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Broadous v. Commonwealth

Court of Appeals of Virginia

February 7, 2017

JENNIFER JO BROADOUS
v.
COMMONWEALTH OF VIRGINIA

         FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE John W. Brown, Judge

          Erik A. Mussoni, Assistant Public Defender, for appellant.

          Elizabeth Kiernan Fitzgerald, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

          Present: Judges Humphreys, Beales and O'Brien Argued at Norfolk, Virginia.

          OPINION

          ROBERT J. HUMPHREYS JUDGE.

         Jennifer Jo Broadous ("Broadous") appeals the January 13, 2016 decision of the Circuit Court of the City of Chesapeake (the "circuit court") convicting her of one count of possession of Schedule I/II controlled substance, in violation of Code § 18.2-250. Broadous' single assignment of error is that the circuit court erred by denying her motion to apply the affirmative defense afforded by Code § 18.2-251.03.

         I. Background

         On September 1, 2015, a grand jury of the City of Chesapeake issued an indictment against Broadous stating that "on or about April 3, 2015 [Broadous] did knowingly and intentionally possess a controlled substance listed in Schedule I or Schedule II of the Drug Control Act, namely: Fentanyl, in violation of [Code] § 18.2-250." On September 17, 2015, Broadous pleaded not guilty and requested a bench trial. The facts were stipulated before the circuit court. [1]

         On April 3, 2015, Broadous and her boyfriend, William Green ("Green"), were in a motel room in Chesapeake, Virginia. Green called 911 for assistance because Broadous was unconscious and non-responsive after injecting herself with Fentanyl, a Schedule II narcotic.[2]

         An emergency medical team responded to the motel room and revived Broadous. Once conscious, Broadous identified herself to the emergency personnel and remained at the scene until she was transported to the hospital. She made the following statements to law enforcement officers: 1) she admitted to have recently used the syringe found on a sink, that she used what she believed to be two caps of heroin, and admitted to owning a "drug kit" found in the motel room; 2) she was unsure if any other drugs were in the motel room; 3) she consented to a search of the motel room and; 4) when asked where she received the drugs she responded that she did not recall.

         On September 17, 2015, Broadous made a motion before the circuit court to apply the affirmative defense provided in Code § 18.2-251.03 for those who "seek or obtain" emergency medical treatment for a drug overdose. The circuit court took Broadous' motion under advisement. On September 29, 2015, the circuit court denied Broadous' motion and ruled that she was not entitled to rely on the statutory affirmative defense provided in Code § 18.2-251.03 because the statutory language was not ambiguous and did not apply to her because she neither sought nor obtained medical treatment on her own behalf. Citing Boynton v. Kilgore, 271 Va. 220, 227, 623 S.E.2d 922, 925-26 (2006), the circuit court stated that there was "no need to look beyond the plain meaning of the words employed by the legislature." Additionally, the circuit court rejected Broadous' argument that she obtained emergency medical treatment by agreeing to be transported once she was revived.

         On January 13, 2016, Broadous was sentenced to five years' imprisonment with four years' and six months suspended.

         II. Analysis

         A. ...


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