COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judges Powell and Alston
Argued at Chesapeake, Virginia
MILTON A. BROWN
OPINION BY
v. Record No. 0811-09-1 JUDGE CLEO E. POWELL
MARCH 16, 2010
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Timothy S. Fisher, Judge
Alexandria Chun (Office of the Public Defender, on brief), for
appellant.
Karen Misbach, Assistant Attorney General II (William C. Mims,
Attorney General, on brief), for appellee.
Milton A. Brown (“Brown”) appeals his conviction for possession with intent to
distribute more than one-half ounce but less than five pounds of marijuana, in violation of Code
§ 18.2-248.1. Brown contends that the Commonwealth failed to prove that he possessed more
than one-half ounce of marijuana as that term is statutorily defined. Specifically, Brown argues
that the evidence was only sufficient to convict him of simple possession of marijuana because
the Commonwealth failed to prove that the plant material, exclusive of mature stalk and
sterilized seeds, weighed more than one-half ounce.
BACKGROUND
On March 28, 2008, Officer J.L. Sorg of the Newport News Police observed a small
group of young men “hanging out” on housing authority property. He approached the men to
determine whether they lived on the property.
When he was “a couple of feet” away, Officer Sorg smelled the odor of marijuana
coming from one of the men, later identified as Brown. Officer Sorg detained Brown and
searched him. In Brown’s left front pants pocket, Officer Sorg found two plastic bags, one of
which contained four smaller baggies. The bags contained what Officer Sorg suspected was
marijuana.
After Officer Sorg advised Brown of his Miranda rights, Brown told the officer he
understood his rights. Brown subsequently admitted that he bought the marijuana and was going
to sell it to a friend.
Brown was charged with one count of possession with intent to distribute more than
one-half ounce but less than five pounds of marijuana. At trial, the Commonwealth entered the
certificate of analysis into evidence to prove that Brown possessed more than one-half ounce of
marijuana. According to the certificate of analysis, Brown possessed .52 ounce of marijuana.
After the Commonwealth had presented its evidence, Brown moved to strike on the
grounds that there was no evidence that the weight of the marijuana was exclusive of seeds or
mature stalk. The trial court noted that the certificate of analysis “says .42 ounces of plant
material and .10 ounces of plant material. That’s marijuana. There was no discussion in
cross-examination, nothing about what it is or isn’t.” The trial court denied the motion.
Brown was subsequently found guilty and sentenced to ten years in prison with eight
years and six months suspended. Brown appeals.
ANALYSIS
“When a defendant challenges on appeal the sufficiency of the evidence to sustain his
conviction, it is the duty of an appellate court to examine the evidence that tends to support the
conviction and to permit the conviction to stand unless the conviction is plainly wrong or without
evidentiary support.” Commonwealth v. Presley, 256 Va. 465, 466, 507 S.E.2d 72, 72 (1998).
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“If there is evidence to support the conviction, an appellate court is not permitted to substitute its
own judgment for that of the finder of fact, even if the appellate court might have reached a
different conclusion.” Id.
Relying on Hill v. Commonwealth, 17 Va. App. 480, 438 S.E.2d 296 (1993), Brown
argues that the Commonwealth is required to affirmatively demonstrate that the weight of the
marijuana is exclusive of the mature stalks and sterilized seeds (i.e. that the mature stalks, stems,
and seeds were removed from the plant material prior to being weighed). Brown contends that,
because there was no testimony from the Commonwealth regarding whether the stalks and
sterilized seeds were removed, the Commonwealth failed to prove that the actual “marijuana”
weighed more than a half ounce.
Proof that the accused possessed marijuana, as that material is
defined in Code § 54.1-3401, is an essential element of each of the
offenses proscribed by Code § 18.2-248.1. Likewise, proof that
the accused possessed the weight of marijuana proscribed by Code
§ 18.2-248.1(a)(2) is an essential element of that offense.
Id. at 484-85, 438 S.E.2d at 299.
In Hill, the Commonwealth’s evidence included a bag that “contained approximately two
and one-half ounces of material that consisted of leaf marijuana, a mature marijuana stalk,
marijuana stems, and marijuana seeds.” Id. at 482, 438 S.E.2d at 297. Relying on the definition
of marijuana 1 in effect at that time, this Court held that the weight of marijuana was statutorily
1
At the time, Code § 54.1-3401 defined marijuana as
any part of a plant of the genus Cannabis whether growing or not,
its seeds or resin; and every compound, manufacture, salt,
derivative, mixture, or preparation of such plant, its seeds, or its
resin. Marijuana shall not include any oily extract containing one
or more cannabinoids unless such extract contains less than twelve
percent of tetrahydrocannabinol by weight, or the mature stalks of
such plant, fiber produced from such stalk, oil or cake made from
the seeds of such plant, any other compound, manufacture, salt,
derivative, mixture or preparation of such mature stalks, fiber, oil,
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defined to be exclusive of mature stalks, sterilized seeds, stems, and twigs. This Court further
held that “the Commonwealth had the burden of proving beyond a reasonable doubt that the
plant material, exclusive of mature stalk and sterilized seeds, weighed more than one-half
ounce.” Id. at 484, 438 S.E.2d at 298.
In 1999, six years after Hill was decided, the General Assembly made significant changes
to the definition of marijuana under Code § 54.1-3401. Under the current version of Code
§ 54.1-3401, marijuana is defined as:
any part of a plant of the genus Cannabis whether growing or not,
its seeds or resin; and every compound, manufacture, salt,
derivative, mixture, or preparation of such plant, its seeds, or its
resin. Marijuana shall not include any oily extract containing one
or more cannabinoids unless such extract contains less than 12
percent of tetrahydrocannabinol by weight, nor shall marijuana
include the mature stalks of such plant, fiber produced from such
stalk, oil or cake made from the seeds of such plant, unless such
stalks, fiber, oil or cake is combined with other parts of plants of
the genus Cannabis.
(Emphasis added).
Under the current version of Code § 54.1-3401, mature stalks are considered marijuana
except where there are stalks that are exclusive of “other parts of plants of the genus Cannabis.”
Similarly, contrary to Brown’s argument, the current version of Code § 54.1-3401 does not
provide any exclusion for seeds. It is clear that, in amending the statutory definition of
marijuana, the General Assembly effectively overruled Hill. Accordingly, we hold that, where
the stalks are combined with the other parts of the marijuana plant, the Commonwealth no longer
has to separate the stalks from the other parts of the marijuana plant to prove that the accused
possessed the proscribed weight of marijuana. Rather, the Commonwealth may use the weight
of the stalks combined with the other parts of the marijuana plant.
or cake, or the sterilized seed of such plant which is incapable of
germination.
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In the present case, Brown does not contest that the plant material is marijuana and that at
least some portion of plant material was part of a plant of the genus Cannabis. Moreover, Brown
implicitly concedes that the evidence is sufficient to find him guilty of simple possession of
marijuana. Brown’s argument relies on Hill and its analysis of the version of Code § 54.1-3401
in effect at that time; that is, before critical and significant changes were made to this code
section by the General Assembly. Under its current structure, Code § 54.1-3401 provides that
any stalks, fiber, oil or cake that were also present with the plant material are necessarily
“combined with other parts of plants of the genus Cannabis” to meet the definition of marijuana
for purposes of statutory construction. Therefore, any stalks that may have been present in the
plant material at issue in this case are considered marijuana under the statute and it was proper to
include them in determining the total weight.
CONCLUSION
For the foregoing reasons, the decision of the trial court is affirmed.
Affirmed.
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