Curtis Lee Mason v. Commonwealth of Virginia
770 S.E.2d 239
Va. Ct. App.2015Background
- Curtis Lee Mason was tried and convicted by a jury for possession of cocaine with intent to distribute, third or subsequent offense under Va. Code § 18.2-248(C).
- The Commonwealth introduced three New York certificates of disposition showing prior convictions under NY PL § 220.39(1) (criminal sale in the third degree) and NY PL § 220.31 (criminal sale in the fifth degree) to establish predicate convictions for the enhanced third-offense charge.
- Mason filed a motion in limine to exclude reference to the New York convictions for third-or-subsequent purposes, arguing New York statutes were not “substantially similar” to Va. Code § 18.2-248 because they could cover conduct that would not qualify as a Virginia violation.
- The trial court denied the motion, admitted all three certificates during the guilt phase, and the jury convicted Mason; the court later denied his motion to set aside the verdict. Mason appealed.
- The Court of Appeals reviewed whether out-of-state offenses were "substantially similar" to § 18.2-248(C), holding that (1) a foreign offense must proscribe conduct that would violate Va. Code § 18.2-248(A) and (2) the controlled substance involved in the foreign conviction must be a Schedule I or II substance in Virginia to qualify for § 18.2-248(C) enhancement.
- Applying that rule, the court held Mason’s NY PL § 220.39(1) conviction was substantially similar (narcotics under NY law correspond to VA Schedules I/II), but his NY PL § 220.31 convictions were not shown to be substantially similar because the Commonwealth failed to prove the substances were Schedule I or II in Virginia; those convictions were therefore inadmissible for enhancement purposes.
Issues
| Issue | Plaintiff's Argument (Commonwealth) | Defendant's Argument (Mason) | Held |
|---|---|---|---|
| Whether New York sale statutes are substantially similar to Va. Code § 18.2-248(A) generally | The plain text of NY PL §§ 220.31 and 220.39(1) prohibits sale of controlled substances like Va. Code § 18.2-248—textual similarity suffices | NY statutes permit convictions based on conduct that might not be a Virginia offense (so they are not substantially similar) | Statutes are substantially similar in prohibiting sale; textual likeness supports similarity as to the proscribed conduct |
| Whether the specific NY prior convictions qualified as "substantially similar offenses" for § 18.2-248(C) enhancement | The certificates of disposition establish prior convictions; all three should count toward a third-offense enhancement | For § 18.2-248(C), the Commonwealth must show the out-of-state conviction involved a Schedule I or II substance in Virginia; NY PL § 220.31 convictions could involve lesser schedules or misdemeanors | NY PL § 220.39(1) conviction qualifies (NY "narcotic" maps to VA Schedules I/II). NY PL § 220.31 convictions do not qualify because Commonwealth failed to prove the substances were VA Schedule I/II—those convictions were inadmissible and reversal is required |
Key Cases Cited
- Dillsworth v. Commonwealth, 62 Va. App. 93, 741 S.E.2d 818 (Va. Ct. App.) (standard: determining "substantially similar" is question of law reviewed de novo)
- Dean v. Commonwealth, 61 Va. App. 209, 734 S.E.2d 673 (Va. Ct. App.) (comparison of out-of-state offenses to Virginia statutes to determine similarity)
- Cox v. Commonwealth, 13 Va. App. 328, 411 S.E.2d 444 (Va. Ct. App.) (out-of-state conviction is not similar if it can be based on conduct not criminal in Virginia)
- Rufty v. Commonwealth, 221 Va. 836, 275 S.E.2d 584 (Va. 1981) (burden shifts to defendant to show dissimilarity once Commonwealth shows similarity)
- Jordan v. Commonwealth, 273 Va. 639, 643 S.E.2d 166 (Va. 2007) (possession, actual or constructive, is an element of possession with intent to distribute)
- Rushing v. Commonwealth, 284 Va. 270, 726 S.E.2d 333 (Va. 2012) (court may not consider illegally admitted evidence when reviewing sufficiency of the evidence)