Virginia Lawyers Weekly VA Lawyers Weekly
Appellant’s conviction of distributing a controlled substance is reversed because there is insufficient evidence that appellant sold the drugs to a paid informant.
The evidence reveals the possibility that someone other than appellant could have provided the drugs that were found on the informant following a controlled buy.
Chain of circumstances
“The Commonwealth’s case against Maust did not include any witness testimony identifying Maust as the source of the oxymorphone pills recovered from Gale, the paid informant who died before trial. To sustain a conviction for drug distribution under these circumstances where the Commonwealth relies on circumstantial evidence, the Commonwealth’s evidence must show that the informant ‘could not have obtained the [controlled substance] from a source other than the defendant.’
“Absent a showing that Gale had no opportunity to obtain the controlled substance from someone other than Maust, there is a fatal break in the chain of necessary circumstances and the evidence fails to prove beyond a reasonable doubt that Maust distributed the oxymorphone pills to Gale.
Somebody else?
“[T]he circumstantial evidence fails to establish that the informant, Gale, could not have obtained the illegal drugs from someone other than the appellant, Maust. Moreover, the circumstantial evidence fails to establish that Gale obtained the illegal drugs from Maust. The purpose of the detective’s initial search of Gale and his car was defeated when an unidentified person accompanied Gale while he drove to and from Maust’s house.
“Although the detective’s initial search of Gale and his car may support the trial court’s finding that Gale possessed no pills before he drove to Maust’s house, there is no evidence that the police searched Gale’s unidentified companion. Therefore, there is no evidentiary basis for excluding Gale’s companion as the source of the pills recovered from Gale. …
“[T]he evidence here also fails to show that the informant could not have obtained the pills from a source other than the defendant at the place where the alleged drug transaction occurred. The audio recording shows that while Gale was in Maust’s house, at least two persons other than Maust were also there.
“In addition to the female voice that Maust identified as her tenant, Ms. Stone, a male voice was recorded exchanging greetings with Gale. The audio recording also indicates that Gale was away from Maust for approximately two minutes while he was there.
“The evidence does not show that Gale could not have covertly accessed some of the narcotic pills prescribed to Maust or Ms. Stone. Nor is there any evidence regarding the whereabouts of Gale’s companion while Gale was inside Maust’s house.
“Taking all of this evidence in the light most favorable to the Commonwealth, the evidence does not point unerringly to Maust as the source of the pills recovered from Gale.”
No prior plan
“[T]he evidence here failed to establish that Maust met with Gale on the alleged date of offense for the purpose of distributing drugs to him. …
“[T]he informant made no advance arrangements with Maust to purchase drugs from her. The Commonwealth’s evidence failed to exclude the reasonable hypothesis of innocence that Maust met with Gale for the purpose of showing him various appliances and other items that she was selling in anticipation of her move to a smaller home.
“Throughout Maust’s and Gale’s recorded conversation, they discussed the appliances that Maust was selling on a ‘first-come, first served’ basis.
“The Commonwealth’s evidence also failed to prove that the financial transaction between Maust and Gale involved the distribution of drugs. Maust stated in the audio recording that Gale ‘owed’ her ‘two fifty-four’ and gave her ‘two seventy.’ Gale confirmed that he owed Maust $254 and had given her $270 when he replied that Maust owed him $16 in change.
“The evidence does not establish that the money was used to purchase drugs rather than to repay Maust for a personal loan or to make a legal purchase from Maust’s ‘moving sale.’ The Commonwealth’s evidence failed to exclude these reasonable hypotheses of innocence.
“Moreover, the recorded transaction is not consistent with Gale’s supposed plan to pay $300 for three pills. Therefore, the trial court’s finding that the audio recording established “an exchange of money and drugs” is without sufficient evidence to support it.”
Conclusion
“Because the chain of necessary circumstances to prove the alleged act of drug distribution to Gale was repeatedly broken when Gale had opportunities to obtain pills from sources other than Maust, the corpus delicti and the criminal agency of the accused have not been proved to the exclusion of any other rational hypothesis and to a moral certainty. … Therefore, the Commonwealth’s circumstantial evidence is insufficient to support Maust’s conviction.”
Reversed.
Maust v. Commonwealth, Record No. 0505-21-4, Aug. 9, 2022. CAV (Chaney, Malveaux dissenting) From the Circuit Court of Stafford County (Strickland, final order; Sharp, trial and conviction order) Andrew J. Cornick for appellant. Timothy J. Huffstutter, Jason S. Miyares for appellee. VLW 022-7-319, 22 pp. Unpublished opinion.
