COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Willis and Elder 

Argued at Richmond, Virginia 

WALTER E. PATTERSON, JR. 

 MEMORANDUM OPINION* BY 

v. Record No. 2340-96-2 CHIEF JUDGE NORMAN K. MOON 

 NOVEMBER 4, 1997 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF COLONIAL HEIGHTS 

William R. Shelton, Judge 

 Bradley N. Wall for appellant. 

 (Richard Cullen, Attorney General; Ruth Ann 

Morken, Assistant Attorney General, on 

brief), for appellee. 

 Walter E. Patterson, Jr. appeals his conviction, after a 

bench trial, of three counts of distributing imitation Schedule 

II controlled substances in violation of Code § 18.2-248(G). 

Patterson asserts that the evidence was insufficient to sustain 

his conviction. We agree and, therefore, reverse and dismiss. 

 On September 3, 1994, James Warren ("Warren") bought cocaine 

from Alan Haden ("Haden"). Warren believed Haden shorted him in 

the transaction, so when he saw the man he believed was Haden's 

supplier at Scott Robertson's ("Robertson") house, he asked him 

to make up the difference. The man gave Warren a substance 

appearing to be cocaine. Warren mixed the substance with the 

cocaine obtained from Haden, ingested it, and collapsed. 

Warren's wife administered CPR, and Warren was hospitalized. 

 

 *Pursuant to Code § 17-116.010, this opinion is not 

designated for publication. 
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Warren had never experienced such a reaction when using cocaine. 

 Warren testified that although he identified Patterson in a 

photographic lineup as being the man whom he believed made up the 

deficiency, after seeing Patterson in court, he could not 

identify Patterson as the supplier. 

 Robertson was also a regular user of cocaine who previously 

had not experienced any abnormal physical reactions to cocaine. 

After being granted immunity, he testified that Patterson was the 

man who gave Warren the substance appearing to be cocaine. He 

identified Patterson both in a photographic lineup and in court. 

 He testified that, as compensation for using his home for the 

transaction with Warren, Patterson gave him and Doug Hursey 

("Hursey"), a friend and frequent cocaine user, some of the same 

substance he had given to Warren. Robertson ingested the 

substance and became ill. 

 Hursey testified that the supplier was a black man named 

"Walter." Nevertheless, he also testified that he never saw 

"Walter" and thus could not identify anyone as being that man. 

Hursey testified that Robertson said "Walter" left the substance 

for the two of them. After ingesting the substance, Hursey 

became extremely ill. 

 Patterson contends that the evidence was insufficient to 

sustain his conviction because the witnesses' testimony did not 

establish beyond a reasonable doubt that he was the supplier. 

Patterson also contends that the evidence did not establish 

beyond a reasonable doubt that the substance distributed was an 
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imitation controlled substance. 

Identity

 "On appeal, we review the evidence in the light most 

favorable to the Commonwealth, granting to it all reasonable 

inferences fairly deducible therefrom." Martin v. Commonwealth, 

4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). Robertson 

identified Patterson both in a photographic lineup and in court. 

Robertson's testimony was not contradicted; in fact, Warren's 

photographic identification corroborated Robertson's testimony. 

We, therefore, hold that the evidence was sufficient to support 

the identification of Patterson. 

Imitation Controlled Substance

 Patterson also contends that the evidence did not establish 

beyond a reasonable doubt that the substance distributed was an 

imitation controlled substance. To sustain a conviction of 

distributing imitation Schedule II controlled substances in 

violation of Code § 18.2-248(G), the Commonwealth must prove 

"that the substance . . . `by express or implied representations 

purport to act like a controlled substance . . . [or] by overall 

dosage unit appearance . . . would cause the likelihood that such 

a [substance] will be mistaken for a controlled substance.'" 

Werres v. Commonwealth, 19 Va. App. 744, 748, 454 S.E.2d 36, 38 

(1995) (quoting Code § 18.2-247(B)(1-2)). All three witnesses' 

testimony suggests that they believed the substance was cocaine 

based on its appearance and the reason for which the man gave it 

to them (to make up for the deficiency and as compensation for 
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use of Robertson's home). 

 The Commonwealth also bears the burden of proving that the 

substance Patterson distributed is "not a controlled substance 

subject to abuse." Code § 18.2-247(B). No evidence was 

introduced to prove that the substance was not cocaine. Indeed, 

a reasonable inference is that the substance could have been 

cocaine that was merely "cut" with another substance. Because 

the Commonwealth failed to prove a necessary element of the 

crime, we reverse and dismiss. 

 Reversed and dismissed.