COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Senior Judge Cole
Argued at Richmond, Virginia
GREER HINTON
MEMORANDUM OPINION * BY
v. Record No. 1616-98-2 JUDGE JAMES W. BENTON, JR.
JUNE 29, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
Oliver A. Pollard, Jr., Judge
Daniel W. Hall, Assistant Public Defender,
for appellant.
Linwood T. Wells, Jr., Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
The trial judge convicted Greer Hinton of possessing more
than one-half ounce, but less than five pounds, of marijuana with
the intent to distribute. See Code § 18.2-248.1. On this appeal,
Hinton contends the evidence was insufficient to prove that he
possessed more than one-half ounce of marijuana and that he
intended to distribute the marijuana. We agree and reverse the
conviction.
I.
The evidence proved that Officer Lowry and another police
officer drove through a neighborhood and observed two men sitting
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
in chairs by a fence. Officer Lowry testified that he detected a
strong odor of marijuana being smoked as they passed the men.
When the officers exited their vehicle to investigate, one of the
men ran into a nearby house. Officer Lowry went to the house and
entered with the consent of the occupant. Once inside, Officer
Lowry "patted . . . down" Mario Winfield, who admitted running
into the house, and Greer Hinton, who was present in the room with
Winfield. Officer Lowry detected a strong odor of marijuana on
Hinton's person. When Officer Lowry determined that Hinton was
not the person who ran into the house, he released Hinton. Hinton
left the house, went across the street, and watched as the
officers investigated their suspicions.
As Officer Lowry began speaking to Winfield, an officer
outside called Officer Lowry's attention to a pickup truck.
Officer Lowry saw "a freezer bag" containing marijuana in plain
sight on the truck's seat. The total weight of the bag's contents
was later determined to be 149.5 grams, or 5.27 ounces. After
talking with Winfield and Hinton again, Officer Lowry determined
that Hinton earlier had driven the truck with Winfield as the
passenger. Officer Lowry then arrested Hinton and read him
Miranda warnings. When asked where he purchased the marijuana,
Hinton responded "Croatan," which Officer Lowry knew to be an
apartment complex. He searched Hinton and recovered $520 and a
pager.
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II.
At trial, a forensic drug chemist testified that he examined
and weighed the contents of the bag the officers found in the
truck. He noted that the bag of marijuana contained numerous
seeds and stems in addition to leaf material. He further
testified that he did not analyze how much of the marijuana in the
bag was leaf material versus stems or seeds and that they were
"all mixed together." He simply weighed the entire contents of
the bag.
The indictment charged that Hinton "did possess more than
one-half ounce, but less than five pounds of marijuana with the
intent to distribute" in violation of Code § 18.2-248.1. 1 Under
1
The relevant part of the statute is as follows:
Except as authorized in the Drug Control
Act, Chapter 34 of Title 54.1, it shall be
unlawful for any person to sell, give,
distribute or possess with intent to sell,
give or 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;
(3) More than five pounds of marijuana is
guilty of a felony punishable by
imprisonment of not less than five nor more
than thirty years.
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this provision of the statute, "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." Hill v. Commonwealth, 17 Va. App. 480, 484, 438
S.E.2d 296, 298 (1993)(footnote omitted). See also Code
§ 54.1-3401. "The rule is well established that 'in every
criminal case the evidence of the Commonwealth must show, beyond a
reasonable doubt, every material fact necessary to establish the
offense for which a defendant is being tried.'" Sargent v.
Commonwealth, 5 Va. App. 143, 148, 360 S.E.2d 895, 898 (1987)
(citation omitted).
In Hill, we specifically addressed the proof that is
required.
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. Although
the Commonwealth proved that Hill possessed
marijuana leaf, a mature marijuana stalk,
and marijuana seeds of unknown sterility,
the total of which weighed in excess of
one-half ounce, the evidence failed to prove
beyond a reasonable doubt that the
marijuana, less the weight of the mature
stalk and seeds, weighed more than one-half
ounce.
17 Va. App. at 484-85, 438 S.E.2d at 299.
The forensic chemist testified that he did not weigh the
leafy material separate from the seeds and stems. He further
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testified that he could not visually examine the evidence at
trial "to determine the weight of those" seeds and stems. On
this evidence, any inference that the leafy material exceeded
one-half ounce is purely speculative. See id. Accordingly, the
evidence failed to prove beyond a reasonable doubt the weight of
the marijuana or that the weight of the marijuana exceeded
one-half ounce.
III.
At trial, the Commonwealth presented no direct evidence
that Hinton had sold marijuana or intended to sell it. The
record contains no conduct or statements by Hinton from which an
intent to distribute could be inferred. Rather, the
Commonwealth offered Officer Lowry as an expert in
investigations, packaging, and value of marijuana. Over
Hinton's objections, the trial judge qualified Officer Lowry as
an expert in these areas. He then testified that 5.27 ounces of
marijuana would be valued at approximately $400. He also
testified that Hinton's possession of that quantity of
marijuana, in conjunction with the money and a pager, was
inconsistent with personal use.
The officer's testimony assumed to be true that the
packaging contained 5.27 ounces of marijuana. However, the
forensic chemist's testimony established that seeds and stems
were included in that weight. Because the officer's testimony
that the charge of intent to distribute was based primarily on
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"the quantity" of marijuana and the evidence failed to prove
that the bag contained the amount of marijuana Lowery assumed to
exist, the evidence failed to prove beyond a reasonable doubt
that element of the offense. Furthermore, the officer's
testimony that marijuana found "in bulk like this, it's usually
torn down to sandwich baggies, corners" is based on pure
speculation concerning Hinton's intended use. Convictions may
not be based on speculation and conjecture. See Wright v.
Commonwealth, 217 Va. 669, 670, 232 S.E.2d 733, 734 (1977).
Although the evidence may be strong and may "show a probability
of guilt," Smith v. Commonwealth, 218 Va. 927, 929, 243 S.E.2d
463, 464 (1978), "the evidence is insufficient to carry the
Commonwealth's case from the realm of probability and
supposition into the area of proof beyond a reasonable doubt."
Hall v. Commonwealth, 225 Va. 533, 537, 303 S.E.2d 903, 905
(1983). Thus, we reverse the conviction.
Reversed.
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