Vera v. Commonwealth
| Docket Number | Record No. 0398-22-1 |
| Decision Date | 11 April 2023 |
| Citation | 77 Va.App. 271,885 S.E.2d 487 |
| Parties | Jose Guadalupe VERA, Jr. v. COMMONWEALTH of Virginia |
| Court | Virginia Court of Appeals |
James O. Broccoletti (Zoby & Broccoletti, P.C., on brief), Norfolk, for appellant.
David A. Mick, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.
Present: Judges Huff, Fulton and White
OPINION BY JUDGE KIMBERLEY SLAYTON WHITE
Appellant Jose Guadalupe Vera, Jr., raises two challenges following his convictions for possession with intent to distribute a Schedule III drug and two counts of contributing to the delinquency of a minor: 1) that the circuit court erred when it denied Vera's defense of accommodation and 2) that the circuit court improperly admitted evidence of prior bad acts. Finding that the circuit court correctly determined an accommodation defense inapplicable and the evidence of prior bad acts admissible, we affirm.
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, 867 S.E.2d 505 (2022) (quoting Commonwealth v. Cady , 300 Va. 325, 329, 863 S.E.2d 858 (2021) ). Doing so 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." Cady , 300 Va. at 329, 863 S.E.2d 858 (quoting Commonwealth v. Perkins , 295 Va. 323, 324, 812 S.E.2d 212 (2018) ).
During the week of May 28, 2020, seventeen-year-old K.C. and her family were visiting relatives in Northampton County. K.C.’s friend E.S., also a minor, joined them on the trip. Earlier that week, K.C. and E.S. met Jose Guadalupe Vera, Jr. ("Vera"), who was eighteen years old, and his juvenile friend A.M. During that week, the group "hung out," occasionally drank alcohol, and exchanged Snapchat messages.
On May 28, 2020, the group communicated via Snapchat and decided to meet at the beach that evening. Once at the beach, Vera poured gamma-hydroxybutyrate ("GHB"), a Schedule III drug for which Vera possessed a prescription to treat narcolepsy
, into a small shot glass which he gave to K.C. and E.S. Both K.C. and E.S. testified that the group had never discussed the drug GHB and that they did not know nor were they told what was in the small shot glass that Vera served them. E.S. testified she thought it was tea. After the girls took the shot, Vera told E.S. that they had drunk GHB. Upon learning that she had ingested GHB, E.S. looked it up on her phone. During cross-examination, K.C. testified, when asked whether she and Vera had had a prior discussion about GHB, "I guess it's possible, but I don't really—I think I would remember that."
A.M. testified that he and Vera had ingested GHB before meeting up with K.C. and E.S. A.M. knew what GHB was when he drank it with Vera. A.M. saw Vera give the GHB to K.C. and E.S. but never heard Vera tell the girls that it was GHB or what it was beforehand. Unsure if there had been discussion with the girls about GHB previously, A.M. testified that, if there had been, "it was, like really quick though" and that there was not
Eventually K.C.’s mother called and told K.C. and E.S. to come home for dinner. E.S. had to drive the family golf cart back to the house because K.C. had "passed out." E.S. testified that she was "really scared" because she did not know if K.C. was having an allergic reaction
because she was unaware of the effects of GHB. When the girls arrived home, K.C. was still unconscious. K.C.’s parents called 911, and her father performed CPR. When first responders arrived on scene, K.C. was still unresponsive and unconscious. After restoring K.C.’s breathing, a medic on scene administered NARCAN and K.C. was transported to the hospital. E.S., who at this point appeared intoxicated, began going in and out of consciousness. As a result of losing consciousness, E.S. was also transported to the hospital.
At the hospital, blood samples were collected from both E.S. and K.C. K.C.’s blood sample contained approximately 140 mg of GHB per liter of blood, and E.S.’s blood sample contained approximately 97 mg of GHB per liter of blood. Dr. Autumn Massiello, a forensic toxicologist, testified that GHB is uncommon and is used as a date rape drug. She also testified that the GHB concentrations in both blood samples were well above the therapeutic dose for GHB.
Vera testified that, on May 27, 2020, he had a conversation with the group regarding his narcolepsy
and prescription for GHB. Vera testified that he had brought his drug with him when meeting up with A.M. the following day because they had no alcohol. Vera stated he shared the GHB with A.M. out of "generosity."
Moreover, Vera testified that he had no intention of sharing the GHB with E.S. or K.C. because, at the time he decided to bring the GHB with him, he did not know he was going to see them that day. When Vera and A.M. did eventually meet up with the girls, however, Vera testified that he asked the girls if they had any alcohol and that they had talked about the drug. Vera then poured the GHB for the girls "in front of everybody," and the girls drank it.
During cross-examination, the Commonwealth asked Vera about a previous charge for distributing GHB in high school. Vera objected to introduction of the evidence, arguing that it was a "non-relevant bad act" and had "nothing to do with this case." The Commonwealth argued that it showed "modus operandi, knowledge of an element of the offense, course of acting." The judge, after a brief recess, determined the evidence of the prior bad act was admissible. Listing the exceptions to the rule, the judge noted that the probative value of the evidence outweighed any prejudicial impact and that, sitting as the factfinder, he could "discern how to weigh [the] evidence so that it is not prejudicial in and of itself." After the judge overruled Vera's objection, Vera admitted to having previously given GHB to a girl who became sick after consumption. In addition, the Commonwealth introduced a handwritten letter, written by Vera, admitting to the prior distribution and the adverse effect of GHB on the girl.
At the conclusion of the evidence, the circuit court rejected Vera's accommodation defense. The court specifically noted that Vera The circuit court found Vera guilty of possession with intent to distribute a Schedule III substance and two counts of contributing to the delinquency of a minor. The circuit court sentenced Vera to twelve months for each count of contributing to the delinquency of a minor, to be served consecutively. As for the possession with intent to distribute GHB, the circuit court sentenced Vera to five years, with four years suspended, also to be served consecutively.
On appeal, Vera's first assignment of error is that the circuit court erroneously determined Vera's actions did not constitute distribution as an accommodation. Vera's second assignment of error is that the circuit court improperly allowed the admission of evidence of prior bad acts.
We begin with Vera's assertion that the circuit court erroneously rejected Vera's argument that his provision of GHB to E.S. and K.C. constituted an accommodation under Code § 18.2-248(E3). Namely, Vera argues that "[i]n this particular case, [he] neither received nor expected profit or consideration from the sharing of narcotics, and he further made no attempts to persuade, coerce, or otherwise ‘induce’ the victims to join them in taking the narcotics." Vera asks this Court to define, for the first time, the word "induce" and, in doing so, find that Vera's distribution was, instead, an accommodation.
"Issues of statutory interpretation are questions of law that this Court reviews de novo. " Laney v. Commonwealth , 76 Va. App. 155, 162, 880 S.E.2d 815 (2022). "We apply the plain meaning of the language appearing in the statute unless it is ambiguous or applying the plain language leads to an absurd result." Baldwin v. Commonwealth , 69 Va. App. 75, 82, 815 S.E.2d 809 (2018) (quoting Harvey v. Commonwealth , 65 Va. App. 280, 285, 777 S.E.2d 231 (2015) ). A "claim of accommodation, at most, raise[s] an issue of fact to be resolved by the fact finder." Laney , 76 Va. App. at 164, 880 S.E.2d 815 (quoting Foster v. Commonwealth , 38 Va. App. 549, 557, 567 S.E.2d 547 (2002) ). "We review a trial court's factfinding ‘with the highest degree of appellate deference.’ " Id. at 164-65, 880 S.E.2d 815 (quoting Joyce v. Commonwealth , 56 Va. App. 646, 664, 696 S.E.2d 237 (2010) ). "Factual findings must be affirmed unless they are plainly wrong or without evidence to support them." Id. at 165, 880 S.E.2d 815. It is Vera's "burden to prove by a preponderance of the evidence that he distributed [GHB] as an accommodation." Id. at 164, 880 S.E.2d 815.
Section 18.2-248(E3) states:
Any person who proves that he gave, distributed or possessed with the intent to give or distribute a controlled substance classified in Schedule III or IV ... only as an accommodation to another individual ... and not with the intent to profit thereby from any consideration received or expected nor to induce the recipient ... of the controlled substance to use ... such controlled substance, is guilty of a Class 1 misdemeanor.
To induce is to "bring about," "to move by persuasion or influence," or "to call forth or bring about by influence or stimulation." Induce , Merriam-Webster , https://www.merriam-webster.com/dictionary/induce (last visited Apr. 10, 2023). Synonyms include "cause," "prompt," and "catalyze." Id. Finally, the origin of induce comes from the Latin word indu...
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