COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Frank
Argued at Chesapeake, Virginia
CARL LAWAYNE HUGHES
MEMORANDUM OPINION * BY
v. Record No. 2604-99-1 JUDGE JAMES W. BENTON, JR.
DECEMBER 19, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Verbena M. Askew, Judge
Janice G. Murphy for appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
The trial judge convicted Carl Lawayne Hughes of the felonies
of distributing marijuana and possessing with the intent to
distribute marijuana in violation of Code § 18.2-248.1(a)(2).
Hughes contends the evidence in each case was insufficient to
prove the weight of the marijuana exceeded more than one-half
ounce. We reverse the felony convictions and remand for
resentencing as misdemeanor convictions. See Code
§ 18.2-248.1(a)(1).
I.
The grand jury indicted Carl Lawayne Hughes for distributing
more than one-half ounce but not more than five pounds of
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
marijuana and for possessing with the intent to distribute more
than one-half ounce but not more than five pounds of marijuana in
violation of Code § 18.2-248.1. The evidence at trial proved that
Detective Stevenson met Hughes and another man at a restaurant to
buy marijuana. Hughes permitted the detective to inspect two
separate bags, each of which contained what appeared to be
marijuana. Detective Stevenson purchased one bag from Hughes.
Several officers arrested Hughes after he exited the
restaurant. Hughes still had possession of the other bag the
detective had inspected. The officer who arrested Hughes
testified that both bags contained what appeared to be marijuana,
seeds, stems, and little twigs. He also testified that the
laboratory technicians will not separate seeds and stems when
doing the analysis. The detective who purchased the substance
from Hughes testified that he did not request the technicians to
separate the stems or seeds from the other material in the bag.
He also did not request that the seeds be analyzed to determine if
they were sterile or would germinate.
When the Commonwealth moved to offer as evidence the contents
of the two bags and the two certificates of analysis, Hughes
objected on the ground that both bags contained seeds and stems,
which are not marijuana. The certificates indicated that the bag
seized from Hughes contained 3.88 ounces of marijuana and the bag
the detective purchased from Hughes contained 3.83 ounces of
marijuana.
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The trial judge ruled "you can visually take a look at the
packages that were submitted into evidence and see that was a very
small amount of seeds and stems and that the majority of this is
the actual leaf itself." The judge then overruled Hughes'
objection and admitted into evidence the certificates and the bags
of material. At the conclusion of the evidence, the judge
convicted Hughes of both felonies.
II.
Pertinent to this appeal, Code § 18.2-248.1 provides as
follows:
[I]t shall be unlawful for any person to
. . . distribute or possess with intent to
. . . distribute marijuana.
(a) Any person who violates this section
with respect to:
(1) Not more than one-half ounce of
marijuana is guilty of a Class 1
misdemeanor;
(2) More than one-half ounce but not more
than five pounds of marijuana is guilty of a
Class 5 felony[.]
At the time this offense was committed, Code § 54.1-3401 defined
marijuana as follows:
"Marijuana" means any part of a plant of the
genus Cannabis . . . , 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 . . . 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
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such mature stalks, fiber, oil, or cake, or
the sterilized seed of such plant which is
incapable of germination. 1
The evidence proved that the bag of material the detective
purchased from Hughes contained marijuana, seeds, stems, and
little twigs. The total weight of those substances was 3.83
ounces. The evidence also proved that the bag of material
Hughes had after that sale, which gave rise to the prosecution
for possession with intent to distribute, similarly contained
marijuana, seeds, stems, and little twigs. It weighed 3.88
ounces.
The evidence did not prove the weight of marijuana, which
was statutorily defined to be exclusive of sterilized seeds,
stems, and twigs. The prosecutor argued to the trial judge that
the Commonwealth only had to prove weight over one-half ounce,
that the weight of the bags far exceeded this amount, and that
1
In 1999, the legislature amended the statute so that it
now reads as follows:
"Marijuana" means 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, 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.
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for Hughes to prevail more than 80% of the material in the bags
would have to consist of seeds, stems, and twigs.
As we noted in Hill v. Commonwealth, 17 Va. App. 480, 484,
438 S.E.2d 296, 298 (1993), "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." That burden is not met when the quantity
of material is of small weight and the trier of fact merely
infers that the weight of the marijuana, less the stems,
sterilized seeds, and twigs, exceeds one-half ounce. In this
case, when the trial judge decided the comparative weights of
the substances by a visual inspection, she did no more than draw
a mere inference of the necessary fact. As in Hill, "any such
inference would have been purely speculative because no facts
were proved that would have supported such an inference." Id.
at 485, 438 S.E.2d at 299.
When the Commonwealth bears the burden of proving a fact
beyond a reasonable doubt, a mere inference or conjecture
concerning that fact is not sufficient to support the
conviction. See Stone v. Commonwealth, 176 Va. 570, 577, 11
S.E.2d 728, 731 (1940). Evidence that creates only "a suspicion
or probability" does not satisfy the Commonwealth's "burden
. . . to prove every essential element of the offense beyond a
reasonable doubt." Moore v. Commonwealth, 254 Va. 184, 186, 491
S.E.2d 739, 740 (1997). We hold that the trial judge erred by
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inferring from a visual inspection that the weight of marijuana
in each bag, exclusive of sterilized seeds, stems, and twigs,
exceeded one-half ounce. Accordingly, we reverse the
convictions and remand for imposition of misdemeanor convictions
pursuant to Code § 18.2-248.1(a)(1).
Reversed and remanded.
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Frank, J., concurring.
I concur with the majority because I believe Hill v.
Commonwealth, 17 Va. App. 480, 438 S.E.2d 296 (1993), mandates
the reversal of appellant's convictions. Since appellant was
charged with one count of distributing more than one-half ounce
but not more than five pounds of marijuana and one count of
possession with the intent to distribute marijuana, we must
determine whether the Commonwealth proved that the marijuana in
each of the two bags weighed more than one-half ounce. One bag
weighed 3.88 ounces, including leaf marijuana, stems, seeds, and
twigs. The other bag weighed 3.83 ounces, including the same
material. The weight of the two bags cannot be aggregated
because there are two distinct offenses. In Hill, the
marijuana, stems, and seeds weighed approximately 2.98 ounces.
The Commonwealth argued the trial court could have inferred,
upon a visual inspection of the contents, that the bag contained
more than one-half ounce of marijuana less the mature stalk and
seeds. We wrote, "[o]n the evidence in this record, any such
inference would have been purely speculative because no facts
were proved that would have supported such an inference." Id.
at 485, 438 S.E.2d at 299.
In this case, the trial judge, after a visual inspection of
the two bags, ruled that "you can visually take a look at the
packages that were submitted into evidence and see that was a
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very small amount of seeds and stems and that the majority of
this is the actual leaf itself."
I agree with the majority that without a more detailed
factual finding of the basis of the visual inspection, any such
inference is purely speculative. However, I write separately to
state that under the proper factual circumstances the trier of
fact can, indeed, make a factual finding of the weight of the
drugs without the testimony of an expert witness. If the
quantity of drugs was of sufficient weight and the trier of fact
stated the factual basis of its visual inspection, the trial
court would not need an expert to determine that the weight of
the drugs fell between one-half ounce and five pounds or that
the drugs exceeded five pounds in weight. The trier of fact,
after inspecting the drugs, could determine that the total
material consisted overwhelmingly of marijuana leaves with an
inconsequential quantity of stems and seeds.
For example, if the total amount of material weighed one
hundred pounds and a small amount of the material consisted of
stems and seeds, with the remaining portion being leaf
marijuana, the trier of fact could make a factual finding that
over five pounds of the material was leaf marijuana. The trier
of fact does not need expert testimony to determine that the
small amount of seeds and stems weighed ninety-five pounds or
less. The record, however, must establish the factual basis of
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the trial judge's conclusion, such as the weight discrepancy
between the leaf marijuana and the stems and seeds.
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