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SEKE v. COMMONWEALTH OF VIRGINIA


SEKE v. COMMONWEALTH OF
VIRGINIA


March 11, 1997
Record No. 0180-96-2

ANTHONY NYANKUM SEKE

v.

COMMONWEALTH OF VIRGINIA

Walter W. Stout, III, Judge
Present: Judges Benton, Elder and Senior Judge Cole

Argued at Richmond, Virginia

OPINION BY JUDGE LARRY G. ELDER
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND

Suzanne L. Nyfeler (Joseph W. Kaestner; Patricia A. Phillips;
Kaestner & Pitney, P.C., on briefs), for appellant.

Daniel J. Munroe, Assistant Attorney General (James S. Gilmore,
III, Attorney General, on brief), for appellee.


Anthony Nyankum Seke (appellant) appeals his convictions of
possession of a Schedule II controlled substance with the intent
to distribute in violation of Code ?18.2-248 and of
transportation of one or more ounces of cocaine into the
Commonwealth with the intent to distribute in violation of Code
?18.2-248.01. He contends that the evidence was insufficient to
support his convictions under both Code ?18.2-248 and Code
?18.2-248.01 because the Commonwealth failed to prove that he
intended to distribute cocaine within the Commonwealth. He also
contends that the evidence was insufficient to support his
conviction under Code ?18.2-248.01 because the Commonwealth
failed to prove that he transported cocaine "into"
Virginia. For the reasons that follow, we affirm.

I. FACTS

Appellant was charged with possession of a Schedule II
controlled substance with the intent to distribute in violation
of Code ?18.2-248 and of transportation of one or more ounces of
cocaine into the Commonwealth with the intent to distribute in
violation of Code ?18.2-248.01.

At trial, the evidence proved that in the early morning hours
of June 23, 1995, appellant, a resident of North Carolina, was
returning to North Carolina with a companion from a one day trip
to New York City. Appellant was riding a Greyhound bus and was
transporting 358.06 grams of crack cocaine that he had procured
while in New York. Although appellant was bound for North
Carolina, the bus he was riding made a temporary stop at the
Greyhound bus station in Richmond, Virginia.

While the bus was stopped in Richmond, Special Agent Koushel
and Trooper Newby of the Virginia State Police boarded the bus to
question passengers in the hope of ferreting out drug couriers
transporting illegal contraband. After a series of events not
relevant to this appeal, Special Agent Koushel discovered
appellant’s crack cocaine on the bus, and another officer
arrested appellant a short while later.

At the conclusion of the evidence, appellant moved to strike
on the ground that the Commonwealth had failed to prove either
that he intended to distribute the crack cocaine
"inside" Virginia or that he had transported it
"into" Virginia. No other issue was raised. In
particular, the issue of intent was raised solely with respect to
its geographical limits and not with respect to the question of
distribution. The trial court denied his motion. A jury found
appellant guilty as charged.

II. INTENT TO DISTRIBUTE

In a prosecution under Code ?18.2-248 or Code ?18.2-248.01,
the Commonwealth must prove that a defendant either possessed or
transported a controlled substance in Virginia with the
"intent to . . . distribute." Appellant contends that
both statutes implicitly require the Commonwealth to prove that a
defendant intended to distribute controlled substances inside
the Commonwealth and that the evidence at trial did not prove
that appellant had such an intent. We disagree with appellant’s
construction of the statutes.

"When statutory construction is required we construe a
statute to promote the end for which it was enacted, if such an
interpretation can reasonably be made from the language
used." Woolfolk v. Commonwealth, 18 Va. App. 840,
847, 447 S.E.2d 530, 533 (1994). "While penal statutes must
be strictly construed against the Commonwealth, ‘the plain,
obvious, and rational meaning of a statute is always preferred to
any curious, narrow or strained construction; a statute should
never be construed so that it leads to absurd results.’" Newton
v. Commonwealth
, 21 Va. App. 86, 89, 462 S.E.2d 117, 119
(1995) (quoting Branch v. Commonwealth, 14 Va. App. 836,
839, 419 S.E.2d 422, 424 (1992)).

We hold that the phrase "intent to . . . distribute"
in both Code ?18.2-248 and Code ?18.2-248.01 contains no
geographic limitation and that the Commonwealth is not required
to prove the place where a defendant intends to distribute
illegal substances in order to obtain a conviction under either
code section. This conclusion is consistent with the plain
meaning of both statutes. The language of both Code ?18.2-248
and Code ?18.2-248.01 contains no express geographical
limitation applicable to the intent element. The plain and
obvious meaning of both statutes is to prohibit the possession or
transportation of illegal substances in Virginia by a person
whose intent is to distribute them anywhere.[1]

Appellant argues that Virginia must be the intended place of
distribution in a prosecution under these statutes because the
criminal jurisdiction of the Commonwealth’s courts is limited to
crimes committed in Virginia. We agree that the criminal
jurisdiction of the Commonwealth is limited to crimes committed
in the Commonwealth but disagree that such was not the case here.
The crimes proscribed by Code ?18.2-248 and Code ?18.2-248.01
are completed when illegal substances are either possessed or
transported in Virginia by someone who has the intent to
distribute them. Although "’[e]very crime to be punished in
Virginia must be committed in Virginia,’" Moreno v.
Baskerville
, 249 Va. 16, 18, 452 S.E.2d 653, 655 (1995)
(quoting Farewell v. Commonwealth, 167 Va. 475, 479, 189
S.E. 321, 323 (1937)), the actual possession or transportation of
controlled substances inside Virginia "supplies the
jurisdictional nexus and obviates the need for proof of intent to
distribute within [Virginia]." United States v. Muench,
694 F.2d 28, 33 (2d Cir. 1982).

In light of our construction of Code ?18.2-248 and Code
?18.2-248.01, we hold that the evidence was sufficient to prove
that appellant intended to distribute cocaine.

III. TRANSPORTATION "INTO" THE
COMMONWEALTH

Appellant contends that the evidence was insufficient to
support his conviction under Code ?18.2-248.01. He asserts that
Code ?18.2-248.01 requires the Commonwealth to prove that he
intended to transport illegal substances to, and not merely
through, the Commonwealth. He argues that the evidence in this
case only proved that he was transporting his crack cocaine
through the Commonwealth and into North Carolina. We disagree
with appellant’s reading of Code ?18.2-248.01.

We hold that the Commonwealth is not required to prove that a
defendant’s intended final destination is Virginia in order to
obtain a conviction under Code ?18.2-248.01. Instead, a
violation of Code ?18.2-248.01 is proved when a person enters
the Commonwealth while transporting any of the illegal substances
set forth in the statute. This conclusion is consistent with the
plain meaning of the statute. Code ?18.2-248.01 states that:

Except as authorized in the Drug Control Act (?54.1-3400
et seq.) it is unlawful for any person to transport by
any means one ounce or more of cocaine, coca leaves or any
salt, compound, derivative or preparation thereof as
described in Schedule II of the Drug Control Act or any other
Schedule I or II controlled substance or five or more pounds
of marijuana into the Commonwealth with intent to sell
or distribute such substance.

(Emphasis added). The word "into" is commonly
defined as "a function word primarily denoting motion so
directed as to terminate, if continued, when the position denoted
by in has been reached." Webster’s Third New
International Dictionary
1184 (1981). Webster’s also
states that "into" usually follows:

a verb that carries the idea of motion or a word implying
or suggesting motion or passage to indicate a place or
thing entered or penetrated . . . by movement from the
outside
.

Id. (emphasis added). Thus, a violation of Code
?18.2-248.01 occurs at the moment a person transporting illegal
substances penetrates the borders of the Commonwealth. A
violation of the statute does not depend upon the transporter’s
intended final destination.

We disagree with appellant’s contention that this construction
of Code ?18.2-248.01 places the statute in violation of the
Commerce Clause of the United States Constitution. The Commerce
Clause empowers Congress "[t]o regulate Commerce with
foreign Nations, and among the several states and with the Indian
Tribes." U.S. Const. art. I, ? 8, cl. 3. "Although the
Clause thus speaks in terms of powers bestowed upon Congress, . .
. it also limits the power of the States to erect barriers
against interstate trade." Lewis v. BT Investment
Managers, Inc.
, 447 U.S. 27, 35, 100 S. Ct. 2009, 2015, 64
L.Ed.2d 702 (1980). The basic purpose of this "dormant"
aspect of the Commerce Clause is to prevent states from enacting
protectionist measures intended to shield local industry from
interstate competition. See City of Philadelphia v. New
Jersey
, 437 U.S. 617, 623-24, 98 S. Ct. 2531, 2535, 57
L.Ed.2d 475 (1978). However, [t]he limitation imposed by the
Commerce Clause on state regulatory power "is by no means
absolute," and "the States retain authority under their
general police powers to regulate matters of ‘legitimate local
concern,’ even though interstate commerce may be affected."

Maine v. Taylor, 477 U.S. 131, 138, 106 S. Ct. 2440,
2447, 91 L.Ed.2d 110 (1986) (quoting Lewis, 447 U.S. at
36, 100 S. Ct. at 2015).

The United States Supreme Court has set forth the methodology
for scrutinizing state laws that impact interstate commerce:

In determining whether a State has overstepped its role in
regulating interstate commerce, this Court has distinguished
between state statutes that burden interstate transactions
only incidently, and those that affirmatively discriminate
against such transactions. While statutes in the first group
violate the Commerce Clause only if the burdens they impose
on interstate trade are "clearly excessive in relation
to the putative local benefits," Pike v. Bruce
Church, Inc.
, 397 U.S. 137, 142, 90 S. Ct. 844, 847, 25
L.Ed.2d 174 (1970), statutes in the second group are subject
to more demanding scrutiny. . . . [O]nce a state law is shown
to discriminate against interstate commerce "either on
its face or in practical effect," the burden falls on
the State to demonstrate both that the statute "serves a
legitimate local purpose," and that this purpose could
not be served as well by available nondiscriminatory means.

Taylor, 477 U.S. at 138, 106 S. Ct. at 2447 (citations
omitted).

We hold that Code ?18.2-248.01 does not violate the Commerce
Clause by prohibiting the transportation of certain controlled
substances either into or through the Commonwealth. The statute
is of the first class of laws referred to in Taylor
because it does not discriminate against interstate commerce.
Although the statute is facially limited to the shipment of drugs
originating from outside the Commonwealth, laws prohibiting the
possession of controlled substances effectively prohibit their
transportation wholly within the Commonwealth as well. See
Code ?18.2-248, ?18.2-250.

Moreover, Code ?18.2-248.01 serves a legitimate local purpose
and does not place a "clearly excessive" burden on
interstate commerce. Pursuant to its police power to protect the
public health and welfare, a state has the power to regulate and
control the sale, use, and traffic of habit-forming drugs. See
Robinson v. California, 370 U.S. 660, 664, 82 S. Ct. 1417,
1419, 8 L.Ed.2d 758 (1962) (citing Whipple v. Martinson,
256 U.S. 41, 45, 41 S. Ct. 425, 426, 65 L.Ed. 819 (1921)). State
regulation of habit-forming drugs may take "a variety of
valid forms," including the establishment of criminal
penalties for the unauthorized manufacture, sale, or possession
of such drugs. See Robinson, 370 U.S. at 664-65, 82
S. Ct. at 1419-20. The burden on interstate commerce is not
excessive because the statute is narrowly drawn to limit its
impact on legitimate commerce. The type of goods affected by Code
?18.2-248.01 is expressly restricted to the specific controlled
substances listed in the statute. In addition, the statute does
not interfere with the lawful transportation of these substances
that is authorized by the Virginia Drug Control Act. See
Code ?54.1-3415 (authorizing a permitted manufacturer or
wholesaler to distribute Schedule II drugs, including cocaine, to
specified individuals pursuant to an "official written
order"); see also State v. Dunn, 803 P.2d 917,
920 (Ariz. App. 1990), cert. denied, 502 U.S. 827,
112 S. Ct. 94, 116 L.Ed.2d 66 (1991) (holding that a state law
prohibiting the importation of narcotics does not violate the
Commerce Clause); Guam v. Salas, No. 82-0061A, 1983 WL
29951, at *5 (D.Guam App. Div. 1983) (same).

Appellant relies primarily on Williams v. Commonwealth
to support his argument that Code ?18.2-248.01 violates the
Commerce Clause. 169 Va. 857, 192 S.E. 795 (1937). In Williams,
the Virginia Supreme Court held that state regulations requiring
transporters of alcohol to obtain a permit and to post a bond
before traveling through the Commonwealth violated the Commerce
Clause. Id. at 866-67, 192 S.E. at 799. However,
subsequent to Williams, the United States Supreme Court
held that similar regulations in other states did not violate the
Commerce Clause. See Ziffirn, Inc. v. Reeves, 308
U.S. 132, 139-41, 60 S. Ct. 163, 167-68, 84 L.Ed. 128 (1939); Duckworth
v. Arkansas
, 314 U.S. 390, 393, 62 S. Ct. 311, 312-13, 86
L.Ed. 261 (1941). In light of these decisions, the Virginia
Supreme Court explicitly overruled Williams in 1943. See
Dickerson v. Commonwealth, 181 Va. 313, 330, 24 S.E.2d
550, 558 (1943), judgment aff’d by Carter v.
Commonwealth
, 321 U.S. 131, 64 S. Ct. 464, 80 L.Ed. 605
(1944).

For the foregoing reasons, we affirm appellant’s convictions
of possession of a Schedule II controlled substance with the
intent to distribute in violation of Code ?18.2-248 and of
transportation of one or more ounces of cocaine into the
Commonwealth with the intent to distribute in violation of Code
?18.2-248.01.

Affirmed.

FOOTNOTES:

[1] Courts construing the phrase
"intent to distribute" in other jurisdictions have
likewise held that the government is not required to prove the
place of the defendant’s intended distribution. See United
States v. Muench
, 694 F.2d 28, 33 (2d Cir. 1982), cert.
denied, 461 U.S. 908, 103 S. Ct. 1881, 76 L.Ed.2d 811
(1983) (holding that the Comprehensive Drug Abuse Prevention and
Control Act prohibits possession of a controlled substance with
the intent to distribute even if the defendant intends to
distribute the substance in a foreign country); United States
v. Gomez-Tostado
, 597 F.2d 170, 172-73 (9th Cir. 1979)
(same); State v. Bowers, 87 N.M. 74, 76, 529 P.2d 300, 302
(1974) (holding that state law prohibiting the possession of
marijuana with the intent to distribute does not require the
state to prove the place of the intended distribution).

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