                                          COURT OF APPEALS OF VIRGINIA


            Present: Chief Judge Huff, Judges Petty and McCullough
PUBLISHED


            Argued by teleconference


            CURTIS LEE MASON
                                                                                 OPINION BY
            v.     Record No. 0678-14-3                                     JUDGE WILLIAM G. PETTY
                                                                                 APRIL 14, 2015
            COMMONWEALTH OF VIRGINIA


                            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.


                   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.”1 We agree in part and disagree in part. Thus, we

            reverse Mason’s conviction and remand for a new trial.




                   1
                       Mason presented a second assignment of error alleging the trial court erred in denying
            his “motion to set aside the jury verdict based on the failure of the Commonwealth to prove that
            the New [York] convictions were substantially similar to the Virginia statute for third or
            subsequent purposes.” His argument in support of this assignment of error simply referenced the
            argument he made supporting the first assignment of error. Accordingly, we consider this to
            simply reference an additional method by which his first assignment of error was preserved in
            the trial court.
                                        I. BACKGROUND

       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 of a controlled substance 3rd degree PL 110-220.39 01” (hereinafter

“NY PL § 220.39(1)”)2 on July 18, 1988; (2) “attempted criminal sale of a controlled substance

5th degree PL 110-220.31 00 ” (hereinafter “NY 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 NY 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


       2
          In Mason’s opening brief, he refers only to the language of NY PL § 220.39(1). See
Appellant’s Br. at 6. Likewise, in its brief, the Commonwealth stated that “Mason was convicted
of violating subsection ‘01’ of Penal Law § 220.39. Subsection 1 of that statute prohibits the
sale of a narcotic drug.” See Appellee’s Br. at 20. Adopting the argument presented by both
parties, and viewing the facts in the light most favorable to the Commonwealth, we conclude that
the statute referred to in the order of conviction is NY PL § 220.39(1). Where the record of
appellant’s conviction includes a reference to the specific provision of the other state’s statute he
violated, we analyze only that provision in determining substantial similarity. Dillsworth v.
Commonwealth, 62 Va. App. 93, 99, 741 S.E.2d 818, 821(2013).


                                                -2-
opinion by New York’s highest court, which Mason contended establishes that a person could be

convicted under NY PL § 220.31 and NY 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 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.

                                           II. ANALYSIS

                                     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 § [18.2-248] is a question

                                                 -3-
of law, and we review the trial court’s judgment on this question de novo.” Dillsworth, 62

Va. App. at 96, 741 S.E.2d at 819.

                                        B. CODE § 18.2-248

       The Code of Virginia allows for enhanced or mandatory minimum punishments for some

offenses upon the defendant’s subsequent conviction(s) of the same or other designated offenses.

Many of these provisions include as prior convictions those offenses committed under

“substantially similar” statutes in other states.3 Appellate courts in Virginia have analyzed

“substantially similar” in the context of several of these statutes,4 but until now have not

addressed what is a substantially similar offense in the context of Code § 18.2-248.

       “‘The proper course [in this case as in all cases of statutory construction] is to search out

and follow the true intent of the legislature, and to adopt that sense of the words which

harmonizes best with the context, and promotes in the fullest manner the apparent policy and

objects of the legislature.’” Johnson v. Commonwealth, 53 Va. App. 608, 611, 674 S.E.2d 541,

542 (2009) (alteration in original) (quoting Colbert v. Commonwealth, 47 Va. App. 390, 395-96,

624 S.E.2d 108, 111 (2006)). “The object of all interpretation and construction of statutes is to

ascertain and carry out the intention of the lawmakers, and when the intention is ascertained it

must always govern.” Kirkpatrick v. Board of Sup’rs, 146 Va. 113, 125, 136 S.E. 186, 190

       3
         See, e.g., Code §§ 18.2-46.1 (defining “predicate criminal act” to include “any
substantially similar offense under the laws of another state”); 18.2-67.5:2 (defining “prior
convictions” for purposes of enhanced sentencing to include “convictions for felonies under the
laws of any state or the United States that are substantially similar to those listed in [the prior]
subsection”); 18.2-270 (allowing convictions under “substantially similar laws of any other state
or the United States” when determining number of convictions for “subsequent offense”
purposes).
       4
         See, e.g., Shinault v. Commonwealth, 228 Va. 269, 321 S.E.2d 652 (1984) (Code
§ 18.2-270); Dillsworth, 62 Va. App. 93, 741 S.E.2d 818 (Code § 18.2-308.2); Dean, 61
Va. App. 209, 734 S.E.2d 673 (Code § 19.2-297.1); Johnson v. Commonwealth, 53 Va. App.
608, 674 S.E.2d 541 (2009) (Code § 18.2-472.1); Cox v. Commonwealth, 13 Va. App. 328, 411
S.E.2d 444 (1991) (Code § 18.2-266).

                                                -4-
(1926). The intent of the legislature “is usually self-evident from the statutory language.”

Johnson, 53 Va. App. at 613, 674 S.E.2d at 543. “Furthermore, it is our ‘duty . . . to interpret the

several parts of a statute as a consistent and harmonious whole so as to effectuate the legislative

goal.’ Thus, we ‘will look to the whole body of [a statute] to determine the true intention of each

part.’” Gordon v. Ford Motor Co., 53 Va. App. 616, 622, 674 S.E.2d 545, 547-48 (2009)

(alterations in original) (quoting Oraee v. Breeding, 270 Va. 488, 498, 621 S.E.2d 48, 52 (2005))

(internal citation omitted).

       Code § 18.2-248(A) provides that “it shall be unlawful for any person to manufacture,

sell, give, distribute, or possess with intent to manufacture, sell, give or distribute a controlled

substance or an imitation controlled substance.” Subsection (C) of the statute sets out the

punishment for “any person who violates this section with respect to a controlled substance

classified in Schedule I or II[.]” Therefore, when the Commonwealth seeks to impose the

punishment set out in subsection (C), it must show both that the defendant committed conduct

prohibited by subsection (A)5 and that the substance involved was classified in Schedule I or II.

       Code § 18.2-248(C) also provides for mandatory minimum punishment for subsequent

offenses in violation of the same subsection. Specifically, as applicable here,

                       When a person is convicted of a third or subsequent offense
               under this subsection and it is alleged in the warrant, indictment or
               information that he has been before convicted of two or more such
               offenses or of substantially similar offenses in any other
               jurisdiction which offenses would be felonies if committed in the
               Commonwealth [a mandatory minimum punishment must be
               rendered].




       5
         Mason did not raise, at trial or on appeal, the question of whether a conviction for
attempt qualifies as a prior conviction for purposes of subsection (C). We therefore do not
address that question here.


                                                 -5-
Code § 18.2-248(C) (emphasis added).6 The plain language of the statute indicates the

legislature intended that “substantially similar offenses” would be treated the same as qualifying

convictions for offenses committed in the Commonwealth. See Johnson, 53 Va. App. at 612,

674 S.E.2d at 543 (“When interpreting a statute, courts ‘are required to ascertain and give effect

to the intention of the legislature, which is usually self-evident from the statutory language.’”

(quoting Va. Polytechnic Inst. & State Univ. v. Interactive Return Serv., 271 Va. 304, 309, 626

S.E.2d 436, 438 (2006))).

       The legislature did not define the phrase “substantially similar.” However, in the context

of determining if another state’s statute is substantially similar to a code section, this Court has

previously “establish[ed] that two things are ‘substantially similar’ if they have common core

characteristics or are largely alike in substance or essentials.” Johnson, 53 Va. App. at 613, 674

S.E.2d at 543.

       Thus, our goal is to “follow the true intent of the legislature,” id. at 611, 674 S.E.2d at

543, by including those convictions from other jurisdictions that the General Assembly has

authorized, and no others. Simply put, to be substantially similar, and therefore admissible for

the purposes of establishing a third or subsequent offense, the offense from another jurisdiction

must be for conduct that would be a violation of Code § 18.2-248(A) and the substance at issue

in the other state’s conviction must be classified in Schedule I or II in Virginia.

                              C. MASON’S NEW YORK CONVICTIONS

        It is well established that “the Commonwealth bears the burden of proving an out of state

conviction was obtained under laws substantially similar to those of the Commonwealth. If the


       6
          Code § 18.2-248(C1) (dealing with methamphetamine) and Code § 18.2-248.1 (dealing
with marijuana) contain the same language regarding substantially similar offenses from other
jurisdictions.


                                                 -6-
Commonwealth shows substantial similarity, the burden shifts to the defendant to produce

‘evidence of dissimilarity.’” Dean, 61 Va. App. at 214, 734 S.E.2d at 676 (citation omitted)

(quoting Rufty v. Commonwealth, 221 Va. 836, 839, 275 S.E.2d 584, 586 (1981)). Dissimilarity

may be shown, for example, if “under the Virginia statute, one would not necessarily be found

guilty of an offense even though having been found to have committed the same act.” Cox v.

Commonwealth, 13 Va. App. 328, 330, 411 S.E.2d 444, 446 (1991). In other words, the statutes

are not substantially similar “if a person may be convicted of an offense under another

jurisdiction’s statute for conduct which might not result in a conviction under [the code section at

issue].” Id. In Cox, we reasoned that “[i]f a conviction in another state is based on conduct

which is not a violation of [the Virginia Code], then to consider it under [a subsequent offense

statute] would, without authority, expand the scope of the convictions which could be considered

beyond that which the General Assembly specifically authorized.” Id.

                                    1. The Text of the Statutes

       To meet its initial burden of showing that Mason’s New York convictions were for

offenses that were substantially similar to the prohibited conduct in Code § 18.2-248(C), the

Commonwealth relied on the plain text of the statutes.7

       According to NY PL § 220.31, “A person is guilty of criminal sale of a controlled

substance in the fifth degree when he knowingly and unlawfully sells a controlled substance.”

Similarly, NY PL § 220.39(1) provides, in relevant part, “A person is guilty of criminal sale of a

controlled substance in the third degree when he knowingly and unlawfully sells: 1. a narcotic

drug[.]”

       7
         The Commonwealth provided to the trial court a copy of the current version of the New
York statutes. The Commonwealth did not assert that the language of the statutes is the same
today as when Mason was convicted in 1988, 1992, and 2000 respectively. However, because
Mason did not raise this issue, we do not address it here.


                                               -7-
       Code § 18.2-248(A) states that “it shall be unlawful for any person to manufacture, sell,

give, distribute, or possess with intent to manufacture, sell, give or distribute a controlled

substance or an imitation controlled substance.”

       The Commonwealth argued to the trial court that the similarity in language between the

New York statutes and Code § 18.2-248(A) makes the statutes substantially similar. The trial

court reasoned that the “gravamen” of the New York statutes was substantially similar to Code

§ 18.2-248(A). The court concluded, “Clearly, both statutes in this context—I don’t know of any

two statutes that could be any more substantially similar [to Code § 18.2-248(A)]. They both

make the sale of a controlled substance a felony offense.” We agree. Under the facts of this

case, the Commonwealth established substantial similarity between Code § 18.2-248(A) and the

New York statutes. Looking at the plain language of the New York statutes and of Code

§ 18.2-248(A), it is apparent that they both prohibit the same conduct. Both statutes make it

unlawful to sell certain controlled substances. Furthermore, no appellate court in Virginia has

construed our statute in a way that would limit the plain meaning of the word “sell.” Thus, the

New York statutes and Code § 18.2-248(A) “have common core characteristics or are largely

alike in substance or essentials.” Johnson, 53 Va. App. at 61, 674 S.E.2d at 543.

       However, that does not end our analysis. For a prior conviction to be admissible for

purposes of proving a subsequent conviction under Code §18.2-248(C), the plain language of the

subsection requires the Commonwealth to show both that the conviction was for a “substantially

similar offense in [the] other jurisdiction” and that the violation was “with respect to a controlled

substance classified in Schedule I or II.”




                                                 -8-
                                2. New York Penal Law § 220.31

       The Commonwealth failed to present to the trial court any evidence that the substances

involved in Mason’s NY PL § 220.31 convictions are classified in Schedule I or II in Virginia.8

Under New York law, a “controlled substance” is defined in NY Public Health § 3302 as a

substance “listed in section thirty-three hundred six of this chapter.” In turn, NY Public Health

§ 3306 provides “five schedules of controlled substances, to be known as schedules I, II, III, IV

and V respectively.” Consequently, Mason’s conviction under NY PL § 220.31 could have been

for a controlled substance classified in Schedule III, IV, or V. Likewise, because conviction of

some controlled substances are misdemeanors in Virginia, the Commonwealth failed to show

that the offense Mason was convicted of under NY PL § 220.31 would have been a felony in

Virginia. Mason’s NY PL § 220.31 convictions, therefore, could have been “for conduct which

might not result in a conviction under [Code § 18.2-248(C)].” Cox, 13 Va. App. at 331, 411

S.E.2d at 446. And if Mason’s conviction “is based on conduct which is not a violation of [Code

§ 18.2-248(C)], then to consider it under [that subsection] would, without authority, expand the

scope of the convictions which could be considered beyond that which the General Assembly

specifically authorized.” Id.




       8
          The Commonwealth argues on appeal that it “proffered to the court that two of the
defendant’s New York offenses involved cocaine,” citing page ten of the sentencing transcript.
Page ten was not included in the joint appendix. We rely upon the parties to include in the
appendix those portions of the trial record that are necessary to decide the appeal. “By requiring
the publication and distribution of an appendix which excludes all irrelevances, the Rules of
Court expedite the adjudication of the appeal and reduce the costs. By requiring the inclusion of
all parts of the record germane to the issues, the Rules promote the cause of plenary justice.”
Thrasher v. Burlage, 219 Va. 1007, 1010, 254 S.E.2d 64, 66 (1979) (per curiam). “In the
absence [of a sufficient appendix], we will not consider the point.” Jenkins v. Winchester Dep’t
of Soc. Servs., 12 Va. App. 1178, 1185, 409 S.E.2d 16, 20 (1991). Moreover, to the extent that
the Commonwealth “proffered” this evidence during the sentencing hearing, that was far too late,
especially in a jury trial, to offer evidence supporting admissibility of the prior convictions.

                                               -9-
       The Commonwealth failed to show that Mason’s convictions under NY PL § 220.31 were

substantially similar offenses under Code § 18.2-248(C) for purposes of establishing third or

subsequent offense. Furthermore, because the certificates of disposition constituted the only

evidence of third or subsequent offense, we cannot say that the error was harmless. As a result,

the trial court erred in admitting Mason’s NY PL § 220.31 convictions for purposes of proving

predicate convictions under Code § 18.2-248(C).

                               3. New York Penal Law § 220.39(1)

       Mason’s 1988 conviction is a different matter. That conviction was under NY PL

§ 220.39(1), which provides that “[a] person is guilty of criminal sale of a controlled substance in

the third degree when he knowingly and unlawfully sells: 1. A narcotic drug[.]” A narcotic drug,

in New York, “means any controlled substance listed in schedule I(b), I(c), II(b) or II(c) other

than methadone.” NY PL § 220.00. All the substances listed in these subsections of New

York’s Schedules I and II are also listed on Virginia’s Schedules I and II. See NY Public Health

§ 3306; Code §§ 54.1-3446 to -3447. Therefore, although the Commonwealth did not introduce

evidence as to the identity of the substance involved in Mason’s NY PL § 220.39(1) conviction,

any substance for which he was convicted under this subsection would necessarily have qualified

as a Schedule I or II substance in Virginia. Additionally, a conviction for any substance

encompassed by NY PL § 220.39(1) would necessarily have been a felony if committed in

Virginia by virtue of the punishment for an offense involving a Schedule I or II drug set out in

Code § 18.2-248(C).

       The plain language of the statutes establish that NY PL § 220.39(1) and Code

§ 18.2-248(C) are “largely alike in substance” because both statutes make it unlawful to sell a

controlled substance. Further, it is apparent from the New York definition of a “narcotic drug”

that the prior convictions under this statute related to a substance classified in Schedule I or II.

                                                - 10 -
This showing was sufficient “to carry the Commonwealth’s burden of proving substantial

similarity and to shift to the defendant the burden of going forward with evidence of

dissimilarity.” Rufty, 221 Va. at 839, 275 S.E.2d at 586.

                            4. Mason’s Arguments as to Dissimilarity

       Mason contends the New York statutes are not substantially similar to the code section

because New York case law establishes that a person can be convicted under the New York

statutes without ever possessing the controlled substance, while possession is a required element

in Virginia. Mason relies on our analysis in Dean to support his argument.

       In Dean this Court reviewed whether the appellant’s two Maryland robbery convictions

could be admitted to prove the predicate offenses under an indictment in Virginia for “robbery, a

third or subsequent offense, in violation of Code §§ 18.2-58 [robbery] and 19.2-297.1 [providing

enhanced punishment for ‘any person convicted of two or more separate acts of violence’].” 61

Va. App. at 211, 734 S.E.2d at 674. An act of violence is defined as a violation of any one of

nine enumerated statutes, one of which is robbery. Code § 19.2-297.1(A). Under Code

§ 19.2-297.1, prior convictions include “convictions under the laws of any state or of the United

States for any offense substantially similar to those listed under ‘act of violence.’” Because “act

of violence” is defined as a violation of particular statutes, we were required to compare the

Maryland statute with the comparable code section. We concluded that although the wording of

the statutes prohibiting robbery is similar, a “distinct difference exists in the development of the

common law in these two states.” Dean, 61 Va. App. at 218, 734 S.E.2d at 678. We thus

concluded that the two statutes were not substantially similar because the elements of robbery no

longer coincide between the two states.

       Based on Dean, Mason argues that People v. Samuels, 780 N.E.2d 513 (N.Y. 2002), from

New York’s highest court, renders NY PL § 220.39(1) dissimilar to Code § 18.2-248 because it

                                                - 11 -
establishes that possession of a controlled substance is not required for conviction of sale of a

controlled substance under NY PL § 200.39(1). In contrast, Mason argues, Jordan v.

Commonwealth, 273 Va. 639, 643 S.E.2d 166 (2007), establishes that possession is a required

element for conviction of possession with intent to distribute under Code § 18.2-248. Mason

contends that these two cases show that a person can be convicted under NY PL § 220.39(1) for

conduct that would not be sufficient for conviction under Code § 18.2-248. We disagree.

       Assuming for sake of argument that Mason’s interpretation of Samuels is correct, his

conclusion is incorrect. Mason’s argument conflates sale of a controlled substance with

possession with intent to distribute.9 In Jordan, the Supreme Court held that possession, either

actual or constructive, was a required element of possession with intent to distribute. Id. at

645-46, 643 S.E.2d at 170. The Court, however, said nothing regarding the elements of sale of

controlled substance. Code § 18.2-248 makes it unlawful both to “sell” a controlled substance

and to “possess with intent to . . . distribute” a controlled substance. These offenses are not the

same. See Simon v. Forer, 265 Va. 483, 490, 578 S.E.2d 792, 796 (2003) (“When the General

Assembly uses two different terms in the same act, it is presumed to mean two different things.”

(quoting Forst v. Rockingham Poultry Mktg. Coop., Inc., 222 Va. 270, 278, 279 S.E.2d 400, 404

(1981))). Mason did not provide, nor could we find, any Virginia case law requiring proof of

possession of the drug in order to convict someone for the act of selling a controlled substance in



       9
          We note that Mason assigned error to the convictions “where the convictions were not
substantially similar to the instant charge.” Appellant’s Br. at 3 (emphasis added). This
misreads Code § 18.2-248(C), which allows admission of a conviction for any violation of “this
section [Code § 18.2-248(A)] with respect to a controlled substance classified in Schedule I or
II.” The prior convictions are not limited to convictions for the currently charged prohibited act,
here possession with intent to distribute. Instead, the prior conviction is admissible if it is
substantially similar to any prohibited act set out in Code § 18.2-248(A), i.e. to manufacture, sell,
distribute or possess with intent to distribute.


                                               - 12 -
violation of Code § 18.2-248. His argument therefore fails to show the statutes are not

substantially similar.10

        Further, in Dean, we looked to the elements of the offense because Code § 19.2-297.1

defines prior convictions by reference to several particular statutes. Likewise, in Ayers v.

Commonwealth, 17 Va. App. 401, 402, 437 S.E.2d 580, 581 (1993), “we look[ed] to the

elements of the two statutes rather than to the offender’s conduct” because the code section at

issue, Code § 46.2-351(3) (repealed 1999), defined predicate offenses as including those from

other jurisdictions that “substantially conform[ed] to the aforesaid state statutory provisions.” In

contrast, Code § 18.2-248(C) defines relevant prior convictions as “substantially similar

offenses” to “such offenses”— those where “a person is convicted . . . under this subsection.”

Therefore, here we need look no further than Code § 18.2-248(C) and ask if appellant’s conduct

would have been the basis for a conviction “under this subsection.” This includes looking to the

facts of the conviction to determine the classification of the substance involved.

        In this case, to show that his conviction was dissimilar to Code § 18.2-248(C), Mason had

to show that his NY PL § 220.39(1) conviction was “for conduct which might not result in a

conviction under [Code § 18.2-248(C)].” Cox, 13 Va. App. at 331, 411 S.E.2d at 446. This he

has not done.11


        10
           Mason also argues, for the first time on brief, that Jordan establishes that, in Virginia,
no presumption of possession arises from the presence of a controlled substance in a vehicle.
Mason argues this is contrary to New York law, where “[t]he presence of a controlled substance
in an automobile, other than a public omnibus, is presumptive evidence of knowing possession
thereof by each and every person in the automobile at the time such controlled substance was
found.” NY PL § 220.25. To the extent that Mason adequately preserved this argument, we
reject it. This New York statute applies to knowing possession, but Mason has not shown, and
indeed argues to the contrary, that possession is a required element for sale of a controlled
substance in New York.
        11
         Mason also argues that New York’s schedules of controlled substances contain
substances that are not in Virginia’s schedules. Assuming without deciding that Mason is

                                                - 13 -
       Therefore, we hold that Mason’s conviction under NY PL § 220.39(1) was admissible for

purposes of proving a prior conviction under Code § 18.2-248(C).

                                       III. CONCLUSION

       For the reasons stated above, we hold that Mason’s conviction under NY PL § 220.39(1)

was substantially similar to Code § 18.2-248 for purposes of establishing one prior conviction.

Proof of that conviction was therefore properly admissible, and the trial court did not err in

allowing its introduction during the guilt phase of Mason’s trial. Mason’s convictions under NY

PL § 220.31, however, were not substantially similar to Code § 18.2-248 for purposes of

establishing prior convictions because the Commonwealth failed to show that the convictions

related to a substance classified in Schedule I or II in Virginia. Thus, those convictions were not

relevant for the purpose for which they were offered and were therefore inadmissible.

Accordingly, we reverse Mason’s conviction and remand for a new trial, if the Commonwealth

be so inclined.12

                                                                          Reversed and remanded.




correct, the presence of such substances on New York’s schedules is irrelevant in light of our
analysis. The substance at issue in the prior conviction has to be classified as a Schedule I or II
in Virginia to be substantially similar for purposes of Code § 18.2-248(C).
       12
           Mason does not challenge the sufficiency of the evidence to support the third offense
conviction. Thus, we are not called upon to address whether the evidence was sufficient to
support the subsequent offense conviction, and, if not, whether the conviction for that offense
must be dismissed. See Rushing v. Commonwealth, 284 Va. 270, 278, 726 S.E.2d 333, 339
(2012) (holding “an appellate court may not consider evidence illegally admitted at trial” when
reviewing the sufficiency of the evidence (quoting Crawford, 281 Va. at 111-12, 704 S.E.2d at
123-24)). However, we note Code § 19.2-324.1, enacted after Rushing, requires an appellate
court to remand the case for retrial if it concludes that, absent the erroneously admitted evidence,
the evidence as a whole was insufficient and that the error was not harmless.

                                               - 14 -
