Matthew James Morris v. Commonwealth of Virginia ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Annunziata and Senior Judge Duff
Argued at Alexandria, Virginia
MATTHEW JAMES MORRIS
MEMORANDUM OPINION * BY
v. Record No. 1141-98-4 JUDGE CHARLES H. DUFF
NOVEMBER 9, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
Frank A. Hoss, Jr., Judge
R. Ramsey Maupin for appellant.
Shelly James, Assistant Attorney General
(Mark L. Earley, Attorney General; Ruth M.
McKeaney, Assistant Attorney General, on
brief), for appellee.
Matthew James Morris, appellant, was convicted by a jury of
distributing Rohypnol, a Schedule IV substance, to a minor in
violation of Code § 18.2-255. 1 On appeal, appellant contends he
did not "distribute" Rohypnol within the meaning of Code
§ 18.2-255. 2 We disagree and affirm the conviction.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
1
Rohypnol is the trade name for Flunitrazepam, a Schedule
IV controlled substance listed in Code § 54.1-3452.
2
The jury also convicted appellant of rape and contributing
to the delinquency of a minor. The trial judge set aside the
rape conviction and imposed sentences of thirteen years for
distributing Rohypnol, with ten years suspended, and twelve
months for contributing to the delinquency of a minor. The only
conviction at issue on appeal is the distribution of Rohypnol.
FACTS
"On appeal, 'we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom.'" Archer v. Commonwealth,
26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (citation omitted).
So viewed, the evidence proved that Candace Pruitt and her friend,
Mary Oldham, both minors, received a telephone call from Roger
Erickson on June 9, 1996, inviting Pruitt and Oldham to his
apartment. Pruitt and Oldham accepted the invitation, and
Erickson picked them up in his vehicle. Erickson took Pruitt and
Oldham to Brandon Kelley's apartment. At that time, there were
five people in the apartment: Pruitt, Oldham, Erickson, Kelley
and Jason Portney. Pruitt saw Erickson and Portney use marijuana,
and she saw Kelley with small, white Rohypnol pills, called
"roofies." Later, appellant arrived at Kelley's apartment.
Pruitt testified that she sat next to appellant and asked him
"what a roofie was and what it did to you." Appellant told her
that "roofies" make you feel like you are intoxicated on alcohol.
After that, appellant produced a Rohypnol pill and handed it to
Pruitt so she could look at it. Very soon thereafter, Erickson
took it from Pruitt and ingested it.
DISCUSSION
Appellant was charged with violating Code § 18.2-255, which
makes it "unlawful for any person who is at least eighteen years
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of age to knowingly or intentionally (i) distribute any drug
classified in Schedule I, II, III or IV . . . to any person under
eighteen years of age who is at least three years his junior."
In Virginia, "distribute," as proscribed in Code § 18.2-255
means "to deliver other than by [lawfully] administering or
dispensing a controlled substance." Code § 54.1-3401. "Deliver"
means "the actual, constructive, or attempted transfer" of any
controlled substance, "whether or not there exists an agency
relationship," from one person to another. Id. "The term
'distribute' . . . has been defined by the General Assembly so as
to give it the broadest possible meaning and to proscribe acts
which would not fall within the more limited terms of 'sale,'
'barter,' 'gift' or 'exchange.'" Wood v. Commonwealth, 214 Va.
97, 99, 197 S.E.2d 200, 202 (1973).
Appellant argues that a distribution or delivery requires a
"transfer of possession from one person to another." He contends
that he could not be guilty of distribution because Pruitt did
not, knowingly and intentionally possess the drug, intend to
ingest the drug, or exercise dominion and control over it for the
brief period she held it.
The Virginia Supreme Court has ruled that "the duration of
the possession is immaterial and need not always be actual
possession." Ritter v. Commonwealth, 210 Va. 732, 741, 173 S.E.2d
799, 806 (1970). See also Barlow v. Commonwealth, 26 Va. App.
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421, 429, 494 S.E.2d 901, 905 (1998) (duration of possession
immaterial); Josephs v. Commonwealth, 10 Va. App. 87, 99, 390
S.E.2d 491, 497 (1990) (en banc) (holding same).
Appellant delivered to Pruitt a proscribed Schedule IV drug.
Before doing so, he explained what the drug was and its effects.
The fact that Pruitt possessed it for a brief period of time does
not undermine or diminish the fact that she actually possessed the
drug. By accomplishing an actual transfer of the proscribed drug
to Pruitt, appellant was guilty of distribution as defined in Code
§ 54.1-3401. Accordingly, the judgment of the trial court is
affirmed.
Affirmed.
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