COURT OF APPEALS OF VIRGINIA
Present: Judges McCl anahan, Petty and Beales Argued at Salem, Virginia

CARLTON LEE WILEY MEMORANDUM OPINION * BY v. Record No. 0798-07-3 J UDGE 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. Gedd es, PC, on brief), for appellant. (Robert F. McDonnell, Atto rney 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 suffici ency of the evidence to sustain appellant’s convictions for violating Code § 18.2-255. 1 For the reasons that follow, we affirm those convictions.
B ACKGROUND “Applying well-established princi ples 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 opin ion 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.- 2 - Commonwealth, the prevailing party below.” Walker v. Commonwealth , 272 Va. 511, 513, 636 S.E.2d 476, 477 (2006). “That principl e requires us to discard the evidence of the accused in conflict with that of the Commonwea lth and to regard as true all the credible evidence favorable to the Commonwealth and all fair infere nces 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, appe llant’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, appe llant returned home and entered his daughter’s bedroom. A.W. asked him to leave because one of her friends was only partially dresse d. 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, appe llant 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 appellantgave her as small, oval shaped , and with an off-white color having a yellowish tint to it. She said the pill ma de 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 ju st all laid back.” Appe llant 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 to ld her that one pill was a Darvocet and the other was a muscle relaxer. A.W. took the pills and wa shed them down with some beer that appellant

2 In order to protect the identi ty of the three minor girls asso ciated with this appeal, the minor girls’ initials will be used in lieu of their full names.- 3 - also gave her. A.W. said the Darvocet was l ong, 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 appellan t “gave [C.L.] some pills at first” and then gave A.W. one or two pills. N.H. said that, wh ile 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 mor phine prescription for appellant on September 1 and that those pills, which were manufactured by Endeo, were small, oblong, and orange. However, Akers also said th at the color of the morphine pills changes depending on the manufacturer and that he had pr eviously also carried an “off-white yellow” color of morphine pills. Akers also filled Darv ocet for appellant on August 30th. Akers stated that the Darvocet pills that he carried were large and oblong and th at all of the manufacturers he had bought Darvocet from supplied hi m with hot pink pills. Accord ing to Akers, morphine is a Schedule II substance and Darvo cet 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 confir med that feelings of heavy limbs and dizziness could be experien ced after taking morphine. Burro ws explained that Darvocet could cause “drowsiness, dizziness, disorien tation, nausea” and that “feeling like in slow motion” would be consistent with the side e ffects 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.- 4 - morphine is a Schedule II cont rolled 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 sh ows that you had access to this [sic] sort of controlled substances which witnesses, a young gi rl 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 sentence d appellant, on all counts , to an active term of incarceration of five years and twelve months.
A NALYSIS When considering the sufficiency of the evidence on appeal, “a reviewing court does not ‘ask itself whether it believes that the evidence at the tr ial 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 th e trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, an d 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 fo r any person who is at least 18 years of age to knowingly or intentionally (i) distribute any dr ug classified in Schedule I, II, III or IV or marijuana to any person under 18 year s of age who is at least thr ee years his junior . . . .”- 5 - Therefore, “The Commonwealth was required to prove that the de fendant knowingly or intentionally distributed a controlled drug. The purpose of this statute is to provide enhanced punishment, where children are involved, to an activ ity 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, th e 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 dr ugs prior to September 16, 2005. The only color and shape of Darvocet that Akers carried in hi s 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 mo rphine 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 cons istent with the side e ffects of morphine and Darvocet. The side effects that the girls e xperienced, therefore, al so substantiate their recollection of appellant’s repres entation, 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 gi rl could positively identify the pill appellant gave to her absent his representation as to what the p ills actually were, a nd, therefore, his conv ictions 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- 6 - defendant. Thus, [the witness’] testimony was simply insufficient to prove that defendant di stributed 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 a ppellant gave to them, which ma tched 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 t oxicologist expert witness, Dr. Burrows. These descriptions were entirely consistent with a ppellant’s representation as to wh at the pills he gave to them actually were. We have previously held that the types of circumstan tial 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,” “evid ence that the substance produ ced the expected effects,” and “evidence that the substance was called by the na me 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 cr edibility, 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 sh e 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 tes timony from a prior user is not necessary to prove the identity of a particul ar 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 shor t, the statute certainly does not require that a minor child have such knowledge in order to obtain a convicti on under the statute.- 7 - 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 gi ving to them. While the morphine pill that C.L. said she received from appellant did not matc h the description of th e morphine pills that pharmacist Roger Akers testified that he dispense d 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 experi enced 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 contro lled 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 c ould certainly conclude th at appellant knowingly and intentionally gave C.L. morphi ne, a Schedule II controlled s ubstance, and that appellant knowingly and intentionally gave A.W. Darvocet , a Schedule IV controlled substance.
C ONCLUSION Based upon the foregoing, we affi rm appellant’s convictions. Affirmed.