Terry v. Commonwealth

• Decision Date: 26 November 2019
• Docket Number: Record No. 1364-18-4
• Court: Court of Appeals of Virginia
• Parties: ANTHONY DWAYNE TERRY v. COMMONWEALTH OF VIRGINIA

ANTHONY DWAYNE TERRY v. COMMONWEALTH OF VIRGINIA

Record No. 1364-18-4

COURT OF APPEALS OF VIRGINIA

NOVEMBER 26, 2019

UNPUBLISHED

Present: Chief Judge Decker, Judges Humphreys and Russell

Argued at Winchester, Virginia

MEMORANDUM OPINION^* BY CHIEF JUDGE MARLA GRAFF DECKER

FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA

Lisa B. Kemler, Judge

Emily R. Beckman (King, Campbell & Poretz, PLLC, on briefs), for appellant.

Katherine Quinlan Adelfio, Assistant Attorney General (Mark R. Herring, Attorney General, on briefs), for appellee.

Anthony Terry appeals his convictions of conspiracy to distribute fentanyl and conspiracy to distribute furanyl fentanyl in violation of Code §§ 18.2-248 and -256. He contends that these convictions violated his Fifth Amendment protection against double jeopardy because they impermissibly punished him multiple times for the same conspiracy, which was only to distribute heroin. The appellant also argues that the trial court erroneously refused to instruct the jury that for each conspiracy charge, he and his buyer had to have agreed to distribute each controlled substance named, specifically fentanyl and furanyl fentanyl. Last, he challenges the sufficiency of the evidence to prove an agreement underlying the conspiracies to distribute fentanyl and furanyl fentanyl separate from the conspiracy to distribute heroin. For the reasons that follow, we affirm the convictions.

I. BACKGROUND¹

This case stems from a series of drug sales by the appellant to Robert Hunt. The purchased substances contained heroin, fentanyl, furanyl fentanyl, or a mixture thereof.²

Hunt testified that he received heroin from the appellant, repackaged it, and resold it. The pair had an arrangement in which the appellant would "front" Hunt the drugs and Hunt would repay him after selling them. Hunt testified that his agreement with the appellant was to sell heroin only, not fentanyl or furanyl fentanyl. He expressly disavowed that he knew at the time of the enterprise that the appellant was providing him with either of those two substances. He explained that he repeatedly insisted to the appellant that he did not want any fentanyl and that the appellant continually reassured him that he did not sell him any.

At the close of the Commonwealth's evidence and again at the close of all the evidence, the appellant made motions to strike the conspiracy counts for distribution of fentanyl and furanyl fentanyl. The trial court denied the motions.

The parties and the trial court discussed the jury instructions. The appellant objected to two of the Commonwealth's finding instructions. He argued that the judge should inform the jury that it could find him guilty of the two charges of conspiracy to distribute fentanyl andfuranyl fentanyl only if it found that he and Hunt had agreed to distribute those two specific substances. The trial court overruled the objections and gave the instructions.

After deliberation, the jury found the appellant guilty of conspiracy to distribute fentanyl, conspiracy to distribute furanyl fentanyl, conspiracy to distribute heroin, possession of fentanyl with the intent to distribute, and possession of furanyl fentanyl with the intent to distribute. The appellant was sentenced to a total of eighty-six years in prison.

II. ANALYSIS

On appeal, Terry challenges his convictions for conspiracy to distribute fentanyl and furanyl fentanyl. He argues that those convictions violate his right against double jeopardy. The appellant also suggests that they were obtained through erroneous jury instructions. Finally, he challenges the sufficiency of the evidence to support the convictions for conspiracy to distribute fentanyl and furanyl fentanyl.

A. Double Jeopardy

The appellant contends that his constitutional right against double jeopardy was violated when he received multiple punishments for a single offense of conspiracy to distribute a controlled substance. Before addressing the merits of the double jeopardy assignment of error, we must consider whether the appellant raised at trial a double jeopardy challenge to his convictions for conspiracy to distribute fentanyl and conspiracy to distribute furanyl fentanyl.

Rule 5A:18 makes clear that "[n]o ruling of the trial court . . . will be considered as a basis for reversal unless an objection was stated with reasonable certainty at the time of the ruling, except for good cause shown or to enable the Court of Appeals to attain the ends of justice." Additionally, "[n]ot just any objection will do." Thomas v. Commonwealth, 44 Va. App. 741, 750, adopted upon reh'g en banc, 45 Va. App. 811 (2005). "Making one specific argument on an issue does not preserve a separate legal point on the same issue for [appellate]review." Johnson v. Commonwealth, 58 Va. App. 625, 637 (2011) (quoting Edwards v. Commonwealth, 41 Va. App. 752, 760 (2003) (en banc), aff'd by unpub'd order, No. 040019 (Va. Oct. 15, 2004)); see Bethea v. Commonwealth, ___ Va. ___, ___ (Aug. 28, 2019) ("[N]either an appellant nor an appellate court should 'put a different twist on a question that is at odds with the question presented to the trial court.'" (quoting Commonwealth v. Shifflett, 257 Va. 34, 44 (1999))). Instead, Rule 5A:18 requires a litigant to articulate an objection with specificity "so that the trial judge . . . know[s] the particular point being made" and has the opportunity to rule on it. Thomas, 44 Va. App. at 750; see Edwards, 41 Va. App. at 760.

In addition to these general principles, the Code requires specific measures for certain types of motions. See, e.g., Code § 19.2-266.2. Relevant here, a defense motion seeking dismissal of a charge based on a double jeopardy violation is required to be made in writing before trial. Code § 19.2-266.2(A)(ii)(b), (B); Williams v. Commonwealth, 57 Va. App. 750, 768 (2011), cited with approval in Meyers v. Commonwealth, No. 150962, at *10 (Va. Jan. 12, 2017) (unpublished order), cert. denied 138 S. Ct. 999 (2018); see also Rule 3A:9(c) (requiring a motion raising double jeopardy to be made before trial).

No pretrial motion to dismiss based on double jeopardy grounds was made by the appellant.

He did make a motion to strike the three conspiracy charges at trial. He argued as follows:

The essence of the crime of conspiracy is basically an agreement. It's a meeting of the minds. And the Commonwealth's evidence on this alleged meeting of the minds for these three conspiracies is that Mr. Hunt said that he believed he was selling heroin, and heroin only; he didn't know anything about fentanyl or furanyl[]fentanyl until after he was arrested and told about these things. And he testified that he . . . called up my client, and was asking him for heroin. He testified that when he received substances from my client, those substances were heroin. Never once was there a meeting of the minds for fentanyl orfuranyl[]fentanyl. According to Mr. Hunt, if there were a conspiracy, it would be a conspiracy to distribute heroin . . . .

It's got to be a meeting of minds. It's got to be an agreement. It can't be one guy—let's say we're going to let the jury speculate that my client knew what these other substances were. Well, it's quite clear and unequivocal that Mr. Hunt testified that he didn't know anything about that other stuff, didn't talk about that other stuff, had no agreement on that other stuff.

The trial court asked the appellant about Sierra v. Commonwealth, 59 Va. App. 770 (2012), and suggested that it supported the proposition that a defendant did not need to know the particular substance at issue to conspire to distribute a controlled substance. The appellant reiterated that conspiracy requires a "meeting of the minds," unlike possession, the offense at issue in Sierra. He emphasized that "the Commonwealth has chosen three different conspiracies, not just one conspiracy to distribute a controlled substance." At no time did the appellant argue that the conspiracy counts violated the protection against double jeopardy.

In the appellant's motion to strike the charges for possession of fentanyl and furanyl fentanyl, he did specifically argue that knowledge of the particular substances was necessary to avoid double jeopardy.

And with the two possession with intents to distribute, I'm making the counterargument to what I believe the Commonwealth is going to be arguing with the Sierra case. I believe it is required, if you look at—it's required that he knows what the nature of this is, and not just a controlled substance, because there's two different counts. And if it's a controlled substance, then it ought to be one count. I would argue that this would be double[ ]jeopardy. And the way that the Commonwealth has chosen to indict, they use the specific words fentanyl and furanyl[ ]fentanyl. And again, the Sierra case is a possession case and it only involved one count.

(Emphases added).

The record reflects that the appellant did not make a pretrial motion in writing to dismiss any charges due to a violation of his constitutional protection against double jeopardy. See Code § 19.2-266.2(A)(ii)(b), (B). This means that the Commonwealth had no opportunity to respondto it and the trial court did not rule on the issue. See Scialdone v. Commonwealth, 279 Va. 422, 437 (2010); Thomas, 44 Va. App. at 750.

Further, during trial proceedings, the appellant did not argue that the convictions for conspiracy violated his constitutional protection against double jeopardy. Instead, he contended that in order to support the convictions for conspiracy to distribute fentanyl and furanyl fentanyl, the Commonwealth needed to prove that he and Hunt agreed to distribute those particular substances. Conversely, in the context of his challenge to the possession offenses, the appellant did suggest that the charges implicated double jeopardy. Although he contends on appeal that his double jeopardy challenge equally applied to the conspiracy charges, the record does not support this suggestion. Below, the...