Clayton v. Commonwealth

• Decision Date: 13 September 2022
• Docket Number: Record No. 1246-21-3, Record No. 1247-21-3
• Parties: Shemon Devonte CLAYTON v. COMMONWEALTH of Virginia Shemon Devonte Clayton, a/k/a Shemon Devante Clayton v. Commonwealth of Virginia
• Court: Virginia Court of Appeals

75 Va.App. 416

877 S.E.2d 504

Shemon Devonte CLAYTON

v.COMMONWEALTH of Virginia

Shemon Devonte Clayton, a/k/a Shemon Devante Clayton

v.Commonwealth of Virginia

Record No. 1246-21-3

Record No. 1247-21-3

Court of Appeals of Virginia, Lexington.

September 13, 2022

M. Lee Smallwood, II, Deputy Public Defender, for appellant.

Justin B. Hill, Assistant Attorney General (Jason S. Miyares, Attorney General, on briefs), for appellee.

Present: Judges AtLee, Friedman and Raphael

OPINION BY JUDGE RICHARD Y. ATLEE, JR.

Following a bench trial, the Circuit Court of the City of Danville ("trial court") convicted appellant Shemon Devonte Clayton of possession of an unlawful chemical compound by a prisoner, in violation of Code § 53.1-203(5). Clayton argues that the evidence was insufficient to "establish that he was in knowing possession of a chemical compound."

Clayton also challenges the trial court's revocation of his previously suspended sentences. He contends that he is not guilty of the possession offense that served as the basis of the violation of the terms of his suspended sentences. Because Code § 53.1-203(5) is a strict liability offense, we disagree and affirm the decision of the trial court.

I. BACKGROUND

"Under well-settled principles of appellate review, we consider the evidence presented at trial in the light most favorable to the Commonwealth, the prevailing party below." Vay v. Commonwealth , 67 Va. App. 236, 242, 795 S.E.2d 495 (2017) (quoting Smallwood v. Commonwealth , 278 Va. 625, 629, 688 S.E.2d 154 (2009) ). "This principle requires us to ‘discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom.’ " Id. (quoting Parks v. Commonwealth , 221 Va. 492, 498, 270 S.E.2d 755 (1980) ).

Clayton was incarcerated in the Danville Adult Detention Center. On April 24, 2020, Corrections Officer Fussell observed Clayton throw a "wad of paper" from his cell towards another cell. The paper did not make it all the way to the other cell, which was on the other side of the hallway. Officer Fussell picked up the wad of paper and found a "leafy substance" inside. She called the police.

When Officer Daily from the Danville Police Department arrived, Officer Fussell gave him the "rolled-up piece of paper containing a green leafy substance." He packaged and secured the substance. Later, Danville Police Department Detective Wright submitted the substance for analysis. Chemical analysis confirmed that the substance in the paper was an unlawful chemical compound, more specifically a synthetic cannabinoid.

Clayton was indicted and tried for possession of an unlawful chemical while a prisoner. At trial, Clayton moved to strike the evidence, arguing that the Commonwealth failed to prove that Clayton was aware of what was inside the paper. The trial court denied the motion.

Clayton testified on his own behalf. He denied throwing the paper. He testified that there were other people in the area near him, and while he saw it "being tossed" across the hallway, he did not know who threw the paper. Clayton testified that Officer Fussell "just picked [him] out of the blue." He also denied having any knowledge of what was in the paper.

After the close of evidence, Clayton renewed his motion to strike. Clayton also argued that he did not throw the paper. The trial court denied the motion, and it found Clayton guilty. This appeal followed.

II. ANALYSIS

A. Standard of Review

"When the sufficiency of the evidence is challenged on appeal, ‘[t]his Court "must examine the evidence that supports the conviction and allow the conviction to stand unless it is plainly wrong or without evidence to support it." ’ " Turner v. Commonwealth , 65 Va. App. 312, 330, 777 S.E.2d 569 (2015) (alteration in original) (quoting Commonwealth v. McNeal , 282 Va. 16, 20, 710 S.E.2d 733 (2011) ). To the extent the issue requires statutory construction, we review the trial court's ruling de novo. Spratley v. Commonwealth , 298 Va. 187, 193, 836 S.E.2d 385 (2019).

B. Code § 53.1-203(5) is a strict liability offense.

Clayton argues that the trial court erred in finding him guilty because the evidence was insufficient to establish that "he was in knowing possession of a chemical compound."

Code § 53.1-203(5) provides, "It shall be unlawful for a prisoner in a state, local or community correctional facility or in the custody of an employee thereof to ... [p]rocure, sell, secrete or have in his possession any chemical compound which he has not lawfully received ...." Clayton acknowledges our holding in Herron v. Commonwealth , 55 Va. App. 691, 688 S.E.2d 901 (2010), which established that Code § 53.1-203(5) sets forth a strict liability offense. Id. at 704, 688 S.E.2d 901. But he argues that the facts of his case mandate a different application of the statute. We disagree.

In Herron , the defendant was arrested and taken into jail. Id. at 695, 688 S.E.2d 901. When he was searched at the jail, cocaine was discovered concealed on his person. Id. He argued that he should not have been convicted under Code § 53.1-203(5) because the Commonwealth had failed to prove that he intended to bring the cocaine into the jail. Id. at 697, 688 S.E.2d 901. Our decision relied on the Supreme Court's holding in Esteban v. Commonwealth , 266 Va. 605, 587 S.E.2d 523 (2003), where the Supreme Court noted that

[t]he law is clear that the legislature may create strict liability offenses as it sees fit, and there is no constitutional requirement that an offense contain a mens rea or scienter element. Thus, courts construe statutes and regulations that make no mention of intent as dispensing with it and hold that the guilty act alone makes out the crime.

Herron , 55 Va. App. at 697, 688 S.E.2d 901 (quoting Esteban , 266 Va. at 609, 587 S.E.2d 523 ). Based on Esteban , we concluded that Code § 53.1-203(5) did not contain an "intent requirement." Id. at 698, 688 S.E.2d 901. We also recognized that the legislative intent of Code § 53.1-203(5) conflicted with an intent requirement because "[a]ny introduction of a controlled substance into a correctional facility threatens the successful rehabilitation of the prisoners in that facility, compromises the health of the prisoners, and threatens the safety of those who work in that facility." Id. Consequently, we refused to read an intent requirement into the statute, and we held that Code § 53.1-203(5) sets forth a strict liability offense. Id. at 698, 704, 688 S.E.2d 901.

Clayton argues that Herron is inapplicable to the facts of his case because it dealt with someone bringing drugs into a correctional facility, whereas he had possession "while already inside the institution." He contends that Herron was based solely on the legislative intent of the statute to prevent the "introduction" of controlled substances into correctional facilities. This argument is without merit.

Clayton focuses on Herron ’s use of the word "introduction" in isolation. But the danger that Code § 53.1-203(5) seeks to prevent is not simply the "introduction" of these substances—it is their presence in the correctional facility, since that is what "threatens the successful rehabilitation of the prisoners in that facility, compromises the health of the prisoners, and threatens the safety of those who work in that facility." Herron , 55 Va. App. at 698, 688 S.E.2d 901. Introduction of the drugs, as we dealt with in Herron , is just one aspect of preventing the ultimate danger of drugs being in the correctional facility. Whether a prisoner possesses them while bringing them into the correctional facility or whether he possesses them while already in the correctional facility is irrelevant to the object of the statute.¹

Further, our decision in Herron did not rely solely on the legislative intent. Because the express language of Code § 53.1-203(5) does not include an intent requirement, we relied on Esteban ’s holding that "courts construe statutes and regulations that make no mention of intent as dispensing with it." Id. at 697, 688 S.E.2d 901 (quoting Esteban , 266 Va. at 605, 587 S.E.2d 523 ).

As a published opinion of this Court, Herron is "binding on us and controls our resolution of this issue." Vay , 67 Va. App. at 257, 795 S.E.2d 495 ; see also Butcher v. Commonwealth , 298 Va. 392, 397 n.6, 838 S.E.2d 538 (2020) ("Under the ‘rule of interpanel accord,’ a decision of one panel of the Court of Appeals " ‘becomes a predicate for application of the doctrine of stare decisis" and cannot be overruled except by the Court of Appeals sitting en banc or by the Virginia Supreme Court.’ " (quoting Clinchfield Coal Co. v. Reed , 40 Va. App. 69, 73, 577 S.E.2d 538 (2003) )). Even if Herron did not apply here, we are still bound by the Supreme Court's holding in Esteban . See O'Malley v. Commonwealth , 66 Va. App. 296, 301, 785 S.E.2d 221 (2016) ("[W]e are bound by the decisions of the Supreme Court of Virginia and are without authority to overrule [them]." (alterations in original) (quoting Roane v. Roane , 12 Va. App. 989, 993, 407 S.E.2d 698 (1991) )). Accordingly, Code § 53.1-203(5) is a strict liability offense, and the Commonwealth was not required to prove Clayton had knowing possession of the chemical compound. Therefore, the trial court did not err in finding the evidence sufficient to convict.

Because we affirm Clayton's conviction on the possession of a chemical compound charge, we likewise affirm the trial court's decision to revoke his suspended sentences. See Patterson v. Commonwealth , 12 Va. App. 1046, 1049-50, 407 S.E.2d 43 (1991).

III. CONCLUSION

For the foregoing reasons, we affirm the decision of the trial court.

Affirmed.

Raphael, J., concurring.

I agree that our decision in Herron v. Commonwealth , 55 Va. App. 691, 688 S.E.2d 901 (2010), compels us to affirm Clayton's conviction under Code § 53.1-203(5) for the unlawful possession of a chemical...