Carlton Lee Wiley v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: March 4, 2008
• Docket: 0798073
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges McClanahan, Petty and Beales Argued at Salem, Virginia

CARLTON LEE WILEY MEMORANDUM OPINION * BY v. Record No. 0798-07-3 JUDGE RANDOLPH A. BEALES MARCH 4, 2008 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF CAMPBELL COUNTY Von L. Piersall, Jr., Judge Designate

Scott R. Geddes (Scott R. Geddes, PC, on brief), for appellant.

(Robert F. McDonnell, Attorney General; Karri B. Atwood, Assistant Attorney General; Joanne V. Frye, Assistant Attorney General, on brief), for appellee. Appellee submitting on brief.

Carlton Lee Wiley (appellant) was convicted following a bench trial of two counts of

distribution of a Schedule I, II, III, or IV drug to a person under the age of 18, in violation of

Code § 18.2-255, and two counts of contributing to the delinquency of a minor, in violation of

Code § 18.2-371. This appeal addresses the sufficiency of the evidence to sustain appellant’s

convictions for violating Code § 18.2-255. 1 For the reasons that follow, we affirm those

convictions.

BACKGROUND

“Applying well-established principles of appellate review, we must consider the evidence

and all reasonable inferences fairly deducible therefrom in the light most favorable to the

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 1 This Court denied the part of appellant’s petition requesting that this Court review the convictions for the two counts of contributing to the delinquency of a minor, so they are not now before the Court in this appeal. Commonwealth, the prevailing party below.” Walker v. Commonwealth, 272 Va. 511, 513, 636

S.E.2d 476, 477 (2006). “That principle requires us to discard the evidence of the accused in

conflict with that of the Commonwealth and to regard as true all the credible evidence favorable

to the Commonwealth and all fair inferences that may be drawn therefrom.” Guda v.

Commonwealth, 42 Va. App. 453, 455, 592 S.E.2d 748, 749 (2004).

On a Friday evening in September 2005, appellant’s seventeen-year-old daughter (A.W.)

had two friends over to her home, which she shared with appellant. 2 While the girls were getting

dressed in A.W.’s bedroom, appellant returned home and entered his daughter’s bedroom. A.W.

asked him to leave because one of her friends was only partially dressed. Appellant left but

returned several minutes later. According to A.W. and her friends, appellant appeared drunk.

According to C.L., one of A.W.’s friends, appellant gave C.L. a pill that he told her was

morphine. She testified that appellant told C.L. that she could not leave until she took the pill.

C.L. swallowed the pill and washed it down with some beer that appellant gave her. C.L.

described the pill that appellant gave her as small, oval shaped, and with an off-white color

having a yellowish tint to it. She said the pill made her feel like she was in “a daze” while at a

party that she and the other two girls attended later that night. C.L. remembered “sitting down

and . . . [not] really want[ing] to get up, [I] was just all laid back.” Appellant had also informed

C.L. that she would get sick if she took the pill on an empty stomach; C.L. remembered vomiting

the morning after taking the morphine pill.

After giving C.L. the morphine pill, A.W. said that appellant shortly thereafter gave her

two pills as well. She testified that appellant told her that one pill was a Darvocet and the other

was a muscle relaxer. A.W. took the pills and washed them down with some beer that appellant

2 In order to protect the identity of the three minor girls associated with this appeal, the minor girls’ initials will be used in lieu of their full names.

-2- also gave her. A.W. said the Darvocet was long, oval, and pink. A.W. remembered feeling slow

and a little dizzy while at the party later that night.

The third girl present, N.H., did not take any pills or consume any alcohol because she

was pregnant. N.H. confirmed, though, that appellant “gave [C.L.] some pills at first” and then

gave A.W. one or two pills. N.H. said that, while at the party later that night, C.L. and A.W.

“were just out of it and not tired but just felt like they didn’t want to move. They said that they

felt heavy.”

Appellant’s pharmacist, Roger Akers, testified that he filled a morphine prescription for

appellant on September 1 and that those pills, which were manufactured by Endeo, were small,

oblong, and orange. However, Akers also said that the color of the morphine pills changes

depending on the manufacturer and that he had previously also carried an “off-white yellow”

color of morphine pills. Akers also filled Darvocet for appellant on August 30th. Akers stated

that the Darvocet pills that he carried were large and oblong and that all of the manufacturers he

had bought Darvocet from supplied him with hot pink pills. According to Akers, morphine is a

Schedule II substance and Darvocet is a Schedule IV substance. 3

Dr. David Burrows, a forensic toxicologist employed by the Virginia Department of

Forensic Science, testified that the effects of morphine are “nausea, drowsiness, dizziness” along

with “euphoria” and “feelings of well being.” Burrows confirmed that feelings of heavy limbs

and dizziness could be experienced after taking morphine. Burrows explained that Darvocet

could cause “drowsiness, dizziness, disorientation, nausea” and that “feeling like in slow

motion” would be consistent with the side effects of Darvocet. Burrows confirmed that

3 Akers testified, “A muscle relaxer is not a controlled substance.” Appellant was not charged, therefore, with distribution of the muscle relaxer to his daughter.

-3- morphine is a Schedule II controlled substance and Darvocet is a Schedule IV controlled

substance.

Appellant denied giving any pills to the girls. Nevertheless, the trial court found

appellant guilty, noting “the evidence clearly shows that you had access to this [sic] sort of

controlled substances which witnesses, a young girl said that – that you said you were giving

them and that their reaction or physical reaction to later on was consistent with someone reacting

to those kinds of drugs.” The trial court sentenced appellant, on all counts, to an active term of

incarceration of five years and twelve months.

ANALYSIS

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)). “Viewing 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), “[w]e must

instead ask whether ‘any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt,’” Crowder, 41 Va. App. at 663, 588 S.E.2d at 387 (quoting

Kelly v. Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003)). “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.” Jackson, 443 U.S. at 319.

Code § 18.2-255 states “it shall be unlawful for any person who is at least 18 years of age

to knowingly or intentionally (i) distribute any drug classified in Schedule I, II, III or IV or

marijuana to any person under 18 years of age who is at least three years his junior . . . .”

-4- Therefore, “The Commonwealth was required to prove that the defendant knowingly or

intentionally distributed a controlled drug. The purpose of this statute is to provide enhanced

punishment, where children are involved, to an activity which is illegal no matter what the age of

the purchaser.” Pannell v. Commonwealth, 9 Va. App. 170, 174, 384 S.E.2d 344, 346 (1989).

Here, as the trial court appropriately noted, the evidence demonstrates that appellant had

access to both morphine and Darvocet. Appellant’s pharmacist, Roger Akers, confirmed that he

had filled appellant’s prescriptions for both drugs prior to September 16, 2005. The only color

and shape of Darvocet that Akers carried in his pharmacy matched the description given by A.W.

of the pill appellant gave her. While Akers said that he had filled a prescription of morphine for

appellant with small orange pills, Akers also confirmed other pharmacists carried (and that he

had previously also carried) an off-white yellow morphine pill that was consistent with the pill

that C.L. described appellant gave to her.

Moreover, as the expert witness, toxicologist Dr. Burrows, explained, the side effects felt

by C.L. and A.W. (and witnessed by N.H.) were consistent with the side effects of morphine and

Darvocet. The side effects that the girls experienced, therefore, also substantiate their

recollection of appellant’s representation, which he made to them at the time he gave them the

pills, that he was actually giving C.L. morphine and A.W. Darvocet.

Appellant cites Hinton v. Commonwealth, 15 Va. App. 64, 421 S.E.2d 35 (1992), in

support of his argument that, since neither girl had sophisticated knowledge of either morphine

or Darvocet, neither girl could positively identify the pill appellant gave to her absent his

representation as to what the pills actually were, and, therefore, his convictions should be

overturned. In Hinton, this Court noted that the witness

did not identify the “cocaine” by describing its appearance, the manner in which it affected her, her previous “familiarity or experience” with the drug or provide other foundation for her conclusion that it was, in fact, the substance purchased from -5- defendant. Thus, [the witness’] testimony was simply insufficient to prove that defendant distributed cocaine to her.

15 Va. App. at 66, 421 S.E.2d at 37. Here, though, the girls described with particularity the

appearance of the pills that appellant gave to them, which matched the descriptions given by

pharmacist Roger Akers, and described the manner in which the pills affected them, which was

corroborated by both Akers and the toxicologist expert witness, Dr. Burrows. These descriptions

were entirely consistent with appellant’s representation as to what the pills he gave to them

actually were. We have previously held that the types of circumstantial evidence recounted

above may be considered to prove the nature of a particular substance. See Hill v.

Commonwealth, 8 Va. App. 60, 63, 379 S.E.2d 134, 136 (1989) (listing “the physical appearance

of the substance involved,” “evidence that the substance produced the expected effects,” and

“evidence that the substance was called by the name of the [substance] by the defendant” among

the types of circumstantial evidence that may be considered). Consequently, the foundation not

present in Hinton is present in the case at bar. 4

In addition, the judge specifically stated that he believed the girls’ testimony, thereby

rejecting appellant’s claim of innocence. “The 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). Finally, “[i]n its role of judging witness credibility, the fact finder is

entitled to disbelieve the self-serving testimony of the accused and to conclude that the accused

4 Familiarity by the victim with the substance she is being given is not an element of the offense prohibited by Code § 18.2-255. While we have previously held that users of a particular drug, “if they have gained a familiarity or experience with a drug, may identify it,” Hill, 8 Va. App. at 63, 379 S.E.2d at 136, we note that testimony from a prior user is not necessary to prove the identity of a particular substance. Certainly, as here, there could be many instances where a minor child does not have independent or sophisticated knowledge of a controlled substance being given to her by an adult. In short, the statute certainly does not require that a minor child have such knowledge in order to obtain a conviction under the statute. -6- is lying to conceal his guilt.” Marable v. Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d

233, 235 (1998).

Here, the evidence demonstrates that appellant had access to both morphine and

Darvocet, which he also told the girls he was giving to them. While the morphine pill that C.L.

said she received from appellant did not match the description of the morphine pills that

pharmacist Roger Akers testified that he dispensed to appellant on September 1, Akers noted that

other pharmacists carried the type of morphine pill described by C.L. He also confirmed that he

had previously carried it prior to September 1. The symptoms experienced by C.L. and A.W. are

consistent with the side effects often experienced after taking those drugs, according to the

toxicologist expert witness, Dr. David Burrows. The evidence reflects that morphine and

Darvocet fit into the schedules listed in Code § 18.2-255, and both Dr. Burrows and Akers

confirmed that morphine is a Schedule II controlled substance and that Darvocet is a Schedule

IV controlled substance. Therefore, based upon the totality of the evidence contained in this

record, we hold that a rational trier of fact could certainly conclude that appellant knowingly and

intentionally gave C.L. morphine, a Schedule II controlled substance, and that appellant

knowingly and intentionally gave A.W. Darvocet, a Schedule IV controlled substance.

CONCLUSION

Based upon the foregoing, we affirm appellant’s convictions.

Affirmed.

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