Teresa Mary Maust v. Commonwealth of Virginia ( 2023 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Decker, Judges Humphreys, Beales, Huff, O’Brien, AtLee, Malveaux,
PUBLISHED
Athey, Fulton, Ortiz, Causey, Friedman, Chaney, Raphael, Lorish, Callins and White
Argued at Richmond, Virginia
TERESA MARY MAUST
OPINION BY
v. Record No. 0505-21-4 JUDGE MARY BENNETT MALVEAUX
MAY 30, 2023
COMMONWEALTH OF VIRGINIA
UPON A REHEARING EN BANC
FROM THE CIRCUIT COURT OF STAFFORD COUNTY
J. Bruce Strickland, Judge1
Andrew J. Cornick (Andrew J. Cornick, LLC, on brief), for
appellant.
Timothy J. Huffstutter, Assistant Attorney General (Jason S.
Miyares, Attorney General, on brief), for appellee.
Teresa Mary Maust (“appellant”) appeals her conviction for distribution of a Schedule I or II
controlled substance, in violation of Code § 18.2-248. Before a panel of this Court, appellant
argued that the trial court erred in finding that the evidence was sufficient to prove that she
distributed oxymorphone because no rational trier of fact could have concluded that the evidence
reasonably excluded her theory of innocence. A panel majority of this Court reversed appellant’s
conviction. Maust v. Commonwealth, No. 0505-21-4 (Va. Ct. App. Aug. 9, 2022). We granted the
Commonwealth’s petition for rehearing en banc and stayed the mandate of the panel’s decision.
Upon rehearing en banc, we affirm the trial court.
1
Judge J. Bruce Strickland entered the final sentencing order in this case. Judge Charles
S. Sharp presided over appellant’s trial and entered the conviction order.
I. BACKGROUND
“[W]e review factfinding with the highest degree of appellate deference.”
Commonwealth v. Barney, ___ Va. ___, ___ (Mar. 16, 2023) (quoting Bowman v.
Commonwealth, 290 Va. 492, 496 (2015)). “In accordance with established principles of
appellate review for a sufficiency of the evidence case, we view the ‘evidence in the light most
favorable to the Commonwealth, as we must since it was the prevailing party in the trial court.’”
Peters v. Commonwealth, 72 Va. App. 378, 383 (2020) (quoting Riner v. Commonwealth, 268
Va. 296, 330 (2004)). Therefore, we will “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 therefrom.” Kelley v. Commonwealth, 289
Va. 463, 467-68 (2015) (quoting Parks v. Commonwealth, 221 Va. 492, 498 (1980)).
On October 1, 2018, Stafford County Detective Shawn Monaghan used a confidential
informant, Robert Gale, to conduct a controlled buy of three oxymorphone pills from appellant.
Monaghan searched Gale and his car at a staging area before the controlled buy, finding neither
drugs nor money. Monaghan “directed” Gale to go to appellant’s residence to buy the pills.
Monaghan expected each pill to cost about $100 and understood that Gale owed appellant some
money, so he provided Gale with $320 in cash. Monaghan photographed the cash to record the
serial numbers and denominations. He also equipped Gale with an audio-only recording device,
which did not permit Monaghan to listen in real time.
At trial, Monaghan testified that he did not recall Gale’s girlfriend, Tiffany Love,
accompanying Gale on October 1, 2018, but an unidentified woman can be heard on the audio
recording speaking with Gale during the drive to and from appellant’s house. A few minutes
before Gale arrived at the house, Gale told his companion, “Text her and say here.” While the
entire conversation between Gale and the woman cannot be heard clearly on the audio recording,
-2-
no audible conversation indicates that Gale gave money to his companion or received pills from
her.
Monaghan followed Gale’s car to appellant’s street but lost sight of it after Gale entered
appellant’s driveway. Other cars were in the driveway, but Monaghan did not recall whether
there were other vehicles in the home’s garage.
The audio device recorded Gale entering appellant’s house and exchanging greetings
with appellant.2 They then discussed some “new” kitchen appliances that appellant claimed were
worth over $3,000 and wanted to sell for $1,000. Gale gave appellant $270, which she verbally
acknowledged receiving. After discussing the kitchen appliances again, appellant said, “Give me
a second,” and Gale responded, “Okay. Alright. I’ll be outside.” Gale left the house to wait;
appellant followed two minutes later, and they again spoke about the appliances before Gale left.
Gale was in appellant’s home for about ten minutes.
The audio recording from inside appellant’s home is inaudible at certain points. The only
audible conversation was between Gale and appellant, although Monaghan acknowledged at trial
that an unidentified woman’s voice could also be heard on the portion of the audio recording
from inside the house. At one point during this portion of the audio recording, Gale and the
unidentified woman seem to exchange greetings, but he did not have any additional conversation
with her. Appellant testified at trial that she could hear the voice of Sue Stone, a woman who
lived with her, on the audio recording.
Gale drove back to the staging area with Monaghan following him. Gale’s companion
was recorded speaking with him during this drive, and the recording includes no audible
conversation about exchanging money or pills. Monaghan retrieved the recording device,
2
At trial, Monaghan identified appellant’s voice on the recording based on his
face-to-face interview with appellant.
-3-
searched Gale and his vehicle, and confirmed that Gale no longer had the buy money, although
he did have $16 in cash. Monaghan also found three pills on Gale’s person that subsequent lab
analysis determined were oxymorphone, a Schedule II controlled drug.
Gale died before trial. Monaghan testified at trial that Gale had been an opioid addict and
that he had been convicted of multiple felonies.
Monaghan searched appellant’s house the day after the controlled buy, finding
“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. In appellant’s
bedroom, police found $138 and an additional $4,351 in a safe.3 Among the contents of the safe,
Monaghan identified $270 of the $320 he had provided Gale to make the controlled buy.
The cash in the safe was in an envelope that had handwritten notations which Monaghan
described as indicating “pills or . . . money,” and columns of numbers he described as “totals.”4
Monaghan characterized this envelope as an “owe sheet[],” which he explained was used by drug
dealers “to keep track of drugs that they front or give to people on credit.”
While the search was underway, appellant arrived and was interviewed by Monaghan.
When confronted by Monaghan about pill sales at her home, she first told Monaghan that her
ex-husband stole her prescription pills, which she had for a “legitimate prescription,” and any
drug sales conducted at the house should be attributed to him. Appellant said that she purchased
the safe to keep her pills away from her ex-husband and that she only began using the safe to
3
Appellant provided Monaghan the combination to the safe.
4
The first set of notations, a column, are as follows: “B = 11[,] G = 17[,] J = 121[,]
H = 25[,] L = 19.” The second set of notations, also a column, is partially concealed on the
Commonwealth’s exhibit, but the notations that can be read are “850 2450 250 95,” all above a
line, and then the number “4710” below the line. A third set, another column, have the numbers
“1210 1210” above a line, with “2420” below the line, and then “419” and “5” above another
line with “95” below that line.
-4-
store money once her ex-husband moved out of the house. In addition to her ex-husband,
appellant also stated that a woman named Briana Perry was responsible for any pill sales at her
house.
When Monaghan told appellant that two of her pills were found on Sue, she claimed that
she gave them to Sue to “hold on to for [appellant],” although she later admitted that she gave
the pills to Sue to use, but only because Sue had the same prescription as appellant. She also
said that she sometimes lent pills to other people but again denied selling them. While looking at
appellant’s phone, Monaghan told appellant that “Greg Murphy is talking to you about getting
pills,” which appellant denied. She then admitted that she sometimes allowed Murphy to borrow
pills.
According to Monaghan, during the interview appellant “surmised” that Gale was the
confidential informant and then told him that any money she took from Gale was for a debt Gale
owed to her. Regarding Gale, appellant told Monaghan that he “comes to me when he runs out,”
and “sells more than I do.”
Appellant also told Monaghan that her safe contained around $4,500 and that she had
withdrawn the money from her bank so she could find a new place to live because her house was
in foreclosure. She said she had withdrawn the money in stages—writing “a $2,000 check not
too long ago,” “tak[ing] out $600 in cash, $300 in cash” at a time, and “socking it to the side.”
Appellant stated that the buy money found in her safe was payment of Gale’s debt to her, which
she said was “a $100 and something dollars.”
Appellant told Monaghan that her two sons and Sue were the only other persons living in
the house at the time of the search.
At the close of the Commonwealth’s case-in-chief, appellant moved to strike the
evidence, which the court denied. Thomas Hogan then testified in appellant’s defense, stating
-5-
that he had been one of nine or ten tenants staying at appellant’s house in October 2018. Hogan
stated that he had collected the rent from the other tenants on the first of each month and then
gave it to appellant. Hogan said he paid $600 in rent, but others “sometimes” paid less. He
claimed that Gale came to appellant’s house to look at appliances, although Hogan
acknowledged that he was not present when Gale was at the house on October 1, 2018. Hogan
did not know the combination to appellant’s safe.
Appellant testified that Gale came to her house to look at appliances and to make a down
payment on a compressor and nail gun. She stated that Gale owed her $100 or $150 and that on
the day of the controlled buy, Gale paid her what he owed plus another $100 or $150 for the
down payment. As for the owe sheet, appellant claimed that she used a system to track her
money in which she “put down eleven for Benjamin,” “G, a George Washington, J, Jefferson,
Hamilton”; she could not remember what the “L” stood for, although with prompting from her
counsel said that it probably stood for “Lincoln,” a “five dollar bill.” She testified that she had
rented rooms in her home, charging between $300 and $600 per month.
After argument by counsel, the trial court convicted appellant of distribution of a
Schedule I or II controlled substance. In its ruling, the trial court found that: (1) Gale was given
buy money and was searched before making the controlled buy, and no contraband was found on
him; (2) Gale was in appellant’s home for approximately ten minutes, and the only substantive
conversation that could be clearly heard on the audio recording during that time was between
Gale and appellant, and that “[i]n the course of that relatively garbled transmission, one thing is
clear, that at some point there was an exchange of cash money”; (3) Gale then left appellant’s
house, and Monaghan again searched him and found three oxymorphone pills and no buy
money; and (4) the buy money was found in appellant’s safe during a search and that any person
other than appellant had “limited access” to the safe. The court found that the “only reasonable
-6-
inference to be drawn from that set of circumstances is that the transaction went down exactly as
has been argued by the Commonwealth.”
II. ANALYSIS
Appellant argues that the trial court erred in finding the evidence sufficient to support her
conviction for distributing a Schedule I or II controlled substance because the evidence was
circumstantial and failed to exclude all reasonable hypotheses of innocence.
“When reviewing the sufficiency of the evidence, ‘[t]he judgment of the trial court is
presumed correct and will not be disturbed unless it is plainly wrong or without evidence to
support it.’” Smith v. Commonwealth, 296 Va. 450, 460 (2018) (alteration in original) (quoting
Commonwealth v. Perkins, 295 Va. 323, 327 (2018)). “In such cases, ‘[t]he Court does not ask
itself whether it believes that the evidence at the trial established guilt beyond a reasonable
doubt.’” Secret v. Commonwealth, 296 Va. 204, 228 (2018) (alteration in original) (quoting
Pijor v. Commonwealth, 294 Va. 502, 512 (2017)). “Rather, the relevant question is whether
‘any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.’” Vasquez v. Commonwealth, 291 Va. 232, 248 (2016) (quoting Williams v.
Commonwealth, 278 Va. 190, 193 (2009)). “If there is evidentiary support for the conviction,
‘the reviewing court is not permitted to substitute its own judgment, even if its opinion might
differ from the conclusions reached by the finder of fact at the trial.’” Chavez v. Commonwealth,
69 Va. App. 149, 161 (2018) (quoting Banks v. Commonwealth, 67 Va. App. 273, 288 (2017)).
In addition, “[t]he judgment of the trial court, sitting without a jury, is ‘entitled to the same
weight as a jury verdict.’” Perkins, 295 Va. at 327 (quoting Cole v. Commonwealth, 294 Va.
342, 361 (2017)).
Appellant argues that a reasonable hypothesis of innocence exists—that Gale used the
buy money to repay a debt to her and that he obtained the three pills from someone other than
-7-
her. Appellant points to the presence of a woman in the car with Gale on the drive to and from
her house5 and to the voice of a woman other than her in the house with Gale.
“Where a controlled purchase of drugs is concerned, ‘without [the informant’s]
testimony, the evidence proving that the [drugs] came from the defendant’ may be ‘purely
circumstantial.’” Bennett v. Commonwealth, 69 Va. App. 475, 492 (2018) (alterations in
original) (quoting Jones v. Commonwealth, 21 Va. App. 435, 441-42 (1995) (en banc)).
“Circumstantial evidence, if sufficiently convincing, is as competent and entitled to the same
weight as direct testimony.” McCain v. Commonwealth, 261 Va. 483, 493 (2001). But “when
the evidence is wholly circumstantial . . . all necessary circumstances proved must be consistent
with guilt and inconsistent with innocence and exclude every reasonable hypothesis of
innocence.” Haas v. Commonwealth, 299 Va. 465, 468 (2021) (quoting Rogers v.
Commonwealth, 242 Va. 307, 317 (1991)). “This requires an unbroken evidentiary chain of
necessary circumstances, which satisfies ‘the guarded judgment that both the corpus delicti and
the criminal agency of the accused have been proved to the exclusion of any other rational
hypothesis and to a moral certainty.’” Commonwealth v. Moseley, 293 Va. 455, 463 (2017)
(quoting Wright v. Commonwealth, 292 Va. 386, 397 (2016)). The “reasonable-hypothesis
principle,” however, “is not a discrete rule unto itself” and “does not add to the burden of proof
placed upon the Commonwealth in a criminal case.” Vasquez, 291 Va. at 249-50 (quoting
Commonwealth v. Hudson, 265 Va. 505, 513 (2003)). “The Commonwealth . . . is not required
to exclude every possibility that others may have committed the crime for which a defendant is
5
In appellant’s motion to strike and closing arguments, she contended only that the
evidence was insufficient due to the presence of other voices in the house and did not mention
the presence of the woman in the car with Gale. “[U]pon appellate review, the issue of exclusion
of reasonable theories of innocence is limited to those theories advanced by the accused at trial.”
Commonwealth v. Hudson, 265 Va. 505, 514 (2003). However, on appeal in this case, the
Commonwealth has not argued before the panel of this Court or en banc that appellant’s
contention regarding the woman in the car is waived under Rule 5A:18.
-8-
charged, but is only required to exclude hypotheses of innocence that flow from the evidence.”
Dowden v. Commonwealth, 260 Va. 459, 468 (2000). Thus, the reasonable-hypothesis principle
“is ‘simply another way of stating that the Commonwealth has the burden of proof beyond a
reasonable doubt.’” Moseley, 293 Va. at 464 (quoting Hudson, 265 Va. at 513). “It is true that a
factfinder cannot ‘arbitrarily’ choose, as between two equally plausible interpretations of a fact,
one that incriminates the defendant.” Vasquez, 291 Va. at 250 (quoting Dixon v.
Commonwealth, 162 Va. 798, 803 (1934)). An arbitrary choice occurs “only when no rational
factfinder could believe the incriminating interpretation of the evidence and disbelieve the
exculpatory one.” Id.On appeal, in reviewing a defendant’s claim that a trial court unreasonably rejected her
hypothesis of innocence, we are mindful that “[w]hether an alternate hypothesis of innocence is
reasonable is a question of fact and, therefore, is binding on [this Court] unless plainly wrong.”
Wood v. Commonwealth, 57 Va. App. 286, 306 (2010) (quoting Emerson v. Commonwealth, 43
Va. App. 263, 277 (2004)). “As long as ‘a rational factfinder could reasonably reject [the
appellant’s] theories in his defense and find that the totality of the suspicious circumstances
proved [his guilt] beyond a reasonable doubt,’ the appellate court must affirm the conviction.”
Park v. Commonwealth, 74 Va. App. 635, 654 (2022) (alterations in original) (quoting Moseley,
293 Va. at 466). “[M]erely because [a] defendant’s theory of the case differs from that taken by
the Commonwealth does not mean that every reasonable hypothesis consistent with his
innocence has not been excluded. What weight should be given evidence is a matter for the
[factfinder] to decide.” Edwards v. Commonwealth, 68 Va. App. 284, 301 (2017) (second and
third alterations in original) (quoting Haskins v. Commonwealth, 44 Va. App. 1, 9 (2004)).
Here, we conclude that the trial court did not err in rejecting appellant’s alternate
hypothesis of innocence that Gale obtained three oxymorphone pills on the date of the offense
-9-
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. See Burrell v.
Commonwealth, 58 Va. App. 417, 434 (2011) (“[T]he fact-finder may consider such factors
as . . . the presence of equipment or other items related to drug distribution.”); White v.
Commonwealth, 24 Va. App. 446, 453 (1997) (“Considered with other factors, possession of
currency by a defendant may be considered in determining whether he or she possessed drugs
with an intent to distribute.”). Monaghan also described the envelope containing the cash as an
“owe sheet[],” an item used by drug dealers “to keep track of drugs that they front or give to
people on credit.”
In addition, in her interview with Monaghan and at trial, appellant provided inconsistent
statements as to the presence of the cash in her safe and whether she distributed pills to others.
- 10 -
At trial, appellant testified that Gale repaid a debt he owed her and made a down payment on
certain tools. She also testified that she had been receiving rent from people living with her.
That testimony, however, was contradicted by appellant’s statements to Monaghan the day after
the controlled buy, when she did not mention rental income or Gale making a down payment on
tools. Appellant also told Monaghan that only four people lived in the house—herself, her two
sons, and a woman named Sue.
Moreover, although appellant repeatedly denied that she sold any pills, she implied the
opposite by stating that Gale “comes to me when he runs out” and that he “sells more than I do.”
When Monaghan told appellant that two of her pills were found on Sue, appellant first claimed
that she only gave the pills to Sue so that Sue could give them back later when appellant needed
them. She then admitted that she gave pills to Sue for Sue’s own use but claimed that she did so
only because Sue had a prescription for the same pills.
It is well-established that “[d]etermining the credibility of witnesses . . . is within the
exclusive province of the [fact finder], which has the unique opportunity to observe the
demeanor of the witnesses as they testify.” Dalton v. Commonwealth, 64 Va. App. 512, 525
(2015) (quoting Lea v. Commonwealth, 16 Va. App. 300, 304 (1993)). Moreover, “[i]n its role
of judging witness credibility, the fact finder is entitled to disbelieve the self-serving testimony
of the accused and to conclude that the accused is lying to conceal his guilt.” Speller v.
Commonwealth, 69 Va. App. 378, 388 (2018). “When ‘credibility issues have been resolved by
the [fact finder] in favor of the Commonwealth, those findings will not be disturbed on appeal
unless plainly wrong.’” Towler v. Commonwealth, 59 Va. App. 284, 291 (2011) (quoting Corvin
v. Commonwealth, 13 Va. App. 296, 299 (1991)). Here, 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
- 11 -
defendant’s attempted explanation as untrue, may draw the reasonable inference that his
explanation was made falsely in an effort to conceal his guilt.” Covil v. Commonwealth, 268 Va.
692, 696 (2004).
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.
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 two decisions of this Court, Jones, 21 Va. App. 435, and Bennett, 69 Va. App.
475. 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. Jones, 21 Va. App. at 441-42; Bennett, 69 Va. App. at 479.
Nonetheless, our Court affirmed both drug distribution convictions based on the other
circumstantial evidence presented at trial. Jones, 21 Va. App. at 444; Bennett, 69 Va. App. at
495.
In Jones, police searched the confidential informant, provided him with buy money for a
controlled buy, and then drove him to an unspecified location near a restaurant where the
transaction was to occur. 21 Va. App. at 438. Police lost sight of the confidential informant
- 12 -
until he walked through an alley into the restaurant’s parking lot. Id. at 438-39. They saw the
confidential informant and the defendant meet in the lot, but lost sight of both of them when they
“momentarily” walked in front of the restaurant. Id. at 439. During this time, police could not
see whether the confidential informant “went into the restaurant or met other persons.” Id.
There were also “other restaurant patrons . . . in the area” at the time. Id. After leaving the front
of the restaurant, the confidential informant and the defendant were seen entering the defendant’s
car, and the confidential informant left the car after a “short time.” Id. Police saw the
confidential informant walk toward where he was to meet other police officers, but did not see
the meeting. Id. Police did not see an exchange of money or drugs between the defendant and
the confidential informant. Id. at 438-39. Our Court affirmed the defendant’s conviction, noting
that the evidence established that before meeting with the defendant, the confidential informant
did not possess any drugs and had $2,500 in currency and that after meeting with the defendant
“for the purpose of purchasing drugs,” the confidential informant no longer had the $2,500 but
did possess two ounces of cocaine. Id. at 444. We held that “[t]he fact that the officers did not
have [the confidential informant] under surveillance the entire time he was away from [the
officers] does not establish a reasonable hypothesis that someone other than [the defendant] was
the source of the cocaine.” Id.
In Bennett, police used a “live” audio feed to monitor the controlled buy and made and
reviewed additional audio and video recordings of the transaction. 69 Va. App. at 480. The
confidential informant called the defendant, and during this call mentioned slang terms for
tobacco cigarettes dipped in PCP and crack cocaine. Id. at 480-81. After this call, and a
subsequent call during which the defendant told the confidential informant where to meet him,
police observed the informant until he entered an apartment complex. Id. at 481. After the
confidential informant was out of sight, police heard the informant’s and the defendant’s voices
- 13 -
on the live audio feed, as well as other unidentified voices. Id. The video recording showed the
confidential informant encountering two different people inside the residence—a woman who
was “fleetingly” visible in the living room at the beginning of the video, and the defendant who
was visible during the remainder of the video. Id. at 482. The video showed the defendant
holding a plastic sandwich bag and two slightly discolored cigarettes. Id. Affirming the trial
court’s conviction, our Court noted that “investigators searched the informant before and after
the transaction, monitored his movements throughout the relevant period of time, and kept him in
view except for the period during which he met the [defendant].” Id. at 494-95.
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. Wood, 57 Va. App. at 306. 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.6
The trial court, sitting as fact finder, “determines which reasonable inferences should be
drawn from the evidence, and whether to reject as unreasonable the hypotheses of innocence
advanced by a defendant.” Moseley, 293 Va. at 464. Appellant has failed to show that the trial
court’s rejection of her alternative hypotheses of innocence was “plainly wrong.” Wood, 57
6
In addition, we note that the evidence in this case is strengthened by a fact not present in
either Jones or Bennett—here, an exchange of money between appellant and Gale was
acknowledged by appellant during the audio recording.
- 14 -
Va. App. at 306. Therefore, we conclude that the trial court did not err in convicting her of the
charged offense.7
III. CONCLUSION
For the reasons stated above, the trial court did not err in convicting appellant of
distribution of a Schedule I or II controlled substance. Accordingly, we affirm the judgment of
the trial court.
Affirmed.
7
We acknowledge that, as noted above, in circumstantial evidence cases, the
Commonwealth must establish “an unbroken evidentiary chain of necessary circumstances” to
prove the defendant’s guilt beyond a reasonable doubt. Moseley, 293 Va. at 463. However, this
language does not mean that the circumstantial evidence here is insufficient because Monaghan
lost sight of Gale while Gale was in appellant’s home or because other individuals can be heard
on the audio recording of the controlled buy. Those particular facts do not “break” the chain of
circumstantial evidence linking appellant to the offense in this case. Our case law is clear on
this—if circumstances indicating that persons other than the defendant were present during a
controlled buy meant that the evidentiary chain was “broken,” then our Court would have had to
reverse the convictions in Jones and Bennett. Instead, properly viewed, the fact finders in Jones
and Bennett, as well as the trial court here, were allowed to view the evidence in its entirety and
determine whether the defendant’s alternate hypothesis of innocence was reasonable in light of
all the circumstances presented to the court.
Reviewing the Commonwealth’s evidence, we find that it clearly established an unbroken
chain linking appellant to the distribution of oxymorphone to Gale. Each piece of circumstantial
evidence described above provided a circumstance upon circumstance from which the fact finder
could rationally conclude that appellant sold the pills to Gale. “While no single piece of
[circumstantial] evidence may be sufficient, the ‘combined force of many concurrent and related
circumstances, each insufficient in itself, may lead a reasonable mind irresistibly to a
conclusion.’” Ervin v. Commonwealth, 57 Va. App. 495, 505 (2011) (en banc) (alteration in
original) (quoting Stamper v. Commonwealth, 220 Va. 260, 273 (1979)).
- 15 -
Chaney, J., with whom Causey, J., joins, dissenting.
The trial court convicted appellant, Teresa Maust (defendant), of distributing three
oxymorphone pills to a police informant, although the evidence was insufficient to support a finding
that defendant distributed the pills that police obtained from the informant. Considering the totality
of the evidence and all reasonable inferences therefrom in the light most favorable to the
Commonwealth, substantial gaps in the chain of evidence render the wholly circumstantial evidence
insufficient for any rational fact-finder to find beyond a reasonable doubt that defendant, and not
some other person, distributed the oxymorphone pills recovered from the informant. Therefore, we
respectfully dissent from the majority’s opinion affirming defendant’s conviction for distribution of
a Schedule II controlled substance in violation of Code § 18.2-248.
BACKGROUND
On October 1, 2018, Detective Monaghan obtained three oxymorphone pills from a paid
police informant who died before trial, making him unavailable to testify.8 Consequently, there was
no eyewitness testimony about the informant’s interaction with defendant on the alleged offense
date. The police did not observe the informant’s interaction with defendant, and there was no video
recording of their interaction. The police had no live audio feed of the informant’s activities and
communications with defendant. The only evidence of the informant’s interaction with defendant
on the date of the alleged offense, October 1, is a poor-quality audio recording from the recording
device that police wired to the informant. The detective testified that parts of the audio recording
recovered from the informant sounded “very garbled.” At various points while the recording
was played at trial, the trial court observed that nothing intelligible could be heard.
8
The informant had previously acted as a police informant to “work off charges.” Here,
the police were paying the informant. When he worked for money, the police usually paid the
informant $100 per investigation.
- 16 -
Before the informant drove to defendant’s house on October 1, the detective met with the
informant to provide him with the recording device and $320. Before giving the money to the
informant, the detective recorded each bill’s denomination and serial number. The detective gave
the informant $300 to buy three oxymorphone pills and an additional $20 to repay a $16 debt the
informant claimed he owed defendant. To ensure that any drugs eventually recovered from the
informant were obtained from defendant and not another source, the detective (i) searched the
informant’s person and vehicle before the informant drove to defendant’s house, (ii) wired the
informant with an audio recording device, and (iii) followed the informant’s vehicle most of the
way to and from defendant’s house.
The informant was a drug addict and a convicted felon with a lengthy criminal record. The
detective instructed the informant to drive to defendant’s house and purchase oxymorphone pills
with “buy money” from the sheriff’s department.
The audio recording recovered from the informant demonstrated that an unidentified person
was in the informant’s vehicle conversing with him during his drive to and from defendant’s house.
There is no evidence that the police ever searched the informant’s driving companion, and no
evidence that the police were even aware of the presence of the informant’s driving companion
during the “controlled buy.”
When the detective followed the informant’s vehicle to defendant’s house, he lost sight of
the informant after the informant drove up defendant’s driveway. The detective could not see the
informant’s vehicle at the end of the driveway, nor could he see the informant enter or exit
defendant’s house. Other vehicles were parked in defendant’s driveway while the informant was
at defendant’s house. The detective testified that he did not know how many people were in
defendant’s house while the informant was there on October 1, 2018. The informant’s audio
recording demonstrated that at least two persons other than defendant were present in defendant’s
- 17 -
house while the informant was there, and at least one of them communicated with the informant.
The recording also indicates that before the informant drove away from defendant’s house, he was
out of defendant’s presence for a continuous period of approximately two minutes. The evidence
does not establish the whereabouts of the informant’s driving companion during the approximate
ten-minute period when the informant was inside defendant’s house.
After the informant and defendant exchanged greetings, following some static and
unintelligible communications on the audio recording, the informant exchanged greetings with
an unidentified male. The recorded conversation between the informant and defendant promptly
turned to the subject of appliances that defendant was selling. Then the informant briefly went
outside to his vehicle to retrieve the money he left there. When the informant returned, he stated
that he owed defendant $14 and asked if she had change. He gave defendant some money and after
they both commented on the “old style” of the bills, defendant said “two forty and four.” Then they
resumed the conversation about appliances, and the informant asked to see the stove and
refrigerator. The informant also stated that his current stove wasn’t working properly.
As the informant is heard moving to the location of the appliances, he greeted another
unidentified person. After additional conversation about the appliances, the informant took pictures
of them. As the informant was taking pictures, defendant stated, “I owe you six bucks, right? You
owe me two fifty four.” The informant replied, “Sixteen.” Defendant responded, “Two fifty four.
And you gave me two seventy.” A moment later, defendant said, “Let me get change.” Defendant
made some additional remarks about the worth of the appliances and then said, “Give me a second.”
The informant replied that he would be outside. While the informant was near the appliances, the
sound of an unidentified woman talking was twice recorded.
The next communication between defendant and the informant was about two minutes later.
During the intervening two minutes, the informant was recorded moving outside and then talking.
- 18 -
Some other unidentifiable sounds of movement were also recorded. When defendant returned with
the informant’s change, the informant told defendant that both his mother and sister may also be
interested in the appliances.
After the informant left defendant’s house, he and the detective separately drove back to
the same commuter lot where they had met earlier that day. The detective retrieved the audio
recording device and again searched the informant’s person and vehicle. The informant did not
have any of the buy money, but he did have $16 in cash which was not part of the buy money—
the same amount that the informant stated he was owed in change after giving defendant $270.
The informant also turned over three pills that were subsequently found to contain oxymorphone,
a Schedule II controlled substance.
The next day, on October 2, 2018, the detective executed a search warrant at defendant’s
house. The police found numerous pills, a pill press or pill crusher, and “numerous prescription
bottles for different narcotics, the majority of which were empty.” Some pills that were found
were prescribed to defendant, and others were prescribed to her female tenant.
While the search of defendant’s house was underway, defendant arrived home with her
female tenant. Defendant gave the detective the combination to a safe that was found in her
bedroom. Defendant told the detective that some money in the safe may have been money that
the informant had borrowed and repaid to her.
When the detective interviewed defendant during the search, defendant stated that the
residents of her house included herself, her two adult sons, and her female tenant. Defendant
initially denied any involvement in narcotics dealing. Defendant told the detective that she had
legitimate prescriptions for an injury. Defendant stated that her ex-husband would steal and sell
her prescribed pills, but she acknowledged that her ex-husband had moved out the month before.
Defendant admitted that sometimes she lends pills to her friends if they run out, but she denied
- 19 -
selling pills. The detective informed defendant that such distribution of controlled substances is
also illegal. In response to the detective’s statement that “we purchased these pills,” defendant
replied that any money she received from the informant was for payment of a debt. Defendant
stated, “I don’t know why you’re bothering me, he’s a way bigger dealer than I am.”
The police found $4,351 in the safe, including $270 of the buy money that the detective
gave the informant. The detective testified that “there was sixteen one hundred dollar bills, there
were twenty-seven fifty dollar bills, there were fifty-nine twenty dollar bills, there were eighteen
ten dollar bills, there were [eight five] dollar bills, and there was one one dollar bill which totaled
up to four thousand, three hundred and fifty-one.” The police found an additional $138
elsewhere in defendant’s bedroom.
All the money in the safe was inside an envelope with writing on it that included the
following notations,9 arranged in two columns:
B = 11 1100
G = 17 850
J = 121 2420
H = 25 250
L = 19 95
4710
The detective characterized the writing on the envelope as an “owe sheet” used to keep track of
drugs given out on credit. The detective also testified that the numbers next to the letters could
represent pills or money. Defendant testified that the writings on the envelope were a record of
her prior count of the money in the envelope. Defendant explained that each letter represented
the denomination of the bills, e.g., “B” for Benjamin, “H” for Hamilton, and “L” for Lincoln.
Defendant testified that the second column was the tally of the money. When defendant’s
counsel attempted to argue that the initials on the purported owe sheet represent denominations
9
On Commonwealth’s Exhibit 3, the top portion of the first number in the second column
is obscured by an evidence sticker, but the number appears to be “1100.”
- 20 -
of United States currency, the trial court interrupted her closing argument stating, “Ms. Coleman,
nobody does that.”10 This finding followed the detective’s testimony showing that the detective
counted the money from the safe by counting the number of bills in each denomination and
adding these amounts together to determine the total amount.
Applying elementary arithmetic to the information in the above table, 11 “Benjamins,”
i.e., 11 one-hundred-dollar bills, amounts to $1100, as stated on the first line in the second
column; 17 “Grants,” i.e., 17 fifty-dollar bills, amounts to $850, as stated on the second line in
the second column; 121 “Jacksons,” i.e., 121 twenty-dollar bills, amounts to $2,420, as stated on
the third line in the second column; 25 “Hamiltons,” i.e., 25 ten-dollar bills, amounts to $250, as
stated on the fourth line in the second column; and 19 “Lincolns,” i.e., 19 five-dollar bills,
amounts to $95, as stated on line five in the second column. When the numbers in the second
10
The trial court unreasonably rejected defendant’s explanation that the writing on the
envelope containing cash was a recorded count of money by currency denominations, not an
“owe sheet.” First, it is highly unlikely that individuals on the purported “owe sheet” would
have identifying initials coinciding exactly with the first letters of the “nicknames” of currency
denominations: B, J, G, H, and L. In addition to it being highly improbable that B, J, G, H, and
L are the initials of five individuals chosen at random, it is even more unlikely that those five
individuals would owe amounts that correspond precisely with multiples of the currency
denomination identified by their initial. As can be confirmed by simple counting and use of
elementary arithmetic, only 1 in 5 numbers are multiples of 5; only 1 in 10 numbers are multiples
of 10; only 1 in 20 numbers are multiples of 20; only 1 in 50 numbers are multiples of 50; and
only 1 in 100 numbers are multiples of 100. It is extremely unlikely that the amounts owed by
all five individuals would be exact multiples of the currency denomination corresponding to their
initial. In contrast, the hypothesis of innocence that the notations are a recorded count of cash
money by currency denominations is a complete explanation of the letters and corresponding
numbers on the envelope.
Because it is so highly improbable that the notations on the envelope are an “owe sheet”
and not a recorded count of money by currency denominations, the trial court erred by arbitrarily
rejecting defendant’s innocent explanation of the notations. See Wright v. Commonwealth,
292 Va. 386, 397 (2016) (“[W]here a fact is equally susceptible of two interpretations one of
which is consistent with the innocence of the accused, [the trier of fact] cannot arbitrarily adopt
that interpretation which incriminates [the accused].” (alterations in original) (quoting
Commonwealth v. Smith, 259 Va. 780, 782 (2000))).
- 21 -
column are added together, the sum is 4,715, approximately the same as the number on the sixth
line in the second column beneath the horizontal line, i.e., 4710.
Defendant testified that on October 1, 2018, the informant came to her house to look at
appliances that she was selling and to give her “a down payment for a pancake compressor and a
framing nail gun.” Defendant also testified that the informant paid her back around $150 that he
had borrowed.
ANALYSIS
Considering the totality of the evidence, the evidence is insufficient to sustain the
conviction for drug distribution because no rational fact-finder can find beyond a reasonable
doubt that the wholly circumstantial evidence formed an unbroken chain of necessary
circumstances linking defendant to the crime of distributing the three oxymorphone pills
recovered from the informant. In other words, the evidence as a whole failed to exclude the
reasonable hypothesis of innocence that the informant obtained the oxymorphone pills from
someone other than defendant. According to our Supreme Court’s longstanding precedent,
Where the evidence is entirely circumstantial, all necessary
circumstances proved must be consistent with guilt and inconsistent
with innocence and must exclude every reasonable hypothesis of
innocence. The chain of necessary circumstances must be unbroken.
The circumstances of motive, time, place, means and conduct must
all concur to form an unbroken chain which links the defendant to
the crime beyond a reasonable doubt.
Brown v. Commonwealth, 238 Va. 213, 220 (1989) (quoting Bishop v. Commonwealth, 227 Va.
164, 169 (1984)). “While a conviction may properly be based upon circumstantial evidence,
suspicion or even probability of guilt is not sufficient.” Gordon v. Commonwealth, 212 Va. 298,
300 (1971). “[E]vidence that raises no more than a suspicion of guilt ‘no matter how strong, is
insufficient to sustain a criminal conviction.’” Wright v. Commonwealth, 292 Va. 386, 397 (2016)
(quoting Stover v. Commonwealth, 222 Va. 618, 624 (1981)). Proof of a mere opportunity to
- 22 -
commit an offense provides only “the suspicion that the defendant may have been the guilty
agent; and suspicion is never enough to sustain a conviction.” Simmons v. Commonwealth, 208
Va. 778, 783 (1968).
Here, substantial gaps in the chain of evidence preclude a finding by a rational fact-finder
that defendant distributed the three oxymorphone pills recovered from the informant. A fatal gap in
the chain of necessary circumstances exists because the informant’s acquisition of the oxymorphone
pills was not “controlled” by the detective. The unexplained presence of the informant’s unsearched
driving companion defeated the detective’s purpose in searching the informant and his vehicle
before he met with defendant. Given this break in the chain of necessary circumstances, a rational
fact-finder cannot find beyond a reasonable doubt that defendant distributed the drugs recovered
from the informant.
Additional gaps in the chain of evidence were created by the gaps in audio surveillance due
to the poor quality of the audio recording recovered from the informant. As the detective testified,
parts of the recorded audio were “very garbled” due to static or other issues. As the trial court
observed, some parts of the recorded audio emitted no sound.
Another fatal gap in the chain of circumstances necessary to prove defendant’s criminal
agency relates to the informant’s unmonitored access to two persons other than defendant when the
informant was inside defendant’s house. The informant’s recording device recorded the voices of
two persons other than defendant inside defendant’s house. A male voice was recorded exchanging
greetings with the informant. A female voice was twice recorded in the informant’s company just
before the informant announced that he would wait for defendant outside. Additionally, the
informant’s recording had several unintelligible garbled segments, creating gaps in the audio
surveillance. Based on the totality of evidence, a rational fact-finder could not find that the
informant “could not have obtained the [controlled substance] from a source other than the
- 23 -
defendant.” Jones v. Commonwealth, 21 Va. App. 435, 443 (1995) (en banc) (affirming
conviction for drug distribution to a police informant where the circumstantial evidence did not
establish that the informant had access to someone other than defendant at the time of the
controlled drug buy). Given the informant’s access to persons other than defendant between the
time the detective initially searched the informant and the time the detective recovered the drugs
from the informant, there is a fatal break in the chain of circumstances necessary to support a
finding that defendant, and not someone else, distributed the drugs recovered from the informant.
Because the informant’s drug acquisition was not “controlled,” a rational fact-finder’s
consideration of the totality of the evidence precludes a finding beyond a reasonable doubt that
defendant distributed the oxymorphone pills in evidence.
Additional evidence of the uncontrolled nature of the informant’s activities is the
discrepancy between the amount of money that the detective recovered from the informant and the
amount of money that the informant should have returned to the detective. According to the
recorded conversation between the informant and defendant, (i) the informant owed defendant
money, (ii) the informant gave defendant $270, and (iii) defendant gave the informant $16 in
change. The detective found the $270 that the informant gave defendant in defendant’s safe. The
detective recovered $16 from the informant that was not from the set of dollar bills that the detective
gave the informant. Given that the detective gave the informant $320 and the informant paid
defendant $254, the informant should have returned $66 to the detective. But after searching the
informant and his vehicle, the detective recovered only $16. The evidence demonstrates that during
the purportedly controlled buy, the informant was able to conceal or transfer $50 without notice by
the detective. Given this, no rational fact-finder could find from the evidence that the informant
could not have retrieved the three oxymorphone pills from somewhere or obtained them from
someone other than defendant. See id. (affirming drug distribution conviction based on
- 24 -
circumstantial evidence of criminal agency because the evidence supported a finding that the
informant “could not have obtained the [controlled substance] from a source other than the
defendant”).
Although the undisputed evidence supports the trial court’s finding that defendant
“engaged in some kind of financial transaction,” the evidence is insufficient to support a finding
that this was a drug transaction. In holding otherwise, the majority mistakes speculative
suspicion for reasonable inference. The only evidence that defendant gave the informant
something after receiving $270 from him is the evidence that she gave him $16. On the
informant’s audio recording, defendant stated that the informant owed her $254 and the
informant stated that she owed him $16 back after he gave her $270. The totality of the evidence
does not support a finding beyond a reasonable doubt that this was a drug transaction.
Even if the evidence supports a finding that defendant was a drug dealer, fatal gaps in the
chain of evidence preclude a rational fact-finder from finding beyond a reasonable doubt that
defendant distributed the three oxymorphone pills recovered from the informant. Defendant was
not on trial for being a drug dealer, but for distributing the oxymorphone pills recovered from the
informant on October 1, 2018. Proof that a defendant is a drug dealer is insufficient to support
an inference that the defendant sold drugs to a particular individual on a specific date as charged.
The totality of the evidence is insufficient to prove defendant’s criminal agency with respect to
the charged distribution offense given the substantial gaps in the chain of circumstances
necessary for such proof. Taking all the evidence in the light most favorable to the
Commonwealth, the evidence does not point unerringly to defendant as the source of the pills
recovered from the informant. Considered as a whole, the evidence creates no more than mere
suspicion or probability of defendant’s guilt. “[T]o sustain a criminal conviction, the
Commonwealth is required to prove more than a suspicion of guilt or probability of guilt.”
- 25 -
McMorris v. Commonwealth, 276 Va. 500, 506 (2008). Under this standard, the conviction
should be reversed.
CONCLUSION
The totality of the evidence does not form an unbroken chain of circumstances necessary for
a rational fact-finder to find beyond a reasonable doubt that defendant—and not someone else—
distributed the oxymorphone pills recovered from the informant. Therefore, we respectfully dissent
from the judgment affirming the conviction for distribution of a Schedule II controlled substance.
- 26 -
VIRGINIA:
In the Court of Appeals of Virginia on Tuesday the 30th day of August, 2022.
Teresa Mary Maust, Appellant,
against Record No. 0505-21-4
Circuit Court No. CR19000465-02
Commonwealth of Virginia, Appellee.
Upon a Petition for Rehearing En Banc
Before the Full Court
On August 22, 2022 came the appellee, by the Attorney General of Virginia, and filed a petition
requesting that the Court set aside the judgment rendered herein on August 9, 2022, and grant a rehearing en
banc on the issue(s) raised in the petition.
On consideration whereof and pursuant to Rule 5A:35 of the Rules of the Supreme Court of Virginia,
the petition for rehearing en banc is granted and the appeal of those issues is reinstated on the docket of this
Court. The mandate previously entered herein is stayed pending the decision of the Court en banc.
The parties shall file briefs in compliance with the schedule set forth in Rule 5A:35(b). The appellant
shall attach as an addendum to the opening brief upon rehearing en banc a copy of the opinion previously
rendered by the Court in this matter. An electronic version of each brief shall be filed with the Court and
served on opposing counsel.1
A Copy,
Teste:
A. John Vollino, Clerk
original order signed by a deputy clerk of the
By: Court of Appeals of Virginia at the direction
of the Court
Deputy Clerk
1
The guidelines for filing electronic briefs and appendices can be found at
www.courts.state.va.us/online/vaces/resources/guidelines.pdf.
COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Judges Malveaux, Causey and Chaney
Argued by videoconference
TERESA MARY MAUST
MEMORANDUM OPINION* BY
v. Record No. 0505-21-4 JUDGE VERNIDA R. CHANEY
AUGUST 9, 2022
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF STAFFORD COUNTY
J. Bruce Strickland, Judge1
Andrew J. Cornick (Andrew J. Cornick, LLC, on brief), for
appellant.
Timothy J. Huffstutter, Assistant Attorney General (Mark R.
Herring,2 Attorney General, on brief), for appellee.
Teresa Mary Maust (“Maust”) appeals from the judgment of the Circuit Court of Stafford
County (“trial court”) convicting and sentencing her for felony distribution of a Schedule I or II
controlled substance, in violation of Code § 18.2-248. Maust was sentenced to confinement for a
period of five years with all but three months suspended for five years. On appeal, Maust
contends that the trial court erred as a matter of law in finding that the circumstantial evidence
reasonably excluded Maust’s hypothesis of innocence and proved beyond a reasonable doubt that
Maust distributed oxymorphone on October 1, 2018. For the following reasons, this Court
reverses the trial court’s judgment.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication
1
Judge J. Bruce Strickland entered the final sentencing order in this case. Judge Charles
S. Sharp conducted Maust’s trial, found her guilty, and entered the conviction order.
2
Jason S. Miyares succeeded Mark R. Herring as Attorney General on January 15, 2022.
I. BACKGROUND
A. The Investigation of Maust
i. Staging the Investigation
On October 1, 2018, at around 5:00 p.m., Stafford County Detective Shawn Monaghan
(“the detective”) met with Robert Gale (“Gale”), a paid informant, at a “staging area” in a
commuter parking lot to conduct a narcotics investigation.3 Maust was the target of the
investigation. Gale was a drug addict whose “drug of choice” was opiates. Gale was also a
convicted felon with a lengthy criminal record.
The detective instructed Gale to drive to Maust’s residence and purchase opioid pills
from her with “buy money” from the sheriff’s department. The detective gave Gale $300 to buy
three opioid pills at $100 per pill, plus an additional $20 because Gale said he owed Maust $16.
Before the detective gave the buy money to Gale, the detective recorded the denominations and
serial numbers.
The detective searched Gale’s person and vehicle for drugs and money to ensure that he
was not bringing any drugs or other money to Maust’s residence. The detective equipped Gale
with an on-person audio recording device and followed Gale’s vehicle to and from Maust’s
residence in Stafford County. However, the detective was unable to hear live audio of Gale’s
activities and communications.
While following Gale, the detective lost sight of him after he drove up the driveway to
Maust’s house. The detective could not see Gale’s vehicle at the end of the driveway, nor could
he see Gale enter or exit Maust’s house. The detective observed other cars in the driveway. The
detective did not recall whether there were any cars in the garage. The detective maintained a
3
Gale had previously acted as a police informant to “work off charges.” On this day, the
police were paying Gale for his informant work. When he worked for money, the police usually
paid Gale $100 per investigation.
-2-
physical distance from Maust’s residence to avoid being seen by anyone in Maust’s house. The
detective testified that he did not know how many people were in Maust’s house while Gale was
there on October 1, 2018.
ii. The Evidence Recovered from Gale
The audio recording recovered from Gale recorded Gale talking with an unidentified
person (“Gale’s companion”) who was in the car with Gale after 5:00 p.m. during the drive to
and from Maust’s house. During the recorded conversation, Gale mentioned that he and his
companion had also been driving together in the car that morning.4 During the drive to Maust’s
house, a few minutes before Gale arrived there, Gale instructed his companion, “Text her and say
here.” There is no evidence of the whereabouts of Gale’s companion while Gale was inside
Maust’s house.
Gale’s recorded conversation with Maust began with a greeting and promptly turned to
the subject of appliances that Maust was selling from her home. Gale told Maust to “hold on for
a second,” and he apparently went to his car to retrieve the money.
When Gale returned, he said, “I owe you the fourteen dollars. Do you have change?”
After Maust and Gale both commented on the “old style” of the bills, Maust replied, “two forty
and four.” Gale responded, “Ok.” Then Maust and Gale resumed discussion of the appliances
that Maust was selling.
Following some static and garbled transmission on the audio recording, Gale was
recorded exchanging greetings with an unidentified person.
Maust and Gale continued to discuss the appliances for sale, and Maust told Gale they
were being sold “first come, first served.” As Gale took pictures of the appliances, Maust said,
4
Gale commented on a noise from the car and told his companion, “Remember, we were
hearing it this morning.”
-3-
“I owe you six bucks, right? You owe me two fifty four.” Gale replied, “Sixteen.” Maust
responded, “Two fifty four. And you gave me two seventy.”
When Gale finished taking pictures of the appliances, the voice of another woman was
recorded. Maust and Gale continued to talk about the price of the appliances. Maust told Gale
that she would let people take whatever was left after she removed what she wanted. When
Maust asked Gale to give her a second, Gale said he would wait outside. Then the
aforementioned woman’s voice is heard again on the recording.
The audio recording indicates that Maust rejoined Gale about two minutes after Gale said
he would wait outside. Maust told Gale that the appliances would likely sell quickly and
suggested that Gale’s mother might want them. Gale replied that both his mother and sister may
be interested in the appliances.
About ten minutes after Gale drove up Maust’s driveway, Gale drove out of the driveway
and back to the commuter lot, making no unscheduled stops. On the drive back, Gale was
recorded telling his companion about the appliances that Maust was selling. The detective
followed Gale’s car back to the commuter lot where he again met with Gale.
The detective retrieved the audio recording device from Gale and again searched his
person and vehicle. Gale did not have any of the buy money, but he did have $16 in cash which
was not part of the buy money. Gale also turned over three round orange tablets imprinted with
“G74.” Subsequently, one of these pills was analyzed by the Virginia Department of Forensic
Science (“DFS”) and “was found to contain Oxymorphone, [a] Schedule II [controlled
substance].” Based on visual examination of the other two pills, DFS concluded that their shape,
color, and manufacturer’s markings were “consistent with a pharmaceutical preparation
containing Oxymorphone.”
-4-
iii. The Search of Maust’s House
The next day, on October 2, 2018, the detective executed a search warrant at Maust’s
house. The police found numerous pills, a pill press or pill crusher, and “numerous prescription
bottles for different narcotics, the majority of which were empty.” Some pills that were found
were prescribed to Maust and others were prescribed to her tenant, Susan Stone.
While the search of Maust’s house was underway, Maust arrived home with Ms. Stone.
Maust gave the detective the combination to a safe that was found in her bedroom. The detective
did not find out whether any other occupants of the house knew the combination to the safe.
Maust told the detective that she got the safe to keep her ex-husband away from her
money. Maust said that she had withdrawn money from her bank account and placed it in the
safe because she was planning to move. Maust also stated that some money in the safe may have
been money that Gale had borrowed and repaid to her.
The police found $4,351 in the safe, including $270 of the buy money given to Gale. The
detective testified that “there was sixteen one hundred dollar bills, there were twenty-seven fifty
dollar bills, there were fifty-nine twenty dollar bills, there were eighteen ten dollar bills, there
were [eight five] dollar bills, and there was one one dollar bill which totaled up to four thousand,
three hundred and fifty-one.” The police found an additional $138 elsewhere in Maust’s
bedroom.
All the money found in the safe was inside an envelope that had writing on it. The
writing on the envelope included the following notations, arranged in a column: “B = 11,”
“G = 17,” “J = 121,” “H = 25,” and “L = 19.” To the right of this list was a column of numbers:
“1100,5 850, 2420, 250, 95, 4710.” The first five of these numbers in the column appeared
5
On Commonwealth’s Exhibit 3, the top portion of the first number in the second column
is obscured by an evidence sticker, but the number appears to be “1100.”
-5-
above a horizontal line and the last number was below the line. In the detective’s testimony, he
characterized the writing on the envelope as an “owe sheet” which is used to keep track of drugs
given out on credit. The detective also testified that the numbers next to the letters could
represent pills or money.
Maust testified that the writings on the envelope were a record of her prior count of the
money in the envelope. Maust explained that each letter represented the denomination of the
bills, e.g., B for Benjamin, H for Hamilton, and L for Lincoln.6 Maust testified that the second
column was the tally of the money.
iv. Maust’s Additional Statements and Testimony
When the detective interviewed Maust during the search on October 2, 2018, Maust
stated that the residents of her house included herself, her two adult sons, and Susan Stone.
Maust initially denied any involvement in narcotics dealing. Maust told the detective that she
had legitimate prescriptions for an injury. Maust stated that her ex-husband would steal and sell
the pills prescribed to her, but she acknowledged that her ex-husband had moved out the month
before. Maust admitted that sometimes she lends pills to her friends if they run out, but she
denied selling pills. The detective informed Maust that such distribution of controlled substances
is also illegal. In response to the detective’s statement that “we purchased these pills,” Maust
replied that any money she received from Gale was for payment of a debt. Maust stated, “I don’t
know why you’re bothering me, he’s a way bigger dealer than I am.”
At trial, Maust testified that Gale rarely came to her home since she and Gale stopped
dating. Maust testified that on October 1, 2018, Gale came to her house to look at appliances
6
Maust testified that she only used the method of counting bills by denominations once
out of boredom a year and a half ago and that she “would have to actually look at the bills to tell
you what it meant.” The record indicates that Maust was not shown bills in the different
denominations to refresh her recollection.
-6-
that she was selling and to give her “a down payment for a pancake compressor and a framing
nail gun.” Maust testified that Gale also paid her back around $150 that he had borrowed.
Maust acknowledged that the audio recording from Gale recorded Maust indicating that she
received $270 from Gale.
Maust testified that she did not sell drugs to Gale on October 1, 2018. Maust also
testified that when Gale was in her house that day, she did not recall “exactly everybody that was
in the house,” but she believed that several others were there, including her oldest son and two
other tenants, Stone and Matt Herbigg. Maust identified Susan Stone’s voice as the other female
voice on the audio recording from Gale. Maust testified that every time Gale came over, he
would have a private conversation with Susan Stone, but she could not recall whether Gale met
separately with Ms. Stone on October 1, 2018. Maust testified that she did not see Gale take
three pills from anywhere in the residence.
v. No Testimony from Informant Gale
Gale died before Maust’s bench trial in February 2020.
B. The Trial Court’s Findings
At trial, the trial court made the following findings on the record:
• No contraband was uncovered when the police initially searched Gale, and the searching
protocol was sufficient to have made that judgment.
• Gale “went into the home occupied by Ms. Maust, and for a period of approximately ten
minutes was inside the house.”
• The audio recording recovered from Gale sounded “very garbled.” At various points
while the recording was played at trial, the trial court noted that nothing could be heard.
• The recorded conversation included discussion about a washer and dryer.
• The audio recording included “what purports to be an exchange of money.”
• Maust’s voice was identified on the recording “engaged in some kind of financial
transaction, there’s an exchange of money inside her house.”
-7-
• “As a consequence of the audio, the only substantive conversation between any two
people in the house was that between the informant and Ms. Maust, whose voice was
identified by the officer.”
• “In the course of the relatively garbled transmission, one thing is clear, that at some point
there was an exchange of cash money.”
• After Gale left Maust’s house, “upon subsequent search by the officer discovered (a) no
longer to have that buy money and (b) to have in his possession three pills which are
without dispute contraband[,] . . . [i.e.,] opioids . . . .”
• “[T]he Court has before it a period of ten minutes in which there was an exchange of
money and drugs, and the only evidence of contact between any two persons is that
between the informant, who’s no longer with us, and Ms. Maust.”
• “A subsequent search warrant being executed, the money that was distributed or given to
the informant and then later handed over presumably to Ms. Maust was found in a safe to
which [other people] ha[ve] relatively little access, or rather it’s limited to other people.”
• When Maust’s counsel attempted to argue that the initials on the purported owe sheet
represent denominations of United States currency, the trial court interrupted her closing
argument stating, “Ms. Coleman, nobody does that.”
• “The only reasonable inference to be drawn from that set of circumstances is that the
transaction went down exactly as has been argued by the Commonwealth. And whether
she gave, sold, distributed at a discount, or whatever the case may be, the Court is
convinced beyond any reasonable doubt that the Commonwealth has met its burden.”
The trial court found Maust guilty of distribution as charged in the indictment. This
appeal followed.
II. ANALYSIS
A. Standard of Review
On appellate review of a criminal conviction, this Court “consider[s] the evidence and all
reasonable inferences flowing from that evidence in the light most favorable to the
Commonwealth, the prevailing party at trial.” Pooler v. Commonwealth, 71 Va. App. 214, 218
(2019) (quoting Williams v. Commonwealth, 49 Va. App. 439, 442 (2007) (en banc)). We
“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
-8-
therefrom.” Commonwealth v. Cady, 300 Va. 325, 329 (2021) (emphasis added) (quoting
Commonwealth v. Perkins, 295 Va. 323, 324 (2018)). The conviction will be affirmed “unless it
is plainly wrong or without evidence to support it.” Sarka v. Commonwealth, 73 Va. App. 56, 62
(2021) (quoting Austin v. Commonwealth, 60 Va. App. 60, 65 (2012)).
“[W]here a fact is equally susceptible of two interpretations one of which is consistent
with the innocence of the accused, [the trier of fact] cannot arbitrarily adopt that interpretation
which incriminates [the accused].” Wright v. Commonwealth, 292 Va. 386, 397 (2016)
(alterations in original) (quoting Commonwealth v. Smith, 259 Va. 780, 782 (2000)).
“[W]here, as here, a conviction is based on circumstantial evidence, ‘all necessary
circumstances proved must be consistent with guilt and inconsistent with innocence and exclude
every reasonable hypothesis of innocence.’” Garland v. Commonwealth, 225 Va. 182, 184
(1983) (quoting Carter v. Commonwealth, 223 Va. 528, 532 (1982)). “While a conviction may
properly be based upon circumstantial evidence, suspicion or even probability of guilt is not
sufficient.” Gordon v. Commonwealth, 212 Va. 298, 300 (1971); see also Wright, 292 Va. at
397 (“evidence that raises no more than a suspicion of guilt ‘no matter how strong, is insufficient
to sustain a criminal conviction’” (quoting Stover v. Commonwealth, 222 Va. 618, 624 (1981))).
To establish proof beyond a reasonable doubt, “the chain of necessary circumstances
must be unbroken and the evidence as a whole must satisfy the guarded judgment that both the
corpus delicti and the criminal agency of the accused have been proved to the exclusion of any
other rational hypothesis and to a moral certainty.” Wright, 292 Va. at 397 (quoting LaPrade v.
Commonwealth, 191 Va. 410, 418 (1950)). Proof of a mere opportunity to commit an offense
provides only “the suspicion that the defendant may have been the guilty agent; and suspicion is
never enough to sustain a conviction.” Simmons v. Commonwealth, 208 Va. 778, 783 (1968).
-9-
B. Insufficient Evidence of Drug Distribution by Maust to the Paid Informant
The Commonwealth’s case against Maust did not include any witness testimony
identifying Maust as the source of the oxymorphone pills recovered from Gale, the paid
informant who died before trial. To sustain a conviction for drug distribution under these
circumstances where the Commonwealth relies on circumstantial evidence, the Commonwealth’s
evidence must show that the informant “could not have obtained the [controlled substance] from
a source other than the defendant.” Jones v. Commonwealth, 21 Va. App. 435, 443 (1995) (en
banc) (emphasis added). Absent a showing that Gale had no opportunity to obtain the controlled
substance from someone other than Maust, there is a fatal break in the chain of necessary
circumstances and the evidence fails to prove beyond a reasonable doubt that Maust distributed
the oxymorphone pills to Gale.
In Jones, this Court considered whether the evidence was sufficient to support the
defendant’s conviction for cocaine distribution where the police informant who allegedly bought
cocaine from the defendant was unable to testify about the alleged drug purchase. Id. at 440.
We concluded that “[t]he circumstantial evidence in this case points unerringly to the fact that
[the defendant] was the person who sold cocaine to [the police informant].” Id. at 442. The
following facts supported this conclusion: A meeting between the defendant and a police
informant was arranged “for the purpose of purchasing drugs.” Id. at 444. A police officer
(“Officer A”) searched the informant to confirm that he did not already possess drugs. See id.Officer A, accompanied by another police officer (“Officer B”), transported the informant close
to the place where the informant and the defendant planned to meet. See id. The informant left
Officer A’s police vehicle and walked for a short time when another police officer (“Officer C”)
observed the informant enter the defendant’s car along with the defendant. See id. Officer C
continuously observed the informant until he left the defendant’s car two minutes later and
- 10 -
walked back toward the police vehicle where Officers A and B were waiting for him. See id. A
fourth police officer (“Officer D”) observed the defendant drive alone into the parking lot where
he met the informant. See id. at 439. Officer D observed the informant meet the defendant and
momentarily lost sight of them before he saw them enter the defendant’s car together. See id. at
439, 442-43. The informant “had neither the time nor the opportunity to purchase the drugs
while en route to the designated site and then back” to Officer A’s police vehicle. Id. at 443.
Officer A recovered two bags of cocaine from the informant when he returned to the police
vehicle after meeting with the defendant. Id. at 438. Based on these facts, this Court concluded
that “the evidence shows that [the informant] could not have obtained the cocaine from a source
other than the defendant.” Id. (emphasis added). Therefore, we held in Jones that the
circumstantial evidence established that the informant obtained the illegal drugs from the
defendant. See id. at 444.
As in this appeal, the defendant in Bennett v. Commonwealth, 69 Va. App. 475 (2018),
appealed his conviction for distributing illegal drugs to an informant who died before the
defendant’s trial. This Court found that the following evidence was sufficient to support the
defendant’s conviction: “[T]he informant made advance arrangements for the transaction
directly with the appellant.” Id. at 493. Before the transaction, the police investigators searched
the informant and his vehicle to confirm that he had no drugs. See id. at 480. The investigators
maintained visual surveillance of the informant until he drove into the apartment complex where
the informant met with the defendant. See id. at 481. The investigators monitored the drug
purchase with a “live” audio feed and made separate audio and video recordings of the
transaction. See id. at 480. The video depicted the in-person drug transaction between the
informant and the defendant. See id. at 481-82. Apart from “a fleeting view” of someone in the
- 11 -
first part of the video, “the only people visible in the recording are the informant and the
appellant, the person he asked to sell him the drugs.” See id. at 495.
Here, in contrast with Jones and Bennett, the circumstantial evidence fails to establish
that the informant, Gale, could not have obtained the illegal drugs from someone other than the
appellant, Maust. Moreover, the circumstantial evidence fails to establish that Gale obtained the
illegal drugs from Maust. The purpose of the detective’s initial search of Gale and his car was
defeated when an unidentified person accompanied Gale while he drove to and from Maust’s
house. Although the detective’s initial search of Gale and his car may support the trial court’s
finding that Gale possessed no pills before he drove to Maust’s house, there is no evidence that
the police searched Gale’s unidentified companion. Therefore, there is no evidentiary basis for
excluding Gale’s companion as the source of the pills recovered from Gale.
In further contrast with Jones and Bennett, the evidence here also fails to show that the
informant could not have obtained the pills from a source other than the defendant at the place
where the alleged drug transaction occurred. The audio recording shows that while Gale was in
Maust’s house, at least two persons other than Maust were also there. In addition to the female
voice that Maust identified as her tenant, Ms. Stone, a male voice was recorded exchanging
greetings with Gale. The audio recording also indicates that Gale was away from Maust for
approximately two minutes while he was there. The evidence does not show that Gale could not
have covertly accessed some of the narcotic pills prescribed to Maust or Ms. Stone. Nor is there
any evidence regarding the whereabouts of Gale’s companion while Gale was inside Maust’s
house. Taking all of this evidence in the light most favorable to the Commonwealth, the
evidence does not point unerringly to Maust as the source of the pills recovered from Gale.
The instant case is further distinguished from Jones and Bennett because the evidence
here failed to establish that Maust met with Gale on the alleged date of offense for the purpose of
- 12 -
distributing drugs to him. See Jones, 21 Va. App. at 444 (A meeting between the defendant and
the police informant was arranged “for the purpose of purchasing drugs.”); see also Bennett, 69
Va. App. at 493 (“[T]he informant made advance arrangements for the [drug purchase]
transaction directly with the appellant.”). Here, the informant made no advance arrangements
with Maust to purchase drugs from her. The Commonwealth’s evidence failed to exclude the
reasonable hypothesis of innocence that Maust met with Gale for the purpose of showing him
various appliances and other items that she was selling in anticipation of her move to a smaller
home.7 Throughout Maust’s and Gale’s recorded conversation, they discussed the appliances
that Maust was selling on a “first-come, first served” basis.
The Commonwealth’s evidence also failed to prove that the financial transaction between
Maust and Gale involved the distribution of drugs. Maust stated in the audio recording that Gale
“owed” her “two fifty-four” and gave her “two seventy.” Gale confirmed that he owed Maust
$254 and had given her $270 when he replied that Maust owed him $16 in change. The evidence
does not establish that the money was used to purchase drugs rather than to repay Maust for a
personal loan or to make a legal purchase from Maust’s “moving sale.”8 The Commonwealth’s
evidence failed to exclude these reasonable hypotheses of innocence.9 Moreover, the recorded
7
The hypothesis of innocence that Maust met with Gale to show him appliances that she
was selling flows from the audio recording that Gale covertly recorded.
8
These hypotheses of innocence flow from the audio recording—the Commonwealth’s
own evidence. Recognizing these hypotheses of innocence as reasonable does not require any
credibility determinations in Maust’s favor.
9
The Commonwealth’s evidence also failed to exclude Maust’s innocent explanation for
the document that the detective interpreted as an “owe sheet.” Because the evidence
demonstrably supports Maust’s innocent explanation that the notations record a count of dollar
bills by denomination, the trial court erred by arbitrarily rejecting Maust’s innocent explanation
and adopting the detective’s incriminating interpretation. See Wright, 292 Va. at 397 (“[W]here
a fact is equally susceptible of two interpretations one of which is consistent with the innocence
of the accused, [the trier of fact] cannot arbitrarily adopt that interpretation which incriminates
[the accused].” (alterations in original) (quoting Smith, 259 Va. at 782)).
- 13 -
transaction is not consistent with Gale’s supposed plan to pay $300 for three pills.10 Therefore,
the trial court’s finding that the audio recording established “an exchange of money and drugs” is
without sufficient evidence to support it.11
Because the chain of necessary circumstances to prove the alleged act of drug distribution
to Gale was repeatedly broken when Gale had opportunities to obtain pills from sources other
than Maust, the corpus delicti and the criminal agency of the accused have not been proved to
the exclusion of any other rational hypothesis and to a moral certainty. See Wright, 292 Va. at
397. Therefore, the Commonwealth’s circumstantial evidence is insufficient to support Maust’s
conviction.
III. CONCLUSION
The Commonwealth’s wholly circumstantial evidence is insufficient to exclude the
reasonable hypothesis of innocence that the police informant obtained the oxymorphone pills
from a source other than Maust.12 Therefore, the evidence failed to prove beyond a reasonable
doubt that Maust unlawfully distributed a Schedule II controlled substance on October 1, 2018,
10
The detective expected Gale to buy three oxymorphone pills at $100 per pill and to
repay Maust $20. According to the audio recording, Gale gave Maust $270 and received $16 in
change. After paying Maust $254, Gale should have returned $66 to the detective, but returned
only $16.
11
Maust was not on trial for being a drug dealer, but for distributing to Gale the
oxymorphone pills recovered from him on October 1, 2018. The dissent includes much
discussion of evidence that Maust distributed drugs to Gale or other persons on prior occasions.
However, neither the Virginia Supreme Court nor this Court has ever held that proof that a
defendant is a drug dealer justifies the inference that the defendant sold drugs to a particular
individual on a specific date as charged.
12
The dissent contends that the Commonwealth is not required to negate the possibility
that the informant obtained the illegal drugs from someone other than Maust. However, when
the Commonwealth relies on wholly circumstantial evidence to prove an act of drug distribution,
the Commonwealth’s means of proof is by process of elimination. A rational fact-finder cannot
infer that Gale obtained the illegal drugs from Maust unless the evidence establishes that Gale
had no opportunity to obtain the illegal drugs from another source. See Jones, 21 Va. App. at
443.
- 14 -
in violation of Code § 18.2-248. Accordingly, the Court hereby reverses the trial court’s
judgment, vacates the conviction and sentencing orders, and dismisses the indictment.
Reversed and final judgment.
- 15 -
Malveaux, J., dissenting.
The majority holds that the evidence was insufficient to convict appellant for distribution
of a Schedule I or II controlled substance based on the totality of the circumstantial evidence
presented at trial. I respectfully disagree. Given the deference we owe the trial court as fact
finder and the fact that the evidence, properly viewed, was sufficient to support appellant’s
conviction, I respectfully dissent.
“In accordance with established principles of appellate review for a sufficiency of the
evidence case, we view the ‘evidence in the light most favorable to the Commonwealth, as we
must since it was the prevailing party in the trial court.’” Peters v. Commonwealth, 72 Va. App.
378, 383 (2020) (quoting Riner v. Commonwealth, 268 Va. 296, 330 (2004)). Therefore, we will
“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
therefrom.” Kelley v. Commonwealth, 289 Va. 463, 467-68 (2015) (quoting Parks v.
Commonwealth, 221 Va. 492, 498 (1980)).
“When reviewing the sufficiency of the evidence, ‘[t]he judgment of the trial court is
presumed correct and will not be disturbed unless it is plainly wrong or without evidence to
support it.’” Smith v. Commonwealth, 296 Va. 450, 460 (2018) (alteration in original) (quoting
Commonwealth v. Perkins, 295 Va. 323, 327 (2018)). “In such cases, ‘[t]he Court does not ask
itself whether it believes that the evidence at the trial established guilt beyond a reasonable
doubt.’” Secret v. Commonwealth, 296 Va. 204, 228 (2018) (alteration in original) (quoting
Pijor v. Commonwealth, 294 Va. 502, 512 (2017)). “Rather, the relevant question is whether
‘any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.’” Vasquez v. Commonwealth, 291 Va. 232, 248 (2016) (quoting Williams v.
Commonwealth, 278 Va. 190, 193 (2009)). “If there is evidentiary support for the conviction,
- 16 -
‘the reviewing court is not permitted to substitute its own judgment, even if its opinion might
differ from the conclusions reached by the finder of fact at the trial.’” Chavez v. Commonwealth,
69 Va. App. 149, 161 (2018) (quoting Banks v. Commonwealth, 67 Va. App. 273, 288 (2017)).
“Where a controlled purchase of drugs is concerned, ‘without [the informant’s]
testimony, the evidence proving that the [drugs] came from the defendant” may be “purely
circumstantial.’” Bennett v. Commonwealth, 69 Va. App. 475, 492 (2018) (alterations in
original) (quoting Jones v. Commonwealth, 21 Va. App. 435, 441-42 (1995) (en banc)).
However, “[c]ircumstantial evidence is competent and is entitled to as much weight as direct
evidence, provided that [it] is sufficiently convincing.” Pijor, 294 Va. at 512 (quoting Dowden
v. Commonwealth, 260 Va. 459, 468 (2000)). “While no single piece of evidence may be
sufficient, the combined force of many concurrent and related circumstances . . . may lead a
reasonable mind irresistibly to a conclusion.” Id. at 512-13 (quoting Muhammad v.
Commonwealth, 269 Va. 451, 479 (2005)). Our review “does not distinguish between direct and
circumstantial evidence, as the fact finder itself ‘is entitled to consider all of the evidence,without
distinction, in reaching its determination.’” Commonwealth v. Moseley, 293 Va. 455, 463 (2017)
(quoting Commonwealth v. Hudson, 265 Va. 505, 513 (2003)).
Applying these standards, I conclude that a rational trier of fact could have found beyond
a reasonable doubt that the evidence was sufficient to support a conviction for distribution of a
Schedule I or II controlled substance. In the instant case, the Commonwealth’s evidence, viewed
in the light most favorable to it, demonstrated that Gale went to appellant’s residence with the
buy money Detective Monaghan provided and the intention of buying oxymorphone pills from
appellant. After arriving, Gale gave the money to appellant and returned ten minutes later with
three orange oxymorphone pills. Although Monaghan did not witness the transaction, the
recording demonstrated that Gale interacted with appellant, and she verbally confirmed that he
- 17 -
gave her money. Moreover, Monaghan followed Gale to and from appellant’s house and
searched him before and after the transaction.
Appellant admitted to having a prescription for oxymorphone, and she described the pills
as orange in color to police.
During a search of Maust’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. See White v. Commonwealth, 24 Va. App. 446,
453 (1997) (“Considered with other factors, possession of currency by a defendant may be
considered in determining whether he or she possessed drugs with an intent to distribute.”).
In addition, it is well-established that “[d]etermining the credibility of witnesses . . . is
within the exclusive province of the [fact finder], which has the unique opportunity to observe
the demeanor of the witnesses as they testify.” Dalton v. Commonwealth, 64 Va. App. 512, 525
(2015) (second alteration in original) (quoting Lea v. Commonwealth, 16 Va. App. 300, 304
(1993)). Moreover, “[i]n its role of judging witness credibility, the fact finder is entitled to
disbelieve the self-serving testimony of the accused and to conclude that the accused is lying to
conceal his guilt.” Speller v. Commonwealth, 69 Va. App. 378, 388 (2018). “When ‘credibility
issues have been resolved by the [fact finder] in favor of the Commonwealth, those findings will
not be disturbed on appeal unless plainly wrong.’” Towler v. Commonwealth, 59 Va. App. 284,
291 (2011) (quoting Corvin v. Commonwealth, 13 Va. App. 296, 299 (1991)).
At trial, appellant testified that Gale repaid a debt he owed her and made a down payment
on certain tools. She also testified that she had been receiving rent from as many as eight people
living with her, “between three hundred and six hundred” dollars, including from her “own
children.” That testimony, however, was contradicted by appellant’s statements to Monaghan
- 18 -
the day after the controlled buy, when she made no mention of rental income or of Gale making
a down payment on tools and claimed the rest of the money found in the safe was money she had
withdrawn from her bank in preparation for finding a new place to live. Appellant also told
Monaghan that only four people lived in the house—herself, her two sons, and a woman named
Sue.
Moreover, although appellant repeatedly denied that she sold any contraband, she implied
the opposite by stating that Gale “comes to me when he wants them” and that he “sells more than
I do.” The evidence also established that an individual named Greg Murphy was sending
appellant text messages about “getting pills.” Further, when Monaghan told appellant that two of
her pills were found on Sue, appellant first claimed that she only gave the pills to Sue so that Sue
could give them back later when appellant needed them. She then admitted that she gave pills to
Sue for Sue’s own use but claimed that she did so only because Sue had a prescription for the
same pills.
The record thoroughly demonstrates that appellant provided vague, inconsistent, and
contradictory explanations for the presence of the cash in her safe and whether she distributed
pills to others. “[A] fact-finder, having rejected a defendant’s attempted explanation as untrue,
may draw the reasonable inference that [her] explanation was made falsely in an effort to conceal
[her] guilt.” Covil v. Commonwealth, 268 Va. 692, 696 (2004). I would accept the trial court’s
credibility determination, as it was neither plainly wrong nor without evidentiary support.
Finally, the potential presence of an unidentified person in the car with Gale13 and of
other women at appellant’s house do not undermine the Commonwealth’s evidence. The
majority contends that, due to the presence of these other individuals, the circumstantial evidence
13
At trial, Monaghan did not recall Gale’s girlfriend, Tiffany Love, accompanying Gale,
but an unidentified person can be heard conversing with Gale during the drive to and from
appellant’s house.
- 19 -
fails to establish that Gale could not have obtained the oxymorphone pills from someone other
than Maust.
The majority correctly notes that to sustain a conviction for drug distribution, where the
Commonwealth relies on circumstantial evidence, “[t]here must be an unbroken chain of
circumstances ‘proving the guilt of the accused to the exclusion of any other rational hypothesis
and to a moral certainty.’” Jones, 21 Va. App. at 442 (quoting Gordon v. Commonwealth, 212
Va. 298, 300 (1971)). “However, ‘the theory of innocence must flow from the evidence, and not
from the ruminations of defense counsel.’” Id. (quoting Mullis v. Commonwealth, 3 Va. App.
564, 574 (1987)). The Commonwealth is not required to “negate what ‘could have been’ or what
was a ‘possibility.’” Nelson v. Commonwealth, 281 Va. 212, 218 (2011). “Whether [a]
hypothesis of innocence is reasonable is itself a ‘question of fact’ subject to deferential appellate
review.” Haskins v. Commonwealth, 44 Va. App. 1, 9 (2004) (quoting Emerson v.
Commonwealth, 43 Va. App. 263, 277 (2004)). “When examining an alternate hypothesis of
innocence, the question is not whether ‘some evidence’ supports the hypothesis, but whether a
rational factfinder could have found that the incriminating evidence renders the hypothesis of
innocence unreasonable.” White v. Commonwealth, 68 Va. App. 241, 252 (2017) (quoting
Vasquez, 291 Va. at 250). “In practical terms, this means that—even if not ‘inherently
incredible’—a defendant’s exculpatory version of events need not be accepted by the factfinder.”
Tizon v. Commonwealth, 60 Va. App. 1, 12-13 (2012) (quoting Montgomery v. Commonwealth,
221 Va. 188, 190 (1980)).
Here, the trial court rejected appellant’s theory that Gale received the pills from someone
other than appellant, and instead found the evidence sufficient despite its circumstantial nature.
Thus, the question on appeal is whether a rational fact finder, in light of all the evidence, could
have rejected appellant’s theories of innocence and found her guilty beyond a reasonable doubt.
- 20 -
See Moseley, 293 Va. at 464. I find that the evidence supports the finding that a reasonable fact
finder could have rejected appellant’s hypothesis of innocence and instead found that the
evidence demonstrated an unbroken chain of circumstances proving appellant’s guilt. Monaghan
testified that he searched Gale and his vehicle prior to the controlled purchase, and Gale and his
vehicle were free of contraband and other currency besides the buy money. Monaghan then
followed Gale to Maust’s residence without any unscheduled stops, observed Gale drive onto the
driveway of Maust’s residence, and, after approximately ten minutes, followed Gale back to the
staging area without any unscheduled stops. On the recording, appellant verbally confirmed that
Gale gave her money. It was, therefore, reasonable for the court to infer that the exchange of
money was Gale purchasing the three oxymorphone pills from Maust. That inference is
strengthened by the fact that Monaghan recovered none of the buy money—but did recover the
three pills—from Gale following the transaction, and further strengthened both by what police
found in appellant’s residence and by her inconsistent statements.
Appellant does not point to any evidence that the unidentified woman in the car or
another woman supplied Gale with the pills. Indeed, the evidence demonstrated that Gale spoke
only to appellant while at her house.14 Further, there was nothing in the conversation between
the woman in the car and Gale suggesting that the woman provided Gale with any illicit
contraband on the drive to or from appellant’s home. The Commonwealth is not required to
“negate what ‘could have been’ or what was a ‘possibility.’” Nelson, 281 Va. at 218. The trial
court concluded that the only reasonable inference from the circumstances before it was that
Gale and appellant exchanged the buy money and the pills, and thus necessarily found that
appellant’s hypothesis of innocence was unreasonable.
14
At one point on the recording, it appears that Gale says “hey” to another woman, but he
did not have any additional conversation with her.
- 21 -
Based on our standards of review as an appellate court, which include both viewing the
evidence in the light most favorable to the Commonwealth and deferring to the trial court’s
determinations as to findings of fact and credibility, I would hold that the evidence was sufficient
to sustain appellant’s conviction for distribution of a Schedule I or II controlled substance.
Therefore, I would affirm the judgment of the trial court.15
15
The majority cites to Jones, 21 Va. App. 435, and Bennett, 69 Va. App. 475, as support
for its contention that the evidence in this case was not sufficient to support appellant’s
conviction. However, while there may have been additional circumstances supporting the
defendants’ convictions for drug distribution without the testimony of the confidential informant
in those cases, that does not render the circumstances in this case inherently insufficient to
support appellant’s conviction. Rather, all circumstantial evidence cases are decided on the
specific facts unique to each case.
In addition, we cited to, and the majority heavily relies on, the language in Jones that
“[t]here must be an unbroken chain of circumstances ‘proving the guilt of the accused to the
exclusion of any other rational hypothesis and to a moral certainty.’” Jones, 21 Va. App. at 442
(quoting Gordon, 212 Va. at 300). However, as noted above, this principle is not to be viewed in
isolation—rather, nothing in Jones alters the well-established principles regarding the trial
court’s ability to determine whether a defendant’s hypothesis of innocence is reasonable, a
finding that “is itself a ‘question of fact’ subject to deferential appellate review.” Haskins, 44
Va. App. at 9 (quoting Emerson, 43 Va. App. at 277).
- 22 -