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Maust v. Commonwealth, Record No. 0505-21-4 (Va. Ct. App. May 30, 2023) (en banc)

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May 30, 2023

By: Juli M. Porto

Virginia Appellate Law Blog

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In a seesaw of a case, the Court of Appeals sitting en banc reverses a split panel opinion, which itself had reversed the trial court judgment.


Facts. Teresa Mary Maust was convicted of distribution of three oxymorphone pills after a controlled buy. A detective used a confidential informant to buy the pills from Maust. He searched the informant and the informant’s car at a staging area before the buy, and after finding no contraband, gave him $320 in marked bills and an audio recording device. The informant died before he could testify to the buy at trial.

Though the detective did not recall the informant having a companion, during the informant’s drive to and from Maust’s house, an unidentified woman’s voice can be heard conversing with him on the audio recording. After entering Maust’s house, the informant could be heard exchanging greetings with Maust and discussing kitchen appliances that she wanted to sell him for $1,000. Maust could be heard accepting $270 in cash from the informant. Another unidentified woman’s voice could be heard in the recording, which Maust claimed was a woman who lived with her. The informant returned to the staging area where the detective searched him and his car again. The informant no longer had the buy money but had $16 in cash and three oxymorphone pills.

The next day, the detective searched Maust’s house where he found pills, drug paraphernalia, large amounts of cash in a safe, an “owe sheet” (used by dealers to keep track of drugs supplied on credit), and $270 of the $320 he had provided to the informant for the buy. When confronted, Maust told the detective that she had a prescription for oxymorphone, and that others stole her pills and sold them from her house. She said that she took cash from the informant because he owed her money, and that her safe was filled with cash because she needed to find a new place to live. She also said that the informant “comes to me when he runs out,” and that he “sells more than I do.”

Maust was found guilty in a bench trial. In support of its decision, the court found that (a) the informant was searched before making the buy and had no contraband on him; (b) the informant was in Maust’s home for about ten minutes, the only substantive conversation that could be heard on the recording was between him and Maust, and it was clear that he gave her money; (c) after the informant left Maust’s home, a second search revealed pills but no buy money; and (d) the buy money was found in Maust’s safe, to which others had only “limited access.”

Maust appealed, arguing that the case against her was circumstantial and that no rational trier of fact could have excluded her hypotheses of innocence: that the informant used the buy money to repay his debt to her, and that either one of the two unidentified females on the recording supplied the pills to him. A panel majority of the Court of Appeals agreed with her, but the Commonwealth was granted a rehearing en banc.


Issue. Whether no trier of fact could have concluded that the evidence reasonably excluded Maust’s theory of innocence.


Holding. The trial court was not plainly wrong in concluding that the evidence was sufficient to support Maust’s conviction. Lapses in surveillance or the presence of other individuals during controlled buys do not render evidence insufficient when a confidential informant fails to testify at trial.


Notes. Evidence that drugs from a controlled purchase came from the defendant may be “purely circumstantial.” When it is, an “unbroken evidentiary chain of necessary circumstances” is required to prove guilt and exclude “any other rational hypothesis.” This “reasonable-hypotheses” principle is another way of stating that guilt must be proven beyond a reasonable doubt, and does not add to that burden.

Here, viewed in the light most favorable to the Commonwealth, the trial court was not wrong to reject Maust’s alternative theories of innocence. In addition to the four articulated factual findings of the trial court, Maust had items consistent with drug distribution in her home, testified inconsistently with her prior statements to the detective, and implied that she did sell pills despite claims to the contrary.


Judges Chaney and Causey dissented from the majority opinion. (They were also the two judges in the panel majority.) They found that “fatal gaps in the chain of evidence” preclude a rational fact-finder from finding that Maust had given the informant the three pills. There was no evidence that police searched the informant’s driving companion, or that they even knew that she was with him during the buy. There were also others present with the informant and Maust in her house. Further, it was not disputed that the informant owed Maust money, and the recording indicated that Maust accepted the cash from the informant as repayment of that debt. In fact, $50 of the $320 given to the informant remained unaccounted for. The dissent concludes that the totality of the circumstantial evidence creates only a “mere suspicion” or “probability” that Maust supplied the pills to the informant, which is insufficient for a finding of guilt.


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