Allison v. Commonwealth

73 Va.App. 414

861 S.E.2d 64

Ryan Berkeley ALLISON

v.COMMONWEALTH of Virginia

Record No. 0857-20-4

Court of Appeals of Virginia.

AUGUST 3, 2021

Paul D. Fore, Assistant Public Defender, for appellant.

Kendall T. Burchard, John Marshall Fellow (Mark R. Herring, Attorney General, on briefs), for appellee.

Present: Judges Huff, Malveaux and Senior Judge Annunziata

OPINION BY JUDGE MARY BENNETT MALVEAUX

Ryan Berkeley Allison ("appellant") was convicted of one count of possession of controlled paraphernalia, in violation of Code § 54.1-3466. On appeal, he argues the trial court erred in denying his motion to dismiss and motions to strike because the evidence was insufficient to convict him of the offense based upon his interpretation of the statute. Appellant further contends the trial court erred in denying his motion to dismiss and motions to strike because Code § 54.1-3466(A)(i) does not provide a person of average intelligence a reasonable opportunity to know what the law expects and its language encourages arbitrary and discriminatory selective enforcement. For the following reasons, we reverse and dismiss.

I. BACKGROUND

"On appeal, we state the facts ‘in the light most favorable to the Commonwealth, giving it the benefit of any reasonable inferences.’ " Mitchell v. Commonwealth, 73 Va. App. 234, 239, 858 S.E.2d 415 (2021) (quoting Commonwealth v. White, 293 Va. 411, 413, 799 S.E.2d 494 (2017) ). "In doing so, we discard any of appellant's conflicting evidence, and regard as true all credible evidence favorable to the Commonwealth." Moreno v. Commonwealth, 73 Va. App. 267, 271, 858 S.E.2d 432 (2021).

On November 7, 2019, Deputy G.H. Butler of the Fauquier County Sheriff's Office attempted to serve a warrant for appellant's arrest.² Butler initially encountered appellant's mother, who told him that appellant had fled through the back door. A few moments later, Butler encountered appellant and arrested him.

When Butler searched appellant, he found a hypodermic syringe in an upper pocket of appellant's jacket. He testified that the syringe had an orange cap, was completely clean, and appeared to be "brand new." Butler also testified that when he found the syringe, appellant appeared surprised.

After Butler had informed appellant of his Miranda rights,³ appellant agreed to speak with him. When Butler asked appellant about the syringe, he replied, "what about it." When Butler asked appellant if he was diabetic, appellant replied, "maybe." Butler then asked appellant if he was taking insulin, and appellant responded that he was not. Appellant told Butler that the jacket was old and that he had put it on because it was cold outside.

Following appellant's arrest, deputies used a K-9 to search the area for drugs but did not find any. The syringe, which was entered into evidence at trial, was not submitted to the Virginia Department of Forensic Science for examination.

Appellant was charged with possession of controlled paraphernalia, in violation of Code § 54.1-3466, and convicted in the Fauquier County General District Court. He appealed to the circuit court ("trial court").

Appellant filed a motion to dismiss in the trial court arguing, among other things, that Code § 54.1-3466 was unconstitutional and violated his due process rights because it was ambiguous and "should be read to require the hypodermic needle be found ‘under circumstances that reasonably indicate an intention to use such controlled paraphernalia for purposes of illegally administering any controlled drug.’ " (Quoting Code § 54.1-3466(A)(i) ). The trial court denied appellant's motion.

At trial, appellant moved to strike after the Commonwealth presented its case-in-chief. He first argued that there was insufficient evidence that he had known the hypodermic syringe was in his possession. The trial court ruled that appellant had knowledge of the presence of the syringe.

Appellant next reiterated his ambiguity argument from his motion to dismiss and contended that according to the rule of lenity, the alleged ambiguity should be resolved in his favor.⁴ The trial court rejected appellant's argument. It ruled that the statute was unambiguous and should be interpreted to mean that possession of a hypodermic syringe in and of itself constitutes a violation of Code § 54.1-3466 —i.e. , that possession of such an item outside of any exception provided by the Drug Control Act is per se unlawful.

Lastly, appellant argued that the statute is unconstitutionally vague, and thus no person of ordinary intelligence would understand that possessing a clean hypodermic syringe may violate the law under Code § 54.1-3466. Further, he contended, the vagueness of the statute encourages arbitrary and discriminatory enforcement. The trial court rejected these arguments.

After the trial court denied appellant's motion to strike, appellant declined to put on his own evidence. He then renewed his motion to strike. The court denied the motion.

The trial court convicted appellant of possession of controlled paraphernalia, in violation of Code § 54.1-3466. This appeal followed.

II. ANALYSIS

Appellant argues that the trial court erred in denying his motion to dismiss and his motions to strike because the evidence was insufficient to support his conviction for possession of controlled paraphernalia, in violation of Code § 54.1-3466.

"When the sufficiency of the evidence is challenged on appeal, [this Court] must ‘examine the evidence that supports the conviction and allow the conviction to stand unless it is plainly wrong or without evidence to support it.’ " Sarka v. Commonwealth, 73 Va. App. 56, 62, 854 S.E.2d 204 (2021) (alteration in original) (quoting Austin v. Commonwealth, 60 Va. App. 60, 65, 723 S.E.2d 633 (2012) ). See also Code § 8.01-680. "This deferential standard ‘requires us to discard the evidence of the accused in conflict with that of the Commonwealth[ ] and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn’ from that evidence." Smith v. Commonwealth, 72 Va. App. 523, 532, 850 S.E.2d 381 (2020) (alteration in original) (quoting Green v. Commonwealth, 72 Va. App. 193, 200, 843 S.E.2d 389 (2020) ). "This standard ‘applies not only to the historical facts themselves, but [also to] the inferences from those facts.’ " Green, 72 Va. App. at 200, 843 S.E.2d 389 (alteration in original) (quoting Clanton v. Commonwealth, 53 Va. App. 561, 566, 673 S.E.2d 904 (2009) (en banc )). "Further, ‘[t]o the extent our analysis of the sufficiency of the evidence requires us to examine the statutory language, we review issues of statutory construction de novo on appeal.’ " Smith, 72 Va. App. at 532, 850 S.E.2d 381 (quoting Miller v. Commonwealth, 64 Va. App. 527, 537, 769 S.E.2d 706 (2015) ).

Code § 54.1-3466 provides, in pertinent part, that except as otherwise authorized by the Drug Control Act, Code § 54.1-3400 to -3472, it is unlawful for any person to possess or distribute "controlled paraphernalia." See Code § 54.1-3466(B) (prohibiting possession of controlled paraphernalia); Code § 54.1-3466(C) (prohibiting distribution of same). In turn, subsection A of the statute provides, in pertinent part, that

[f]or purposes of this chapter, "controlled paraphernalia" means (i) a hypodermic syringe, needle, or other instrument or implement or combination thereof adapted for the administration of controlled dangerous substances by hypodermic injections under circumstances that reasonably indicate an intention to use such controlled paraphernalia for purposes of illegally administering any controlled drug ....

Code § 54.1-3466(A)(i).

Appellant argues that here, there was "a lack of circumstances that reasonably indicate [his] intention to use ... controlled paraphernalia for purposes of illegally administering any controlled drug," and thus "the trial court should have granted [his] motion to dismiss and both motions to strike."⁵ Inherent in this sufficiency argument is appellant's larger contention that the trial court erred in finding that the language of Code § 54.1-3466 is unambiguous and that knowing possession of a hypodermic syringe in and of itself constitutes a violation of the statute. Instead, appellant argues, the definition of "controlled paraphernalia" provided by Code § 54.1-3466(A)(i) is ambiguous and susceptible to both the trial court's interpretation and his alternate interpretation—that all types of "controlled paraphernalia" enumerated by Code § 54.1-3466(A)(i) require not only their possession to sustain a conviction, but that they be found under circumstances reasonably indicating the intent to use them to illegally administer controlled drugs. Appellant contends that the trial court should have applied the rule of lenity to construe the statute in his favor and required the Commonwealth to prove not only that appellant possessed the hypodermic syringe, but also that the circumstances surrounding his possession reasonably indicated his intent to use the syringe for purposes of illegally administering a controlled drug. Because the Commonwealth adduced no such evidence of intent, appellant argues, the trial court erred in denying his motion to dismiss and motions to strike.

Although not initially briefed by the parties, we hold that Murray v. Commonwealth, 225 Va. 13, 300 S.E.2d 740 (1983), controls the resolution of this appeal. In Murray, the defendant was found in possession of heroin, a hypodermic syringe, and a needle. Id. at 15, 300 S.E.2d 740. He was convicted, among other things, for possession of drug paraphernalia under Code § 54-524.109:1, the predecessor statute to the statute at issue here, Code § 54.1-3466.⁶ Id. On appeal, the defendant argued that the trial court erred when it instructed the jury, "You shall consider as evidence that the defendant possessed the hypodermic syringe and needle under circumstances which reasonably indicated an intention to use the same for purposes of illegally administering any...