Where the commonwealth did not prove that appellant possessed with intent to distribute either 10 grams of pure methamphetamine or 20 grams of a methamphetamine mixture, the case is remanded for resentencing under a lesser-included offense.
“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.” Appellant “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.”
When police stopped a pickup truck Lewis was driving, they discovered, among other things, guns, ammunition, “drug paraphernalia and ‘thirty plastic bags containing a white crystal substance’ suspected to be methamphetamine. …
“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, Chilcott, an expert from the Virginia Department of Forensic Science testified that she prepared two certificates of analysis. The first was for 20 bags of the substance.
“Each bag tested positive for methamphetamine and total weight was 10.5 grams. … A purity determination was not performed.
“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 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 moved to strike on the basis “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.” The trial court denied the motion.
The jury convicted Lewis under Code § 18.2-248(C)(4), the enhanced penalty provision for possessing with intent to distribute more than 10 grams of methamphetamine.
“Lewis argues that the lack of circumstantial evidence rendered the evidence insufficient to sustain his convictions. We disagree. …
“The jury’s conclusion was supported by the totality of the circumstances here. As the driver, Lewis possessed the blue pickup truck containing the duffel bag holding the thirty bags of methamphetamine.
“Although he did not own the pickup truck, Lewis used it for several days just before the incident, and police found his personal property throughout the truck, including his employee “name badge,” motorcycle vest, notebooks, and receipt. …
“The badge was beside a firearm in the center console, and the notebooks and vest near the duffel bag containing the drugs and receipt. From that evidence, a rational fact finder could conclude that Lewis knowingly and intentionally possessed the methamphetamine in the duffle bag.”
Burden of proof
“Code § 18.2-248 … sets out several enhanced offenses beyond basic distribution. Some of these enhancements are based on prior offenses, and some are based on drug weight. Here, we must decide whether ‘purity’ is relevant to the enhanced methamphetamine offense in Code § 18.2-248(C). …
“The General Assembly’s treatment of ‘methamphetamine’ immediately stands out as unique compared to the other drugs selected for potential enhancement in subparagraph (C).
“Whereas the drug weight may apply to ‘a mixture or substance containing a detectable amount’ of heroin or cocaine-related substances, Code § 18.2-248(C)(4) distinguishes between ‘10 grams or more of methamphetamine, its salts, isomers, or salts of its isomers’ and “20 grams or more of a mixture or substance containing a detectable amount of methamphetamine, its salts, isomers, or salts of its isomers.” (Emphasis added).
“There is no way to read this language but to conclude that there is a difference between ‘methamphetamine, its salts, isomers, or salts of its isomers’ and ‘a mixture or substance containing a detectable amount of methamphetamine, its salts, isomers, or salts of its isomers.’
“More weight is required for a ‘mixture or substance containing a detectable amount’ of methamphetamine to trigger the same enhanced penalty that applies to ‘methamphetamine.’ …
“We can only conclude that the Commonwealth must prove a ‘pure’ drug weight of ten grams or more of methamphetamine, its salts, isomers, or salts of its isomers under Code § 18.2-248(C)(4), or instead elect to prove twenty grams of a ‘mixture’ containing any detectable amount of methamphetamine.”
“Having concluded that the statutory enhancement in Code § 18.2-248(C)(4) requires proof of either ten grams or more of pure methamphetamine or twenty grams of a mixture or substance containing methamphetamine, we find that the evidence was insufficient to prove an element of the offense. …
“The DFS analyst testified at trial that she analyzed twenty bags of off-white crystalline substance and ‘each was found to contain methamphetamine’ with a total weight of ‘10.5087, plus or minus 0.0660 grams of substance’ and that the ‘gross weight’ of the remaining ten bags was ‘7.2975 gram(s) including innermost packaging.’
“No purity analysis was performed. Thus, there is no evidence that the drugs met either weight threshold.”
“At oral argument, the parties agreed that – if we found Code § 18.2-248(C)(4) contained a purity requirement – remand for resentencing under Code § 18.2-248(A) was appropriate.
“Accordingly, having already found the evidence was sufficient for the general offense of possessing methamphetamine with the intent to distribute it under Code § 18.2-248, we remand the case for resentencing on this lesser-included offense.”
Reversed and remanded.
Lewis v. Commonwealth, Record No. 0225-22-4, Nov. 29, 2022. CAV (Lorish). From the Circuit Court of Frederick County (Iden). Gregory W. Bowman for appellant. Lindsay M. Brooker (Jason S. Miyares on brief), for appellee. VLW 022-7-542, 17 pp.