Williams v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Felton, Judges Frank and Kelsey

Argued at Richmond, Virginia

CHRISTOPHER JAMES WILLIAMS

OPINION BY

v. Record No. 0201-10-2 JUDGE ROBERT P. FRANK

DECEMBER 14, 2010

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY

Michael C. Allen, Judge

Keith N. Hurley (Keith N. Hurley, P.C., on brief), for appellant.

Erin M. Kulpa, Assistant Attorney General (Kenneth T. Cuccinelli,

II, Attorney General, on brief), for appellee.

Christopher James Williams, appellant, was convicted, in a bench trial, of possessing a

controlled drug not obtained by a valid prescription, in violation of Code § 18.2-250. On appeal,

he contends: (1) the evidence was insufficient because the Commonwealth failed to prove he

had no valid prescription to obtain the drug; (2) Code § 18.2-263, relied upon by the

Commonwealth, is unconstitutionally vague because it fails to state a standard of proof for the

accused to overcome the government’s burden of proof; and (3) that Code § 18.2-263 violates his

due process rights by shifting the Commonwealth’s burden to appellant to prove his innocence.

For the reasons stated, we affirm the trial court’s judgment.

BACKGROUND

Appellant was in possession of three pills, each containing Oxycodone and

Acetaminophen. The preparation is a Schedule II prescription drug. The shape, color, and

manufacturer’s markings of the pills were consistent with a pharmaceutical prescription.

Appellant did not contest that he possessed the pills. He filed a pretrial motion to dismiss

the charge, arguing that Code § 18.2-263 was unconstitutional. 1 The Commonwealth argued the

existence of a valid prescription was an affirmative defense, rather than an element of the

offense. The trial court found the statute constitutional and denied appellant’s motion to dismiss.

Other than the provisions of Code § 18.2-263, the Commonwealth produced no evidence that

appellant did not possess a valid prescription. Appellant argues the absence of a valid

prescription is an element of the offense and must be proved by the Commonwealth.

ANALYSIS

On appeal, appellant challenges the constitutionality of Code § 18.2-263 on two grounds.

First, appellant contends the statute is unconstitutionally vague because it fails to state a standard

of proof required for him to prove he had a valid prescription. Second, he argues the statute

violates the Due Process Clause of both the United States and Virginia Constitutions by shifting

the burden to appellant to prove his innocence. Appellant, assuming the statute is

unconstitutional, then challenges the sufficiency of the evidence, because without the benefit of

Code § 18.2-263, the Commonwealth did not prove he had no valid prescription to possess the

1

Code § 18.2-250(A) provides in pertinent part:

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 or order of a practitioner while acting in the course of his

professional practice, or except as otherwise authorized by the Drug Control Act

(§ 54.1-3400 et seq.).

Code § 18.2-263 provides:

In any complaint, information, or indictment, and in any action or

proceeding brought for the enforcement of any provision of this article or of the

Drug Control Act (§ 54.1-3400 et seq.), it shall not be necessary to negative any

exception, excuse, proviso, or exemption contained in this article or in the Drug

Control Act, and the burden of proof of any such exception, excuse, proviso, or

exemption shall be upon the defendant.

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pills. As the constitutionality of Code § 18.2-263 is dispositive of the sufficiency argument, we

will first address the constitutionality of that statute.

Vagueness

Appellant notes that while Code § 18.2-263 allocates the burden of proof to the accused

to prove he had a valid prescription, it does not indicate whether that burden is by preponderance

of the evidence, or beyond a reasonable doubt. Appellant concludes a person of ordinary

intelligence would not know what standard of proof is required. Therefore, he posits, this

ambiguity could encourage arbitrary and discriminatory enforcement.

The Commonwealth responds that because appellant never argued this issue to the trial

court and because the trial court never ruled on the vagueness issue, we cannot review this

argument. 2 We agree.

Because appellant did not obtain a ruling from the trial court on his pretrial motion,

“there is no ruling for [this Court] to review” on appeal, and his argument is waived under Rule

5A:18. Fisher v. Commonwealth, 16 Va. App. 447, 454, 431 S.E.2d 886, 890 (1993). The main

purpose of requiring timely specific objections is to afford the trial court an opportunity to rule

intelligently on the issues presented, thus avoiding unnecessary appeals and reversals.

Although Rule 5A:18 contains exceptions for good cause or to meet the ends of justice,

appellant does not argue these exceptions and we will not invoke them sua sponte. See Edwards

v. Commonwealth, 41 Va. App. 752, 761, 589 S.E.2d 444, 448 (2003) (en banc).

2

In his motion to dismiss, appellant raised the vagueness challenge but failed to argue

vagueness before the trial court. The sole argument by appellant and the Commonwealth was the

due process issue. The trial court, in denying the motion, did not address the vagueness issue.

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Because there was no ruling on the vagueness argument, the argument is waived and we

will not consider it on appeal. 3

Due Process

Appellant also contends that Code § 18.2-263 impermissively shifts the Commonwealth’s

burden of proof to him, violating the Due Process Clause of the United States and Virginia

Constitutions.

On appeal, we review arguments regarding the constitutionality of a statute de novo.

Shivaee v. Commonwealth, 270 Va. 112, 119, 613 S.E.2d 570, 574 (2005) (citing Wilby v.

Gostel, 265 Va. 437, 440, 578 S.E.2d 796, 798 (2003)). When the constitutionality of a statute is

challenged, we are guided by the principle that ‘“all acts of the General Assembly are presumed

to be constitutional.’” Va. Society for Human Life v. Caldwell, 256 Va. 151, 156-57, 500 S.E.2d

814, 816 (1998) (quoting Hess v. Snyder Hunt Corp., 240 Va. 49, 52, 392 S.E.2d 817, 820

(1990)). “Therefore, ‘a statute will be construed in such a manner as to avoid a constitutional

question wherever this is possible.’” Yamaha Motor Corp. v. Quillian, 264 Va. 656, 665, 571

S.E.2d 122, 127 (2002) (quoting Eaton v. Davis, 176 Va. 330, 339, 10 S.E.2d 893, 897 (1940)).

“This presumption is ‘one of the strongest known to the law.’” Boyd v. County of

Henrico, 42 Va. App. 495, 507, 592 S.E.2d 768, 774 (2004) (en banc) (quoting Harrison v. Day,

200 Va. 764, 770, 107 S.E.2d 594, 598 (1959)). Under the presumption, “courts must ‘resolve

any reasonable doubt’ regarding the constitutionality of a law in favor of its validity.” Id.

(citations omitted). ‘“To doubt is to affirm.’” Id. (quoting Peery v. Bd. of Funeral Dirs., 203 Va.

161, 165, 123 S.E.2d 94, 97 (1961)).

3

The Commonwealth argues appellant had no standing to argue vagueness since he was

not injured by lack of the statute setting forth the standard of proof. As we have concluded this

issue is waived, we need not address standing.

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Due process requires the prosecution “to prove beyond a reasonable doubt every fact

necessary to constitute the crime charged.” Mullaney v. Wilbur, 421 U.S. 684, 685 (1975).

Mullaney held that any rule which has the ultimate effect of shifting the burden of persuasion to

the accused upon a critical issue is constitutionally infirm. Id. at 701.

In order to resolve whether there is a due process violation in this case, we first must

address the threshold issue of whether the absence of a valid prescription is an affirmative

defense or a negative element of the offense. If it is the latter, the burden of proof is on the

Commonwealth, and it cannot be shifted to the accused.

It is a familiar principle of law that ambiguous penal statutes must be strictly construed

against the Commonwealth. Stevenson v. City of Falls Church, 243 Va. 434, 436, 416 S.E.2d

435, 437 (1992). If we are required to apply statutory construction, we will construe a statute to

promote the end for which it was enacted, if we may reasonably reach such an interpretation

from the language used. VEPCO v. Board of County Supervisors, 226 Va. 382, 387-88, 309

S.E.2d 308, 311 (1983). Therefore, a statute should be read to give reasonable effect to the

words used ‘“and to promote the ability of the enactment to remedy the mischief at which it is

directed.’” Mayhew v. Commonwealth, 20 Va. App. 484, 489, 458 S.E.2d 305, 307 (1995)

(quoting Jones v. Conwell, 227 Va. 176, 181, 314 S.E.2d 61, 64 (1984)). ‘“Where a particular

construction of a statute will result in an absurdity, some other reasonable construction which

will not produce the absurdity will be found.’” Id. (quoting Miller v. Commonwealth, 180 Va.

36, 41, 21 S.E.2d 721, 723 (1942)).

Mayhew also notes:

When construing penal statutes which contain qualifications,

exceptions or exemptions to their application, the limiting

language may be viewed as a negative element of the offense

which the prosecution must disprove. Alternately, the court may

determine that the exemption is a statutory defense, which the

accused can assert to defeat the prima facie case of the

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prosecution. Regular Veterans [Association, Ladies Auxiliary v.

Commonwealth], 18 Va. App. [683,] 688, 446 S.E.2d [621,] 624

[(1994)] (. . . [The accused bears] the burden of producing

evidence [of the negation of circumstances] sufficient to raise a

reasonable doubt of [his] guilt).

In determining whether specific limiting language is an element of

the offense or a statutory defense, a court should look both to the

intent of the statute as a whole and the ability of the respective

parties to assert the existence or absence of the underlying facts

sustaining the applicability of the limitation. Accordingly, we

should consider

the wording of the exception and its role in relation

to the other words in the statute; whether in light of

the situation prompting legislative action, the

exception is essential to complete the general

prohibition intended; whether the exception makes

an excuse or justification for what would otherwise

be criminal conduct, i.e., sets forth an affirmative

defense; and whether the matter is peculiarly within

the knowledge of the defendant.

Commonwealth v.Stoffan, 323 A.2d 318, 324 (Pa. Super. Ct.

1974); See also State v. Williamson, 206 N.W.2d 613, 618 (Wis.

1973) (It is undoubtedly the general rule that the state must prove

all the essential facts entering into the description of the offense.

But it has been held in many cases that when a negation of a fact

lies peculiarly within the knowledge of the defendant it is

incumbent on him to establish that fact).

Id. at 489-90, 458 S.E.2d at 307-08 (internal quotations and some citations omitted).

The Supreme Court of Virginia, in Stillwell v. Commonwealth, 219 Va. 214, 218-19, 247

S.E.2d 360, 363 (1978), reviewed the purpose of The Drug Control Act, i.e. the situation

prompting legislative action, noting:

In its enactment of The Drug Control Act the General Assembly

recognized that, except in very rare and most unusual cases, there

can be no lawful possession, sale or distribution of drugs by

anyone, particularly of those drugs classified in Schedules I, II and

III . . . . With few exceptions, enumerated by statute, no one can

lawfully manufacture, possess, sell or distribute such drugs. . . .

The possession of drugs is confined to a small group of

professionals who are required to dispense the drugs under

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restricted and controlled conditions. By and large, it can be said

that the lawful possession of drugs is restricted to licensed

manufacturers, licensed pharmacists, and to individuals who have

possession as a result of a prescription given by an authorized

physician.

The General Assembly recognized that seldom, if ever, except in

these authorized instances, could there be any explanation for the

sale or possession of drugs.

Clearly, the legislature intended for Virginia’s drug laws to rigorously limit possession of

Schedule I, II, and III controlled substances.

We next observe that the “valid prescription” exemption of Code § 18.2-250 relates to a

fact that would be solely within the knowledge of the accused. If we accept appellant’s

contention that the Commonwealth must prove appellant had no valid prescription, the offense

would be virtually unprovable. Under appellant’s theory, to obtain a conviction under the facts

of this case, the Commonwealth would be required to prove that no medical professional,

wherever located, in this Commonwealth or elsewhere, had prescribed the drug to appellant.

This would involve a nationwide search of chain drugstores, as well as independent pharmacies,

hospitals, prison infirmaries, etc. Appellant, at oral argument, conceded that such an undertaking

would most likely be impossible. The General Assembly clearly did not intend such a result, nor

would they enact such an impotent statute.

While we acknowledge the requirement that we strictly construe ambiguous penal

statutes against the Commonwealth, Welch v. Commonwealth, 271 Va. 558, 563, 628 S.E.2d

340, 342 (2006), we are also aware “that the plain, obvious, and rational meaning of a statute is

always to be preferred to any curious, narrow, or strained construction,” Turner v.

Commonwealth, 226 Va. 456, 459, 309 S.E.2d 337, 338 (1983). Hence, “we will not apply ‘an

unreasonably restrictive interpretation of the statute’ that would subvert the legislative intent

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expressed therein.” Armstrong v. Commonwealth, 263 Va. 573, 581, 562 S.E.2d 139, 144

(2002) (quoting Ansell v. Commonwealth, 219 Va. 759, 761, 250 S.E.2d 760, 761 (1979)).

Under well-settled law, ‘“the burden is on the Commonwealth to prove every essential

element of the offense beyond a reasonable doubt.’” Bishop v. Commonwealth, 275 Va. 9, 12,

654 S.E.2d 906, 908 (2008) (quoting Powers v. Commonwealth, 211 Va. 386, 388, 177 S.E.2d

628, 629 (1970)). This fundamental precept has been the bedrock of Virginia’s criminal

jurisprudence since the inception of this Commonwealth. Id. “In a criminal case, the defendant

is entitled to an acquittal, unless his guilt is established beyond a reasonable doubt.” Savage v.

Commonwealth, 84 Va. 582, 585, 5 S.E. 563, 564 (1888).

“An affirmative defense,” however, raises “a separate issue which

may carry a separate burden of proof.” Ronald J. Bacigal,

Criminal Procedure § 17.28 (2007-2008 ed.). It is well settled that

a criminal defendant may be required to bear all or part of the

burden in establishing an affirmative defense “once the facts

constituting a crime are established beyond a reasonable doubt

. . . .” New York v. Patterson, 432 U.S. 197, 206 (1977).

In Virginia, a criminal defendant typically bears the burden of

“producing evidence in support of [an affirmative defense]

sufficient to raise a reasonable doubt of [his or her] guilt.” Regular

Veteran’s Assoc., Ladies Auxiliary v. Commonwealth, 18 Va.

App. 683, 688, 446 S.E.2d 621, 624 (1994) (citing McGhee v.

Commonwealth, 219 Va. 560, 562, 248 S.E.2d 808, 810 (1978)). 4

As is the case with any defense, “a defendant may shoulder this

burden of production by pointing to evidence adduced during the

government’s case, by introducing evidence to his own behoof, by

relying on some combination of the foregoing, or otherwise by

reference to any probative material in the record.” United States v.

Rodriguez, 858 F.2d 809, 814 (1st Cir. 1988). However, once the

defendant meets that burden, the Commonwealth, retaining the

ultimate burden of persuasion, may be required to disprove the

defense. See Simopoulos v. Commonwealth, 221 Va. 1059, 1069,

277 S.E.2d 194, 200 (1981), aff’d, 462 U.S. 506 (1983).

Tart v. Commonwealth, 52 Va. App. 272, 276-77, 663 S.E.2d 113, 115 (2008).

4

Tart noted “there is no uniform rule in Virginia regarding the burden of persuasion for

affirmative defenses.” 52 Va. App. at 276 n.1, 663 S.E.2d at 115 n.1.

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Under the Mayhew criteria, we hold that requiring the Commonwealth to prove this

negative would undermine the general prohibition intended by the legislature. The exception,

i.e. a valid prescription, justifies what would otherwise be criminal conduct. The presence of a

valid prescription is “peculiarly within the knowledge of the [appellant].” Mayhew, 20 Va. App.

at 490, 458 S.E.2d at 308. Thus, we conclude the presence of a valid prescription is an

affirmative defense for which the appellant has the burden of going forward with supporting

evidence. See id.

People v. Pegenau, 523 N.W.2d 325 (Mich. 1994), while not binding on this Court, offers

persuasive reasoning. In Pegenau, appellant was convicted of unlawful possession of Valium

and Xanax. The statute at issue was very similar to our Code § 18.2-250, and read, in pertinent

part:

A person shall not knowingly or intentionally possess a controlled

substance or an official prescription form or a prescription form

unless the controlled substance, official prescription form, or

prescription form was obtained directly from, or pursuant to, a

valid prescription or order of a practitioner while acting in the

course of the practitioner’s professional practice . . . .

Id. at 333-34 (emphasis omitted).

The Supreme Court of Michigan held that “the operative words defining the elements of

the crime are ‘A person shall not knowingly or intentionally possess a controlled substance . . . .’

The language concerning a prescription or other authorization refers to an exemption rather than

an element of the crime.” Id. at 334. The Pegenau court referred to another Michigan case,

People v. Henderson, 218 N.W.2d 2 (Mich. 1974), where the Supreme Court of Michigan

interpreted the concealed weapon statute. That statute prohibited carrying a concealed weapon in

an automobile unless the carrier held a license to do so. The Henderson court upheld language in

the statute that placed on the defendant the burden to prove any exemption to the statute. The

court concluded that any language in the statute referring to the absence of a license did not add

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an element to the crime, but merely acknowledged that a person may be authorized (by holding a

license) to carry a pistol. See id. at 8. 5 As in Pegenau, the operative words of Code § 18.2-250,

defining the offense, are “knowingly or intentionally possess a controlled substance.”

Thus, the exception language in Code § 18.2-250 is not an element of the offense, but

rather an affirmative defense. As a result, appellant was required to satisfy his burden of

producing or pointing to evidence that would allow him to invoke the exception. See Tart, 52

Va. App. at 280, 663 S.E.2d at 117. Due process does not prohibit the use of inferences as

procedural devices to shift to the accused the burden of producing some evidence contesting the

otherwise presumed or inferred fact. See Hodge v. Commonwealth, 217 Va. 338, 341, 228

S.E.2d 692, 695 (1976). The Hodge Court held the “presumption that an unlawful homicide is

murder in the second degree amounts to no more than an inference” which the trier of fact may

draw from proven facts. Id. at 343, 288 S.E.2d at 696. However, the ultimate “burden of proof

is always upon the Commonwealth, and this burden never shifts.” Id. at 342, 228 S.E.2d at 695.

Code § 18.2-263 is constitutionally valid, as it does not impermissibly shift the burden of proof

to appellant or violate his due process rights. The trial court correctly denied appellant’s motion

to dismiss.

Sufficiency

Finally, appellant argues the evidence was insufficient to convict him of violating Code

§ 18.2-250, because without the benefit of Code § 18.2-263, the Commonwealth failed to prove

he did not have a valid prescription to possess the Schedule II controlled substances.

5

While Henderson only applied to shifting the burden of production, the United States

Supreme Court, in Patterson v. New York, 432 U.S. 197 (1977), held that a statute placing the

burden of proof on the defendant does not violate due process as long as the fact the defendant is

required to prove does not determine an essential element of the offense. Id. at 210.

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However, this argument rises or falls with the constitutionality of Code § 18.2-263. We

have already determined that Code § 18.2-263 is valid. This conclusion disposes of appellant’s

sufficiency argument. Appellant was properly convicted under Code § 18.2-250.

CONCLUSION

We find that Code § 18.2-263 is constitutional and does not impermissibly shift the

burden of proof to appellant. The trial judge properly denied appellant’s motion to dismiss and

convicted appellant, and we affirm that judgment.

Affirmed.

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