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The Virginia Appellate Lawyer’s Court of Appeals of Virginia Blog

En Banc from Unpublished Case Garners Nearly Unanimous Result; 2 Other Cases from the Court of Appeals

It's unusual for an unpublished decision to get a review by the full Court of Appeals even where there is a dissent. It's even more unusual for the original dissenter to pick up just one more vote -- meaning that the en banc was granted by some judges who agreed with the result (or changed their minds to that view after some thought), but that's what happened in Dana Mark Camann, Jr. v. Commonwealth of Virginia. The result is that an unpublished opinion that would have been little more than a blip on defense attorneys' radar is now a 15-2 published decision that will give the Commonwealth trouble in its efforts to ladder up charges for drug possession.

The issue is pretty straight forward -- if a defendant is found in possession of a white powder that tests positive for two different controlled substances, does the Commonwealth have to prove that the defendant was aware that both substances were present in order to convict him of possession of both?

Before revealing the result of the appeal and the reasons given by the 15 member majority and the 2 member dissent, I will state for the record I am troubled by the way defense counsel chose to argue the case. From my perspective, the issue is not whether the Commonwealth needs to prove that the defendant knew the character of both substances, but whether the possession of a compound or adulterated substance can be charged as as if the defendant possession of two pure or unadulterated substances separately. I believe the correct answer is where a substance is shown to be a mixture (whether deliberately compounded or accidentally adulterated), this constitutes a single instance of possession of a controlled substance. There was no way to separate the two substances in the powder. That, to my mind in ONE substance being possessed, not two. But that was not the argument made, so let's turn to the argument that was.

Camann contended that while was guilty of possessing fentanyl, he had no idea that the fentanyl was mixed with etizolam. Indeed, he said he had no idea what etizolem was. In case you are interested, it's chemically related to benzodiazepines and is commonly used to treat insomnia and anxiety -- but not in the US where it has not been approved for clinical use. Its illicit use is sufficiently of concern that the NIH has published a study, Fentanyl, etizolam, and beyond: A feasibility study of a community partnership using handheld Raman spectrometry to identify substances in the local illicit drug supply. The Commonwealth contended that because Camann knew that he possess fentanyl, the mens rea for that crime transferred to his possession of eitzolam.

In the circuit court, the judge sided with the Commonwealth. In the original panel decision, Judge Raphael, joined by Judge Chaney, found that the Commonwealth failed to prove that Camann knowingly possessed the eitzolam, while judge Athey dissented. In the en banc, Judges Raphael and Chaney pick up 13 additional votes from Chief Judge Decker, and Judges Humphreys, Huff, O’Brien, AtLee, Malveaux, Fulton, Ortiz, Causey, Friedman, Lorish, Callins and White. Judge Athey is joined by Judge Beales.

The majority reasons that the statute in question, Code § 18.2-250, requires proof that the defendant knowingly or intentionally possesses a controlled substance. Thus, the be guilty of that offense, the Commonwealth must show that the defendant had the requisite mens rea to posses "a substance," meaning that he was aware of the particular character and nature of the substance. Here, the evidence proved that Camann was aware of the character and nature of the fentanyl, but had no awareness that etizolam was also present. Mere possession of a substance is not sufficient to prove that awareness.

The problem with the majority's opinion, which Judge Raphael anticipates and addresses, is that there is a line of cases that says its sufficient that the defendant know the illicit character of the substance even if he does not know its specific nature. For example, let's say I agree to deliver a packet containing a white powder which I believe to be fentanyl, but its actually heroin. I am clearly not guilty of possessing fentanyl, but the majority would say that I was guilty of possessing a controlled substance, which happened to be heroin. However, for Judge Raphael, it would stretch this principle too far to allow my accurate belief that I possessed fentanyl to serve as a basis for saying I intentionally possessed cocaine as well. The dissent obviously does not have a problem with stretching the principle.

This brings me back to my original problem with how this case was argued. To demonstrate my concern, let me propose four scenarios:

  1. Defendant possess white power he believes to be cocaine, but it is in fact heroin. The majority and dissent agree that the defendant is guilty of possessing a controlled substance.

  2. Defendant possesses white powder which he believes to be cocaine, but is in fact a mixture of cocaine and heroin. The majority says he is guilty of possession of one controlled substance, cocaine, but not guilty of possessing heroin; the dissent says he is guilty of both.

  3. Defendant possesses white powder which he knows to be a mixture of cocaine and heroin. The majority and dissent agree he is guilty of possession of TWO controlled substances.

  4. Defendant possesses two identical packages of white powder which he believes to be cocaine, but one of which is in fact heroin. The dissent would say he was guilt of possessing two controlled substances, while the majority would say he is . . . what?

Clearly, there is a problem with the majority's logic if the defendant in 4 is guilty of possessing only one controlled substance, because that runs counter to its agreement in scenario 1 that there can be transferred mens rea when the defendant is mistaken about the exact character of the substance while still believing it to be a different illicit substance. But the same problem arises if the majority says that the defendant in 4 is guilt two possession offenses, because that doesn't gibe with the majority's outcome in 2, which is this case.

The problem here is that word "substance" means two different things. It can mean "a particular kind of matter with uniform properties," or it can mean "the real physical matter of which a thing consists and which has a tangible, solid presence." The former meaning clearly defines a "pure" substance, while the latter defines an object which has constituent parts, but which we recognize as a single "thing."

Instead of talking about drugs, let's talk about cars. If I steal the catalytic converter from a car to sell for its platinum, I am guilty of larceny and selling stolen property. If I steal the car itself, and sell it, again, I am guilty of larceny and selling stolen property. But suppose I steal the car, and then remove the radio, the catalytic convertor, the water pump, the seats, and the spare tire and sell them all to different people. How many larcenies have I committed? One, right? I might be guilty of multiple acts of trafficking in stolen goods, but I stole the car, not the radio, the catalytic convertor, etc. And I am quite certain that if I steal the car and then sell the car, I am NOT guilty of stealing and selling the radio, the catalytic convertor, etc.

Now go back to drugs. I have a compounded drug and I know it contain five different chemicals that individually are controlled substances. I have no problem with saying that every individual transactions in which I sell that compounded drug is a separate distribution offense. I have a big problem with the Commonwealth saying I am possessing five different drugs, and I would have a HUGE problem with the Commonwealth saying I was distributing five different drugs.

I believe the real issue here is that the United States has become addicted to the idea that the War on Drugs is winnable if we just find more ways to charge people with possessing and selling illegal drugs. Statistics and Sociology have long shown that treating drug abuse as criminal problem does not stop drug abuse, and therefore does not stop drug crime. What does work is addressing the sociological issues that drive people to use drugs and treating those who are addicted. Eliminate the demand and you eliminate the need for suppliers.

By comparison to the en banc, there is very little to get agitated about in the other two published decisions this week. Sh'Kise Fazion Cappe v. Commonwealth of Virginia gets published, I think, because it was a high profile crime and a current "hot topic" in criminal cases -- "non-identification testimony". Cappe was accused of participating in the murder of Stephen White in the City of Newport News in 2022. In a region of the state where such killings are distressingly common, this case caught the public's interest because the incident was captured on three video surveillance cameras, and images from these videos were broadcast by the news media. Shortly after the first images were released, Cappe texted with an accomplice telling him to "get low" and assuring him that he had gotten "rid of everything ASAP."

The images lead to tips that resulted in the police finding Cappe's car, which was identified as that being driven by the suspects and cartridge cases, but not the gun. Apparently, Cappe had not considered the cartridge casings to be part of "everything" he was supposed to get rid of.

Cellphone data also placed Cappe at the scene of the crime at the time of the murder. (Note to self: When planning to commit a major felony, ditch the cellphone or better yet, put it in a bus head away from the crime scene).

As you can guess, Cappe was arrested and charged with the murder and several other crimes along with the accomplice. Cappe successfully argued pre-trial to exclude testimony of a police officer who said that he recognized Cappe as one of the perpetrators in the videos. Not satisfied with this, Cappe then sought to present lay witness testimony that Cappe was not the person in the video.

The relevant case is Bowman v. Commonwealth, 30 Va. App. 298 (1999), in which the Court held that a lay witness who is sufficiently familiar with a defendant can testify with respect to whether an image depicts that person. Here, the trial court held that Bowman does not extend to "non-identification" testimony.

The Court of Appeals, Judge Friedman joined by Judges Fulton and Chaney, extends Bowman to allow non-identification testimony. However, Judges Friedman and Fulton find that the error in excluding the testimony was harmless in light of the overwhelming evidence of guilt. Judge Chaney dissents, contending that identification of Cappe was the central issue asserted by the defense in the case and the non-identification testimony was therefore essential and its exclusion was not harmless. Expect this to go en banc and probably to the Supreme Court. I would not be surprised to see the Commonwealth seek to overturn Bowman rather than risk allowing non-identification testimony.

The last case released this week is a Workers' Compensation appeal involving an employee of the Department of Corrections. The facts are undisputed, so the issue is easily set out. Lucinda Walker was injured while on the job and the Commission awarded medical benefits. The DOC also assigned Walker to light duty while paying her equal wages, although this was not part of the award.

Two years and 12 days later, while she was still on light duty, Walker filed a claim for temporary total disability based on a change in condition and sought retroactive application of the award. The DOC contested the claim, asserting that it was time barred because a change in condition petition must be brought within 2 years of the last date on which payment of compensation is paid. The DOC argued, and the Commission agreed, that light duty for full pay was not "compensation" when it was not required by the award.

Judge Lorish, joined by Judge Humphreys and Beales, reverse and remand for an evidentiary proceeding. The Court holds, citing darn good precedent, that voluntary payment of compensation, including full wages for light duty, is sufficient to toll the statute of limitations on filing a change of circumstances.

Frankly, I am shocked that the Commission dismissed the claim. The opinion sets out the history of the "every evolving" status of the law with respect to the statute of limitations for both filing claims and changes of circumstance petitions. The central theme of the changes to the law and the cases interpreting them is that the legislature wanted “to prevent employers from lulling partially disabled workers into a false sense of security during this two-year period by providing employees light duty work at their pre-injury wage for two years and then terminating the employee without liability for future disability benefits.” Scott v. Scott, 16 Va. App. 815, 819 (1993). While I am not willing to state flatly that I think that is what the DOC was doing when it agreed to let Walker have light duty for full pay, I am pretty ticked off that once she sought the change in circumstance, the Attorney General had the audacity to argue that the petition was barred. Scott seems to be definitive and other cases cited by the Court clearly show that today's holding is in keeping with the remedial purpose of Workers' Compensation.

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