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NOVEMBER 9, 1999

Record No. 1141-98-4





Frank A. Hoss, Jr., Judge

Present: Judges Benton, Annunziata and Senior
Judge Duff

Argued at Alexandria, Virginia


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


"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.


Appellant was charged with violating Code
? 18.2-255, which makes it "unlawful for any person
who is at least eighteen years 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.
, 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. 421, 429, 494 S.E.2d 901, 905
(1998) (duration of possession immaterial); Josephs v.
, 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.


* 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.