Christian Luke Riddle v. Commonwealth of Virginia ( 2016 )

COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Chief Judge Huff, Judges Humphreys and Alston
Argued at Lexington, Virginia
CHRISTIAN LUKE RIDDLE
MEMORANDUM OPINION* BY
v. Record No. 1953-15-3 JUDGE ROBERT J. HUMPHREYS
NOVEMBER 15, 2016
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CAMPBELL COUNTY
John T. Cook, Judge
Joseph A. Sanzone (Sanzone and Baker, L.L.P., on brief), for
appellant.
Victoria Johnson, Assistant Attorney General (Mark R. Herring,
Attorney General, on brief), for appellee.
Christian Luke Riddle (“Riddle”) appeals the November 5, 2015 decision of the Circuit
Court for Campbell County (the “circuit court”) convicting him of one count of possession with
intent to distribute an imitation Schedule I/II controlled substance, in violation of Code
§ 18.2-248. Riddle’s single assignment of error is that the circuit court erred by finding that
there was sufficient evidence to convict Riddle when there were no representations regarding the
nature of the substance, no evidence that Riddle possessed the substance, and Riddle’s
statements to law enforcement officers about his intent were conditional and hypothetical.
“When considering a challenge to the sufficiency of the evidence, we must affirm the
decision below unless the trial court’s decision was plainly wrong or lacked evidence to support
it.” Goodwin v. Commonwealth, 64 Va. App. 322, 330, 767 S.E.2d 741, 745 (2015). “In
examining a challenge to the sufficiency of the evidence, appellate courts will review the
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
evidence in the light most favorable to the party prevailing at trial and consider any reasonable
inferences from the proven facts.” Powell v. Commonwealth, 62 Va. App. 579, 583, 750 S.E.2d
229, 230 (2013) (quoting Towler v. Commonwealth, 59 Va. App. 284, 290, 718 S.E.2d 463, 466
(2011)).
“Circumstantial evidence . . . is offered to prove a fact not directly in issue, from which a
fact in issue may reasonably be inferred.” Commonwealth v. Hudson, 265 Va. 505, 512, 578
S.E.2d 781, 785 (2003). “There is no distinction in the law between the weight or value to be
given to either direct or circumstantial evidence.” Id. The Supreme Court of Virginia has
expressly stated that “[c]ircumstantial evidence, if convincing, is entitled to the same weight as
direct testimony.” Gov’t Emp’s. Ins. Co. v. United Servs. Auto. Ass’n, 281 Va. 647, 656, 708
S.E.2d 877, 882-83 (2011) (quoting Britt v. Commonwealth, 276 Va. 569, 573, 667 S.E.2d 763,
765 (2008)). Moreover, “[c]ircumstantial evidence is not viewed in isolation. While no single
piece of evidence may be sufficient, the combined force of many concurrent and related
circumstances, each insufficient in itself, may lead a reasonable mind irresistibly to a
conclusion.” Hudson, 265 Va. at 514, 578 S.E.2d at 785. Thus, “[t]he finder of fact is entitled to
consider all of the evidence, without distinction, in reaching its determination.” Id. at 512-13,
578 S.E.2d at 785.
First, Riddle argues that the Commonwealth failed to prove that he represented the
substance in question, Himalayan salts, to be MDMA (otherwise known as “molly”).1 Pursuant
to Code § 18.2-248, it is a felony to possess with the intent to distribute an “imitation controlled
substance.” “Imitation controlled substance” is a defined term in Code § 18.2-247(B):
1
MDMA is the short form of Methylenedioxymethamphetamine. Pursuant to Code
§ 54.1–3446(3), MDMA is a Schedule I controlled substance.
-2-
(i) a counterfeit controlled substance or (ii) 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,
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; or
2. Which by express or implied representations purports to act like
a controlled substance as a stimulant or depressant of the central
nervous system and which is not commonly used or recognized for
use in that particular formulation 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.
Viewing the evidence in the light most favorable to the Commonwealth, Riddle was
apprehended subsequent to a search of the vehicle he had been operating. After Officer E.G.
Ramirez (“Officer Ramirez”) of the Lynchburg Police Department (“LPD”) discovered
marijuana in the glove compartment, Riddle and Jefferson, his compatriot in the vehicle, were
searched. “Three small individually wrapped baggies containing a crystal-like substance” were
found on Jefferson by Officer J.M. Pavia (“Officer Pavia”) of the LPD. At trial, Officer Pavia
testified that based on his training and experience he thought the substance was “a new drug
going around called ‘molly.’” Riddle admitted that he and Jefferson bought the Himalayan salts
together and packaged it. Additionally, he admitted to Officer Pavia that it was “funny” how
similar the Himalayan salts looked like molly. Therefore, we hold that the evidence was
sufficient to permit the trier of fact to find beyond a reasonable doubt that the Commonwealth
established that the substance, by appearance and packaging, would likely be mistaken for
MDMA, otherwise known as molly. See Powell v. Commonwealth, 289 Va. 20, 30, 766 S.E.2d
736, 741 (2015) (holding the evidence was sufficient for the factfinder to find that the substance
-3-
would likely be mistaken for crack cocaine based on the detective’s testimony that the substance
looked like crack cocaine to the “naked eye”).
Next in challenging the sufficiency of the evidence, Riddle argues that his statement that
“he was not showboating [the salts] around, but if someone else knew where to get it I would
have sold it to them,” was purely a hypothetical response and cannot form the basis for a finding
of guilty. “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.”
Wood v. Commonwealth, 57 Va. App. 286, 307, 701 S.E.2d 810, 820 (2010) (quoting Sandoval
v. Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730, 732 (1995)). The factfinder is “free
to believe or disbelieve, in part or in whole, the testimony of any witness.” Bazemore v.
Commonwealth, 42 Va. App. 203, 213, 590 S.E.2d 602, 607 (2004). Whether his statements to
Officer Pavia were “hypothetical” or not was purely an issue of fact to be resolved by the
factfinder. Moreover, in doing so, the circuit court was entitled to consider the fact that the
Himalayan salts were packaged into individual baggies to look like “molly.” We hold that the
circuit court, acting as the factfinder, was entitled to credit Riddle’s statement to law
enforcement officers that he did, in fact, plan to sell the repackaged Himalayan salts as molly.
In his final challenge to the sufficiency of the evidence, Riddle argues that he did not
possess the Himalayan salts with the contemporaneous intent to distribute. In order to obtain a
conviction for possession of a controlled substance with the intent to distribute, “the
Commonwealth must prove that the defendant possessed the controlled substance
contemporaneously with his intention to distribute that substance.” Stanley v. Commonwealth,
12 Va. App. 867, 869, 407 S.E.2d 13, 15 (1991) (en banc). “Possession . . . need not be
exclusive, but may instead be joint.” Merritt v. Commonwealth, 57 Va. App. 542, 556, 704
-4-
S.E.2d 158, 165 (2011) (en banc) (quoting Archer v. Commonwealth, 225 Va. 416, 418, 303
S.E.2d 863, 863 (1983)).
Here, Riddle and Jefferson, acting together, purchased the Himalayan salts because of its
similar appearance to MDMA. Then, the two packaged it to look like molly. Moreover, viewing
the evidence in the light most favorable to the Commonwealth, Riddle admitted that he would
have sold the Himalayan salts as “molly” if asked. Thus, even though the Himalayan salts were
found on Jefferson, we hold that Riddle consented to the felonious purpose of possessing with
the intent to distribute the imitation controlled substance because Riddle and Jefferson, together,
procured and packaged the Himalayan salts to look like molly. Therefore, they were equal
principals in the commission of the offense of possession of an imitation controlled substance
with the intent to distribute it.
Thus, for the foregoing reasons, we affirm the judgment of the circuit court convicting
Riddle of one count of possession with intent to distribute an imitation Schedule I/II controlled
substance, in violation of Code § 18.2-248.
Affirmed.
-5-