer

found in the van. Appellant identified the pills as Percocet and Tylenol 3, but denied knowing

what the cocaine was. He continued to talk to Officer Wood on the way to the jail, and

ultimately admitted that he was going to sell the cocaine at work. Officer Wood testified that

appellant never requested counsel and never asserted his right to remain silent.

       Appellant moved to suppress all of the statements that he made after he “indicated that he

wished to stop talking with Officer Wood.” After hearing evidence and reviewing the video

from Officer Wood’s body camera, the court found that appellant never made an unambiguous

assertion or invocation of his right to remain silent. The court held that appellant’s statement


       1
         During the suppression hearing, Officer Wood alternately characterized appellant’s
response to his offer as “I don’t want to talk to anybody,” and “I don’t want to talk to them about
it.” The exact words were not intelligible on the video.
                                                 -3-
only referred to not wanting to talk to a narcotics detective about becoming a confidential

informant. The court noted that “after declining the narcotics interview, the defendant [was]

consistently pleading his case.” Accordingly, the court denied the motion to suppress.

                                            II. ANALYSIS

                                  A. Denial of Suppression Motion

                                        1. Standard of Review

        In reviewing a trial court’s ruling on a motion to suppress, this Court views the evidence

“in the ‘light most favorable to . . . the prevailing party below,’ . . . and the decision of the trial

judge will be disturbed only if plainly wrong.” Greene v. Commonwealth, 17 Va. App. 606,

608, 440 S.E.2d 138, 139 (1994) (quoting Commonwealth v. Grimstead, 12 Va. App. 1066,

1067, 407 S.E.2d 47, 48 (1991)). The defendant has the burden to show that the trial court’s

denial of his suppression motion was reversible error. Jones v. Commonwealth, 277 Va. 171,

177-78, 670 S.E.2d 727, 731 (2009).

        “The issue whether a suspect invoked his right to counsel presents a mixed question of

law and fact.” Commonwealth v. Hilliard, 270 Va. 42, 49, 613 S.E.2d 579, 584 (2005). The trial

court’s findings of fact are only reviewed for “clear error,” and deference is given to the trial

court’s inferences that were drawn from the factual findings. Id. at 49-50, 613 S.E.2d at 584.

However, in the absence of a factual dispute, the issue of whether a defendant’s invocation of his

right to remain silent “was sufficiently unambiguous under the circumstances to preclude further

questioning by the law enforcement officers” is reviewed de novo. Stevens v. Commonwealth,

283 Va. 296, 302, 720 S.E.2d 80, 82 (2012). Because there is no substantive factual dispute as to

the conversation between appellant and Officer Wood, we review the trial court’s findings de

novo.




                                                  -4-
                  2. The Trial Court Correctly Denied the Suppression Motion

       In Miranda v. Arizona, 384 U.S. 436 (1966), the United States Supreme Court held that if

a suspect “indicates in any manner, at any time prior to or during questioning, that he wishes to

remain silent, the interrogation must cease.” Id. at 473-74. However, to invoke the right to

remain silent, a defendant must clearly and unambiguously communicate that he wishes to stop

the interrogation and remain silent. Midkiff v. Commonwealth, 250 Va. 262, 266, 462 S.E.2d

112, 115 (1995). “Miranda should not be read so strictly as to require the police to accept as

conclusive any statement, no matter how ambiguous, as a sign that the suspect desires to cut off

questioning.” Lamb v. Commonwealth, 217 Va. 307, 312, 227 S.E.2d 737, 741 (1976). A

suspect must indicate his desire to remain silent “sufficiently clearly that a reasonable police

officer in the circumstances would understand the statement” to be an invocation of his Fifth

Amendment rights. Davis v. United States, 512 U.S. 452, 459 (1994).

       When determining whether a defendant made an unambiguous assertion of his Fifth

Amendment rights, a court is not limited to a single statement or considering only the words

spoken. Stevens, 283 Va. at 303-04, 720 S.E.2d at 83-84. The circumstances preceding the

request are also relevant. Id.; see also Hilliard, 270 Va. at 50, 613 S.E.2d at 584 (“Therefore,

appellate consideration of the circuit court’s denial of [appellant’s] motion to suppress is

restricted to a de novo review of the legal issue whether [appellant’s] words, taken in context,

were sufficient to invoke his right to counsel.” (emphasis added)).

       In the present case, the context in which the statements were made supports the trial

court’s denial of appellant’s motion to suppress. Officer Wood was providing appellant the

opportunity to talk with a narcotics officer. Appellant’s assertion that he did not want to talk

must be considered in the framework of that conversation. As the trial court found, appellant

was only stating that he did not want Officer Wood to call the narcotics detective. He was not

                                                -5-
unambiguously asserting his right to remain silent. In fact, appellant indicated that he wanted to

keep talking to Officer Wood; appellant called him back to the car, asked him what was in the

baggie, and continued to speak with Officer Wood as the officer drove him to the jail. When

appellant said, “I don’t want to talk to anybody,” he was merely declining the offer to talk to a

narcotics detective. See Mitchell v. Commonwealth, 30 Va. App. 520, 527, 518 S.E.2d 330, 333

(1999) (holding that when a defendant told police “I ain’t got shit to say to y’all” then proceeded

to volunteer information, the statement did not constitute a clear and unambiguous invocation of

the Fifth Amendment right to remain silent).

       Accordingly, appellant did not indicate his desire to remain silent “sufficiently clearly

that a reasonable police officer in the circumstances would understand the statement” to be an

invocation of Miranda. Davis, 512 U.S. at 459. We do not find that the court erred when it

determined that appellant did not unambiguously assert his right to remain silent and therefore

denied appellant’s motion to suppress his statements.

                B. Assignments of Error II and III: Sufficiency of the Evidence

                                      1. Standard of Review

       Appellant argues that the trial court erred in finding him guilty of possession of

oxycodone because the evidence was insufficient to establish that he knew the nature of the

substance he possessed. He also asserts that the evidence was insufficient to establish that he

intended to distribute the cocaine found on his person and in the vehicle. “When reviewing the

sufficiency of the evidence to support a conviction, the Court will affirm the judgment unless the

judgment is plainly wrong or without evidence to support it.” Bolden v. Commonwealth, 275

Va. 144, 148, 654 S.E.2d 584, 586 (2008). On appeal, “the evidence and all reasonable

inferences flowing therefrom must be viewed in the light most favorable to the prevailing party

in the trial court.” Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003).

                                                -6-
An appellate court merely determines if “any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319

(1979).

                      2. Evidence Sufficient to Prove Possession of Oxycodone

          To prove possession of a controlled substance, the Commonwealth must establish that the

defendant’s possession of the drug was knowing and intentional. Young v. Commonwealth, 275

Va. 587, 591, 659 S.E.2d 308, 310 (2008). While a defendant must be aware that the item he

possesses is in fact a controlled substance, “the plain language of Code § 18.2-250 . . . does not

require him to know precisely what controlled substance it is.” Sierra v. Commonwealth, 59

Va. App. 770, 775, 722 S.E.2d 656, 658 (2012).

          In Sierra, the defendant was searched incident to an arrest for driving while intoxicated.

Id. at 774, 722 S.E.2d at 658. Eight prescription pills were found in his pants and shirt pockets.

Id. A chemical analysis revealed that two of the pills contained a Schedule II controlled

substance. Id. The defendant testified that earlier that evening he asked someone at a bar for

Tylenol or aspirin because of back pain. Id. He stated that he “thought [the pills] were aspirin

and Tylenol” and put them in his pocket. Id. at 775, 722 S.E.2d at 658. The trial court did not

find the defendant’s testimony credible and ruled that “it was obvious that [the pills] were some

sort of prescription.” Id. at 784, 722 S.E.2d at 663.

          On appeal, we held that it was immaterial that the defendant did not know the exact

nature of the controlled substance in his possession. Id. “[T]he General Assembly has chosen

not to excuse a defendant who knows he is possessing a controlled substance, but is unaware or

perhaps mistaken as to the precise identity of the specific substance he is possessing (e.g., a

defendant who thinks he is possessing heroin, when he is actually possessing cocaine).” Id. at

779, 722 S.E.2d at 660.

                                                  -7-
       In the case before us, appellant argues that because he identified the pills in his

possession as “Percocet,” he cannot be convicted of possessing oxycodone. This argument is

without merit. When appellant identified the pills by their brand name, Percocet, he

demonstrated that he knew the nature and character of the substance. Percocet is a brand name

for oxycodone; oxycodone is the narcotic agent contained in the pill. Appellant identified the

pills by name in his conversation with the officer—“The pills, they are mine, the Percocet, the

Tylenol 3.” See Turner v. Commonwealth, 14 Va. App. 737, 739, 420 S.E.2d 235, 236 (1992)

(“[O]xycodone, also known as Percocet, [is] a Schedule II controlled substance.”). The

Commonwealth was not required to establish that appellant could specifically identify

oxycodone as the narcotic contained in Percocet; therefore, the evidence was sufficient to

establish that he knowingly possessed the drug. Accordingly, the trial court’s finding was not

“plainly wrong or without evidence to support it.” Bolden, 275 Va. at 148, 654 S.E.2d at 586.

                       3. Evidence Sufficient to Prove Intent to Distribute

       Appellant argues that the evidence was insufficient to prove intent to distribute because

there was insufficient evidence to corroborate appellant’s statements. While corroboration of a

confession is required to support a conviction, the corroboration need only be “slight,” and need

not be “of all the contents of the confession, or even all the elements of the crime.” Allen v.

Commonwealth, 287 Va. 68, 74, 752 S.E.2d 856, 860 (2014) (quoting Watkins v.

Commonwealth, 238 Va. 341, 348, 385 S.E.2d 50, 54 (1989)).

       Appellant confessed to the officer that his plan was to sell the cocaine to his co-workers.

He said he planned “to make some money out of it,” and at trial he conceded that he told Officer

Wood that he might “be exchanging or giving [the cocaine] away.” Clearly, these statements

establish his intent to dispense the controlled substance.




                                                -8-
       Additionally, appellant was in possession of a small digital scale, located in a “cubby”

under the dashboard. There was no evidence that appellant had a pipe or other paraphernalia

necessary to smoke crack cocaine. There was evidence, however, that he possessed other drugs

in addition to the cocaine.

       Determining appellant’s intent is a factual question, solely within the purview of the

factfinder. Ingram v. Commonwealth, 192 Va. 794, 801-02, 66 S.E.2d 846, 850 (1951). We

cannot say that the factfinder in this case was plainly wrong; the record amply supports the

court’s conclusion that the evidence was sufficient.

                                       III. CONCLUSION

       For the foregoing reasons, the decision of the trial court is affirmed.

                                                                                        Affirmed.




                                                -9-
