COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Decker, Judges Beales and AtLee

Argued by teleconference

RICHARD AMOS TAYLOR

MEMORANDUM OPINION* BY

v. Record No. 1197-19-3 JUDGE RICHARD Y. ATLEE, JR.

JULY 28, 2020

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF ROANOKE COUNTY

Charles N. Dorsey, Judge

(Melvin L. Hill, on brief), for appellant. Appellant submitting 

on brief.

Rachel L. Yates, Assistant Attorney General (Mark R. Herring, 

Attorney General, on brief), for appellee.

Following a bench trial, the circuit court convicted appellant Richard Amos Taylor of 

possession with intent to distribute an imitation controlled substance. Taylor contends that the 

evidence was insufficient to sustain his conviction because the substance did not meet the 

statutory definition of an “imitation controlled substance” under Code § 18.2-247(B). For the 

following reasons, we affirm.

I. BACKGROUND

“On appeal of criminal convictions, we view the facts in the light most favorable to the 

Commonwealth, and draw all reasonable inferences from those facts.” Payne v. Commonwealth, 

65 Va. App. 194, 198 (2015). So viewed, on September 3, 2017, Vinton Police Officer D.L. 

Cox, acting undercover, arranged to purchase heroin from Taylor as part of a “buy and bust” 

operation. Taylor “boasted” to Cox over the phone about his heroin product, and claimed that it 

* Pursuant to Code § 17.1-413, this opinion is not designated for publication.

UNPUBLISHED
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was “raw,” “came straight from New Jersey,” and “did not contain any Fentanyl.” Taylor agreed 

to meet Cox at a predetermined location and, when Taylor arrived in a car with two other 

persons, police removed all of them from the car. Taylor was seated in the rear driver’s side 

seat. A search of the car revealed a knotted plastic baggie that contained an off-white substance 

from the seat pocket behind the driver’s seat, in the immediate area where Taylor had been 

seated. While detained, Taylor explained to Cox that the baggie contained “Benefiber” and he 

had intended to mix it with cocaine (yet to be obtained from another dealer) and sell it to Cox. 

Upon further testing, the substance was confirmed to contain no meaningful quantity of any

controlled substance, and according to expert testimony, “appeared to be something similar or 

that of like corn syrup solids such as baby formula.”

Taylor argued that the substance recovered was not an “imitation controlled substance” 

under the statute because it fell under an exception set forth in Code § 18.2-247(B)(ii)(1)

(referred to herein as the “introduction into commerce” exception). The circuit court rejected 

this argument, convicting Taylor of possession with intent to distribute an imitation controlled 

substance and sentencing him to five years’ incarceration with three years and six months

suspended. This appeal followed.

II. ANALYSIS

Under Code § 18.2-248(A), “it shall be unlawful for any person to manufacture, sell,

give, distribute, or possess with intent to manufacture, sell, give or distribute a controlled 

substance or an imitation controlled substance.”

Code § 18.2-247(B)(ii) defines an imitation controlled substance as follows:

a pill, capsule, tablet, or substance in any form whatsoever which is not a 

controlled substance subject to abuse, and:

(1) Which by overall dosage unit appearance, including color, 

shape, size, marking and packaging or by representations made, 
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would cause the likelihood that such a pill, capsule, tablet, or 

substance in any other form whatsoever will be mistaken for a 

controlled substance unless such substance was introduced into 

commerce prior to the initial introduction into commerce of the 

controlled substance which it is alleged to imitate . . . .

(Emphasis added.) It is this final language that Taylor relies upon, arguing that “[t]he substance 

was introduced into commerce of [sic] the controlled substance which it is alleged to imitate.”1 

We generously interpret this sentence to mean that Taylor believes that because the substance he 

possessed, corn syrup or baby formula, was introduced into commerce prior to heroin,2the 

substance he possessed with intent to distribute falls outside the definition of an imitation 

controlled substance under Code § 18.2-247(B)(ii).

Despite the numerous questions raised by the language of the “introduction into 

commerce” exception,3 we need not resolve those here as Taylor wholly failed to meet his 

1 Under Rule 5A:20(e), an appellant’s opening brief must contain “[t]he principles of law, 

the argument, and the authorities relating to each assignment of error.” Here, although Taylor’s 

brief included principles of law and authorities, this single vague and ungrammatical sentence is 

the only presentation of his argument on brief, after which he concludes: “Therefore, Taylor’s 

conduct does not meet the elements of the statute.” This Court, “however, consider[s] whether 

any failure to strictly adhere to the requirements of Rule 5A:20(e) is insignificant, thus allowing 

the [C]ourt to address the merits of a question presented.” Jay v. Commonwealth, 275 Va. 510, 

520 (2008). Because we are able to understand Taylor’s argument and address the merits despite 

the deficiencies of his brief and waiver of oral argument, we do not dismiss his appeal on Rule 

5A:20(e) grounds.

2 The statute is not explicit as to whether it refers to the time at which the imitation 

substance generally (i.e., baby formula), or the specific substance at issue in the criminal act (i.e., 

the baggie of baby formula Taylor possessed), was introduced into commerce. In either 

scenario, as explained infra, Taylor has failed to meet his burden.

3 The statute criminalizes four acts (as well as possession with intent to perform those 

acts): “it shall be unlawful for any person to manufacture, sell, give, [or] distribute” an imitation 

controlled substance. After lengthy consideration, we fail to see how this exception could 

protect anyone who “s[old], g[a]ve, or distribute[d]” an imitation controlled substance from 

criminal liability, as they would need to have possessed the intent to represent that the product 

was a controlled substance. Absent this necessary mens rea — meaning an individual sold a 

legal substance, representing it to be that legal substance — such a defendant could plainly not 
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burden in qualifying for that exception. Code § 18.2-263 specifically provides that the 

Commonwealth is not required to “negative any exception” contained in Code § 18.2-247. 

Instead, the defendant bears the burden of proof. Id.; see also Werres v. Commonwealth, 19 

Va. App. 744, 748 (1995) (“Code § 18.2-247(B) does not require that the Commonwealth prove 

the identity of the imitation controlled substance.”). Taylor introduced no evidence as to when

any substance at issue — heroin, corn syrup, or baby formula — was introduced into commerce

(either when they were brought to market or when he purchased the substance he possessed), and 

accordingly, the circuit court had no evidence to support finding that the “introduction into 

commerce” exception applied.

Code § 18.2-248 quite plainly criminalizes behavior like Taylor’s. He possessed a 

substance that resembled heroin, was packaged to resemble heroin, and he arranged to sell it as 

heroin. Given Taylor’s representations to the undercover police officer, and the circumstances of 

the “buy and bust” operation, Taylor was properly found guilty and the “introduction into 

commerce” exception is not applicable. Taylor arranged to sell a substance that was “not a 

controlled substance subject to abuse” and the “color, shape, size, . . . packaging . . . [and] 

representations made, would cause the likelihood that such a . . . substance . . . w[ould] be 

be found guilty of selling an imitation controlled substance, because it was not “alleged to 

imitate” a controlled substance. It appears, therefore, that the legislature included the 

“introduction into commerce” exception to protect manufacturers of a legal substance who 

continue to manufacture it even after a controlled substance similar in appearance is introduced.

We recognize that these conjectures are dicta because Taylor failed to meet his burden of 

proof under any interpretation of the “introduction into commerce” exception. Thus, in addition 

to being in an unpublished memorandum opinion, this dictum does not “serve as a source of 

binding authority in American jurisprudence.” Newman v. Newman, 42 Va. App. 557, 566 

(2004) (quoting United States v. Pasquantino, 336 F.3d 321, 329 (4th Cir. 2003) (en banc)). We 

also recognize that “[t]he doctrine of judicial restraint dictates that we decide cases ‘on the best 

and narrowest grounds available.’” Commonwealth v. White, 293 Va. 411, 419 (2017) (quoting 

Commonwealth v. Swann, 290 Va. 194, 196 (2015)). Consequently, these matters at this time 

remain unresolved.
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mistaken for a controlled substance.” Code § 18.2-247(B). Indeed, it is clear through both his 

words and actions that Taylor specifically intended that Cox believe he was purchasing heroin 

from Taylor. Accordingly, the circuit court did not err in convicting Taylor of possession with 

intent to distribute an imitation controlled substance.

III. CONCLUSION

Taylor failed to introduce any evidence of when any substance — imitation or illegal —

was introduced into commerce, and thus failed to properly prove that the “introduction into 

commerce” exception applied. As such, the circuit court did not err in finding that the exception 

did not apply and thus convicting Taylor of possession with intent to distribute an imitation 

controlled substance.

Affirmed.