The opinion
COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Frank and Humphreys
Argued at Richmond, Virginia
LERONE DARNELL TOLIVER, S/K/A
LERONE DARRELL TOLIVER
OPINION BY
v. Record No. 0015-01-2 JUDGE ROBERT J. HUMPHREYS
APRIL 2, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Margaret P. Spencer, Judge
Andrea C. Long (Boone, Beale, Cosby & Long,
on brief), for appellant.
Steven A. Witmer, Assistant Attorney General
(Randolph A. Beales, Attorney General, on
brief), for appellee.
Lerone Darnell Toliver appeals his conviction, after a bench
trial, for possession of a controlled substance with the intent to
distribute within 1,000 feet of school property. 1 For the reasons
that follow, we reverse and remand.
I. BACKGROUND
On May 26, 2001, Officer Robert Sprinkle, of the Richmond
Police Department, was informed that there were outstanding
warrants for Toliver's arrest. Sprinkle was provided with
1
The Conviction and Sentencing Order indicates Toliver was
also convicted of possession of heroin, possession of heroin
with intent to distribute, possession of heroin while in
possession of a firearm, possession of cocaine with intent to
distribute, malicious wounding and felony child abuse. These
convictions are not at issue on this appeal.
information concerning Toliver, including a Wanted Poster bearing
Toliver's picture, his physical description, a description of the
car he had been driving and a partial license plate number, as
well as a list of places where Toliver might be found.
At approximately 9:15 a.m. that same day, Sprinkle observed
Toliver standing next to an open car door in the 2500 block of
Phaupp Street in Richmond, one of the areas where Sprinkle was
advised Toliver might be found. Sprinkle approached Toliver and
told him he needed to speak with him. Toliver immediately fled on
foot. Sprinkle chased Toliver for "[about a block[,] [m]aybe not
quite a block," before arresting him, 261.5 feet from the doors of
Fairfield Elementary School.
Sprinkle searched Toliver incident to arrest and found one
"baggie corner" containing .053 grams of heroin, one plastic bag
with 17 "baggie corners" containing .96 grams of heroin, one
plastic bag with six "baggie corners" containing crack cocaine,
and loose crack cocaine, totaling .60 grams. Sprinkle also found
$418.17 and a cell phone. Toliver was charged with possession of
a controlled substance with the intent to distribute within 1,000
feet of school property, as well as several other offenses.
At trial, Richmond Detective A.J. Jones, an expert qualified
to testify regarding drug distribution, testified that the items
found on Toliver's person were not consistent with personal drug
use.
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At the close of the Commonwealth's evidence, Toliver moved
to strike the charge of possession with intent to distribute
within 1,000 feet of a school, arguing that the distance from the
school should have been measured from where Toliver was approached
by the officer and began running, instead of from where he was
apprehended. The trial court denied the motion, holding:
This is not a case where the officer said
run, or where the officer said run toward
the school. [Toliver], by his own motion,
placed himself in a position where he was
within 1,000 feet of a public or private
elementary, secondary or post-secondary
school.
Toliver renewed his motion to strike at the close of the
evidence, and the trial court again denied it. Toliver was
ultimately convicted and sentenced to five years in prison on
the charge, all suspended.
On appeal, Toliver does not dispute the fact that he
possessed the drugs, nor does he dispute the fact that he
possessed them with the intent to distribute them. Instead, he
contends that the evidence was insufficient to support his
conviction, because the only evidence offered pertaining to his
proximity to the school was the distance from where he was
apprehended. Toliver argues that the Commonwealth should have
offered evidence of his distance from the school from where he
was initially approached by the officer, as he claims there was
no evidence he intended to possess or deal drugs within 1,000
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feet from the school, only that he ran toward the school in an
effort to evade Officer Sprinkle.
II. ANALYSIS
"When the sufficiency of the evidence is challenged, we
consider all the evidence, and any reasonable inferences fairly
deducible therefrom, in the light most favorable to the party
that prevailed at trial, which is the Commonwealth in this
case." 2 A trial court's judgment will not be disturbed on appeal
unless it is plainly wrong or without evidence to support it. 3
Code § 18.2-255.2 provides as follows, in relevant part:
It shall be unlawful for any person to
manufacture, sell or distribute or possess
with intent to sell, give or distribute any
controlled substance, imitation controlled
substance or marijuana while (i) upon the
property, including buildings and grounds,
of any public or private elementary,
secondary, or post[-]secondary school, or
any public or private two-year or four-year
institution of higher education; (ii) upon
public property or any property open to
public use within 1,000 feet of such school
property . . . .
Toliver argues this statute applies to cases where it is proven
that a defendant intended to engage in a drug transaction within
1,000 feet of a school, and not to cases where it is proven only
that the defendant intended to engage in a drug transaction
outside the designated zone. We agree.
2
Byers v. Commonwealth, 37 Va. App. 174, 179, 554 S.E.2d
714, 716 (2001).
3
See Code § 8.01-680.
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"In evaluating [Toliver's] arguments, we are mindful that
Code § 18.2-255.2 is a penal statute and, as such, 'must be
strictly construed against the state and limited in application
to cases falling clearly within the language of the statute.'" 4
So viewed, it is clear that the statute places a geographic
limitation on the necessary elements contained therein. The
language plainly prohibits the "manufacture, [sale] or
distribut[ion] or possess[ion] with intent to sell, give or
distribute any controlled substance . . . while . . . upon" the
designated property. 5 This particular statute does not state
that it prohibits possession of a controlled substance while
upon school property, or within 1,000 feet thereof, with the
intent to sell, give or distribute the substance elsewhere.
The Commonwealth argues that the legislature intended no
such geographical limitation on the terms of the statute and
that reading into the statute such a limitation is "patently
ridiculous" and would create a "right to flight," immunizing a
defendant from subsequent crimes committed during flight from
authorities. However, it is "[o]ur duty . . . to interpret the
law, not enact it." 6 "'[W]hen analyzing a statute, we must
4
Hughes v. Commonwealth, 33 Va. App. 405, 408, 533 S.E.2d
649, 650 (2000) (quoting Turner v. Commonwealth, 226 Va. 456,
459, 309 S.E.2d 337, 338 (1983)).
5
Code § 18.2-255.2 (emphasis added).
6
Barnett v. D.L. Bromwell, Inc., 4 Va. App. 552, 556, 358
S.E.2d 767, 769 (1987), rev'd en banc on other grounds, 6 Va.
App. 30, 366 S.E.2d 271 (1988).
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assume that "the legislature chose, with care, the words it used
when it enacted the relevant statute, and we are bound by those
words as we interpret the statute."'" 7 Thus, if the legislature
had intended this particular statute to punish individuals for
merely possessing a controlled substance while on school
property, within 1,000 feet of school property, or while passing
through such property, with the intent to distribute the
substance elsewhere, it could have done so. "We cannot add such
additional protection to a statute . . ., nor can we rewrite a
statute with language not used by the legislature." 8
Our reading of the statute comports with the Supreme Court
of Virginia's interpretation of the legislative intent behind
it, as set forth in Commonwealth v. Burns. 9 In Burns, the Court
reviewed the statute and found:
In our opinion, . . . implicit in the
General Assembly's enactment of Code
§ 18.2-255.2, is the legislative finding
that the threat of harm to children is
present whether or not school is in session,
school-related activities are being held, or
children are present when drug transactions
take place within 1,000 feet of a school. 10
7
Cousar v. Peoples Drug Store, 26 Va. App. 740, 745, 496
S.E.2d 670, 672 (1998) (quoting City of Virginia Beach v. ESG
Enters., Inc., 243 Va. 149, 153, 413 S.E.2d 642, 644 (1992)
(quoting Barr v. Town and Country Properties, 240 Va. 292, 295,
396 S.E.2d 672, 674 (1990))).
8
Id. at 745, 496 S.E.2d at 673.
9
240 Va. 171, 395 S.E.2d 456 (1990).
10
240 Va. at 177, 395 S.E.2d at 459 (emphasis added).
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In viewing the evidence in the light most favorable to the
Commonwealth, here it is clear that no evidence established
Toliver sold or distributed the drugs while on or near school
property. Further, there was no evidence presented to suggest
that Toliver possessed the drugs with the intention of selling,
giving or distributing them while on such property. In fact,
with the exception of Officer Sprinkle's general statement that
he chased Toliver "not quite a block" before apprehending him,
there was no evidence that established Toliver's proximity to
the school when he was first observed by Sprinkle. Indeed, the
trial court made no factual finding concerning Toliver's
distance from the school when Sprinkle initially approached him.
Thus, there could be no determination, without speculation, that
Toliver possessed the controlled substances at issue with the
intent to sell, give or distribute them while upon school
property, or within 1,000 feet thereof. Accordingly, we hold
that the trial court's determination on this issue was plainly
wrong and without evidence to support it and reverse his
conviction. 11
In addition, we note that Toliver's indictment on the
charge at issue, labeled "00-F-3227 MPS," read "Lerone Darrell
Toliver did feloniously and unlawfully manufacture, sell,
11
See Thomas v. Commonwealth, 187 Va. 265, 272, 46 S.E.2d
388, 391 (1948) ("A conclusion of guilt must be supported by
credible evidence and cannot rest upon conjecture or
suspicion.").
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distribute, or possess with intent to sell, give or distribute a
controlled substance, an imitation controlled substance, or
marijuana upon the property of a public or private elementary,
secondary, or post[-]secondary school," in violation of Code
§ 18.2-255.2. In convicting Toliver on the charge, the trial
court stated "Mr. Toliver, the court will find you guilty of the
offense[] in Indictment . . . F-00-3227." However, the
conviction order in this case incorrectly states that Toliver
was convicted of "possession of marijuana with intent to
distribute near a school." Additionally, the Conviction and
Sentencing Order incorrectly states that Toliver was convicted
of "Distribution of Marijuana Near a School." Accordingly,
instead of dismissing Toliver's conviction for possession of a
controlled substance with the intent to distribute within 1,000
feet of school property, we remand with direction to the trial
court to correct the clerical errors in the conviction order, as
well as the Conviction and Sentencing Order, and then to dismiss
the charge.
Reversed and remanded.
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