Mason v. Commonwealth

• Citation: 64 Va.App. 599,770 S.E.2d 224
• Decision Date: 14 April 2015
• Docket Number: Record No. 0678–14–3.
• Parties: Curtis LEE MASON v. COMMONWEALTH of Virginia.
• Court: Court of Appeals of Virginia

64 Va.App. 599

770 S.E.2d 224

Curtis LEE MASON

v.COMMONWEALTH of Virginia.

Record No. 0678–14–3.

Court of Appeals of Virginia.

April 14, 2015.

Carlos A. Hutcherson (Hutcherson Law, PLC, on briefs), for appellant.

Virginia B. Theisen, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: HUFF, C.J, PETTY and McCULLOUGH, JJ.

Opinion

PETTY, Judge.

Curtis Lee Mason appeals his jury conviction for possession of cocaine with intent to distribute, third or subsequent offense, in violation of Code § 18.2–248. On appeal, he contends the trial court erred in denying his “motion in limine related to limiting any reference to prior convictions in another state, for third or subsequent purposes, where the convictions were not substantially similar to the instant charge.”¹ We agree in part and disagree in part. Thus, we reverse Mason's conviction and remand for a new trial.

I. BACKGROUND

Mason was charged with possession of cocaine with intent to distribute, third or subsequent offense. Mason made a motion in limine seeking to prevent the Commonwealth from presenting as evidence New York Certificates of Disposition showing three prior convictions: (1) “attempted criminal sale of a controlled substance 3rd degree PL 110–220. 39 01” (hereinafter “NY PL § 220.39(1) ”)² on July 18, 1988; (2) “attempted criminal sale of a controlled substance 5th degree PL 110–220. 31 00” (hereinafter “NY PL § 220.31 ”), for which he “was sentenced as a second felony offender” on June 24, 1992; and (3) “attempted criminal sale of a controlled substance 5th degree,” in violation of N.Y. PL § 220.31 on February 15, 2000.

The Commonwealth argued that the prior convictions were admissible in its case-in-chief for purposes of proving the prior offenses required for a third or subsequent offense conviction. Mason argued that the convictions were not admissible because the New York statutes were not “substantially similar” to Code § 18.2–248. Mason contended that according to this Court's holdings in Dillsworth v. Commonwealth, 62 Va.App. 93, 741 S.E.2d 818 (2013), and Dean v. Commonwealth, 61 Va.App. 209, 734 S.E.2d 673 (2012), a crime in another state is not substantially similar to the corresponding crime under Virginia law, for purposes of proving subsequent offense, if the other jurisdiction's law permits convictions for acts which could not be the basis for a conviction in Virginia law. Further, Mason provided the trial court with an opinion by New York's highest court, which Mason contended establishes that a person could be convicted under N.Y. PL § 220.31 and N.Y. PL § 220.39(1) for conduct that would not be the basis for conviction under Code § 18.2–248.

The trial court denied the motion to restrict reference to the convictions. The court noted “[t]he gravamen of the New York offense is substantially similar [to the Virginia code section].” The court reasoned that it didn't “know of any two statutes that could be any more substantially similar [because t]hey both make the sale of a controlled substance a felony offense.” Therefore, the court denied the motion and found “the statute[s] of New York [are] substantially similar to the statute in Virginia.”

Consequently, the convictions were admitted during the guilt phase of the trial. The jury found Mason guilty of possession with intent to distribute, third or subsequent offense. Mason filed a post-conviction motion to set aside the jury's verdict on the basis that the New York statutes were not substantially similar to Code § 18.2–248 and thus were improperly admitted. The court denied Mason's motion. This appeal followed.

II. ANALYSIS

A. Standard of Review

“Generally, ‘[w]e review a circuit court's decision to admit or exclude evidence under an abuse of discretion standard and, on appeal, will not disturb [that] decision ... absent a finding of abuse of that discretion.’ ” Dean, 61 Va.App. at 213, 734 S.E.2d at 675 (quoting Herndon v. Commonwealth, 280 Va. 138, 143, 694 S.E.2d 618, 620 (2010) ). However, “to the extent admissibility rests upon the interpretation of a statute, that interpretation is a question of law subject to de novo review.” Id. (quoting Crawford v. Commonwealth, 281 Va. 84, 97, 704 S.E.2d 107, 115 (2011) ). Further, “the determination regarding whether appellant's [prior] conviction is ‘substantially similar’ to the offense proscribed by Code § [18.2–248] is a question of law, and we review the trial court's judgment on this question de novo. ” Dillsworth, 62 Va.App. at 96, 741 S.E.2d at 819.

B. Code § 18.2–248

The Code of Virginia allows for enhanced or mandatory minimum punishments for some offenses upon the defendant's subsequent conviction(s) of the same or other designated offenses. Many of these provisions include as prior convictions those offenses committed under “substantially similar” statutes in other states.³ Appellate courts in Virginia have analyzed “substantially similar” in the context of several of these statutes,⁴ but until now have not addressed what is a substantially similar offense in the context of Code § 18.2–248.

“ ‘The proper course [in this case as in all cases of statutory construction] is to search out and follow the true intent of the legislature, and to adopt that sense of the words which harmonizes best with the context, and promotes in the fullest manner the apparent policy and objects of the legislature.’ ” Johnson v. Commonwealth, 53 Va.App. 608, 611, 674 S.E.2d 541, 542 (2009) (alteration in original) (quoting Colbert v. Commonwealth, 47 Va.App. 390, 395–96, 624 S.E.2d 108, 111 (2006) ). “The object of all interpretation and construction of statutes is to ascertain and carry out the intention of the lawmakers, and when the intention is ascertained it must always govern.” Kirkpatrick v. Board of Sup'rs, 146 Va. 113, 125, 136 S.E. 186, 190 (1926). The intent of the legislature “is usually self-evident from the statutory language.” Johnson, 53 Va.App. at 613, 674 S.E.2d at 543. “Furthermore, it is our ‘duty ... to interpret the several parts of a statute as a consistent and harmonious whole so as to effectuate the legislative goal.’ Thus, we ‘will look to the whole body of [a statute] to determine the true intention of each part.’ ” Gordon v. Ford Motor Co., 53 Va.App. 616, 622, 674 S.E.2d 545, 547–48 (2009) (alterations in original) (quoting Oraee v. Breeding, 270 Va. 488, 498, 621 S.E.2d 48, 52 (2005) ) (internal citation omitted).

Code § 18.2–248(A) provides that “it shall be unlawful for any person to manufacture, sell, give, distribute, or possess with intent to manufacture, sell, give or distribute a controlled substance or an imitation controlled substance.” Subsection (C) of the statute sets out the punishment for “any person who violates this section with respect to a controlled substance classified in Schedule I or II[.]” Therefore, when the Commonwealth seeks to impose the punishment set out in subsection (C), it must show both that the defendant committed conduct prohibited by subsection (A)⁵ and that the substance involved was classified in Schedule I or II.

Code § 18.2–248(C) also provides for mandatory minimum punishment for subsequent offenses in violation of the same subsection. Specifically, as applicable here,

When a person is convicted of a third or subsequent offense under this subsection and it is alleged in the warrant, indictment or information that he has been before convicted of two or more such offenses or of substantially similar offenses in any other jurisdiction which offenses would be felonies if committed in the Commonwealth [a mandatory minimum punishment must be rendered].

Code § 18.2–248(C) (emphasis added).⁶ The plain language of the statute indicates the legislature intended that “substantially similar offenses” would be treated the same as qualifying convictions for offenses committed in the Commonwealth. See Johnson, 53 Va.App. at 612, 674 S.E.2d at 543 (“When interpreting a statute, courts ‘are required to ascertain and give effect to the intention of the legislature, which is usually self-evident from the statutory language.’ ” (quoting Va. Polytechnic Inst. & State Univ. v. Interactive Return Serv., 271 Va. 304, 309, 626 S.E.2d 436, 438 (2006) )).

The legislature did not define the phrase “substantially similar.” However, in the context of determining if another state's statute is substantially similar to a code section, this Court has previously “establish[ed] that two things are ‘substantially similar’ if they have common core characteristics or are largely alike in substance or essentials.” Johnson, 53 Va.App. at 613, 674 S.E.2d at 543.

Thus, our goal is to “follow the true intent of the legislature,” id. at 611, 674 S.E.2d at 543, by including those convictions from other jurisdictions that the General Assembly has authorized, and no others. Simply put, to be substantially similar, and therefore admissible for the purposes of establishing a third or subsequent offense, the offense from another jurisdiction must be for conduct that would be a violation of Code § 18.2–248(A)and the substance at issue in the other state's conviction must be classified in Schedule I or II in Virginia.

C. Mason's New York Convictions

It is well established that “the Commonwealth bears the burden of proving an out of state conviction was obtained under laws substantially similar to those of the Commonwealth. If the Commonwealth shows substantial similarity, the burden shifts to the defendant to produce ‘evidence of dissimilarity.’ ” Dean, 61 Va.App. at 214, 734 S.E.2d at 676 (citation omitted) (quoting Rufty v. Commonwealth, 221 Va. 836, 839, 275 S.E.2d 584, 586 (1981) ). Dissimilarity may be shown, for example, if “under the Virginia statute, one would not necessarily be found guilty of an offense even though having been found to have committed the same act.”

Cox v. Commonwealth, 13 Va.App. 328, 330, 411 S.E.2d 444, 446 1991 ). In other words, the statutes are not substantially similar ...