FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG. F. Patrick Yeatts, Judge.
Carlos A. Hutcherson (Hutcherson Law, PLC, on briefs), for appellant.
Virginia B. Theisen, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Present: Chief Judge Huff, Judges Petty and McCullough. OPINION BY JUDGE WILLIAM G. PETTY.
[64 Va.App. 603]
WILLIAM G. PETTY, JUDGE
Curtis Lee Mason appeals his jury conviction for possession of cocaine with intent to distribute, third or subsequent offense, in violation of Code § 18.2-248. On appeal, he contends the trial court erred in denying his " motion in limine related to limiting any reference to prior convictions in another state, for third or subsequent purposes, where the convictions were not substantially similar to the instant charge."  We agree in part and disagree in part. Thus, we reverse Mason's conviction and remand for a new trial.
Mason was charged with possession of cocaine with intent to distribute, third or subsequent offense. Mason made a motion in limine seeking to prevent the Commonwealth from presenting as evidence New York Certificates of Disposition showing three prior convictions: (1) " attempted criminal sale [64 Va.App. 604] of a controlled substance 3rd degree PL 110-220.39 01" (hereinafter " N.Y. PL § 220.39(1)" ) on July 18, 1988; (2) " attempted criminal sale of a controlled substance 5th degree PL 110-220.31 00 " (hereinafter " N.Y. PL § 220.31" ), for which he " was sentenced as a second felony offender" on June 24, 1992; and (3) " attempted criminal sale of a controlled substance 5th degree," in violation of N.Y. PL § 220.31 on February 15, 2000.
The Commonwealth argued that the prior convictions were admissible in its case-in-chief for purposes of proving the prior offenses required for a third or subsequent offense conviction. Mason argued that the convictions were not admissible because the New York statutes were not " substantially similar" to Code § 18.2-248. Mason contended that according to this Court's holdings in Dillsworth v. Commonwealth, 62 Va.App. 93, 741 S.E.2d 818 (2013), and Dean v. Commonwealth, 61 Va.App. 209, 734 S.E.2d 673 (2012), a crime in another state is not substantially similar to the corresponding crime under Virginia law, for purposes of proving subsequent offense, if the other jurisdiction's law permits convictions for acts which could not be the basis for a conviction in Virginia law. Further, Mason provided the trial court with an opinion by New York's highest court, which Mason contended establishes that a person could be convicted under N.Y. PL § 220.31 and N.Y. PL § 220.39(1) for conduct that would not be the basis for conviction under Code § 18.2-248.
The trial court denied the motion to restrict reference to the convictions. The court noted " [t]he gravamen of the New [64 Va.App. 605] York offense is substantially similar [to the Virginia code section]." The court reasoned that it didn't " know of any two statutes that could be any more substantially similar [because t]hey both make the sale of a controlled substance a felony offense." Therefore, the
court denied the motion and found " the statute[s] of New York [are] substantially similar to the statute in Virginia."
Consequently, the convictions were admitted during the guilt phase of the trial. The jury found Mason guilty of possession with intent to distribute, third or subsequent offense. Mason filed a post-conviction motion to set aside the jury's verdict on the basis that the New York statutes were not substantially similar to Code § 18.2-248 and thus were improperly admitted. The court denied Mason's motion. This appeal followed.
A. Standard of Review
" Generally, '[w]e review a circuit court's decision to admit or exclude evidence under an abuse of discretion standard and, on appeal, will not disturb [that] decision . . . absent a finding of abuse of that discretion.'" Dean, 61 Va.App. at 213, 734 S.E.2d at 675 (quoting Herndon v. Commonwealth, 280 Va. 138, 143, 694 S.E.2d 618, 620 (2010)). However, " to the extent admissibility rests upon the interpretation of a statute, that interpretation is a question of law subject to de novo review." Id. (quoting Crawford v. Commonwealth, 281 Va. 84, 97, 704 S.E.2d 107, 115 (2011)). Further, " the determination regarding whether appellant's [prior] conviction is 'substantially similar' to the offense proscribed by Code ...