Curry v. Commonwealth

1

JOSHUA LUKE CURRY v. COMMONWEALTH OF VIRGINIA

No. 0485-23-3

Court of Appeals of Virginia

July 2, 2024

FROM THE CIRCUIT COURT OF AUGUSTA COUNTY W. Chapman Goodwin, Judge

(Jessica N. Sherman-Stoltz; Sherman-Stoltz Law Group, PLLC on briefs), for appellant.

(Jason S. Miyares, Attorney General; Susan Hallie Hovey-Murray Assistant Attorney General, on brief), for appellee.

Present: Judges Ortiz, Friedman and White.

MEMORANDUM OPINION ^[*]

FRANK K. FRIEDMAN JUDGE.

A jury convicted Joshua Luke Curry of possession with intent to distribute methamphetamine, second offense, in violation of Code § 18.2-248(C). On appeal, Curry challenges the sufficiency of the evidence supporting his conviction. He also contends the trial court erred by improperly restricting his right to cross-examine a witness and limiting his closing argument. After examining the briefs and record, the panel unanimously holds that oral argument is unnecessary because "the appeal is wholly without merit." See Code § 17.1-403(ii)(a); Rule 5A:27(a). For the following reasons, we affirm the trial court's judgment.

BACKGROUND^[1]

On January 28, 2021, a "confidential informant" working for investigators from the Augusta County Skyline Drug Task Force "contact[ed]" Curry and "order[ed] an undisclosed amount of methamphetamine."^[2] Investigators "set up in the area" where they expected Curry to deliver the methamphetamine. Soon thereafter, Curry's vehicle arrived. Investigators stopped the vehicle and detained Curry, the vehicle's driver and sole occupant, before searching the vehicle. There was a backpack in the front passenger seat containing a "digital scale," two closed zippered pouches, and two large plastic boxes. Police opened the pouches and containers and found four "plastic baggies" and a "plastic cylinder," each containing "different amounts" of an off-white, crystalline substance suspected to be methamphetamine. There was also a "smoking device" and additional plastic baggies containing possible methamphetamine "residue." Suspected "LSD" was on a piece of paper wrapped in "tinfoil" inside one of the containers. Investigators "field test[ed]" the suspected methamphetamine and confirmed its identity.

Curry, who had previously been convicted of possession with intent to distribute methamphetamine, told the police that he "usually gets an ounce" of methamphetamine "every few days" from a dealer from Kentucky. He explained that the dealer was "due to come up to this area either that night or tomorrow" and typically carried "at least a pound of methamphetamine." Investigators released Curry without charging him because he agreed to "cooperate" with their investigation. A "short time later," Curry stopped cooperating, so police arrested him for possession with intent to distribute methamphetamine, second offense.

Before trial, police sent the suspected narcotics seized from Curry's vehicle to a laboratory for further analysis. Jason Bishop, an expert in identifying controlled substances, examined them and produced a certificate of analysis detailing his conclusions. The certificate stated that Bishop examined "Item 1:" "four . . . plastic bags" and "one . . . plastic container each of which contained an off-white crystal substance." "The contents of the five" containers were "analyzed separately," and each was found to contain methamphetamine, a "Schedule II" controlled substance. Additionally, "Item 1" contained "9.129 grams of substance, including innermost packaging." Bishop also examined "Item 2," the paper inside the tinfoil seized from Curry's vehicle and determined that it contained "lysergic acid diethylamide (LSD)," a "Schedule I" controlled substance.

At trial, Investigator Chris Hilliard, an expert in illegal narcotics trafficking, testified that drug traffickers manufacture methamphetamine "out-of-state" and deliver large quantities to intermediate-level drug dealers. Those dealers repackage the drugs and sell smaller amounts to local drug dealers, who in turn repackage and sell the drugs. Hilliard explained that local methamphetamine dealers typically obtain an ounce of methamphetamine, which is "broken down" into smaller quantities. Dealers usually use scales to measure the drugs and then place them in "plastic baggies" for distribution.

Hilliard opined that "nine or ten grams of methamphetamine," if packaged "in separate bags," is "indicative of distribution." He explained that the average methamphetamine user consumes "one gram a day." Although a user theoretically could buy an ounce of methamphetamine for personal use, Hilliard opined that was unlikely because users typically carry only "small amount[s]" of the drug. Hilliard acknowledged that police found a "smoking device" in Curry's vehicle and several baggies containing methamphetamine "residue," which he opined were consistent with drug use. Hilliard explained, however, that methamphetamine dealers sometimes use the drug. In addition, Hilliard opined that it was uncommon for users to carry scales and keep their drugs in separate baggies.

The Commonwealth introduced Bishop's certificate of analysis, and Bishop testified and confirmed his findings. On cross-examination, Bishop acknowledged that he could not determine the weight of the methamphetamine found in Curry's vehicle. He explained that the "9.129 grams" listed in the certificate reflected the "gross weight" of the substance combined with its "innermost packaging materials"-i.e., the "four plastic bags" and the "plastic container" in which it was stored. Bishop did not weigh the baggies or plastic container "individually" after removing their contents.

During Bishop's cross-examination, defense counsel asked permission to show Bishop photographs depicting the items seized from Curry's vehicle. Counsel proffered that he intended to point to the "lightest"-looking box in the photograph and ask Bishop whether it was part of the "innermost packaging materials" listed in the certificate of analysis. The trial court allowed counsel to proceed but admonished him not to comment on the evidence by describing the box as the "lightest" because there was no evidence of its specific weight. Defense counsel agreed with the ruling. Then, he pointed to one of the boxes in the photograph and asked Bishop if he knew its weight. Bishop reiterated that he did not because he never weighed any of the containers individually.

The trial court interrupted defense counsel to ask Bishop to clarify which containers listed in the certificate corresponded to the items police seized from Curry's vehicle. Curry objected and requested a side bar. Outside the jury's presence, Curry alleged that the trial court was unfairly "stepping in to help the Commonwealth" by asking questions to clarify what items comprised the innermost packaging materials specified in the certificate. Curry argued that the questioning interfered with his ability to effectively cross-examine Bishop regarding the quantity of the methamphetamine tested. The trial court held that it was entitled to ask Bishop to specify which containers he examined because Bishop's answers were "confus[ing]." Accordingly, it overruled the objection.

Before the jury, the trial court showed Bishop the photographs depicting the items seized from Curry's vehicle and asked if he could identify those he had described as "Item 1" in his certificate. Bishop was unable to do so because he "was not present when" the photographs were taken. The trial court then concluded its questioning and afforded the parties an opportunity to ask additional questions. Defense counsel declined to do so.

After the Commonwealth's case-in-chief, Curry moved to strike the evidence on two grounds. First, he contended the evidence failed to prove he possessed a Schedule I or II controlled substance because the Commonwealth did not introduce the drugs themselves into evidence. Alternatively, he argued that the evidence sufficed to prove only the lesser-included offense of possession of methamphetamine because Hilliard opined that "some of the evidence . . . was consistent with simple possession." The trial court denied the motion.

During closing arguments, Curry conceded that he possessed the methamphetamine found in his car but asserted that the evidence failed to prove he intended to distribute it. He asserted that because Bishop could not determine the weight of the methamphetamine, itself, Hilliard's expert testimony premised on the quantity of the drugs had limited probative value. In addition, Curry suggested that the Commonwealth's evidence was insufficient to convict because the prosecutor did not introduce the methamphetamine itself into evidence.

The Commonwealth objected outside the jury's presence, arguing that Curry's argument was improper because the Commonwealth was not required to introduce the actual drugs to prove the elements of the offense. Curry maintained he "should be able to argue" that the Commonwealth must introduce the drugs to prove his guilt. The trial court sustained the objection, holding that defense counsel could "argue that [the drugs] are not here," but he could not "argue that because they're not here . . . [Curry] can't be convicted." Then, without objection, Curry reminded the jury that the Commonwealth did not "bring in the drugs" and instead only introduced Bishop's certificate, which Curry argued was insufficient to prove his guilt.

The jury convicted Curry of possession with intent to distribute methamphetamine, second offense. Curry moved to set aside the jury's verdict, arguing that the evidence proved only the lesser-included offense of possession of methamphetamine. Curry maintained that the evidence failed to exclude his reasonable hypothesis of innocence that h...