Camann v. Commonwealth

• Docket Number: 0243-22-4
• Decision Date: 16 January 2024
• Parties: Dana Mark Camann, Jr., Appellant, v. Commonwealth of Virginia, Appellee.
• Court: Virginia Court of Appeals

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Dana Mark Camann, Jr., Appellant,
v.
Commonwealth of Virginia, Appellee.

No. 0243-22-4

Court of Appeals of Virginia

January 16, 2024

UPON A REHEARING EN BANC

FROM THE CIRCUIT COURT OF FREDERICK COUNTY William W. Eldridge, IV, Judge

Kelsey Bulger, Senior Appellate Attorney (Catherine French Zagurskie, Chief Appellate Counsel; Virginia Indigent Defense Commission, on briefs), for appellant.

Lindsay M. Brooker, Assistant Attorney General (Jason S. Miyares, Attorney General; Rebecca M. Garcia, Assistant Attorney General, on brief), for appellee.

Present: Chief Judge Decker, Judges Humphreys, ^[*] Beales, Huff, O'Brien, AtLee, Malveaux, Athey, Fulton, Ortiz, Causey, Friedman, Chaney, Raphael, Lorish, Callins and White Argued at Richmond, Virginia

OPINION

STUART A. RAPHAEL JUDGE

Following a jury trial, Dana Mark Camann, Jr., was convicted of three felony counts of possessing a Schedule I or II controlled substance and one misdemeanor count of possessing a Schedule IV controlled substance, all in violation of Code § 18.2-250. Two of the felony convictions were based on a small amount of white powder, found in Camann's wallet, that tested positive for fentanyl and etizolam. At trial, Camann admitted that he knew he possessed the white powder and the other two drugs found on his person. But he said he believed that the white powder was fentanyl, he had never heard of etizolam, and he did not know that another

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drug was present. The prosecution argued to the jury that Camann's knowledge that he possessed fentanyl sufficed to establish the mens rea for the etizolam conviction as well.

On appeal, a divided panel of this Court affirmed in part and reversed in part. Camann v. Commonwealth, No. 0243-22-4, 2023 WL 2246635 (Va. Ct. App. Feb. 28, 2023). In part A of the opinion, the majority held that the trial court did not err in denying Camann's suppression motion because the drugs were discovered through a lawful search. In part B, the majority reversed the felony conviction for possessing etizolam, holding that the Commonwealth failed to prove that Camann knew that the white powder in his possession contained more than one controlled substance. The Commonwealth petitioned for rehearing en banc as to part B of the opinion; Camann did not seek rehearing en banc as to part A.

We granted the Commonwealth's petition and stayed the mandate as to all issues decided by the panel pending the decision of this Court sitting en banc. See Rule 5A:35(b). We now reverse and vacate the etizolam conviction, dismiss the charge, and remand the case to the trial court for resentencing on the other convictions. As it was not part of our en banc review, the panel's ruling affirming the denial of Camann's suppression motion in part A of the panel opinion "remains undisturbed," Rule 5A:35(b)(1), and we thus "reinstate" it, Holt v. Commonwealth, 66 Va.App. 199, 207-08 (2016).

Background

On appeal, we recite the facts "in the 'light most favorable' to the Commonwealth, the prevailing party in the trial court." Hammer v. Commonwealth, 74 Va.App. 225, 231 (2022) (quoting Commonwealth v. Cady, 300 Va. 325, 329 (2021)). Doing so requires that we "discard" the defendant's evidence when it conflicts with the Commonwealth's evidence, "regard as true all the credible evidence favorable to the Commonwealth," and read "all fair inferences" in the

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Commonwealth's favor. Cady, 300 Va. at 329 (quoting Commonwealth v. Perkins, 295 Va. 323, 324 (2018)).

Just after 1:00 a.m. one morning in September 2020, Deputies Spears and Russell of the Frederick County Sheriff's Office responded to a report of a man masturbating outside a 7-Eleven convenience store. When Deputy Russell arrived, Camann was standing on a sidewalk in the parking lot, his back against the side of the store. Deputy Russell was first to arrive. Deputy Spears arrived soon after, and his body-camera footage was introduced into evidence. Deputy Russell conversed briefly with Camann before entering the store to interview the customer and employee who had called the sheriff's office. Deputy Spears engaged in "normal small talk" with Camann while Deputy Russell was in the store. Camann denied any wrongdoing and continued to stand in place. Deputy Russell returned, telling Camann that witnesses claimed to have seen him masturbating.

Camann reacted indignantly, but as he shifted his weight back and forth, Deputy Spears noticed that Camann appeared to be hiding something under his left shoe. After Camann moved his foot enough to offer a glimpse of the aluminum foil underneath, Deputy Spears said, "move your foot, move your foot." Camann did so, revealing a blue plastic straw and a piece of aluminum foil with burnt residue. From his training and experience, Deputy Spears knew that people commonly "use aluminum foil and plastic straws" to smoke narcotics.

Upon seeing the burnt residue on the aluminum foil, Spears placed Camann in handcuffs. Deputy Spears read him his Miranda^[1] rights and subsequently searched his pockets. Spears found more foil and a straw like the one Camann had been hiding under his foot, a cellophane wrapper in Camann's wallet containing a white powder, and pills in a pill bottle. When asked by

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Spears about the white powder, Camann said he didn't know what Spears was talking about and claimed that "someone gave me that wallet."

Subsequent testing revealed that the white powder was a mixture of fentanyl, a Schedule II controlled substance, and etizolam, a Schedule I controlled substance.^[2] The mixture weighed 0.056 gram. One tablet in the pill bottle contained amphetamine, a Schedule II controlled substance; fifty tablets contained clonazepam, a Schedule IV controlled substance.^[3] The aluminum foil and straw that Camann was hiding under his shoe were not tested for narcotics. The grand jury returned four indictments against Camann: three felony counts of possessing a Schedule I or II controlled substance and one misdemeanor count of possessing a Schedule IV controlled substance.^[4] The trial court denied Camann's motion to suppress the evidence.^[5]

At the jury trial that followed, the Commonwealth's evidence consisted of Deputy Spears's testimony, his body-camera footage, and a certificate of analysis detailing the results of the lab tests on the drugs found in Camann's possession. The trial court denied Camann's motion to strike the Commonwealth's evidence. Camann then testified. He admitted that he was a drug addict, that he had tried to conceal the foil underfoot, that the foil contained "a drug," and that the items found in his pockets were all his. He admitted knowing that the white powder was

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fentanyl but denied knowing that it also contained etizolam, a drug he said he had never heard of.^[6]

The trial court denied Camann's renewed motion to strike the etizolam charge. Relying on Sierra v. Commonwealth, 59 Va.App. 770 (2012), the court held that Camann "b[ore] the risk under Sierra of punishment for whatever substance was there." Consistent with that ruling, the prosecutor told the jury during closing argument, "I don't know whether he knew [the etizolam] was there," but "[i]t doesn't matter . . . . If he . . . thinks it is just fentanyl but it turns out to be two drugs in there, he is guilty of possessing both of them . . . . He is guilty of any drug that is in that mix."

The jury convicted Camann on all four charges. Although the original indictments did not identify the specific drug involved, the verdict form signed by the jury foreperson correlated the drugs to the indictments: CR21-213 (amphetamine); CR21-214 (fentanyl); CR21-215 (etizolam); and CR21-216 (clonazepam).

The trial court entered judgment on the jury verdict and ordered a presentence investigation and report. The court sentenced Camann to two years' incarceration with one year suspended for felony possession of amphetamine; two years with two years suspended on each of the felony convictions for possessing fentanyl and etizolam; and 180 days with 180 days suspended on the misdemeanor conviction for possessing clonazepam.^[7]

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Camann noted a timely appeal.

Analysis

The question presented is whether a defendant who possesses a mixture of two controlled substances can be convicted of two violations of Code § 18.2-250 if the Commonwealth proves the defendant's knowing possession of only one controlled substance. The Commonwealth argues that proof that the defendant has knowingly possessed one controlled substance in a mixture permits the defendant to be convicted of as many violations of Code § 18.2-250 as there are drugs in the mixture.

We disagree. The Commonwealth's position is supported by neither the text of the statute nor the precedent construing it. We also reject the Commonwealth's fallback argument that the evidence at trial sufficed to prove that Camann knew that the mixture he possessed contained more than one controlled substance.

A. Every conviction under Code § 18.2-250 requires knowing possession of a controlled substance.

"Questions of statutory interpretation . . . are subject to de novo review on appeal, and we owe no deference to the circuit court's interpretation of the statutory scheme." Esposito v. Va. State Police, 74 Va.App. 130, 133 (2022). "When construing a statute, our primary objective 'is to ascertain and give effect to legislative intent,' as expressed by the language used in the statute." Va. Elec. & Power Co. v. State Corp. Comm'n, 295 Va. 256, 262-63 (2018) (quoting Cuccinelli v. Rector & Visitors of the Univ. of Va., 283 Va. 420, 425 (2012)). "We must determine the legislative intent by what the statute says and not by what we think it should have said." Miller & Rhoads Bldg., L.L.C. v. City of Richmond, 292 Va. 537, 541-42 (2016) (quoting Carter v. Nelms, 204 Va. 338, 346 (1963)).

To be guilty of possession in violation of Code § 18.2-250, the violation must be...