Sufficient evidence despite lack of informant testimony

Even though a confidential informant did not testify because he died before trial, there is sufficient circumstantial evidence to uphold appellant’s conviction for distribution of a Schedule I or II controlled substance.

Appellant argues that the informant obtained the three oxymorphone pills from someone else.

But the fact that the informant “was not under surveillance for all of the controlled buy did not make the trial court’s rejection of [appellant’s] alternate hypothesis of innocence unreasonable.”

Sufficient evidence

“[W]e conclude that the trial court did not err in rejecting appellant’s alternate hypothesis of innocence that Gale [the confidential informant] obtained three oxymorphone pills on the date of the offense from someone other than appellant.

“The Commonwealth’s evidence, viewed in the light most favorable to it, demonstrated that Gale went to appellant’s residence with the buy money that Detective Monaghan provided and with the intention of buying oxymorphone pills from appellant.

“After arriving, Gale gave the money to appellant and returned to Monaghan ten minutes later with three oxymorphone pills. Although Monaghan did not witness the transaction, the audio recording demonstrated that Gale interacted with appellant and that she verbally confirmed that Gale gave her money.

“While another person was with Gale on his drive to and from appellant’s house, and another woman could be heard on the audio recorded inside appellant’s home, there was no recorded conversation between these individuals and Gale indicating that he exchanged money or pills with them.

“Moreover, Monaghan followed Gale to and from appellant’s house and searched him before and after the transaction.

“Further, during a search of appellant’s house, police found ‘numerous pills,’ ‘pill crushers,’ a ‘pill press,’ ‘numerous prescription bottles for different narcotics, the majority of which were empty,’ and a ‘large amount’ of currency. Police found $4,351 in a safe in appellant’s bedroom, including $270 of the buy money given to Gale.”

Moreover, “the record demonstrates that appellant provided vague, inconsistent, and contradictory explanations for the presence of the cash in her safe and as to whether she distributed pills to others. ‘[A] fact-finder, having rejected a defendant’s attempted explanation as untrue, may draw the reasonable inference that his explanation was made falsely in an effort to conceal his guilt.’ …

“Based on the evidence above – including Monaghan’s search of Gale before and after the controlled buy and his receipt of the pills from Gale; the audio recording reflecting the exchange of money between Gale and appellant; the buy money found in appellant’s safe; the items indicative of drug distribution found in appellant’s home; and appellant’s inconsistent statements and statements indicating that she distributed drugs – it is clear the trial court was not plainly wrong in concluding that the evidence was sufficient to support appellant’s conviction.”

Cited cases unhelpful

“Appellant urges us on appeal to discount this evidence and instead focus on the presence of individuals other than appellant and Gale during the controlled buy.

“In support of her argument that the trial court unreasonably rejected her alternate hypothesis of innocence that the woman in the car with Gale or the other woman in the house supplied Gale with the pills, appellant cites to” Jones v. Commonwealth, 21 Va. App. 435, 443 (1995) (en banc) and Bennett v. Commonwealth, 69 Va. App. 475, 492 (2018).

“Yet, a review of these cases demonstrates that, contrary to appellant’s argument, they in fact support the conclusion that the circumstantial evidence in this case was sufficient to support appellant’s conviction.

“In both cases, confidential informants involved in controlled buys of drugs did not testify at trial. … Nonetheless, our Court affirmed both drug distribution convictions based on the other circumstantial evidence presented at trial. …

“These decisions provide the holding, relevant here, that lapses in police surveillance or the presence of other individuals during controlled buys do not render the evidence insufficient when the confidential informant fails to testify at trial.

“Instead, as in all circumstantial evidence cases, the determination of whether an alternative hypothesis of innocence is reasonable is one made by the fact finder below upon consideration of the totality of the circumstances and is one that we do not disturb on appeal unless plainly wrong. …

“Accordingly, we conclude, as in Jones and Bennett, that the fact that Gale was not under surveillance during the entirety of the controlled buy and that other individuals were present during the buy did not make the trial court’s rejection of her alternate hypothesis of innocence unreasonable. …

“Accordingly, we affirm the judgment of the trial court.”

Maust v. Commonwealth, Record No. 0505-21-4, May 30, 2023. CAV (published opinion) (Malveaux) (Chaney, joined by Causey, dissenting) Upon a Rehearing En Banc from the Circuit Court of Stafford County. (Strickland, sentencing; Sharp, trial) Andrew J. Cornick for appellant. Timothy J. Huffstutter, Jason S. Miyares for appellee. VLW 023-7-190, 26 pp.