Holmes v. Commonwealth

• Decision Date: 22 November 2022
• Docket Number: Record No. 0250-22-3, Record No. 0251-22-3
• Parties: Priscilla Ann HOLMES v. COMMONWEALTH of Virginia Priscilla Ann Holmes v. Commonwealth of Virginia
• Court: Virginia Court of Appeals

76 Va.App. 34

880 S.E.2d 17

Priscilla Ann HOLMES

v.COMMONWEALTH of Virginia

Priscilla Ann Holmes

v.Commonwealth of Virginia

Record No. 0250-22-3

Record No. 0251-22-3

Court of Appeals of Virginia.

November 22, 2022

H. Eugene Oliver, III, Harrisonburg (Evans Oliver, PLC, on brief), for appellant.

Ken J. Baldassari, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.

Present: Judges Fulton, Ortiz and Senior Judge Petty

OPINION BY JUDGE JUNIUS P. FULTON, III

Following a jury trial, the Circuit Court of Augusta County convicted Priscilla Holmes of two counts of racketeering in violation of Code § 18.2-514(C). Holmes appeals her convictions, challenging the sufficiency of the Commonwealth's evidence against her and the trial court's denial of three proposed jury instructions. For the following reasons, we affirm in part, reverse in part, and remand this case to the circuit court for a new trial.

I. BACKGROUND

The Commonwealth charged Holmes by indictment alleging two counts of

knowingly, intentionally, willfully, unlawfully and feloniously, while associated with any enterprise, as defined in Virginia Code Section 18.2-513, did commit namely two or more of the following offenses: possession of a Schedule I or II controlled substance, and/or distribution or possession with intent to distribute a Schedule I or II substance, and/or distribution or possession with intent to distribute 28 grams or more of methamphetamine.¹

At trial, the Commonwealth presented evidence of racketeering activity during two time frames.

A. Evidence of Racketeering

Benjamin Hartless testified for the Commonwealth that after meeting Holmes in December 2017 until his arrest in July 2018,² he distributed methamphetamine, purchased from Holmes, in Augusta County. At the time of the trial, Hartless had been using methamphetamine for approximately twenty years. Hartless was introduced to Holmes by a friend. He began selling for her "pretty much right off the bat," starting off selling "eight-balls" or an eighth of an ounce. Hartless would typically break down the eight-ball, "sell a couple of grams out of it to make the money back and then either keep the rest or sell a little bit more out of it." During that time, Hartless was using "anywhere from a half a gram to a gram a day" of methamphetamine. After about a month of selling eight-balls for Holmes, Hartless began to get "a couple of ounces" of methamphetamine at a time from Holmes, which he would break down into eight-balls and sell to people who were further dealing to others.

Eventually, Hartless received one, two, and three pounds of methamphetamine at a time from Holmes. He paid Holmes $15,000 per pound with cash bundled together and wrapped in rubber bands. He would pay the cash to Holmes directly or to Andrea Verdi, a woman who would deliver methamphetamine for Holmes. While Hartless was selling for Holmes, he testified that he generally saw her on a weekly basis when she would drive to Augusta County to meet him. Holmes would typically drive nice-looking SUVs with Georgia plates, which Hartless believed to be rental cars.

When Hartless received methamphetamine by the pound, it would arrive in "like a [Z]iplock bag, wrapped up real tight with plastic wrap around it and then it'd have ... axle grease around it and then wrapped up again in plastic wrap and then duct taped all tight." Once he received the large quantity of methamphetamine, Hartless would "unwrap it all and break it down into ounces and then distribute to people" who would then break it down further and sell it. Hartless testified that he sold methamphetamine to at least five other people whom he knew to be dealing to others. Over the period he sold for Holmes, Hartless estimated he sold fifty or more pounds of methamphetamine. Hartless testified that until his arrest he maintained a "good name in drug circles" and had a trustworthy reputation on the street.

Roger Holmes (hereinafter "Roger," no relation to the appellant) also testified that he purchased methamphetamine from Holmes for resale in Augusta County. At the time of trial, Roger had been a methamphetamine user for approximately twenty years. Roger explained that he met Holmes about thirty years ago, lost contact for fifteen to twenty years, and was reintroduced by a friend in 2018. Shortly thereafter, Holmes sent two pounds of methamphetamine to Roger, through another person, in a block that was packaged "in a vacuum-sealed bag with coffee in it," which Roger broke up into smaller packages and resold. Sometime thereafter, Holmes traveled to Roger's residence to collect the $28,000 he owed her for the two pounds of methamphetamine he had sold. Roger only had $24,000, which he paid her in cash.

After that initial money pickup, Roger and Holmes communicated via phone: "She called and asked ... what I needed, and I told her how much money I'd had, she said somebody would be by. Then another stranger stopped in and picked up the money and left what I was getting." Roger sold methamphetamine for Holmes approximately twenty times to five different people, for a total of five pounds. He confirmed that Verdi delivered a pound of methamphetamine to him for Holmes once and that Holmes never personally brought him any drugs.

Roger began dealing for Holmes after Hartless's arrest in July 2018 and ceased on December 21, 2018, when the Skyline Drug Task Force arrested Holmes at Roger's residence. Roger, along with Task Force Officer Rosemeier, testified that Roger "set [Holmes] up," telling officers that Holmes was going to Roger's home to bring him two pounds of methamphetamine and collect $14,000 that he owed her. Although Holmes arrived at Roger's house at the date and approximate time she was expected, driving an SUV with Georgia license plates, she did not have any drugs on her person or in her vehicle and did not attempt to collect any money from Roger before she was arrested.

Verdi testified for the Commonwealth that, at the instruction of Holmes, she delivered large quantities of methamphetamine to Hartless, Roger, and another individual in Virginia, making a total of seven-to-eight trips. Each of Verdi's visits to Virginia was for the purpose of "either picking up [money], dropping off [methamphetamine], or both." At Holmes's suggestion, Verdi delivered the drugs using SUVs and would store them either in the trunk or "above the tire underneath the cupholders." The methamphetamine was packaged "in like freezer bags ... like vacuum sealed." Holmes provided the addresses, paid for the rental cars, and paid Verdi between $800 and $1,200 per trip. On two separate occasions, Holmes also sent Verdi to pick up methamphetamine from an individual in Atlanta.

Officer Hilliard of the Skyline Drug Task Force testified, without objection, that "numerous people" identified Holmes as a drug dealer in Augusta County. In addition to the testimony of Holmes's three accomplices and the task force officers involved in the investigation and arrest, the Commonwealth introduced into evidence two certificates of analysis. The first certificate of analysis showed that on July 31, 2018, police recovered just over half a pound of methamphetamine from Hartless. The second showed that in December 2018, nearly one pound of methamphetamine was recovered just after Verdi delivered it to Roger on his property.

At the conclusion of the Commonwealth's evidence, Holmes made a motion to strike, which was denied. Holmes declined to present any evidence and made renewed motions to strike, which the court also overruled.

B. Jury Instructions

Three of Holmes's proposed jury instructions were rejected by the trial court. Proposed Instruction I stated (rejected paragraphs italicized):

You are the judge of the facts, the credibility of the witnesses, and the weight of the evidence. You may consider the appearance and manner of the witnesses on the stand, their intelligence, their opportunity of knowing the truth and for having observed the things about which they testified, their interest in the outcome of the case, their bias, and, if any have been shown, their prior inconsistent statements, or whether they have knowingly testified untruthfully as to any material fact in the case.

You may not arbitrarily disregard believable testimony of a witness. However, after you have considered all the evidence in the case, then you may accept or discard all or part of the testimony of a witness as you think proper.

Although one or more witnesses may positively testify as to an alleged fact and although that testimony may not be contradicted by other witnesses, you may altogether disregard that testimony if you believe it to be untrue.

You are entitled to use your common sense in judging any testimony. From these things and all the other circumstances of the case, you may determine which witnesses are more believable and weigh their testimony accordingly.

If you believe from the evidence that any witness has knowingly testified falsely as to any material fact in this case, you have a right to discredit all of the testimony of that witness or to give to such testimony such weight and credit as in your opinion it is entitled.

The court instructed the jury on the first, second, and fourth paragraphs of Instruction I, but rejected the third and fifth paragraphs, holding that the issues raised there were "adequately covered" by the model jury instruction and that "anything more[ ] was duplication and/or could be confusing to the jury."

Proposed Instruction Q stated:

Where a fact is equally susceptible to two interpretations, one of which is consistent with the defendant's innocence, you may not arbitrarily adopt the interpretation which finds him guilty.

Declining to give Instruction Q, the court stated that it "has given an instruction as to the jury's obligation and rights and how they should interpret evidence that comes in. It is their factual determination as to whether to believe and what weight and...