Jennifer Jo Broadous v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
PUBLISHED
Present: Judges Humphreys, Beales and O’Brien
Argued at Norfolk, Virginia
JENNIFER JO BROADOUS
OPINION BY
v. Record No. 0169-16-1 JUDGE ROBERT J. HUMPHREYS
FEBRUARY 7, 2017
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.
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.
1
After adding one additional fact in open court, the Commonwealth agreed that the
“Background” section of Broadous’ brief given to the circuit court in support of the application
of the affirmative defense provided in Code § 18.2-251.03 was an accurate stipulation of facts.
2
One syringe containing red liquid and one spoon with used cotton and residue were sent
to the Department of Forensic Science for analysis. The syringe was not tested; however, the
spoon tested positive for Fentanyl, a Schedule II narcotic.
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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. Standard of Review
This appeal presents a question of statutory interpretation which this Court reviews de
novo. Jones v. Commonwealth, 64 Va. App. 361, 366, 768 S.E.2d 270, 272 (2015). “While we
view the facts in the light most favorable to the prevailing party below, in this instance, the
Commonwealth, we will nonetheless review de novo the scope and application of the statute
under which the defendant was convicted.” Blake v. Commonwealth, 288 Va. 375, 381, 764
S.E.2d 105, 107 (2014) (citations omitted).
B. Code § 18.2-251.03 is not Ambiguous
Code § 18.2-251.03 became effective July 1, 2015. As such, it has not previously been
interpreted and is a matter of first impression in the Commonwealth. Pursuant to Code
§ 18.2-251.03(B),
[i]t shall be an affirmative defense to prosecution of an individual
for the . . . possession of a controlled substance pursuant to
§ 18.2-250 . . . if:
1. Such individual, in good faith, seeks or obtains emergency
medical attention for himself, if he is experiencing an overdose, or
for another individual, if such other individual is experiencing an
overdose, by contemporaneously reporting such overdose . . . ;
2. Such individual remains at the scene of the overdose or at any
alternative location to which he or the person requiring emergency
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medical attention has been transported until a law-enforcement
officer responds to the report of an overdose . . . ;
3. Such individual identifies himself to the law-enforcement
officer who responds to the report of the overdose;
4. If requested by a law-enforcement officer, such individual
substantially cooperates in any investigation of any criminal
offense reasonably related to the controlled substance . . . that
resulted in the overdose; and
5. The evidence for the prosecution of an offense enumerated in
this subsection was obtained as a result of the individual seeking or
obtaining emergency medical attention.
(Emphasis added.)
“When construing a statute, our primary objective is to ascertain and give effect to
legislative intent, as expressed by the language used in the statute.” Blake, 288 Va. at 381, 764
S.E.2d at 107 (quoting Cuccinelli v. Rector & Visitors of the Univ. of Va., 283 Va. 420, 425, 722
S.E.2d 626, 629 (2012)). Therefore, under basic rules of statutory construction, we consider the
language of Code § 18.2-251.03 to determine the General Assembly’s intent from the words
contained in the statute. Woods v. Mendez, 265 Va. 68, 74, 574 S.E.2d 263, 266 (2003). The
General Assembly’s “intent is usually self-evident from the words used in the statute.” Boynton,
271 Va. at 227, 663 S.E.2d at 925-26. “To best ascertain that intent, ‘[w]hen the language of a
statute is unambiguous, we are bound by the plain meaning of that language.’” Blake, 288 Va. at
381, 764 S.E.2d at 107 (quoting Kozmina v. Commonwealth, 281 Va. 347, 349, 706 S.E.2d 860,
862 (2011)). In order “[t]o determine whether language is ambiguous, we must consider whether
the text can be understood in more than one way or refers to two or more things simultaneously
or whether the language is difficult to comprehend, is of doubtful import, or lacks clearness or
definiteness.” Karr v. Va. Dep’t of Envtl. Quality, 66 Va. App. 507, 522-23, 789 S.E.2d 121,
129 (2016) (quoting Blake, 288 Va. at 381, 764 S.E.2d at 107). Finally, appellate courts read the
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statute “in its entirety, rather than by isolating particular words or phrases.” Shelor Motor Co. v.
Miller, 261 Va. 473, 479, 544 S.E.2d 345, 348 (2001).
Read in its entirety, Code § 18.2-251.03 provides an affirmative defense to prosecution of
an individual for the unlawful possession of a controlled substance if that individual satisfies
each of the following six requirements:
1) seeks or obtains emergency medical attention for himself, if he is experiencing an
overdose, or for another individual, if such other individual is experiencing an overdose;3
2) contemporaneously reports such overdose;
3) remains at the scene until a law-enforcement officer responds;
4) identifies himself to the responding law-enforcement officer;
5) if requested by a law-enforcement officer, the individual substantially cooperates in
any investigation of any criminal offense reasonably related to the controlled substance that
resulted in the overdose; and
6) the evidence for the individual prosecution was obtained because the individual
sought or obtained emergency medical attention.
The contention in this appeal solely revolves around the interpretation of the phrase
“seeks or obtains” contained within Code § 18.2-251.03(B)(1). On brief, Broadous concedes
that she did not “seek” emergency medical attention. Instead, her sole contention is that the
phrase “seeks or obtains” is disjunctive, thus she is included in the class of protected individuals
for the affirmative defense because she was an individual that “obtained” emergency medical
attention for an overdose.
3
Code § 18.2-251.03(A) defines overdose as “a life-threatening condition resulting from
the consumption or use of a controlled substance, alcohol, or any combination of such
substances.”
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Broadous argues that the word “obtains” should not be interpreted to require a volitional
act. Rather, Broadous argues that the word “obtains” simply means “to get possession of
something.” Thus, under Broadous’ approach, because an individual need not be active or
conscious to obtain medical treatment or services, any person who receives treatment either
because the emergency responders discovered the individual first or because another individual
has sought treatment on their behalf, would have an affirmative defense to successful prosecution
provided by Code § 18.2-251.03. Therefore, Broadous reasons that because she “obtained”
medical treatment when she received it, she has a complete defense to conviction for possession
of a controlled substance.
In examining the statute as a whole, we disagree with this interpretation and hold that the
term “obtains” is unambiguous because the text of Code § 18.2-251.03 cannot be understood in
more than one way. In context, it is clear that “obtains” does not refer to two or more things
simultaneously. Moreover, the language is not difficult to comprehend, of doubtful import, or
lacking clarity, thus we are bound by its plain meaning. See Blake, 288 Va. at 381, 764 S.E.2d at
107.
The context in which they are used in Code § 18.2-251.03 makes it clear that the words
“seek” and “obtain” are active verbs that require more than passive receipt of emergency medical
attention. A common dictionary definition of the word “obtain” is “to gain or attain possession
or disposal of usually by some planned action or method.” Webster’s Third New International
Dictionary 1559 (1993).4
4
Our Supreme Court has previously defined the word “seek” as “to go in search of: look
for: search for: . . . to try to acquire or gain: aim at: . . . to make an attempt.” Charlottesville v.
Cty. of Albemarle, 214 Va. 365, 367, 200 S.E.2d 551, 553 (1973) (superseded by statute on other
grounds as recognized in Allfirst Trust Co., N.A. v. County of Loudoun, 268 Va. 428, 434, 601
S.E.2d 612, 615 (2004)).
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The clear purpose of the statute is to provide what amounts to a “safe harbor” from
prosecution to encourage the provision of prompt emergency medical treatment to those who
have suffered an overdose as a result of ingesting a controlled substance. The General Assembly
has obviously made a policy determination that encouraging others, who may themselves be
guilty of violating the laws involving controlled substances, to call 911 in an effort to save a life
is more important than their prosecution. We therefore hold that pursuant to the plain meaning
of the phrase “obtains emergency medical attention for himself,” Broadous was required to have
actively planned and taken steps to actually gain medical treatment. Simply benefiting from
such treatment while unconscious is not sufficient to bring her within the ambit of the affirmative
defense provided by Code § 18.2-251.03. Therefore, we hold that the intent of Code
§ 18.2-251.03 does not provide an affirmative defense to prosecution to an individual who
passively receives emergency medical attention.
Moreover, we conclude that, based upon the words the General Assembly chose to
employ, the statute does not extend the affirmative defense protection to another individual who
merely receives emergency medical attention because someone else reported the overdose. If
such were the General Assembly’s intent, every person who overdosed on a controlled substance
while on a public sidewalk and who received medical care, simply because an anonymous
passerby called 911, would be protected from prosecution by this statute. This cannot be the
intent of the General Assembly because it would give no meaning to the remainder of the
sentence “for himself, if he is experiencing an overdose, or for another individual, if such other
individual is experiencing an overdose, by contemporaneously reporting such overdose.” If the
legislature intended that the statute be construed in the manner Broadous suggests, it could have
simply ended the sentence at “such individual, in good faith, seeks or obtains emergency medical
attention,” but it did not.
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Finally, as of the date of this opinion, slightly more than half of our sister states have
enacted statutory “safe harbor” protection for overdose reporters. National Conference of State
Legislatures, http://www.ncsl.org/research/civil-and-criminal-justice/drug-overdose-immunity-
good-samaritan-laws.aspx. (last visited Nov. 2, 2016). State legislatures that chose to extend
protection to the overdose victim who passively receives aid have done so expressly. For
example, Ohio defines “qualified individual” as a “person acting in good faith who seeks or
obtains medical assistance for another person who is experiencing a drug overdose, or a person
who is the subject of another person seeking or obtaining medical assistance for that overdose.”
Ohio Code § 2925.11(B)(2)(a)(viii) (emphasis added). This third category is absent from
Virginia’s statute presumably because our legislature made a policy decision not to include it.
Because “[c]ourts cannot add language to the statute the General Assembly has not seen fit to
include,” we will not second guess that policy decision by expanding an affirmative defense in
Code § 18.2-251.03 beyond that specifically contemplated by the General Assembly. Moreno v.
Commonwealth, 65 Va. App. 121, 125, 775 S.E.2d 422, 424 (2015) (quoting Washington v.
Commonwealth, 272 Va. 449, 459, 634 S.E.2d 310, 316 (2006)).
In sum, we hold that a plain reading of Code § 18.2-251.03, in its entirety, provides an
affirmative defense only to the individual making the emergency report. Here, viewing the
evidence in the light most favorable to the Commonwealth, that individual was Broadous’
boyfriend, Green. Thus, we conclude that Code § 18.2-251.03(B)(1) does not extend an
affirmative defense to Broadous.
For these reasons, we affirm the decision of the circuit court that the affirmative defense
provided by Code § 18.2-251.03 does not apply in this case, and we affirm Broadous’ conviction
pursuant to Code § 18.2-250.
Affirmed.
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