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Lewis v. Commonwealth

Court of Appeals of Virginia

September 9, 2014

DEMOND MARKEE LEWIS
v.
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND. Bradley B. Cavedo, Judge.

K. Scott Miles for appellant.

John W. Blanton, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Judges Humphreys, Alston and Decker.

Page 787

[63 Va.App. 675] OPINION

ROBERT J. HUMPHREYS, JUDGE

Demond Markee Lewis (" Lewis" ) appeals his conviction for possession of drugs by a prisoner, a felony, in violation of Code § 53.1-203(6), after a bench trial in the Circuit Court for the City of Richmond (" trial court" ). Lewis argues that the [63 Va.App. 676] trial court erred in denying his pleas of former jeopardy on both constitutional double jeopardy grounds and Virginia's " double jeopardy" statute, Code § 19.2-294, as the Richmond General District Court (" district court" ) had previously convicted him of possession of marijuana on the same evidence and dismissed the original felony charge for possession of drugs by a prisoner. Prior to oral argument in this case, the Commonwealth filed a motion to dismiss the appeal pursuant to the Fugitive Disentitlement Doctrine.

I. BACKGROUND

This Court reviews the evidence in the light most favorable to the prevailing party in the trial court--in this case, the Commonwealth. Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003). So viewed, the evidence established the following.

On December 16, 2010, Richmond Police Detective Edward Aeschlimann arrested Lewis pursuant to an investigation regarding a shooting that is not at issue in this case. Once Aeschlimann took Lewis back into the lockup facility of the jail, the sheriff's deputies searched Lewis. A sheriff's deputy recovered a small baggie filled with marijuana from Lewis's pocket.

Lewis was simultaneously charged with simple possession of marijuana, in violation of Code § 18.2-250.1, and possession of drugs as a prisoner, in violation of Code § 53.1-203(6). The district court heard both matters on January 26, 2011, and it found Lewis guilty of simple possession of marijuana, a misdemeanor. However, the district court dismissed the felony offense, possession of drugs by a prisoner, after a preliminary hearing. At the next grand jury following the dismissal by the district court, the Commonwealth presented a charge against Lewis for possession of drugs by a prisoner and the grand jury returned a true bill. The trial court denied Lewis's motion to quash the indictment and, on February 21, 2013, the court convicted him of possession of drugs by a prisoner. The trial court sentenced him to two years' incarceration [63 Va.App. 677] with two years suspended for a period of three years. The sentencing order recited that supervised probation was a condition of Lewis's suspended sentence and that probation was to commence upon his release from incarceration.

Lewis timely noted his appeal to this Court. In doing so, Lewis presents two assignments of error in which he argues 1) that his prosecution for possession of drugs by a prisoner on a felony indictment obtained after

Page 788

he had already been convicted of simple possession of marijuana violates constitutional double jeopardy under Fifth Amendment principles or, alternatively, 2) that his prosecution for possession of drugs by a prisoner on a felony indictment obtained after he had already been convicted of simple possession of the same marijuana violates the ...


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