Opinion
Record No. 1546-91-1
April 20, 1993
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK LEONARD B. SACHS, JUDGE.
Allan D. Zaleski (Weisberg Stein, P.C., on brief), for appellant.
Eugene Murphy, Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellee.
Present: Chief Judge Koontz, Judges Baker and Willis.
Argued at Norfolk, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
On appeal from his conviction of attempted possession of cocaine, Leon Roosevelt Grant contends that the trial court erred (1) when it allowed a police officer to describe a substance as "imitation drugs," and (2) in finding him guilty on the evidence presented. We disagree and affirm the judgment of the trial court.
On May 15, 1991, Grant approached Derek Young, an undercover officer, and asked who was "holding." Officer Young responded that he was and asked what Grant wanted. Grant requested "ready rock," a free base cocaine in hard form. Officer Young showed Grant a small vial containing a macadamia nut chip, a solid, yellowish-white substance. Grant refused this and again asked for "ready rock." Officer Young produced a small bag containing more macadamia nut pieces. Grant bought one for twenty dollars. Officer Young immediately arrested Grant, who admitted going to the scene to buy a "twenty piece rock" for a friend.
At trial, Officer Young described the macadamia nut pieces as "imitation drugs." Counsel for Grant promptly objected to this characterization. The trial court overruled this objection.
Grant first contends that no attempt occurred because the substance was not cocaine. He argues that to convict him of the crime of cocaine possession, the Commonwealth must prove that he possessed cocaine with knowledge of its nature and character. He argues that he could not be aware of the nature and character of a substance that he never bought. He argues that to correct this loophole, the General Assembly enacted Code § 18.2-248(G), making the sale of an imitation controlled substance a misdemeanor. He argues that, because Code § 18.2-248 refers only to distribution or possession with intent to distribute, the "imitation" portion of the section does not apply to attempts to possess under Code § 18.2-250.
Grant's argument overlooks the fact that he was convicted of attempted possession, not possession, of a controlled substance. The Commonwealth was required to prove only the elements of an attempt. "An attempt to commit a crime consists of (1) intent, and (2) doing some direct act toward its consummation which is more than mere preparation but short of execution of the ultimate purpose." Wade v. Commonwealth, 9 Va. App. 359, 360, 388 S.E.2d 277, 277 (1990).
The evidence supports Grant's conviction of attempted possession. His statement to Officer Young that he wanted to purchase "ready rock" and his statement after his arrest that he intended to purchase "crack" cocaine prove that he intended to purchase and possess cocaine. Grant committed an overt act toward acquiring possession when he paid twenty dollars for the substance. The crime was then complete.
Grant next contends that the trial court erred in allowing Officer Young, a lay witness, to testify that the nut pieces were "imitation drugs." He argues that this was a determination to be made by the trier of fact, based upon evidence describing the characteristics of both the nuts and crack cocaine. This issue is irrelevant.
The appearance and the actual makeup of the substance are irrelevant to Grant's conviction of attempted possession of cocaine. Since the elements of attempted possession were proved, the appearance of the substance was of no consequence.
For these reasons, we affirm the decision of the trial court.
Affirmed.