Lewis v. Commonwealth
| Decision Date | 29 November 2022 |
| Docket Number | Record No. 0225-22-4 |
| Citation | 76 Va.App. 92,879 S.E.2d 918 |
| Parties | Todd Lynn LEWIS v. COMMONWEALTH of Virginia |
| Court | Virginia Court of Appeals |
Gregory W. Bowman, Winchester, for appellant.
Lindsay M. Brooker, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.
Present: Judges Huff, Raphael and Lorish
OPINION BY JUDGE LISA M. LORISH
The distribution of controlled substances statute, Code § 18.2-248, gives the Commonwealth the option to seek enhanced mandatory minimum penalties for certain drugs based on the quantity of that drug. The enhancement is generally triggered by the weight of "a mixture or substance containing a detectable amount" of the drug—but the statute treats methamphetamine differently. Lewis argues that there was insufficient evidence to convict him under Code § 18.2-248(C)(4) because the Commonwealth failed to prove he possessed with the intent to distribute either ten grams of pure methamphetamine or twenty grams of a mixture or substance containing methamphetamine. We agree, and so we reverse and remand for resentencing.
Frederick County Sheriff's Deputy Holman received a report that a "group of males in two vehicles [were] possibly stealing a motorcycle," and he went to investigate. He watched as Lewis and a passenger, Emmet Presgraves, drove toward him in a blue pickup truck carrying a motorcycle as three men followed in another truck. Holman stopped both trucks, spoke to Lewis, and ultimately learned that Lewis did not have permission to take the motorcycle. So Holman arrested Lewis and the other men for theft.
Deputy Vorous arrived on the scene after receiving a call for assistance, and he conducted an inventory search of the trucks before they were towed. He saw that Lewis was wearing an empty holster on his hip and a "tank top" that had both a "Pagan insignia" and a "One Percenter patch."2 In the blue pickup truck Lewis had been driving, Vorous found a pistol beneath the driver's seat and two firearms in the center console; the console also contained a Navy Federal Credit Union "name badge" with Lewis’ name and photograph. Behind the passenger seat, Vorous found a closed duffel bag embossed with the Navy Federal Credit Union logo. Inside the duffel bag was a box of .45 caliber ammunition and several "Pagan" t-shirts matching Lewis’ size, including one depicting the slogan, "Rotten to the Core." A front pocket of the duffel bag also had a receipt from a motorcycle dealership dated October 11, 2019, with Lewis’ name on it. In another pocket, a pouch with a "black zippered container" held drug paraphernalia and "thirty plastic bags containing a white crystal substance" suspected to be methamphetamine.
Vorous also found two motorcycle club vests in the backseat, one with two notebooks resembling "ledgers" inside it. The front page of the first ledger was inscribed, "Rotten One Percent." The same ledger contained a "tracfone prepaid card" and a phone number listed beside the word "burner."3 One of the ledgers also contained $700 in cash. Finally, Vorous found a wallet belonging to "Elizabeth Young" in the same truck. Lewis told the officers that it was not his truck and that the firearms did not belong to him.
Lewis was originally indicted for possession of "Methamphetamine, a Schedule II controlled substance, with intent to sell, give, or distribute same, in violation of Section 18.2-248," as well as possession of a firearm while in possession of methamphetamine with intent to distribute. Before trial, the Commonwealth moved to amend the indictment to "include ten grams or more of methamphetamine," arguing that Lewis had notice about the proposed amendment and that it did not "change the nature and character of the offense" but only "the weight involved." Lewis did not object to the amendment, which added the language "10g or more of" in front of the word methamphetamine on the indictment.
At trial, the Commonwealth presented evidence of everything just summarized, and also the testimony of Cristina Chilcott, an expert in forensic science and the identification of controlled substances from the Virginia Department of Forensic Science ("DFS"). Chilcott said that she examined the thirty bags containing suspected methamphetamine and prepared two certificates of analysis. Both were admitted as exhibits at trial. The first stated that the "contents" of twenty of the thirty bags of "off-white crystalline substance" were The second amended certificate of analysis, prepared just before trial, added the clarification that "[t]he gross weight of the remainder was 7.2975 gram(s) including innermost packaging."
Chilcott testified that she followed standard operating procedures from the DFS in examining the contents of the twenty bags. When asked "what [she] found that substance to be," Chilcott said, "[t]wenty plastic bags were analyzed separately and each was found to contain methamphetamine which is a Schedule II controlled substance." Chilcott added that the "total net weight of the twenty was 10.5087 plus or minus 0.0660 of substance." Chilcott confirmed that this was the weight of the "off-white crystalline substance." In contrast, Chilcott explained that the "gross weight" of the ten other bags referenced in the amended certificate of analysis "include[ed] the inner most packaging" which was "the baggies themselves." Chilcott said she stopped after testing twenty of the bags because she got to the "ten gram threshold" in the sentencing guidelines, and the gross weight of the remaining bags showed that she would not hit the next "twenty gram threshold" even if she analyzed the remaining bags.
Lewis made a motion to strike after the Commonwealth rested, arguing that there was insufficient evidence that he possessed the methamphetamine found in the duffel bag in the backseat of a truck he did not own. After the trial court denied the motion, Lewis testified in his own defense.
Lewis acknowledged that he was a member of the Pagans "motorcycle club" and used the alias, "Rotten." But he denied knowledge of the methamphetamine or involvement with "drugs of any sort." Lewis explained that about a week before he was arrested, he bought a motorcycle part and placed the receipt in his "saddlebag" before going to work at Navy Federal Credit Union. Lewis took several duffel bags with his employer's logo which he intended to use as "door prizes" at club fundraising events. The next day, he visited the Pagans’ clubhouse to leave his motorcycle for repairs. Lewis testified that he distributed the duffel bags to his friends, including Presgraves and Elizabeth Young. He also removed the receipt from his saddlebag and placed it on a table before departing the clubhouse in Young's pickup truck. Lewis returned that Monday to retrieve his belongings but could not find the receipt or duffel bags.
Lewis testified that on the day of his arrest, he gathered a group of Pagan members to retrieve a friend's motorcycle using Young's pickup truck. He claimed that when police stopped him, he was unaware that the duffel bag was behind the passenger seat or that it contained his receipt. Lewis also denied ownership of the shirts found in the duffel bag, although he wore similar attire during his arrest, and the shirt inscribed "Rotten to the Core" matched his "road name."
Lewis admitted that he owned the notebooks and motorcycle vest found by the duffel bag, but said he used the notebooks for legitimate purposes. Lewis also claimed that the cash in the notebooks was from a recent "fundraising" event. He said that the word "burner" in his notebook referred to a "minute phone" he used to "stay in touch" with family during work. Finally, Lewis admitted that while he told police that none of the firearms belonged to him, he ultimately pled guilty to a related charge of a possessing a concealed weapon because "the truth of the matter [was] that [he] was guilty of that charge."
At the end of all the evidence, Lewis renewed his previous motion to strike without adding any specific arguments, and the trial court denied it. The jury convicted him on both counts.
Before sentencing, Lewis moved to set aside the jury's verdict. He argued that the Commonwealth had to prove that he possessed at least ten grams of "actual methamphetamine" for Code § 18.2-248(C)(4) ’s mandatory sentencing provision to apply. He contended that because the Commonwealth did not test all of the suspected methamphetamine or determine its "purity," the evidence failed to prove the necessary amount. The trial court took up this motion at the sentencing hearing, and concluded that Lewis was convicted under the "first part" of the statute—"ten grams or more of methamphetamine, its salts, isomers, or salts of its isomers"—and that "[t]here is no Virginia Law requirement of purity, and the Court is not going to add one." And the trial court agreed with the Commonwealth that Lewis waived the issue by not objecting to the introduction of the certificate of analysis at trial, which expressly stated that "a purity determination was not performed." Accordingly, the trial court denied the motion to set aside the verdict, and sentenced him, in accordance with the jury's verdict, to twenty total years of incarceration and twelve months of jail.4 Lewis appeals.
Lewis first argues that there was insufficient evidence to prove he constructively possessed the methamphetamine in the duffel bag. If we disagree, Lewis argues he should be resentenced without the mandatory minimum required by Code § 18.2-248(C)(4) because the Commonwealth failed to prove a drug weight of either "ten grams or more of methamphetamine, its salts, isomers, or salts of its isomers" or "twenty grams or more of a mixture or substance containing a detectable amount of...
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