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Second drug charge was not double jeopardy

Virginia Lawyers Weekly//February 17, 2020

Second drug charge was not double jeopardy

Virginia Lawyers Weekly//February 17, 2020//

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Where defendant pleaded guilty to pos­sessing heroin with intent to distribute in the city of Fredericksburg, a later charge of possessing heroin with intent to dis­tribute, second offense, in Spotsylvania County did not violate double jeopardy principles.

Defendant complains that the second charge arose from the same incident. However, the proofs required for each charge were different, thus, there was no double jeopardy violation.


Defendant was under police surveil­lance when he left his Fredericksburg house and drove to a convenience store in Spotsylvania County, a short distance away. A police detective approached de­fendant. Defendant admitted that he sold heroin. Police found heroin in his jack­et. More heroin was found when police searched his house.

Defendant was charged with posses­sion with intent to distribute in Freder­icksburg. He pleaded guilty to the charge. “The Commonwealth proffered that had the case gone to trial, Detective Ridings would have provided most of the evi­dence. The Commonwealth did not dis­cuss the defendant’s possession of hero­in in his pocket when he was stopped in Spotsylvania.

“However, the prosecutor entered both certificates of analysis into evidence as a single exhibit at the Fredericksburg hearing on the guilty plea, inaccurately representing that ‘both’ items ‘were found in’ the defendant’s home. The defendant did not object to the admission of the cer­tificate of analysis relating to the heroin found on his person into evidence or to the Commonwealth’s inaccurate proffer.”

After he was sentenced, he was indicted in Spotsylvania County for the heroin found in his jacket. Defendant moved to dismiss based on double jeopardy principles. The circuit court dismissed the charge on that basis. The commonwealth appealed.


“In the Spotsylvania circuit court, the defendant acknowledged the general principle that an individual could be con­victed of two offenses if he possessed a controlled substance on his person and, at the same time, possessed a controlled substance in his residence. He contend­ed, however, that the trial judge in the Fredericksburg case had already found him guilty of possessing the total amount found and considered that fact in deter­mining his sentence.

“The central question on appeal is whether the subsequent prosecution in Spotsylvania placed the defendant in jeopardy twice because it was a prosecu­tion of the ‘same act’ under the same stat­ute as the Fredericksburg conviction. We hold that it did not.

“The Fredericksburg conviction required different evidence than the subsequent Spotsylvania prosecution. The first re­quired evidence of his possession of hero­in in Fredericksburg. The second required proof of his possession of heroin in Spotsyl­vania. Therefore, the two separate trials did not violate the defendant’s constitution­al protections against double jeopardy. …

“In urging otherwise, the defendant stresses that during the Fredericksburg trial, the Commonwealth mistaken­ly represented that the heroin actually found on his person in Spotsylvania was found in the house in Fredericksburg. At that time, the Commonwealth also inac­curately proffered that the same heroin constituted part of the factual basis for the conviction.

“The defendant relies on this mistake for his double jeopardy argument, con­tending that the act of possessing the heroin in his pocket served as part of the basis for his guilty plea and conviction in Fredericksburg. He reasons that the con­stitutional bar against double jeopardy protected him from prosecution in Spot­sylvania for the same act of possessing the heroin in his pocket.

“However, the test applied to deter­mine whether prosecutions are based on separate offenses ‘is whether the same evidence is required to sustain them.’ … The test for double jeopardy is not, as the defendant seems to suggest, whether the Commonwealth actually used or attempt­ed to use the same evidence to obtain multiple convictions. …

“Quite simply, the Commonwealth’s mistake of fact at the Fredericksburg hearing on his guilty plea does not affect our double jeopardy analysis.”

Reversed and remanded.

Commonwealth v. Ferguson, Record No. 1245-19-2, Jan. 14, 2020. CAV (Decker) from Spotsylvania Cir. Ct. (Glover). Liam A. Curry for appellant, James Joseph Ili­jevich for appellee. VLW 020-7-009, 7 pp. Unpublished.

VLW 020-7-009

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