Merritt v. Commonwealth
Merritt v. Commonwealth
Opinion of the Court
UPON A REHEARING EN BANC
A jury convicted Glen Patrick Merritt of possession of ecstasy (MDMA), a Schedule I controlled substance, with intent to distribute, second or subsequent offense, in violation of Code § 18.2-248; transporting ecstasy into the Commonwealth, with intent to distribute, in violation of Code § 18.2-248.01; and conspiracy to possess ecstasy with intent to distribute in violation of Code § 18.2-256. The Commonwealth’s theory was that Merritt served as the “muscle” in an illegal narcotics scheme in which his role was to safeguard the transportation of a large quantity of ecstasy into the Commonwealth. Merritt contends the evidence failed to prove the
I. STANDARD OF REVIEW
“On review of a challenge to its sufficiency, we view the evidence in the light most favorable to the Commonwealth, the party prevailing below, and grant to it all reasonable inferences fairly deducible therefrom.” Nolen v. Commonwealth, 53 Va.App. 593, 595, 673 S.E.2d 920, 921 (2009); see also Barnes v. Commonwealth, 279 Va. 22, 35, 688 S.E.2d 210, 217 (2010). “Sufficiency-of-the-evidence review involves assessment by the courts of whether the evidence adduced at trial could support any rational determination of guilt beyond a reasonable doubt.” United States v. Powell, 469 U.S. 57, 67, 105 S.Ct. 471, 478, 83 L.Ed.2d 461 (1984). See also McMillan v. Commonwealth, 277 Va. 11, 19, 671 S.E.2d 396, 399 (2009); Jones v. Commonwealth, 277 Va. 171, 182, 670 S.E.2d 727, 734 (2009); Clanton v. Commonwealth, 53 Va.App. 561, 566, 673 S.E.2d 904, 906-07 (2009) (en banc).
II. BACKGROUND
On August 6, Virginia Beach police conducted an undercover drug interdiction at a bus depot operated by Today’s Bus, a bus line that conducts nonstop bus trips between the cities of Virginia Beach and New York.
After a short period of time, Merritt began looking into the crowd of passengers departing from the bus. Merritt then turned his attention to a male, later identified as Anthony McDaniels, as McDaniels looked in the luggage compartment.
Sergeant Dimitry instructed Massetti and Biswurm to approach the occupants of the Lexus because he believed they were acting “out of the ordinary for someone just picking somebody up from the bus stop.” As they approached, Massetti observed a plastic baggie corner on the ground underneath the front passenger’s door. According to Massetti and Biswurm, a plastic baggie corner is a common delivery system for street-level narcotics. This plastic baggie corner appeared to be “discarded remains.” Massetti took Sheena back to his van, retrieved a flashlight, and returned to the Lexus. When he returned, McDaniels was seated in the driver’s seat.
After the discovery of the baggie containing ecstasy, Massetti and Biswurm conducted a search of the vehicle. In the trunk, they found a black suitcase containing several items of clothing, a shoebox containing a wallet and a pair of shoes, and a heat-sealed bag containing 998 tablets of ecstasy (MDMA). In the rear passenger’s seat of the vehicle, where Bolton had been sitting, was a Western Union receipt for $125 that was wired from Bolton to Merritt in New York City on August 2. Massetti testified that Western Union is commonly used in the drug industry to transfer money as payment for drugs or services. Also found in the same area was a receipt from the Smoke Shack dated August 5 for the purchase of 842 plastic baggies. According to Massetti, plastic baggies are commonly used for distribution of narcotics, such as ecstasy. Additional
After arresting the four occupants, $1,336 in cash was recovered from Bolton and $1,410 in cash was recovered from McDaniels. The cash was subsequently screened with Sheena, and she alerted to the scent of illegal narcotics on the money. When Massetti and Biswurm examined the call records in the cell phones collected from Merritt, Bolton, and McDaniels, they discovered that Bolton’s cell phone contained the name “G Money” for the cell phone number of one of the phones found on Merritt. Massetti and Biswurm also determined there had been a large number of phone calls received and dialed between these cell phones in the several preceding days.
Upon questioning, Merritt told Massetti he did not know the other occupants of the Lexus well. Merritt said he was walking to his girlfriend’s house when Bolton stopped and offered him a ride. Bolton told Merritt he had to go to the bus depot first and instructed Merritt to get out of the car and walk to the bus when they arrived there. Merritt claimed he did not know why Bolton wanted him to get out of the car or stand at the bus. When Massetti told Merritt the police saw him carry the suitcase across the parking lot,
Massetti, who was trained at the local, state, and federal levels on narcotics distribution, and has worked hundreds of cases involving narcotics distribution as the lead detective, was qualified at trial as an expert in illegal narcotics distribution. Massetti described the roles of individuals in drug distribution schemes and explained the primary dealer “has the money” and “does the distribution portion.” There is generally a “secondary person that is the muscle of the outfit.” Massetti described the secondary person as “usually somebody that is either bigger physically in stature” or armed who protects the money or drugs. The “mules” are the individuals who are paid either by money or a portion of the drugs to retrieve the illegal narcotics and take the risk of bringing the drugs into the Commonwealth. In Massetti’s opinion, Merritt was “an active part [of this drug scheme] as a muscle in the organization.” Massetti explained the Western Union receipt proved Merritt was in New York and received money from Bolton just days before the drugs were transported into the Commonwealth. There were numerous phone calls between Bolton, Merritt, and McDaniels in the days preceding the transaction. Merritt was observed shadowing McDaniels and Spratley after they departed from the bus and wheeled the suitcase containing drugs across the parking lot. Massetti testified that the use of two cell phones is commonly used in the drug industry with one phone for personal use and the other phone for business use. Massetti further stated Merritt’s close proximity to the gun and magazine was consistent with his role as the “muscle.” Massetti considered the designation of “GMNY” in the drug notebook significant because “G Money” was the identifier found in Bolton’s cell phone for the cell phone number of one of the cell phones found in Merritt’s pocket. Massetti testified the fact that Merritt did not have drugs or money on his person was also consistent with his role as the “muscle” since he is the “safety guy,” whose role it is to make sure the drug transaction takes place without someone stealing the drugs or money.
III. ANALYSIS
Merritt argues the evidence was insufficient to sustain his convictions because the Commonwealth’s theory he acted as a “muscle” or “lookout” in this illegal narcotics scheme was merely speculative and without sufficient evidentiary basis. Thus, reasons Merritt, the Commonwealth could not prove “Merritt possessed or had knowledge of the illegal drugs” or that he “participated as an accessory in any illegal drug activity.” We disagree.
A. Evidence to Support Merritt’s Role as “Muscle” or “Lookout ”
Merritt and Bolton arrived at a bus depot known as a major pipeline of narcotics into Virginia Beach in a vehicle
At no time did Merritt acknowledge McDaniels or Spratley while following them in the parking lot thus supporting the reasonable inference that he was not there to meet them and lead them to the vehicle.
In addition to Merritt’s actions at the bus station supporting his role as the “lookout” for this transaction and the phone calls linking him to the other individuals involved in the drug
Moreover, the jury was presented with expert testimony from Detective Massetti, who gave an opinion, unchal
In sum, from this evidence, the jury could reasonably infer Merritt was in New York days before the arrest to arrange the purchase of 1,000 ecstasy pills when he received money from Bolton and served as the “muscle” or “lookout” as the drugs were transported for the purpose of further distribution. We may not “ ‘substitute our judgment for that of the trier of fact,’ ” Wactor v. Commonwealth, 38 Va.App. 375, 380, 564 S.E.2d 160, 162 (2002) (quoting Commonwealth v. Presley, 256 Va. 465, 466, 507 S.E.2d 72, 72 (1998)), nor may we “reweigh the evidence,” Nusbaum v. Berlin, 273 Va. 385, 408, 641 S.E.2d 494, 507 (2007), because we have no authority “to preside de novo over a second trial,” Haskins v. Commonwealth, 44 Va.App. 1, 11, 602 S.E.2d 402, 407 (2004).
B. Sufficiency of Evidence to Support Convictions
Since it was reasonable for the jury to infer from this evidence that Merritt served as the “muscle” or “lookout” in this drug transaction, the jury could rationally find Merritt guilty of aiding and abetting in the possession of ecstasy with
1. Possession With Intent To Distribute
“To convict a defendant of illegal possession of drugs, the Commonwealth must prove that the defendant was aware of the presence and character of the drugs, and that he intentionally and consciously possessed them.” Andrews v. Commonwealth, 216 Va. 179, 182, 217 S.E.2d 812, 814 (1975).
“[P]roof of actual possession is not required; proof of constructive possession will suffice. Constructive possession may be established when there are acts, statements, or conduct of the accused or other facts or circumstances which tend to show that the [accused] was aware of both the presence and character of the substance and that it was subject to his dominion and control.”
Wilson v. Commonwealth, 272 Va. 19, 27, 630 S.E.2d 326, 330 (2006) (quoting Walton v. Commonwealth, 255 Va. 422, 426, 497 S.E.2d 869, 872 (1998)) (internal quotation marks and citation omitted). “Possession ... need not be exclusive, but may instead be joint.” Archer v. Commonwealth, 225 Va. 416, 418, 303 S.E.2d 863, 863 (1983).
The jury was instructed that it could find Merritt guilty as a principal in the second degree. To hold Merritt accountable as a principal in the second degree, the Commonwealth was required to show that Merritt was present, aiding and abetting in the possession of the ecstasy. McGill v. Commonwealth, 24 Va.App. 728, 733, 485 S.E.2d 173, 175 (1997).
A principal in the second degree is one not the perpetrator, but present, aiding and abetting the act done, or keeping watch or guard at some convenient distance. * * * Every
Foster v. Commonwealth, 179 Va. 96, 99, 18 S.E.2d 314, 315-16 (1942) (internal quotation marks and citation omitted); see also Dunn v. Commonwealth, 52 Va.App. 611, 665 S.E.2d 868 (2008) (en banc); Pugliese v. Commonwealth, 16 Va.App. 82, 428 S.E.2d 16 (1993).
Having found Merritt to be the “muscle” or “lookout” in this drug transportation scheme, it was reasonable for the jury to conclude Merritt was aware of the presence and character of the ecstasy and that he aided and abetted his companions in their possession and intent to distribute the ecstasy. His role, as found by the jury, was to be present at the bus depot when McDaniels and Spratley brought the ecstasy off the bus, follow them as they carried the ecstasy to the vehicle, and keep a lookout as the ecstasy was placed in the trunk of the vehicle. As such, the evidence was sufficient to prove Merritt was “present lending countenance, or otherwise aiding” the possession of the drugs with intent to distribute. Muhammad v. Commonwealth, 269 Va. 451, 482, 619 S.E.2d 16, 32 (2005).
2. Transportation into Virginia
To prove Merritt was guilty of transporting ecstasy with the intent to distribute, the Commonwealth was required to prove he transported more than one ounce of ecstasy “into the Commonwealth by any means with intent to sell or distribute [it].” Code § 18.2-248.01. Merritt does not contend that the Commonwealth failed to prove more than one ounce of ecstasy was transported into the Commonwealth with the intent to distribute it, but that the Commonwealth failed to prove his role as “muscle” or “lookout” in this transaction and thus, his participation as an accessory. To hold Merritt accountable as a principal in the second degree, the Commonwealth was required to show that Merritt was present, aiding and abetting in the transportation of the ecstasy with the intent to distrib
3. Conspiracy to Distribute
To prove a conspiracy, the Commonwealth was required to show “ ‘an agreement between two or more persons by some concerted action to commit [possession of ecstasy with intent to distribute].’ ” Wright v. Commonwealth, 224 Va. 502, 506, 297 S.E.2d 711, 713 (1982) (quoting Falden v. Commonwealth, 167 Va. 542, 544, 189 S.E. 326, 327 (1937)); Williams v. Commonwealth, 53 Va.App. 50, 59-60, 669 S.E.2d 354, 358 (2008). “Because most conspiracies are ‘clandestine in nature,’ 2 Wayne R. LaFave, Substantive Criminal Law § 12.2(a), at 266 (2d ed. 2003), by ‘the very nature of the offense, it often may be established only by indirect and circumstantial evidence,’ Wright, 224 Va. at 505, 297 S.E.2d at 713.” James v. Commonwealth, 53 Va.App. 671, 678, 674 S.E.2d 571, 575 (2009) (internal quotation marks omitted).
The jury found Merritt was the “muscle” or “lookout” in this illegal drug transaction involving the transportation of 998 tablets of ecstasy into the Commonwealth. In so finding, the jury concluded Merritt arrived at the depot to meet the bus arriving from New York for the purpose of providing security as the drugs were removed from the bus and carried to the vehicle. The evidence included phone calls between Merritt,
it has been shown that the defendants “by their acts pursued the same object, one performing - one part and the others performing another part so as to complete it or with a view to its attainment, the [fact finder] will be justified in concluding that they were engaged in a conspiracy to effect that object.”
Charity v. Commonwealth, 49 Va.App. 581, 586, 643 S.E.2d 503, 505 (2007) (emphasis added and citation omitted). Accordingly, we find the jury was justified in concluding that Merritt was engaged in a conspiracy to possess ecstasy with the intent to distribute it.
IV. CONCLUSION
For the foregoing reasons, we affirm the judgment of the trial court.
Affirmed.
. Merritt also contended the trial court erred in denying his motion to suppress evidence. However, counsel for Merritt conceded at oral argument before the panel that the suppression issue was not preserved and not properly before this Court. See Rule 5A:18; Lenz v. Commonwealth, 261 Va. 451, 463, 544 S.E.2d 299, 306 (2001) (failure to request ruling on pretrial motion waives issue on appeal).
. A drug interdiction is the process whereby police stop the illegal flow of narcotics into the Commonwealth from outside sources. This bus depot had been identified by Virginia Beach police as a major pipeline of large quantities of narcotics entering into Virginia Beach from New
. Sheena did not "alert” on any illegal narcotics in the luggage compartment.
. According to Detective Biswurm, Merritt followed behind McDaniels and Spratley staying fifteen to twenty feet behind them.
. Dimitry explained they typically place officers on foot to act like they are talking on their cell phones to act disinterested in what is going on around them. Those officers will shadow the undercover officer buying drugs to provide cover and ensure the safety of the operation is not compromised.
. It was established at trial that McDaniels was the owner of the Lexus.
. The juiy was shown the gun and magazine during Detective Massetti’s testimony.
. Although the bus depot is actually located in Virginia Beach, the discrepancy between the location identified on the tickets and the actual location of the bus depot was not addressed by the parties and is not relevant to the issues on appeal.
. Massetti testified that he knew McDaniels had the suitcase but he made this remark "for checks and balances” purposes in his questioning.
. Merritt’s explanation to Massetti that he was instructed by Bolton to get out of the car and walk to the bus upon their arrival, without giving him any reason for doing so, was understandably rejected by the jury as not credible.
. Due to the uncontested evidence that the quantity of ecstasy was inconsistent with personal use, Merritt does not argue that the Commonwealth failed to prove the drugs were possessed with the intent to distribute, rather that they were not possessed by him.
Dissenting Opinion
with whom ELDER and ALSTON, JJ. join, dissenting.
I agree with the majority’s general proposition that if Glen Patrick Merritt (“Merritt”) was the “muscle” or “enforcer” for the drug dealers he associated with in this case, the evidence might arguably be sufficient to support the conclusion that he was aiding and abetting in the possession with the intent to
Simply being present when a crime occurs does not subject one to criminal liability. The gravamen of being a principal in the second degree to the criminal acts of others is either actually or constructively aiding and abetting in the commission of the crime. Muhammad v. Commonwealth, 269 Va. 451, 482, 619 S.E.2d 16, 32-33 (2005) (“ ‘A principal in the second degree, or an aider or abettor as he is sometimes termed, is one who is present, actually or constructively, assisting the perpetrator in the commission of the crime.... The test is whether or not he was encouraging, inciting, or in some manner offering aid in the commission of the crime. If he was present lending countenance, or otherwise aiding while another did the act, he is an aider and abettor or principal in the second degree.’ ” (quoting Jones v. Commonwealth, 208 Va. 370, 372-73, 157 S.E.2d 907, 909 (1967))). The majority holds that a reasonable jury could infer from both circumstantial and direct evidence that Merritt aided in the commission of these crimes by being the “enforcer” or the “muscle” in the drug transaction. However, the record in this case is bereft of any circumstantial or direct evidence that would support a fact finder’s rational conclusion, without resorting to speculation, that Merritt provided any such assistance by protecting McDaniels and Spratley who possessed and transported the drugs in the suitcase and that he conspired to distribute the drugs. While a fact finder is entitled to draw reasonable inferences from proven facts, “all circumstances proved must
The evidence fails to show that Merritt meets the physical description provided by either expert witness regarding requisite physical attributes of an “enforcer” or “muscle” of a criminal group. There is no evidence in the record that Merritt was bigger than average physically, nor is there any evidence regarding the stature of the other individuals in the drug transaction from which a jury could reasonably conclude that Merritt was clearly the “muscle” due to his physique. In addition, there is no evidence that he was armed with a firearm or other weapon suitable either for protecting his associates or for “chas[ing] down” payments from recalcitrant consumers during the time in question. The only weapon
It is certainly a possibility that Merritt was involved as a principal in the illegal activities of his associates but that possibility is legally insufficient for a conviction, and neither is guilt by association a substitute for evidence that establishes involvement in a criminal enterprise beyond a reasonable doubt. Even viewing the facts contained in this record in the light most favorable to the Commonwealth, without resorting to the sheerest compound speculation, the evidence does not lead only to the logical inference that Merritt was there to protect Bolton, McDaniels, Spratley, and the ecstasy. Merritt arrived at the bus depot with Bolton, got out of the vehicle, and stood at various positions in the parking lot while holding a cell phone to his ear without talking into it or changing facial expressions. During his sojourn in the parking lot, Merritt remained attentive, and continuously scanned the parking lot, and, according to the officers, followed and shadowed McDaniels and Spratley. The officers testified that Merritt’s actions
Merritt then walked fifteen to thirty feet behind McDaniels and Spratley as they walked towards the Lexus, thus turning his back to the bus and those standing around it. When they loaded the suitcase into the trunk, Merritt stood a short distance behind the vehicle and continued to scan the parking lot. Merritt never acknowledged McDaniels and Spratley, nor did he touch the suitcase containing the drugs. After everyone entered the vehicle, Merritt returned to the passenger seat. In looking at Merritt’s actions during his time in the parking lot, while it is certainly reasonable to suspect Merritt’s involvement in his associates’ activities, the evidence simply does not rise to the level of circumstantially demonstrating beyond a reasonable doubt that Merritt aided and abetted his companions as the “muscle” or “lookout” of the group.
In addition, there is no direct evidence linking Merritt to the actual drug transaction. The only direct evidence regarding Merritt is the Western Union receipt noting that Bolton sent him $125 in New York City a few days prior to the date in question. While Fowler testified as an expert as to various possible reasons for the money, Fowler admitted that he ultimately had no idea what it was for. All the other evidence is purely circumstantial in nature, and even in its totality, does not exclude all reasonable conclusions inconsistent with guilt. With regard to the cell phones, the record merely reflects that there were phone calls made between the phones found on Merritt and McDaniels and Bolton, but it does not establish to whom the phone numbers were registered or what the phone calls were regarding. In addition, the fact that the number of one of the cell phones found on Merritt is designated as “G Money” in Bolton’s phone provides nothing more than a postulation that Bolton actually referred to Merritt by that alias in any interaction with him. Further, the lack of evidence regarding the notation “GMNY 1000” in the notebook does nothing except provide a vehicle for the speculation engaged in by the majority as to what that reference means.
While the location and condition of the plastic baggie corner was consistent with it having recently fallen out of the vehicle’s passenger door, the record is devoid of any evidence that the only logical inference is that the baggie was in Merritt’s possession before it fell out of the car. The plastic baggie corner was, according to Fowler’s testimony regarding the packaging of drugs, consistent with drugs packaged for personal use, and no latent fingerprints were obtained from it linking it to Merritt. In addition, there is no evidence regarding the owner of the drug notebook found in the back seat by Bolton. Neither the four bus tickets for transportation between Norfolk and New York nor the receipt for the large number of baggies found in the back seat contain any indication of who made the purchases.
The majority contends, “the only logical inference from this evidence is that Merritt was acting as a lookout while McDaniels and Spratley transported the drugs through the parking lot.” Yet, while it may be logical to suspect Merritt’s involvement, that is not the only logical inference supported by the evidence in this record. If we resist the temptation to speculate and just consider whether the evidence points inexorably toward guilt, two conclusions quickly emerge. First, as “enforcers” go, Merritt would not have been able to provide much in the way of protection because the only weapon found on him was the small penknife in his belt, he was walking fifteen to thirty feet behind McDaniels and Spratley with his back to the bus and the rest of the parking lot, and he proceeded to stand behind the vehicle several feet away from where the gun and its separate magazine were located in the glove compartment and center console of the vehicle while the others loaded the suitcase into the trunk. Second, the Western Union receipt merely shows that Merritt was in New York days before the arrest and that he received only $125 — a sum that hardly seems consistent with payment for involvement in a major
Because I would hold that the evidence presented was not sufficient to negate every reasonable hypothesis consistent with innocence, I would hold that the trial court erred in letting the jury determine whether Merritt was guilty of aiding and abetting in the possession of ecstasy with the intent to distribute, transportation of ecstasy with intent to distribute, and conspiracy to distribute ecstasy. Thus, I would reverse the convictions and dismiss the indictment.
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