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holding that the trier of fact can both "disbeliev[e] a defendant’s testimony" and "consider such ‘perjured testimony as affirmative evidence of guilt’ " (quoting Morris v. Commonwealth, 269 Va. 127, 134, 607 S.E.2d 110 (2005))
Summary of this case from Seat v. CommonwealthOpinion
Record No. 0243-22-4
01-16-2024
Dana Mark CAMANN, Jr. v. COMMONWEALTH of Virginia
Kelsey Bulger, Senior Appellate Attorney (Catherine French Zagurskie, Chief Appellate Counsel; Virginia Indigent Defense Commission, on briefs), for appellant. Lindsay M. Brooker, Assistant Attorney General (Jason S. Miyares, Attorney General; Rebecca M. Garcia, Assistant Attorney General, on brief), for appellee. Present: Chief Judge Decker, Judges Humphreys, Beales, Huff, O’Brien, AtLee, Malveaux, Athey, Fulton, Ortiz, Causey, Friedman, Chaney, Raphael, Lorish, Callins and White
UPON A REHEARING EN BANC
FROM THE CIRCUIT COURT OF FREDERICK COUNTY, William W. Eldridge, IV, Judge
Kelsey Bulger, Senior Appellate Attorney (Catherine French Zagurskie, Chief Appellate Counsel; Virginia Indigent Defense Commission, on briefs), for appellant.
Lindsay M. Brooker, Assistant Attorney General (Jason S. Miyares, Attorney General; Rebecca M. Garcia, Assistant Attorney General, on brief), for appellee.
Present: Chief Judge Decker, Judges Humphreys, Beales, Huff, O’Brien, AtLee, Malveaux, Athey, Fulton, Ortiz, Causey, Friedman, Chaney, Raphael, Lorish, Callins and White
Judge Humphreys participated in the hearing and decision of this case prior to the effective date of his retirement on December 31, 2023.
OPINION BY JUDGE STUART A. RAPHAEL
Following a jury trial, Dana Mark Camann, Jr., was convicted of three felony counts of possessing a Schedule I or II controlled substance and one misdemeanor count of possessing a Schedule IV controlled substance, all in violation of Code § 18.2-250. Two of the felony convictions were based on a small amount of white powder, found in Camann’s wallet, that tested positive for fentanyl and etizolam. At trial, Camann admitted that he knew he possessed the white powder and the other two drugs found on his person. But he said he believed that the white powder was fentanyl, he had never heard of etizolam, and he did not know that another drug was present. The prosecution argued to the jury that Camann’s knowledge that he possessed fentanyl sufficed to establish the mens rea for the etizolam conviction as well.
On appeal, a divided panel of this Court affirmed in part and reversed in part. Camann v. Commonwealth, No. 0243-22-4, 2023 WL 2246635 (Va. Ct. App. Feb. 28, 2023). In part A of the opinion, the majority held that the trial court did not err in denying Camann’s suppression motion because the drugs were discovered through a lawful search. In part B, the majority reversed the felony conviction for possessing etizolam, holding that the Commonwealth failed to prove that Camann knew that the white powder in his possession contained more than one controlled substance. The Commonwealth petitioned for rehearing en banc as to part B of the opinion; Camann did not seek rehearing en banc as to part A.
We granted the Commonwealth’s petition and stayed the mandate as to all issues decided by the panel pending the decision of this Court sitting en banc. See Rule 5A:35(b). We now reverse and vacate the etizolam conviction, dismiss the charge, and remand the case to the trial court for resentencing on the other convictions. As it was not part of our en banc review, the panel’s ruling affirming the denial of Camann’s suppression motion in part A of the panel opinion “remains undisturbed,” Rule 5A:35(b)(1), and we thus “reinstate” it, Holt v. Commonwealth, 66 Va. App. 199, 207-08, 783 S.E.2d 546 (2016).
B ackground
[1] On appeal, we recite the facts “in the ‘light most favorable’ to the Commonwealth, the prevailing party in the trial court.” Hammer v. Commonwealth, 74 Va. App. 225, 231, 867 S.E.2d 505 (2022) (quoting Commonwealth v. Cady, 300 Va. 325, 329, 863 S.E.2d 858 (2021)). Doing so requires that we “discard” the defendant’s evidence when it conflicts with the Commonwealth’s evidence, “regard as true all the credible evidence favorable to the Commonwealth,” and read “all fair inferences” in the Commonwealth’s favor. Cady, 300 Va. at 329, 863 S.E.2d 858 (quoting Commonwealth v. Perkins, 295 Va. 323, 324, 812 S.E.2d 212 (2018)).
Just after 1:00 a.m. one morning in September 2020, Deputies Spears and Russell of the Frederick County Sheriff’s Office responded to a report of a man masturbating outside a 7-Eleven convenience store. When Deputy Russell arrived, Camann was standing on a sidewalk in the parking lot, his back against the side of the store. Deputy Russell was first to arrive. Deputy Spears arrived soon after, and his body-camera footage was introduced into evidence. Deputy Russell conversed briefly with Camann before entering the store to interview the customer and employee who had called the sheriff’s office. Deputy Spears engaged in “normal small talk” with Camann while Deputy Russell was in the store. Camann denied any wrongdoing and continued to stand in place. Deputy Russell returned, telling Camann that witnesses claimed to have seen him masturbating.
Camann reacted indignantly, but as he shifted his weight back and forth, Deputy Spears noticed that Camann appeared to be hiding something under his left shoe. After Camann moved his foot enough to offer a glimpse of the aluminum foil underneath, Deputy Spears said, “move your foot, move your foot.” Camann did so, revealing a blue plastic straw and a piece of aluminum foil with burnt residue. From his training and experience, Deputy Spears knew that people commonly “use aluminum foil and plastic straws” to smoke narcotics.
Upon seeing the burnt residue on the aluminum foil, Spears placed Camann in handcuffs. Deputy Spears read him his Miranda rights and subsequently searched his pockets. Spears found more foil and a straw like the one Camann had been hiding under his foot, a cellophane wrapper in Camann’s wallet containing a white powder, and pills in a pill bottle. When asked by Spears about the white powder, Camann said he didn’t know what Spears was talking about and claimed that “someone gave me that wallet.”
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
Subsequent testing revealed that the white powder was a mixture of fentanyl, a Schedule II controlled substance, and etizolam, a Schedule I controlled substance. The mixture weighed 0.056 gram. One tablet in the pill bottle contained amphetamine, a Schedule II controlled substance; fifty tablets contained clonazepam, a Schedule IV controlled substance. The aluminum foil and straw that Camann was hiding under his shoe were not tested for narcotics. The grand jury returned four indictments against Camann: three felony counts of possessing a Schedule I or II controlled substance and one misdemeanor count of possessing a Schedule IV controlled substance. The trial court denied Camann’s motion to suppress the evidence.
See Code §§ 54.1-3446 (Schedule I), 54.1-3448 (Schedule II). Etizolam was added as a Schedule I drug in 2016. See 2016 Va. Acts chs. 103, 112.
See Code § 54.1-3452 (Schedule IV).
Although the pill bottle contained fifty tablets of clonazepam, only one count of possession was charged. See generally Lane v. Commonwealth, 51 Va. App. 565, 576-82, 659 S.E.2d 553 (2008) (holding that the Double Jeopardy Clause limited Lane’s prosecution to one count of possession of oxycodone with intent to distribute, despite that he was found in possession of three different forms of that drug, including 90 tablets, where the Commonwealth could not show that the defendant “had different intents with regards to the different forms of oxycodone, for instance, that one was for personal use or was intended specifically for a particular buyer”).
Judge Alexander Iden presided at the suppression hearing.
At the jury trial that followed, the Commonwealth’s evidence consisted of Deputy Spears’s testimony, his body-camera footage, and a certificate of analysis detailing the results of the lab tests on the drugs found in Camann’s possession. The trial court denied Camann’s motion to strike the Commonwealth’s evidence. Camann then testified. He admitted that he was a drug addict, that he had tried to conceal the foil underfoot, that the foil contained “a drug,” and that the items found in his pockets were all his. He admitted knowing that the white powder was fentanyl but denied knowing that it also contained etizolam, a drug he said he had never heard of.
Camann was not the only one unfamiliar with etizolam. The prosecutor, the sheriff’s deputy, the defense lawyer, and the trial judge all said at different points during the trial that they could not pronounce the name of the drug. The prosecutor called it “the E-drug” for short.
The trial court denied Camann’s renewed motion to strike the etizolam charge. Relying on Sierra v. Commonwealth, 59 Va. App. 770, 722 S.E.2d 656 (2012), the court held that Camann “b[ore] the risk under Sierra of punishment for whatever substance was there.” Consistent with that ruling, the prosecutor told the jury during closing argument, “I don’t know whether he knew [the etizolam] was there,” but “[i]t doesn’t matter …. If he … thinks it is just fentanyl but it turns out to be two drugs in there, he is guilty of possessing both of them He is guilty of any drug that is in that mix.”
The jury convicted Camann on all four charges. Although the original indictments did not identify the specific drug involved, the verdict form signed by the jury foreperson correlated the drugs to the indictments: CR21-213 (amphetamine); CR21-214 (fentanyl); CR21-215 (etizolam); and CR21-216 (clonazepam).
The trial court entered judgment on the jury verdict and ordered a presentence investigation and report. The court sentenced Camann to two years’ incarceration with one year suspended for felony possession of amphetamine; two years with two years suspended on each of the felony convictions for possessing fentanyl and etizolam; and 180 days with 180 days suspended on the misdemeanor conviction for possessing clonazepam.
Although the record does not contain a transcript of the sentencing hearing, the final disposition worksheet signed by the trial judge reflects that the sentence did not depart from the range recommended by the discretionary sentencing guidelines. Because the etizolam conviction constituted a third count of felony possession of a Schedule I or II controlled substance, it increased the upper limit of the sentencing range under the discretionary sentencing guidelines. See Code § 19.2-298.01.
Camann noted a timely appeal.
A nalysis
The question presented is whether a defendant who possesses a mixture of two controlled substances can be convicted of two violations of Code § 18.2-250 if the Commonwealth proves the defendant’s knowing possession of only one controlled substance. The Commonwealth argues that proof that the defendant has knowingly possessed one controlled substance in a mixture permits the defendant to be convicted of as many violations of Code § 18.2-250 as there are drugs in the mixture.
We disagree. The Commonwealth’s position is supported by neither the text of the statute nor the precedent construing it. We also reject the Commonwealth’s fallback argument that the evidence at trial sufficed to prove that Camann knew that the mixture he possessed contained more than one controlled substance.
A. Every conviction under Code § 18.2-250 requires knowing possession of a controlled substance.
[2–4] “Questions of statutory interpretation … are subject to de novo review on appeal, and we owe no deference to the circuit court’s interpretation of the statutory scheme.” Esposito v. Va. State Police, 74 Va. App. 130, 133, 867 S.E.2d 59 (2022). “When construing a statute, our primary objective ‘is to ascertain and give effect to legislative intent,’ as expressed by the language used in the statute.” Va. Elec. & Power Co. v. State Corp. Comm’n, 295 Va. 256, 262-63, 810 S.E.2d 880 (2018) (quoting Cuccinelli v. Rector & Visitors of the Univ. of Va., 283 Va. 420, 425, 722 S.E.2d 626 (2012)). “We must determine the legislative intent by what the statute says and not by what we think it should have said.” Miller & Rhoads Bldg., L.L.C. v. City of Richmond, 292 Va. 537, 541-42, 790 S.E.2d 484 (2016) (quoting Carter v. Nelms, 204 Va. 338, 346, 131 S.E.2d 401 (1963)).
To be guilty of possession in violation of Code § 18.2-250, the violation must be knowing and intentional. The statute provides: “It is unlawful for any person knowingly or intentionally to possess a controlled substance unless the substance was obtained directly from, or pursuant to, a valid prescription … .” Code § 18.2-250(A) (emphasis added). The requirement of knowing possession dates to Ritter v. Commonwealth, 210 Va. 732, 173 S.E.2d 799 (1970). Ritter construed the predecessor statute, the Uniform Narcotic Drug Act, which had been “universally adopted by the states.” Id. at 742, 173 S.E.2d 799. Even though the text of the predecessor statute contained no explicit state-of-mind requirement, Ritter held that it was “generally … necessary to show that defendant was aware of the presence and character of the particular substance and was intentionally and consciously in possession of it.” Id. at 741, 173 S.E.2d 799. The General Assembly codified the state-of-mind requirement (“knowingly or intentionally to possess”) when it enacted the Drug Control Act to replace the Uniform Narcotic Drug Act. See Drug Control Act, 1970 Va. Acts ch. 650, § 1 (Code § 54-524.101(c)).
See Uniform Narcotic Drug Act, 1934 Va. Acts ch. 86, § 2 (“It shall be unlawful for any person to manufacture, possess, have under his control, sell, prescribe, administer, dispense, or compound any narcotic drug, except as authorized in this act.”) (codified as amended as Code § 54-488 (1950)).
Our Supreme Court reemphasized the mens-rea requirement for drug possession in Young v. Commonwealth, 275 Va. 587, 659 S.E.2d 308 (2008), when it overruled our decision in Josephs v. Commonwealth, 10 Va. App. 87, 390 S.E.2d 491 (1990) (en banc). We had held in Josephs that “[p]ossession of a controlled drug gives rise to an inference of the defendant’s knowledge of its character.” Id. at 101, 390 S.E.2d 491. Young said that was incorrect. 275 Va. at 592, 659 S.E.2d 308. Young made clear that “[a]ctual or constructive possession alone is not sufficient. ‘The Commonwealth must also establish that the defendant intentionally and consciously possessed it with knowledge of its nature and character.’ “ Id. at 591, 659 S.E.2d 308 (citation omitted) (quoting Burton v. Commonwealth, 215 Va. 711, 713, 213 S.E.2d 757 (1975)).
In 2012, we held in Sierra “that the plain language of Code § 18.2-250 requires a defendant to know that the substance he possesses is in fact a controlled substance, but … not … precisely what controlled substance it is.” 59 Va. App. at 775, 722 S.E.2d 656. Sierra noted that the Supreme Court’s requirement in Young that the defendant know the “nature and character” of the substance he possesses did not answer “whether a defendant must know precisely what substance he is possessing, or whether he must simply know the substance’s nature and character as a controlled substance.” Id, at 782, 722 S.E.2d 656 (quoting Young, 275 Va. at 591, 659 S.E.2d 308). Sierra held that the second understanding was correct. Id. at 782-84, 722 S.E.2d 656.
[5] Thus, if a person thinks he has heroin, but it turns out to be fentanyl, that person has still “knowingly or intentionally … possess[ed] a controlled substance.” Code § 18.2-250. “A defendant who intentionally possesses a controlled substance, aware of its nature and character as such, bears the risk of incurring whatever punishment the General Assembly has prescribed for the possession of the specific substance he has.” Sierra, 59 Va. App. at 779, 722 S.E.2d 656. In other words, “[a] claim by a defendant that he knew he was possessing a controlled substance, but was unaware or mistaken as to the precise identity of that substance, is not a defense under Code § 18.2-250.” Id. at 783-84, 722 S.E.2d 656.
[6] Applying those principles here makes clear that each conviction for drug possession under Code § 18.2-250 requires the Commonwealth to prove that the defendant possessed the substance with knowledge of its nature and character as a controlled substance. In other words, “knowledge is an essential element of the crime.” Young, 275 Va. at 591, 659 S.E.2d 308 (emphasis added).
[7] We are not persuaded by the Commonwealth’s argument that subparts (a) through (c) of Code § 18.2-250(A), together with our decision in Sierra, show that a defendant can be held criminally responsible for every drug in the mixture as long as he knew that one drug was present. Subparts (a) through (c) specify the offense level for possessing a controlled substance according to whether the controlled substance is listed on Schedules I, II, III, IV, V or VI of the Drug Control Act. As relevant to Camann’s convictions, possession of a Schedule I or II drug is punishable as a “Class 5 felony,” Code § 18.2-250(A)(a), while possession of a Schedule IV drug is “punishable as a Class 2 misdemeanor,” Code § 18.2-250(A)(b1). The Commonwealth argues that subparts (a) through (c) contain no express state-of-mind requirement. To its thinking, once the prosecution proves under subsection (A) that the defendant knowingly possessed “a controlled substance,” Code § 18.2-250(A) (emphasis added), the mens-rea requirement is satisfied for however many controlled substances are found in the mixture.
But that construction cannot be squared with the plain text of the statute. Subparts (a) through (c) are just that—subparts of subsection (A). They do not create standalone crimes that exist independently of that subsection. Thus, the fact that the subparts themselves do not mention a state-of-mind requirement does not transform possession of a drug shown on Schedules I through VI into a strict-liability offense. To the contrary, when specifying the offense level according to which drug is possessed, each subpart incorporates the mens rea for violating subsection (A) (“knowingly and intentionally”) by referencing the punishment for violating “this section.” That violation-of-this-section language makes clear that the defendant’s violation must still be a knowing violation, since knowledge is a crucial element of the offense under subsection (A).
See Code § 18.2-250(A)(a) (“Any person who violates this section with respect to any controlled substance classified in Schedule I or II … .”), -250(A)(b) (“who violates this section with respect to … Schedule III ….”), -250(A)(b1) (“Violation of this section with respect to … Schedule IV … .”), -250(A)(b2) (“Violation of this section with respect to … Schedule V … .”), -250(A)(c) (“Violation of this section with respect to … Schedule VI … .”) (emphases added).
The Commonwealth’s contrary reading also violates Young’s admonition that “knowledge is an essential element of the crime.” 275 Va. at 591, 659 S.E.2d 308. The Commonwealth would permit the defendant’s knowing possession of one controlled substance to satisfy the state-of-mind requirement for multiple other offenses, even if the defendant thought he had only one drug. The Commonwealth took the position at oral argument that if a defendant buys white powder thinking it is heroin, but it turns out to contain 17 controlled substances, the defendant has committed 17 crimes. The Commonwealth re- fused to concede that its interpretation imposes strict liability for the extra convictions beyond the first. But it obviously does. The defendant in that situation would have knowingly possessed only 1 controlled substance, not 17.
The Commonwealth acknowledged that “it may be unpalatable … that someone could be convicted of [possessing] multiple substances for something that’s contained in one visually indistinguishable substance,” but the Commonwealth insists that this result is compelled by Sierra. We read Sierra differently.
As noted above, Sierra rejected the argument that the defendant must know precisely which controlled substance was found in his possession. The defendant there argued against that reading, relying on subparts (a) through (c) of Code § 18.2-250(A). Since the offense level specified in those subparts depended on which controlled substance was involved, he insisted that the prosecution must prove that he knew which controlled substance he possessed. We disagreed, explaining that “[n]owhere … in subparts (a)-(c) did the General Assembly insert a mens rea requirement. Rather, the General Assembly chose to specify a requisite degree of mens rea only in the general proscription against possessing controlled substances in the first paragraph of subsection (A).” Sierra, 59 Va. App. at 777-78, 722 S.E.2d 656.
The Commonwealth misreads that passage to eliminate the state-of-mind requirement altogether for additional convictions for multiple drugs in a mixture as long as the defendant knowingly possesses one controlled substance. Yet that same passage repeats three sentences later that the state-of-mind requirement in subsection (A) must be satisfied to obtain a conviction under the statute: “The specific type of substance found in a defendant’s possession is an actus reus element the Commonwealth must prove pursuant to subparts (a)-(c) of Code § 18.2-250(A), but it is not an element to which the mens rea requirement found earlier in Code § 18.2-250(A) applies.” Id. at 778, 722 S.E.2d 656 (emphasis added). [8, 9] Our holding here that every conviction under Code § 18.2-250 requires knowing possession is in perfect harmony with Sierra. A person who knows that the pill or powder he possesses contains a controlled substance is criminally liable for possession under Sierra, even if he thinks he possesses a particular controlled substance that turns out to be different. Likewise, when the Commonwealth seeks two convictions for possessing a mixture containing more than one controlled substance, the Commonwealth must prove that the defendant knew there were at least two controlled substances in the mixture. Sierra simply spares the Commonwealth from having to prove that the defendant knew which controlled substances were present.
We do not accept the dissent’s suggestion that we should relax the mens-rea requirement for possessing multiple controlled substances in a mixture to make it easier for the Commonwealth to obtain more than one conviction for possessing the mixture. The dissent worries that, “[p]ractically speaking,” it could be difficult for “Commonwealth’s attorneys in the vast majority of cases [to] prove a defendant knew how many controlled substances he possessed without also proving the defendant knew which controlled substances he possessed.” Post at 450 n.17, 896 S.E.2d at 382 n.17. The dissent adds that “it would seem to be difficult, if not impossible, to find that a defendant had knowledge of the presence of each drug in a mixture.” Id. at 23.
The dissent appears to overstate the difficulty, however. As the dissent acknowledges, many drug mixtures are known by their slang street names, A speedball is a “mixture of cocaine and heroin.” United States v. Paulino, 13 F.3d 20, 22 (1st Cir. 1994). Apache, Blonde, and Takeover all refer to a mixture of fentanyl and cocaine. Thus, the Commonwealth could seek to prove knowing possession of two controlled substances in a mixture by showing that the defendant knew and used the street name of the mixture found in his possession. Camann’s counsel at oral argument suggested other forms of proof.
See generally Drug Enforcement Agency, Slang Terms and Code Words: A Reference for Law Enforcement Personnel (July 2018), https://www.dea.gov/sites/default/files/201807/DIR-022-18.pdf.
Camann's counsel suggested that the Commonwealth might offer expert testimony that two drugs are commonly sold together, or that the defendant had been previously convicted of possessing the drugs found in the mixture.
In any case, whatever practical inconveniences may arise when the Commonwealth seeks multiple convictions for possessing a single mixture, we cannot dispense with the fundamental requirement for each conviction that “knowledge is an essential element of the crime.” Young, 275 Va. at 591, 659 S.E.2d 308 (emphasis added). The dissent, by contrast, does not directly confront the problem that its interpretation would create strict criminal liability for possessing each additional substance in the mixture beyond the first one. The dissent only obliquely acknowledges that problem, admitting that its interpretation could lead to “potentially harsh outcomes.” Post at 454, 896 S.E.2d at 384.
The dissent relies heavily on the unpublished panel opinion in Howard v. Commonwealth, No, 0780-17-1, 2018 WL 2604993 (Va. Ct. App. June 5, 2018). Unpublished opinions may be cited “as informative, but will not be received as binding authority,” Rule 5A:1(f). To the extent that Howard would permit strict liability for additional possession convictions when the Commonwealth proves knowing possession of only a single controlled substance, we disavow it.
Although the dissent suggests that our decision is driven by “policy implications, not legal interpretation,” id. at 26, the opposite is true. The dissent says that eliminating the mens-rea requirement for additional convictions for possessing a single substance is supported by “the General Assembly’s legislative intent to fight the illicit flow of drugs (including where drug dealers mix more than one controlled substance in a capsule or powder).” Id. at 25. But the legislature speaks only through its enactments. And the dissent’s position would ignore the mens-rea requirement in Code § 18.2-250(A), in violation of the statute. Its interpretation would also contravene our Supreme Court’s long tradition of insisting that knowledge is an essential element of the crime of possession. B. The Commonwealth failed to prove mens rea for the etizolam conviction.
[10] Camann argues that the trial court should have granted his motion to strike at the close of the evidence because the Commonwealth failed to prove that he knowingly and intentionally possessed etizolam. When, as here, a defendant introduces evidence on his “ ‘own behalf after the denial of a motion to strike the Commonwealth’s evidence, any further challenge to the sufficiency of the evidence at trial or on appeal is to be determined from the entire record[,]’ including the defendant’s own testimony.” Carosi v. Commonwealth, 280 Va. 545, 554, 701 S.E.2d 441 (2010) (quoting Murillo-Rodriguez v. Commonwealth, 279 Va. 64, 74, 688 S.E.2d 199 (2010)).
[11] The prosecution presented no evidence to show that Camann knew that the white powder in his wallet contained more than one controlled substance. The Commonwealth emphasizes that Camann admitted at trial to being a drug user, admitted to possessing the amphetamines and clonazepam, and admitted that the white powder in his wallet was fentanyl. But that evidence is plainly insufficient to prove Camann’s knowledge that the white powder also contained a second controlled substance. To infer that Camann must have known that he possessed a second substance would be no different from the misguided inference in Josephs that mere possession of a controlled substance “gives rise to an inference of the defendant’s knowledge of its character.” 10 Va. App. at 101, 390 S.E.2d 491. Or like the inference we rejected in Yerling v. Commonwealth, 71 Va. App. 527, 838 S.E.2d 66 (2020), that a defendant’s knowledge that marijuana was present suggested that he must have known that an oxycodone pill in a “balled-up piece of notebook paper” was present as well. Id. at 535, 838 S.E.2d 66. Young teaches that such inferences are improper. Instead, actual knowledge must be proven. 275 Va. at 591, 659 S.E.2d 308.
What is more, under the Commonwealth’s theory of the case, the jury could have found Camann guilty even if it believed him when he testified that he did not know what etizolam was, let alone that it was mixed in with the fentanyl. The prosecutor argued to the jury—consistent with the trial court’s ruling denying Camann’s motion to strike—that Camann was criminally responsible for the etizolam even if he did not know it was there. The jury was thus free to wrongly convict Camann of knowingly possessing a drug when he had no such knowledge.
Finally, the Commonwealth argues that “the jury was ‘entitled to disbelieve [Camann’s] self-serving testimony’ and ‘to conclude that the accused is lying to conceal his guilt.’ “ Commonwealth Br. 23 (quoting Speller v. Commonwealth, 69 Va. App. 378, 388, 819 S.E.2d 848 (2018)). To be sure, our Supreme Court has said that, after disbelieving a defendant’s testimony, the trier of fact could consider such “perjured testimony as affirmative evidence of guilt.” Morris v. Commonwealth, 269 Va. 127, 134, 607 S.E.2d 110 (2005) (quoting Wright v. West, 505 U.S. 277, 296, 112 S.Ct. 2482, 2492, 120 L.Ed.2d 225 (1992) (Thomas, J.) (plurality opinion)).
But in both Morris and Wright—the plurality opinion on which Morris relied—the government adduced ample evidence of the defendant’s guilt. See Wright, 505 U.S. at 295, 112 S.Ct. at 2492 (plurality) (“more than enough evidence to support West’s conviction”); Morris, 269 Va. at 133-34, 607 S.E.2d 110 (citing various evidence showing the defendant’s knowledge that the flare gun he possessed was a firearm). Similarly, in our cases employing the affirmative-evidence-of-guilt language since Morris, the Commonwealth introduced sufficient evidence to prove the defendant’s guilt. It was in that context that we said the trier of fact could also consider the defendant’s lies as affirmative evidence of guilt.
See Clark v. Commonwealth, 78 Va. App. 726, 752, 892 S.E.2d 685 (2023) (“overwhelming evidence”); Armstead v. Commonwealth, 56 Va. App. 569, 581, 695 S.E.2d 561 (2010) (drugs found “in plain view” and defendant “shouted that everything in the vehicle belonged to him”); Sierra, 59 Va. App. at 784, 722 S.E.2d 656 (defendant’s guilty knowledge supported by officer’s testimony “that he concluded the pills were prescription pills based on the shapes of the pills and the numbers on them”); Ervin v. Commonwealth, 57 Va. App. 495, 507-10, 704 S.E.2d 135 (2011) (en banc) (defendant's knowing possession of marijuana supported by strong marijuana smell emanating from his car and exclusive access to the vehicle); Coleman v. Commonwealth, 52 Va. App. 19, 25, 660 S.E.2d 687 (2008) (“facts amply support the trial court’s conclusion that Coleman’s … eluding was an endangerment both to himself and anyone else on the road”); Haskins v. Commonwealth, 44 Va. App. 1, 10, 602 S.E.2d 402 (2004) (finding that defendant’s knowing possession of the bag of cocaine he was sitting on supported by “the ‘very large’ knot in the bag (giving rise to the inference that Haskins would have felt it) and the fact that the bag was in plain view on a well-lit porch (supporting the inference that Haskins, assuming he did not hide the bag there himself, would have seen it before sitting down on it)”).
E.g., Clark, 78 Va. App. at 752-53, 892 S.E.2d 685 (“A rational fact finder could reject Clark’s hypothesis of innocence based on the over-whelming evidence establishing the timing of the offenses, Clark's opportunity to commit the crimes, the DNA and other physical evidence at the crime scene, and his statements and conduct demonstrating his consciousness of guilt…. Considering that evidence, the jury reasonably could conclude that Clark’s sexual contact with S.F. was not consensual and his contrary claims were ‘little more than l[ies] to “conceal his guilt,” ’ which the jury ‘could treat … as “affirmative evidence of guilt.” ’ “ (second and third alterations in original) (quoting Coleman, 52 Va. App. at 25, 660 S.E.2d 687)).
By contrast, our appellate courts have not held that the Commonwealth could carry its burden of proving an essential element of the crime based solely on the negative inference that the factfinder could disbelieve the defendant who professes his innocence at trial. Our Supreme Court rejected that notion more than 50 years ago:
The giving by the accused of an unclear or unreasonable or false explanation of his conduct or account of his doings are matters for the jury to consider, but they do not shift from the Commonwealth the ultimate burden of proving by the facts or the circumstances, or both, that beyond all reasonable doubt the defendant committed the crime charged against him.
Foster v. Commonwealth, 209 Va. 326, 330-31, 163 S.E.2d 601 (1968) (quoting Smith v. Commonwealth, 192 Va. 453, 461, 65 S.E.2d 528 (1951)). The contrary approach would mean that “in cases in which defendants testify, the evidence invariably would be sufficient to sustain the conviction.” United States v. Zeigler, 994 F.2d 845, 849 (D.C. Cir. 1993). We reject that approach as untenable and inconsistent with existing case law. In short, “[a]lthough it was within the province of the jury to assess the credibility of appellant’s testimony, the mere conclusion that appellant had lied to conceal his guilt was insufficient to provide a basis for inferring that he had the requisite knowledge.” Tucker v. Commonwealth, 18 Va. App. 141, 144, 442 S.E.2d 419 (1994).
Our appellate courts have reaffirmed that principle repeatedly since then. See Tarpley v. Commonwealth, 261 Va. 251, 256-57, 542 S.E.2d 761 (2001); Burrows v. Commonwealth, 224 Va. 317, 319, 295 S.E.2d 893 (1982); Tucker v. Commonwealth, 18 Va. App. 141, 144, 442 S.E.2d 419 (1994).
C onclusion
We reverse Camann’s conviction for possession of etizolam and dismiss the indictment for that charge (CR21-215). Because the etizolam conviction affected the sentencing guidelines for the other convictions (CR21-213, -214, -216), see note 7 supra, we remand this ease to the trial court for resentencing on those convictions consistent with this opinion.
Reversed and remanded,
Athey, J., with whom Beales, J., joins, dissenting.
Since I disagree with the majority that, to satisfy the mens rea requirement for two separate convictions under Code § 18.2-250, “the Commonwealth must prove that the defendant knew there were at least two controlled substances in the mixture,” I therefore respectfully dissent from the majority’s decision to reverse Camann’s conviction for possessing etizolam. Instead, I would have affirmed Camann’s conviction for possession of etizolam since the Commonwealth sufficiently established the requisite mens rea in support of both convictions under Code § 18.2-250 by proving that Camann “knowingly or intentionally … possess[ed] a controlled substance.” Restating the pertinent facts, law enforcement initially recovered an aluminum foil smoking device and plastic straw with burnt residue under Camann’s shoe. A deputy sheriff then searched his pockets and discovered a second aluminum foil and straw smoking device, a pill bottle containing almost a hundred pills, as well as a cellophane wrapper containing white powder from his wallet. With the exception of the smoking device found under his shoe, the recovered contraband was forwarded to the Department of Forensic Science (“DFS”) for testing to determine whether, and to what extent, controlled substances were present in the recovered contraband. Based on the test results, the Commonwealth sought, and the grand jury issued, four separate indictments based upon the four different controlled drugs found within the pill bottle and cellophane wrapper.
At trial, an expert from DFS certified that present within the pill bottle were clonazepam and amphetamine, both of which are controlled drugs, and further that the white powder within the cellophane wrapper contained two additional controlled drugs: fentanyl and etizolam. The appellant subsequently admitted to possessing clonazepam, amphetamine, and fentanyl but denied knowingly possessing etizolam. In denying Camann’s renewed motion to strike the evidence concerning the etizolam conviction, the trial court concluded that “[Camann] testified that he knew or believed … that it was fentanyl,” but “he got a substance that was apparently cut” with the etizolam; thus “he bears the risk under Sierra of punishment for whatever substance was there.” Following their deliberations, the jury found Camann guilty of possessing both the amphetamine and clonazepam in the pill bottle as well as the two other controlled substances found in the cellophane wrapper: fentanyl and etizolam. The verdict form executed by the foreperson for each separate conviction noted the specific controlled drug that Camann possessed, including the guilty verdict for possession of etizolam.
In clinical studies, “etizolam is approximately 10 times as potent as diazepam in producing hypnotic effects.” Drug Enforcement Administration, Etizolam (Aug. 2023), https://www.deadiversion.usdoj.gov/drug_chem_info/etizolam.pdf.
The majority asserts that the question presented by this appeal is “whether a defendant who possesses a mixture of two controlled substances can be convicted of two violations of Code § 18.2-250 if the Commonwealth proves the defendant’s knowing possession of only one controlled substance.” Rather than showing some deference to the factfinder who, based upon the separate verdict forms, determined that the evidence was sufficient to convict Camann for possession of two different controlled substances within the cellophane wrapper, the majority concludes that “knowing possession” of etizolam was not proven since the requisite mens rea was met only with regard to one of the two controlled drugs (fentanyl) found within the cellophane wrapper.
Thus, as a threshold matter, I disagree with the majority’s framing of the question presented on appeal from the trial court. Based on the error Camann assigned to the trial court, the question to be resolved on appeal is whether “any rational trier of fact could … have found beyond a reasonable doubt that [Camann] knowingly and intentionally possessed Etizolam.” Since, the appeal before us simply challenges the sufficiency of the evidence in support of a single conviction for possession of etizolam, resolving this appeal requires the majority to employ the highest level of deference to the conclusion reached by the trier of fact, namely whether the trial court was plainly wrong and without any credible evidence to support its decision that Camann knowingly possessed a controlled substance identified in the verdict form as etizolam—and therefore that no rational factfinder could have found him guilty of possessing the etizolam. Instead, the majority advocates that the assigned error somehow compels de novo reinterpretation of Code § 18.2-250. Since, “on appeal, ‘we presume the judgment of the trial court to be correct’ and reverse only if the trial court’s decision is ‘plainly wrong or without evidence to support it,’ ” Stevens v. Commonwealth, 46 Va. App. 234, 248, 616 S.E.2d 754 (2005) (quoting Kelly v. Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444 (2003) (en banc)), unless the majority found that no rational factfinder could have reached the conclusion in this case, “the jury’s verdict cannot be overturned on appeal,” id.
Here, there is ample evidence in the record concerning the nature of the drugs found on Camann’s person including both the pills in the pill bottle and the powdery substance within the cellophane wrapper. In addition, the jury heard evidence that the cellophane wrapper contained a white powder that tested positive for two controlled drugs, including etizolam. Also, during trial, Camann answered “yes” when asked on direct examination whether “the white powdery substance” found in his wallet was his. Further, when asked whether he knew what etizolam was, he merely stated that he “[had] never heard of that.” Hence, in the required light most favorable to the Commonwealth, the jury simply failed to believe the self-serving testimony of Camann that he did not know he possessed one of the four controlled substances found in his possession. Thus, the jury was entitled to infer from his admission to knowingly possessing the white powder which contained a controlled substance, that he was “aware of [its] presence and character.” Finally, since Camann also readily admitted to being a drug addict, the jury could have easily inferred that as a drug addict, he had knowledge of the potential for the fentanyl he admitted to knowingly possessing being “cut” with other drugs, as it was here. Hence, given the error assigned by Camann, the credible evidence in the record, and the standard of review we are compelled to apply, I would have found the evidence sufficient to support Camann’s conviction for possession of etizolam.
Since the majority reaches its decision by reinterpreting Code § 18.2-250 utilizing a de novo standard of review, I am also compelled to respond to the invited issue in this case as it is framed by the majority. Hence, we begin by focusing on the language used in Code § 18.2-250, and where such language used is “plain and unambiguous, we are bound by the plain meaning of that statutory language.” Coles v. Commonwealth, 44 Va. App. 549, 557, 605 S.E.2d 784 (2004) (quoting Beck v. Shelton, 267 Va. 482, 488, 593 S.E.2d 195 (2004)). “Where bound by the plain meaning of the language used, we are not permitted ‘to add or to subtract from the words used in the statute.’ ” Id. (quoting Posey v. Commonwealth, 123 Va. 551, 553, 96 S.E. 771 (1918)).
The mens rea requirements of Code § 18.2-250 requires that possession of a controlled substance be knowing or intentional. Sierra v. Commonwealth, 59 Va. App. 770, 777, 722 S.E.2d 656 (2012). However, this standard “does not require him to know precisely what controlled substance it is” that he possesses, Id. at 775, 722 S.E.2d 656. Therefore, although “[k]nowledge is an essential element of the crime,” Young v. Commonwealth, 275 Va. 587, 591, 659 S.E.2d 308 (2008), the Commonwealth is not required to show that a defendant had knowledge of the precise identity of each of the controlled substances he intentionally possessed. The heightened evidentiary standard advanced by the majority would contradict our prior clear ruling in Sierra that being “unaware or mistaken as to the precise identity of [the] substance[ ] is not a defense.” Sierra, 59 Va. App. at 783, 722 S.E.2d 656.
As we have previously stated, the mens rea requirement in Code § 18.2-250 only applies to subsection (A). Id. at 778, 722 S.E.2d 656 (“[T]he General Assembly chose to specify a requisite degree of mens rea only in the general proscription against possessing controlled substances in the first paragraph of subsection (A).”). “Nowhere, however, in subparts (a)-(c) did the General Assembly insert a mens rea requirement.” Id. at 777-78, 722 S.E.2d 656. Instead, subparts (a)-(c) focus on the defendant’s actus reus and the specific type (or in this case, types) of different controlled substance(s) found in the defendant’s possession. Id. at 778, 722 S.E.2d 656 (“The specific type of substance found in a defendant’s possession is an actus reus element the Commonwealth must prove pursuant to subparts (a)-(e) of Code § 18.2-250(A), but it is not an element to which the mens rea requirement found earlier in Code § 18.2-250(A) applies.”).
“[T]he General Assembly has chosen not to excuse a defendant who knows he is possessing a controlled substance, but is unaware or perhaps mistaken as to the precise identity of the specific substance he is possessing … .” Id. at 779, 722 S.E.2d 656. The legislature has decided that if a defendant knows that a substance he possesses is controlled, he bears the risk of incurring whatever punishment is prescribed for possessing that specific substance without a prescription, “and we will not substitute our own policy for that of the legislature.” Id.
Accordingly, I take issue with the majority requiring the Commonwealth to prove Camann knew the precise number of controlled drugs in the white powdery mixture of controlled substances that he acknowledged intentionally possessing. Here, the Commonwealth filed separate indictments alleging possession of both controlled drugs in the mixture and the jury, as evidenced by the verdict forms, found the defendant guilty of possessing both drugs. “[T]he plain language of Code § 18.2-250 indicates the legislature’s intent to criminalize the knowing and intentional possession of ‘a controlled substance,’ whatever that controlled substance may turn out to be.” Id. at 778, 722 S.E.2d 656. Here, Camann possessed two separate controlled substances mixed together: fentanyl and etizolam. He acknowledged that the white powder containing these controlled drugs was his and that he was both aware of and intended to possess the white powder. While Camann did need to have the knowledge or the intent to possess a controlled substance to be convicted, he “[did] not need to know the exact nature of the substance in his possession, only that it was a controlled substance of some kind.” Id. at 781, 722 S.E.2d 656 (emphasis added) (quoting United States v. Martin, 274 F.3d 1208, 1210 (8th Cir. 2001)).
Although the majority argues it is only requiring Camann to know how many controlled substances he possessed, not which controlled substances he possessed, this seems to be a distinction without a difference. Practically speaking, we remain skeptical that Commonwealth’s attorneys in the vast majority of cases could prove a defendant knew how many controlled substances he possessed without also proving the defendant knew which controlled substances he possessed. In subsection (A) of Code § 18.2-250, the General Assembly chose to only require sufficient mens rea for proving knowing or intentional possession of “a” controlled substance not “one or more” controlled substances, as seemingly advocated by the majority requiring an additional showing as to how many substances are in a defendant’s possession. See Howard v. Commonwealth, No. 0780-17-1, slip op. at 5-6, 2018 WL 2604993, at *3 (Va. Ct. App. June 5, 2018) (“The General Assembly selected ‘a’ controlled substance and ‘any’ controlled substance as the statute’s unit of prosecution. By doing so, the legislature selected a term that would permit a defendant to be charged for each controlled substance he possesses.”). Thus, while we agree with the majority that there is a mens rea requirement, we do not agree with extending the mens rea requirement to subparts (a)-(c). The majority mischaracterizes this interpretation as a “relax[ation] [of] the mens rea requirement,” even though this interpretation is the only one that gives meaning to the structure chosen by the General Assembly in separating the mens rea provision from the actus reus element within subparts (a)-(c). See Code § 18.2-250(A).
The majority acknowledges that under Sierra, if a person thinks he has heroin, but it turns out to be fentanyl, that person has still “knowingly or intentionally … possess[ed] a controlled substance.” Code § 18.2-250; Sierra, 59 Va. App. at 783-84, 722 S.E.2d 656. However, the majority seemingly concludes that Sierra should apply with less force when a defendant thinks he possesses heroin, but instead possesses both heroin and fentanyl mixed together. Likewise, as the majority notes, unless the mixture of controlled drugs goes by a common street name it would seem to be difficult, if not impossible, to find that a defendant had knowledge of the presence of each drug in a mixture. To this end, we have previously noted that “[t]o interpret the statute as appellant urges would be to encourage drug dealers to mix various narcotics into one container in order to thwart prosecution under Code § 18.2-250 for more than one felony charge of possession of multiple narcotics in the same capsule, pill, or other container.” Howard v. Commonwealth, No. 0780-17-1, slip op. at 9, 2018 WL 2604993, at *5 (Va. Ct. App. June 5, 2018).
The majority notes that along with Camann, “[t]he prosecutor, the sheriff’s deputy, the defense lawyer, and the trial judge” “could not pronounce [etizolam].” While perhaps unknown to the trial court at the time of Camann’s conviction, etizolam has been known to be used in combination with opioids: etizolam has “increasing[ly]” been reported “as an ingredient in counterfeit medications.” Suzanne Nielsen & Andrew McAuley, Etizolam: A rapid review on pharmacology, non-medical use and harms, Australasian Professional Society on Alcohol and other Drugs (Apr. 3, 2020), https://doi.org/10.1111/dar.13052. Additionally, “most harms with etizolam appear to be related to the wide availability of illicitly manufactured pills, which are taken in unknown doses and combined with other substances.” Id. Further, the General Assembly went to the effort to designate etizolam in the list of Schedule I controlled substances under Code § 54.1-3446(4).
In Howard, the defendant was arrested with “a suspected capsule of heroin.” Id. at 2, 2018 WL 2604993, at *1. Upon examination, it was discovered that the capsule actually contained a mixture of heroin and fentanyl. Id. On appeal, Howard disputed “whether the mens rea requirement of Code § 18.2-250 requires a defendant to know the exact number of controlled substances that are in his possession,” as well as “whether the evidence in this case was sufficient to support multiple convictions under that statute.” Id. at 4, 2018 WL 2604993, at *2. In assessing defendant Howard’s argument, a panel of this Court noted that “[t]he General Assembly selected ‘a’ controlled substance and ‘any’ controlled substance” as the relevant unit of prosecution, and thus “the legislature selected a term that would permit a defendant to be charged for each controlled substance he possesses.” Id. at 5-6, 2018 WL 2604993, at *3. This was a legislative choice by the General Assembly “not to limit the number of charges or convictions that a defendant could receive if multiple controlled substances were packaged in a single container or a single capsule.” Id. at 6, 2018 WL 2604993, at *3. In short, as illustrated by this Court’s 2018 panel decision in Howard, the fact that “two controlled substances were packaged in a single capsule” cannot limit the Commonwealth from “eonvict[ing] and punish[ing] separately for the possession of each controlled substance within that capsule.” Id.
Here, Camann was indicted for possessing four separate controlled substances. He admitted to possessing three but denied possessing the fourth. The trial court instructed the jury that their verdict forms indicated each of the four controlled substances allegedly possessed, including etizolam. The jury then convicted Camann on each indictment for “knowingly or intentionally possess[ing] a … controlled substance.” Like the defendant in Sierra, it was a matter for the jury to consider whether Camann “knowingly or intentionally possessed” the substances in his possession. The jury was instructed on the meaning of this mens rea requirement: “that a person is aware of the presence and character of the substance and has actual physical possession or constructive possession.” In convicting Camann on all four possession charges, the jury found that Camann knew he possessed four separate controlled substances even though he claimed to be mistaken as to the identity of the etizolam. Thus, consistent with Sierra, Camann’s mistake as to the specific controlled substances within the cellophane wrapper cannot be a defense under the plain meaning of Code § 18.2-250. Sierra, 59 Va. App. at 783-84, 722 S.E.2d 656 (“A claim by a defendant that he knew he was possessing a controlled substance, but was unaware or mistaken as to the precise identity of that substance, is not a defense under Code § 18.2-250.”).
As stated, Sierra is helpful in fleshing out the concept that possession of the substance “is an actus reus element” and not a mens rea element.” Howard, slip op. at 8, 2018 WL 2604993, at *4 (quoting Sierra, 59 Va. App. at 778, 722 S.E.2d 656). Because Camann possessed the controlled substances within the white powder as proved by the testing performed by the Department of Forensic Science, he thus satisfied the actus reus element. However, similar to Howard, Camann “had the general mens rea to possess a controlled substance—but actually possessed more than one controlled substance in the same container,” and thus by having knowledge that the white powder contained a controlled substance, or at the very least, having the intention to possess the white powder, he thus had the requisite mens rea to possess a controlled substance. Id. Bearing in mind the General Assembly’s legislative intent to fight the illicit flow of drugs (including where drug dealers mix more than one controlled substance in a capsule or powder), as well as bearing in mind our holding in Sierra, we agree with this Court’s rationale in Howard that “as long as the defendant knows that the capsule contains at least one controlled substance,” then “the Commonwealth is not required to prove that a defendant knows each controlled substance that a capsule contains in order to support convictions for both controlled substances contained in the capsule under Code § 18.2-250.” Id. at 14, 2018 WL 2604993, at *7.
The General Assembly has not further modified Code § 18.2-250 since the 2018 decision by this Court in Howard.
The majority posits that the above rationale as noted in Howard “would create strict criminal liability for possessing each additional substance in the mixture beyond the first one.” This stark conclusion ignores our finding in Sierra that mistaken identity concerning the specific substance in one’s possession is not a defense under Code § 18.2-250. Sierra, 59 Va. App. at 783-84, 722 S.E.2d 656. To further allow a defendant to claim “mistaken identity” about a powder he knew contained a controlled substance would defy the logic undergirding the above stated rationale. While I appreciate the majority’s concern regarding some of the potentially harsh outcomes that could result from interpreting the statute based on its plain meaning as supported by Sierra, such concerns seem to arise from the potential policy implications, not legal interpretation. See Daily Press, LLC v. Off. of Exec. Sec’y of Supreme Ct., 293 Va. 551, 557, 800 S.E.2d 822 (2017) (“Public policy questions concerning where to draw the line … fall within the purview of the General Assembly. In a regime of separated powers that assigns to the legislature the responsibility for charting public policy, our function is limited to adjudicating … question[s] of law[.]”). Our “drug statutes require specific knowledge or intent as to a general category of unlawful items. The specific unlawful items, however, are found in the penalty section of the scheme.” Sierra, 59 Va. App. at 781, 722 S.E.2d 656 (quoting United States v. Barbosa, 271 F.3d 438, 458 (3d Cir. 2001)) (explaining how the reasoning behind 21 U.S.C. § 841 “applies with equal force to Code § 18.2-250”). Thus, we cannot “arbitrarily add specific mens rea requirements to elements of an offense where the General Assembly has expressly prescribed what mens rea requirements it wishes to impose.” Sierra, 59 Va. App. at 778, 722 S.E.2d 656. “Such public policy arguments cannot contravene clear statu- tory language and should be addressed to the legislature, not the courts.” Hartford Underwriters Ins. Co. v. Allstate Ins. Co., 301 Va. 460, 474 n.12, 880 S.E.2d 786 (2022).
Consequently, for all of these reasons, I would have affirmed Camann’s convictions for possession of both fentanyl and etizolam pursuant to Code § 18.2-250, and therefore, I respectfully dissent.