COURT OF APPEALS OF VIRGINIA
Present: Judges Hu mphreys, Beales and Se nior Judge Annunziata Argued by teleconference.

DERRICK RENARD POWELL OPINION BY v. Record No. 1825-12-3 JUDGE ROSEMARIE ANNUNZIATA NOVEMBER 26, 2013 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG Patrick F. Yeatts, Judge M. Kevin Bailey for appellant. Katherine Quinlan Adelfio, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney Genera l, on brief), for appellee.
Derrick Renard Powell, appellan t, was tried by a judge of the Circuit Court for the City of Lynchburg and found guilty of distri bution of an imitation Schedule I or II substance, in violation of Code § 18.2-248. Appellant appeal s the judgment of convic tion on the following grounds: 1) the trial court erred in finding that th e evidence was sufficient to convict appellant of distribution of an imitation controlled substance because the Commo nwealth failed to prove beyond a reasonable doubt that the substance was not a controlled substance subject to ab use; 2) the tria l court erred in finding that the evidence wa s sufficient to convict appellant of di stribution of an imitation controlled substance because the Comm onwealth failed to prove beyond a r easonable doubt th at the form of the substance was such that it would be mistaken for cocaine; an d 3) the trial court erred in finding that the evidence was sufficient to convict appellant of distribu tion of an imitation controlled substance because the Co mmonwealth failed to prove beyond a reasonable doubt that appellant made any express or implied representations that the substance was cocaine. For the reasons that follow, we affirm.PUBLISHED- 2 - Background “In examining a challenge to the sufficiency of the evidence, appellate co urts will review the evidence in the light most favorable to the part y prevailing at trial and consider any reasonable inferences from the proven facts.” Towler v. Commonwealth, 59 Va. App. 284, 290, 718 S.E.2d 463, 466 (2011); see also Sullivan v. Commonwealth, 280 Va. 672, 676, 701 S. E.2d 61, 63-64 (2010). Moreover, “[t]he credib ility of the witnesses and the weight accord ed 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. Commonw ealth, 20 Va. App. 133, 138, 455 S.E.2d 730, 732 (1995). “That responsibility lies with th e fact finder because ‘[t]his [C]ourt[,] sitting as an appe llate court, and knowing nothing of the evidence or of the witness, except as it appears on the paper, [is] incompetent to decide on the credibility of the testimony.’” Commonwealth v. McNeal, 282 Va. 16, 22, 710 S.E.2d 733, 736 (2011) (quoting Brow n v. Commonwealth, 29 Va . (2 Leigh) 769, 777 (1839)). Seen in the light most favorable to the Commonwealth, the eviden ce showed that on December 22, 2011, Investigator Daniel Bailey and Detective Trent were working undercover in an unmarked police vehicle. Bailey was assigned to the narcotics department of the Lynchburg Police Department for over five years, during which time he handled over 100 arrests and investigations involving the sale of na rcotics. While driving through an op en air drug market in Lynchburg, Bailey and Trent saw appellant st anding on a sidewalk. When appe llant “made a [waving] motion with his hand as [if] to flag [the officers] to pul l the car over,” Trent, wh o was driving, complied. When the vehicle was stationary at the side of the road, appellant walked up to Bailey, who was sitting in the passenger seat of the car. Bailey rolled down the window and as ked appellant “if he was straight.” Bailey explained that “straight” is “common slang” used in drug transactions to indicate that the seller ha s narcotics to sell. Appellant responde d that he “had what [Bailey] needed- 3 - and asked what [Bailey] wanted.” Bailey responded he wanted “a four.” Bailey explained a “four” is “slang for forty dolla rs[’] worth of cocaine.” After a short conversation ab out whether Bailey and Trent were with the polic e, appellant told Bailey he could get “the four” from his resi dence. Appellant then went into a house and returned to the car within two mi nutes. He handed Bailey a “white rock subs tance” in “a knotted baggie,” and Bailey gave him forty dollars. The exchange took “[a] matter of seconds,” and Bailey did not examine the substance closely before he and his partner drove away. Later, upon examination, he disc overed appellant had sold hi m a white pill, cut in half. At trial, Bailey testified that crack cocaine is a “hard form of powd er cocaine.” Bailey stated that the substance, wrappe d in the knotted plastic baggie, th at appellant handed him appeared “to the naked eye” to be crack cocaine. He explained that, in hi s experience, most drug transactions happen “very fast” and “last[] thirtyseconds at most.” Bailey further explained that “in the sale of narcotics, there are no disclaimers that say [‘]this is actually crack cocaine[.’]” A buyer must “take [the seller’s] word” that the substance purchasedis crack cocaine. Kelly Howerter, a forensic scientist at the Virginia Department of Forensic Science examined and analyzed the substanc e appellant sold Bailey . She testified “just looking at it . . . it was a plastic bag corner th at just had a white subs tance inside of it.” Sh e described the substance inside the bag as half of a white oblong tablet and stated it did not resemble cocaine. She identified the substance as the Schedule VI controlled substance quetia pine. When the Commonwealth recalled Bailey as a witne ss, he testified that he had never he ard of quetiapine be ing sold illicitly. Appellant made a motion to strike at the end of the eviden ce based, in part, on the use of slang in the transaction to purchase cocaine and th e absence of evid ence establishing that appellant understood the term was a re ference to cocaine. He further argued that the drug sold was, in fact, a- 4 - Schedule VI controlled substance and, at most , his conduct supported a misdemeanor conviction under Code § 18.2-248(F). The motion was denied. In hi s reasoning, the trial judge noted: I understand that [duri ng] these transactions i ndividuals aren’t using the word[ ] cocaine and, clearly, if anyone approached a drug dealer and said they needed cocaine it wo uld be out of the ordinary, not a normal occurrence and that this sl ang and these words are used to mean something in th e drug trade in this community and other communities like this a nd these drugs don’t come with written warranties and they don’t come wi th guarantees and they don’t come with documentation. [T]he Court has to look at all the evidence in this case, and what we have here is an exchange between [the defendant] and the undercover detective and language used, are yo u straight, I have what you need, and the detective indicating he needed a four. [Bailey] testified that in the drug trade that means forty dollars exchanged for a controlled substance. And that’s what he received or at least thought he was receiving in exchange for his forty dollars. Appellant subsequently argued in a motion to set aside the verdict th at the Commonwealth failed to prove, inter alia , that quetiapine was not a controlled substance subject to abuse. During the course of the proceedings on the motion, the court found the Comm onwealth satisfied both sections (1) and (2) of Code § 18.2-247(B)(ii). 1 The trial court denied the motion to set aside the

1 1 Code § 18.2-247(B) provides: The term “imitation controlled substance” when used in this article means (i) a counterfeit controlled substance or (ii) a pill, capsule, tablet, or substance in any form whatsoever which is not a controlled substance subj ect to abuse, and: 1. Which by overall dosage unit appearance, including color, shape, size, marking and packaging or by representations made, would cause the likelihood that su ch a pill, capsule, tablet, or substance in any other form what soever 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; or 2. Which by express or implied repres entations purports to act like a controlled substance as a stimulan t or depressant of the central nervous system and which is not commonly used or recognized for- 5 - verdict, particularly noting that there was “no evid ence before this Court th at what was being sold here[,] which essentially as I understand the case or the evidence to be[, ] it was some sort of antibiotic that there’s any effect of antibiotics that caused th em to be subj ect to abuse.” Analysis Appellate courts “‘presume the judgment of the tr ial court to be correct’ and reverse only if the trial court’s deci sion is ‘plainly wrong or without ev idence’ to support it.” Seaton v. Commonwealth, 42 Va. App. 739, 746, 595 S.E.2d 9, 12 (2004) (quoting Kelly v. Commonwealth, 41 Va. App. 250, 257, 584 S. E.2d 444, 447 (2003) ( en banc )). As stated prev iously, we view the evidence in the light mo st favorable to the prev ailing party below, relyin g on the fact finder’s credibility determinations an d the proven facts. Furt her, “[c]ircumstantial evid ence is not viewed in isolation. ‘While no single piece of evidence may be suff icient, the “combined force of many concurrent and related circumstan ces, each insufficient in itsel f, may lead a reasonable mind irresistibly to a conclusion.”’” Commonwealth v. Hudson, 265 Va . 505, 514, 578 S. E.2d 781, 786 (2003) (quoting Derr v. Commonwealt h, 242 Va. 413, 425, 410 S.E.2d 662, 669 (1991)). Finally, the Court may not substitute its own judgment for that of the finder of fact, even if it might have reached a different conclu sion. See Commonwealth v. Jenkins, 255 Va. 516, 520, 499 S.E.2d 263, 265 (1998); Crowder v. Commonwealth , 41 Va. App. 658, 66 3 n.1, 588 S.E.2d 38 4, 387 n.1 (2003). To the extent this Co urt must construe Code § 18.2-247 in considering the assignments of error, the Court applies a “ de novo standard of review when addr essing a question of statutory construction.” Courtney v. Comm onwealth, 281 Va. 363, 366, 706 S.E.2d 344, 345 (2011). “The rules of statutory construction provide that the ‘p lain, obvious, and rational meaning of a statute is

use in that particular formula tion for any purpose other than for such stimulant or depressant effect, unless marketed, promoted, or sold as permitted by the United States Food and Drug Administration.- 6 - always preferred to any curiou s, narrow or strained construc tion.’” Werres v. Commonwealth, 19 Va. App. 744, 746, 454 S.E.2d 36, 37 (1995) (quoting Branch v. Comm onwealth, 14 Va. App. 836, 839, 419 S.E.2d422, 424 (1992)). “The primary obj ective of statutory construction is to ascertain and give effect to le gislative intent.” Commonwealth v. Zamani , 256 Va. 391, 395, 507 S.E.2d 608, 609 (1998 ). Thus, this Court co nstrues a statute “with reference to its subject matter, the object so ught to be attained, and the legislative purpose in enacting it; the provisions should receive a constructio n that will render it harmonious with that purpose rather than one which will defeat it.” Esteban v. Comm onwealth, 266 Va. 605, 60 9, 587 S.E.2d 523, 526 (2003). “‘When interpreting statutory language, [t his Court] must assume that the legislature chose with care the words it used and, where it includes specific language in one section but omits that language from another section, [this Court] presume[s] that th e exclusion of the language was intentional.’” Saunders v. Commonwealth , 48 Va. App. 196, 20 3-04, 629 S.E.2d 701, 704 (2006) (quoting 7-Eleven, Inc. v. Dep’t of Envtl. Quality, 39 Va. App. 377, 397, 573 S.E. 2d 289, 299 (2002)). Appellant contends the trial court erred in convicting him because the Commonwealth failed to prove that the substance appe llant sold was an imitation controlled substance that “would be mistaken for cocaine” and that he did not make “any express or implied representations that the substance was cocaine.” These ar guments are without me rit. To convict appellant of violating Code § 18.2-248, the Commonwealth was required to prove he distributed an imitation controlled substance. Code § 18 .2-248(A). Code § 18.2-247(B)(ii) (1) defines an imitation controlled substance as: a pill, capsule, tablet, or substance in any form whatsoever which is not a controlled substance subject to abuse , and . . . [w]hich by overall dosage unit appearance, including color, shape, size , marking and packaging or by representations made , would cause the likelihood that such a pill, capsule, tablet, or substance in any other form whatsoever will be mistaken for a controlled substance. (Emphasis added.)- 7 - This Court further clarified the definition of an imitation controlled substance in Werres, 19 Va. App. at 747-48, 4 54 S.E.2d at 38, holding an imitation controlled su bstance is “any pill, capsule, tablet, or substance in an y form whatsoever that by express or implied representation is intended or appears to imitate a cont rolled substance subject to a buse.” The Werres Court also made clear that the Comm onwealth must prove the “substance is ‘not a controlled substance subject to abuse’” to satisfy the provi sions of Code § 18.2-247. Id . at 748, 454 S.E.2d at 38. 2 We conclude that appellant’s representations regarding the su bstance, together with the packaging of the substance in a pl astic knotted baggie, made it likely that the substance would be mistaken for crack cocaine as re quired by Code § 18.2 -247. The Commonwealth ’s evidence proved that appellant sold Bailey quetiapine, a Schedule VI drug, that was consistent with crack cocaine’s color, size, hard form a nd shape, while wrapped in the knotted plastic baggie. Indeed, the evidence showed the substance appellant sold was not only mistakable for crack coca ine, but, during the heat of a quick transaction, it was, in fact, mistaken for crack cocaine by an experienced undercover police officer who did not realize the item was no t crack cocaine until he had the opportunity to closely examine it. The drug sale took place in an open air drug market and was initiated by appellant by motioning th e undercover officers to the side of the road as they drove through the area. Bailey testified he asked for a “four” and such language is commonly used in the drug trade to mean forty dollars’ worth of crack cocaine. The trial court found Bailey’s testimony to be credible and gave due weight to hi s testimony that a “four” is common drug parlance for forty dollars’ worth of crack cocaine. We will not disturb that findin g. In response to Baile y’s request for a “four,” appellant handed Bailey a knotted baggie containing “a white rock substance,” consistent with his

2 In Rhodes v. Commonwealth, 12 Va. A pp. 473, 404 S.E.2d 522 (1991), this Court defined “subject to abuse” under Code § 18.2-247. “‘Subject to’ means ‘having a disposition or tendency; liable (to).’ ‘Abuse’ means ‘to us e wrongly; misuse.’” Id. at 475, 404 S.E.2d at 522 (quoting Webster’s New World Dictionary (2d College Ed. 1970)).- 8 - request, and accepted forty dollars in payment. To th e “naked eye,” the white substance in the packaging appeared to be crack cocaine. It was not until Bailey had the opportunity to examine the substance, after the officers left the scene, that Bailey discovered it was half of a white pill. Not only was the appearance of the substance consistent w ith crack cocaine when it was wrapped in the plastic baggie, appellant implied it was crack cocaine when he responded to Bailey’s request with what appeared to be forty dollars’ worth of crack cocai ne and accepted fo rty dollars in payment. See Werres, 19 Va. App. at 747-48, 454 S.E.2d at 38 (representations may be implied, rather than express). His actions demonstrated he intended the packaged pill to imitate crack cocaine. The pill’s appearance an d packaging, coupled with appellant’s representations, established the substance was presented in such manner as to cause Bailey to mistake the substance for crack cocaine. Therefore, the evidence was sufficient to prove the substance was an imitation controlled substance. Appellant further argues, howeve r, that the trial cour t erred in finding th at the evidence was sufficient to convict him of distribution of an imitation controlled substance because the Commonwealth failed to prove beyond a reasonable doubt that the substance was not a controlled substance “subject to abuse.” This argument is also without merit. In addressing appellant’s motion to strike th e verdict, the trial cour t rejected the argument that the Commonwealth was required to prove the substance at i ssue “was not subj ect to abuse.” Nevertheless, the tria l court ultimately fo und that quetiapine, classified as a Schedule VI controlled substance, is not subject to abuse. We likewise conclude that the substance the defendant sold was a Schedule VI controlled substance and such classification, ipso facto , established that the substan ce was not subject to abuse. Pursuant to the Drug C ontrol Act (Code § 54.1-3400 et seq .), the Board of Pharmacy (“Board”) categorizes known controlled substances into various schedules. Code §§ 54 .1-3401, 54.1-3443. In- 9 - categorizing the substances, one of th e factors the Board considers is “t he actual or relative potential for abuse” of a substance. Code § 54.1-3443(1). In designating what substances the Board should place in Schedules I thro ugh V, the General Assemb ly explicitly addressed the potential for abuse, each Schedule noting a lower risk of abuse relative to the previous Schedule. See Code §§ 54.1-3445, 54.1-3 447, 54.1-3449, 54.1-34 51, 54.1-3453. Given the General Assembly’s omission of the “potential for ab use” factor in articula ting the factors the Bo ard should consider when placing substances in Schedule VI, it follows that Schedule VI substances are not “subject to abuse” as contemplated in Code § 18.2-247. 3 Therefore, as a matter of definition, established by the legislature, quetiapine is a Schedule VI controlled substance, but one that is not subject to abuse. Therefore, the trial court correctly held it was an i mitation controlled substance. Accordingly, the trial court did not err by fi nding sufficient evid ence that appellant distributed an imitation controlled substance. We affirm appellant’s conviction. Affirmed.

3 Code § 54.1-3455 states that Schedule VI controlled substances include: 1. Any compound, mixture, or preparation containing any stimulant or depressant drug exempt ed from Schedules III, IV or V and designated by the Board as subject to this section. 2. Every drug, not included in Sche dules I, II, III, IV or V, or device which because of its toxicity or other potentiality for harmful effect, or the method of its use, or the collateral measures necessary to its use, is not generally recognized among experts qualified by scientific training and ex perience to evaluate its safety and efficacy as safe for use except by or under the supervision of a practitioner licensed to prescribe or administer such drug or device. 3. Any drug not included in Schedules I, II, III, IV or V, required by federal law to bear on its label prior to dispensing, at a minimum, the symbol “Rx only,” or which bears the legend “Caution: Federal Law Prohibits Dispensing Without a Prescription” . . . .