McClellan v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Humphreys, Agee and Kelsey
Argued at Salem, Virginia

TERRY McCLELLAN
OPINION BY
v. Record No. 3445-01-3 JUDGE ROBERT J. HUMPHREYS
FEBRUARY 25, 2003
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF NELSON COUNTY
J. Michael Gamble, Judge

Norman Hunter Lamson for appellant.

Richard B. Smith, Senior Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.

Terry McClellan appeals her conviction, after a bench trial,

for operating a food manufacturing plant without inspection, in

violation of Code § 3.1-398.1, and offering misbranded food for

sale, in violation of Code § 3.1-388(a). McClellan contends the

trial court erred in 1) finding the evidence sufficient to

establish that she operated a "food manufacturing plant," within

the meaning of the statute; 2) admitting expert testimony which

amounted to "irrelevant and improper opinion"; 3) finding that her

conviction for offering misbranded food for sale did not

constitute double jeopardy; and 4) finding the evidence sufficient

to establish that she sold the food items in "package form" as
required pursuant to Code § 3.1-396(e). For the reasons that

follow, we affirm the judgment of the trial court.

I. Background

McClellan was tried in district court on September 12, 2001,

on charges of 1) offering adulterated food for sale, in violation

of Code § 3.1-388(a); 2) offering misbranded food for sale, in

violation of Code § 3.1-388(a); 3) refusing entry for inspection,

in violation of Code § 3.1-388(e); and 4) operating a food

manufacturing plant without inspection, in violation of Code

§ 3.1-398.1. The charges related, in relevant part, to

McClellan's production and sale of goats' cheese products from her

farm. She was found not guilty of the adulterated food charge,

but convicted of the other three charges. McClellan subsequently

appealed her convictions to the circuit court.

On October 2, 2001, just prior to the trial de novo in

circuit court, McClellan's new counsel filed a motion to dismiss,

in part in the form of a plea of autre fois acquit, contending

that her acquittal on the adulterated food charge barred her

conviction, and any further prosecution, for offering the same

cheese as a misbranded food. Specifically, McClellan contended

that Code § 3.1-388(a) created a single offense "committable by

different means" and that because she had been acquitted of the

adulterated food charge, further prosecution for the misbranded

food charge would amount to an improper successive prosecution for

the same offense. After a hearing on the issue, the trial court

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denied the motion, finding that selling adulterated food was a

separate offense from selling misbranded food and that the

prosecutions for the two separate charges were simultaneous not

successive. During the trial de novo in the circuit court, Donald

W. Butts, Director of Consumer Protection for the Virginia

Department of Agriculture, testified after being qualified as a

food safety expert. Butts testified as to the number of employees

in his division and generally described the mission of the

division. He further testified that the potential for producing

hazardous food "would be the same in terms of the results that

would occur," whether the food was produced in a home or in a

factory and that goats' cheese is a potentially hazardous food

product. Butts stated "the place where [the cheese] is processed

should be inspected," "to protect the public from food [borne]

disease, or even a food [borne] death." McClellan objected to

Butts' testimony in this regard contending it was irrelevant and

that his statements concerning the potential for contamination or

hazard were "opinion." The trial court overruled each of her

objections.

At the close of the Commonwealth's evidence, McClellan raised

a motion to strike, renewing her motion to dismiss on the grounds

of double jeopardy and contending 1) that the Commonwealth had

failed to prove the misbranded charge because no evidence

established the cheese was sold in "package form" as required by

Code § 3.1-388(a); 2) that the Commonwealth had failed to

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establish McClellan's refusal to allow inspectors to enter her

home violated Code § 3.1-388(e); and 3) that the Commonwealth had

failed to establish that her home/farm was a "food manufacturing

plant, food storage warehouse, or retail food store" as

contemplated in Code § 3.1-398.1.

The court granted McClellan's motion with regard to the

refusal to permit entry for inspection charge, 1 but overruled the

motion as to the remaining two charges. In closing argument,

McClellan contended that the Commonwealth had failed to establish

her home was a "food manufacturing plant," that she had "operated"

within the meaning of the statute, and that she had offered the

cheese for distribution in packaged form. The trial court found

McClellan guilty of both remaining charges.

II. Analysis

A.

On appeal, McClellan first contends that the trial court

erred in finding the evidence sufficient to establish that she

operated a "food manufacturing plant," within the meaning of Code

§ 3.1-398.1. We disagree. 2

1
The trial court noted that it did not grant the motion
based upon the Fourth Amendment, but solely upon McClellan's
decision to stop selling the products in conjunction with her
refusal to permit the inspectors to inspect her home.
2
The Commonwealth contends that McClellan failed to
properly preserve her argument in this regard. However, our
review of the record demonstrates that McClellan presented the
specific issue to the trial court in the form of motions to
strike, both at the close of the Commonwealth's case-in-chief

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 Code § 3.1-398.1 provides as follows:

No person shall operate a food manufacturing
plant, food storage warehouse, or retail
food store until it has been inspected by
the Commissioner. This section shall not
apply to food manufacturing plants operating
under a grant of inspection from the Bureau
of Meat and Poultry Inspection or a permit
from the Bureau of Dairy Services of the
Virginia Department of Agriculture and
Consumer Services and Grade A fluid milk
manufacturing plants and shellfish and
crustacea processing plants operating under
a permit from the Virginia Department of
Health.

(Emphasis added). The Commonwealth does not contend that

McClellan operated a "food storage warehouse" or a "retail food

store." Instead the sole issue pertaining to this statute is

whether McClellan operated a "food manufacturing plant," within

the meaning of the statute.

McClellan concedes that her cheese products fall within the

definition of "food" as provided in the Virginia Food Act, which

includes Code § 3.1-398.1. 3 However, the Act does not define

"food manufacturing plant."

and at the close of the evidence, and that the trial court had
an opportunity to fully consider the issue and make a ruling.
See Neal v. Commonwealth, 15 Va. App. 416, 422, 425 S.E.2d 521,
525 (1992) ("This Court has said the primary function of Rule
5A:18 is to alert the trial judge to possible error so that the
judge may consider the issue intelligently and take any
corrective actions necessary to avoid unnecessary appeals,
reversals and mistrials.").
3
Code § 3.1-387(3) defines the term "food" as "(1) articles
used for food or drink for man or other animals, (2) chewing
gum, and (3) articles used for components of any such article."

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 Thus, in considering this issue, we first recognize that

[i]t is one of the fundamental rules of
construction of statutes that the intention
of the legislature is to be gathered from a
view of the whole and every part of the
statute taken and compared together, giving
to every word and every part of the statute,
if possible, its due effect and meaning, and
to the words used their ordinary and popular
meaning, unless it plainly appears that they
were used in some other sense. If the
intention of the legislature can be thus
discovered, it is not permissible to add to
or subtract from the words used in the
statute.

Posey v. Commonwealth, 123 Va. 551, 553, 96 S.E. 771, 771

(1918). Indeed,

[i]n the construction of statutes, the
courts have but one object, to which all
rules of construction are subservient, and
that is to ascertain the will of the
legislature, the true intent and meaning of
the statute, which are to be gathered by
giving to all the words used their plain
meaning, and construing all statutes in pari
materia in such manner as to reconcile, if
possible, any discordant feature which may
exist, and make the body of the laws
harmonious and just in their operation.

Tyson v. Scott, 116 Va. 243, 253, 81 S.E. 57, 61 (1914).

Nevertheless, "[i]t is [also] a cardinal principle of law that

penal statutes are to be construed strictly against the State

and in favor of the liberty of a person. Such a statute cannot

be extended by implication, or be made to include cases which

are not within the letter and spirit of the statute." Wade v.

Commonwealth, 202 Va. 117, 122, 116 S.E.2d 99, 103 (1960).

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 The Supreme Court of Virginia has recognized the general

accepted meaning of the term "manufacture" as follows:

"Manufacture implies a change, but every
change is not manufacture, and yet every
change in an article is the result of
treatment, labor and manipulation. But
something more is necessary . . . [.] There
must be transformation; a new and different
article must emerge, 'having a distinctive
name, character or use.'"

Solite Corp. v. King George Co., 220 Va. 661, 663, 261 S.E.2d

535, 536 (1980) (quoting Prentice v. City of Richmond, 197 Va.

724, 731, 90 S.E.2d 839, 843 (1956) (quoting Anheuser-Busch

Brewing Association v. United States, 207 U.S. 556, 562

(1908))). Thus, the definition of manufacturing requires

"transformation of a raw material into an article of

substantially different character." Commonwealth v.

Orange-Madison Coop., 220 Va. 655, 658, 261 S.E.2d 532, 534

(1980). McClellan concedes that her cheese making falls within

this definition of "manufacture," but contends that she

manufactured the cheese on her family farm, which does not

constitute a "plant." However, Webster's Third New

International Dictionary defines the term "plant," as "the land,

buildings, machinery, apparatus and fixtures employed in

carrying on a trade or a mechanical or other industrial

business" and/or "a factory or workshop for the manufacture of a

particular product." Webster's Third New International

Dictionary 1731 (1993). Offering further guidance, the Virginia

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Board of Agriculture and Consumer Services, the agency charged

with the task of enforcing the Virginia Food Act, has adopted by

reference the provisions of Chapter 1 of Title 21, Part 110 of

the Code of Federal Regulations. See Code §§ 3.1-361 and -398;

2 VAC 5-600-10(B). These regulations govern the administration

and enforcement of federal food and drug laws, and provide the

following definition for the term "plant":

Plant means the building or facility or
parts thereof, used for or in connection
with the manufacturing, packaging, labeling,
or holding of human food.

21 CFR § 110.3(k).

In light of these broad definitions, we find that the

"ordinary" use of the term "plant" encompasses any building or

dwelling where such "manufacturing, packaging, labeling, or

holding of human food" takes place. Accordingly, McClellan's

"operation" met the definition of a "food manufacturing plant"

within the clear context of the statute. Indeed, the Supreme

Court of Virginia has long recognized that it is "'inherent in the

plenary power [of] the state[,] which enables it to prohibit all

things hurtful to the comfort, safety, and welfare of society,'"

to regulate the food and drink industry. Commonwealth v.

Stratford Packing Co., 200 Va. 11, 16, 104 S.E.2d 32, 36 (1958).

Thus, the General Assembly has charged the Commissioner and the

Board of Agriculture with the duty to "inquire carefully into the

dairy and food and drink products . . . which are manufactured or

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sold, or exposed, or offered for sale in this Commonwealth." Code

§ 3.1-402.

McClellan offered the cheese that she manufactured for sale

in the Commonwealth. It is clear that the General Assembly

intended the Virginia food and drink laws, enforced by the

Commissioner and the Board of Agriculture, to apply to operations

like McClellan's, regardless of where she manufactured the cheese

and offered it for sale.

B.

McClellan next contends that the trial court erred in

admitting the expert testimony of Butts, which she contends

amounted to "irrelevant and improper opinion." Specifically,

McClellan argues that Butts' testimony as to the number of

employees in the Department and the potential health hazards

associated with the production of goats' cheese was of no

relevance to this matter. She further contends that Butts'

testimony that a residence/farm where such a food product is

manufactured should be inspected due to the potential health

hazard, was improper opinion evidence and that Butts' testimony

was offered merely for the purposes of inducing fear on the part

of the trial court.4

4
We do not address McClellan's contention that Butts'
testimony was offered merely to induce "fear" on the part of the
trial court as McClellan raised no such argument below. See
Rule 5A:18; see also West Alex. Prop. v. First Va. Mort., 221
Va. 134, 138, 267 S.E.2d 149, 151 (1980) ("On appeal, though
taking the same general position as in the trial court, an

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 However, the Supreme Court of Virginia has held that

"[a]n expert's testimony is admissible not
only when scientific knowledge is required,
but when experience and observation . . .
give the expert knowledge of a subject
beyond that of persons of common
intelligence and ordinary experience. The
scope of such evidence extends to any
subject in respect of which one may derive
special knowledge by experience, when [the
witness's] knowledge of the matter in
relation to which [the witness's] opinion is
asked is such, or is so great, that it will
probably aid the trier [of fact] in the
search for the truth."

Velazquez v. Commonwealth, 263 Va. 95, 103, 557 S.E.2d 213, 218

(2002) (quoting Neblett v. Hunter, 207 Va. 335, 339-40, 150

S.E.2d 115, 118 (1966)). Further, "[t]he admissibility of

expert evidence is largely a matter in the discretion of the

trial court, and its ruling allowing a witness to so testify

will not be reversed unless it clearly appears that [the expert]

was not qualified." C. & O. Ry. Co. v. Meyer, 150 Va. 656, 671,

143 S.E. 478, 483 (1928).

Here, Butts was qualified as a food safety expert, but also

testified as an employee of the Department of Agriculture. His

testimony tended to support the Commonwealth's contention that

McClellan's operation fell within the parameters of the Virginia

Food Act and that the agency properly attempted to inspect it.

See Goins v. Commonwealth, 251 Va. 442, 461, 470 S.E.2d 114, 127

appellant may not rely on reasons which could have been but were
not raised for the benefit of the lower court.").

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(1996) ("Evidence is relevant if it has any logical tendency to

prove an issue in a case."). Accordingly, we find no abuse of

discretion in permitting his testimony pertaining to the

inspection process and the need to inspect certain facilities

pursuant to the statutory scheme.

C.

McClellan also claims that the trial court erred in finding

that her conviction for offering misbranded food for sale did not

constitute double jeopardy. We again disagree.

Code § 3.1-388(a) prohibits "[t]he manufacture, sale, or

delivery, holding or offering for sale of any food that is

adulterated or misbranded." McClellan contends that this

provision proscribes but one offense, which can be committed by

one of several means. Thus, pleading autre fois acquit and

pursuant to Code § 19.2-292, McClellan argues that because she was

acquitted by the district court of the charge of offering

adulterated food, further prosecution for the offense of

misbranding in circuit court amounted to a successive prosecution,

violating principles of double jeopardy.

The common-law plea of autre fois acquit prevented the

re-trial of a person who had previously been acquitted for the

same offense. United States v. Scott, 437 U.S. 82, 87 (1978).

Code § 19.2-292 likewise provides that:

[a] person acquitted upon the facts and
merits on a former trial, may plead such
acquittal in bar of a second prosecution for

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 the same offense, notwithstanding any defect
in the form or substance of the indictment
or accusation on which he was acquitted,
unless the case be for a violation of the
law relating to the state revenue and the
acquittal be reversed on a writ of error on
behalf of the Commonwealth.

Code § 19.2-292.

Generally, to determine whether charges are
for the "same offense," courts turn to the
test established in Blockburger [v. United
States, 284 U.S. 299, 304 (1932)]. For
example, the Supreme Court noted:

"In Brown v. Ohio, [432 U.S. 161 (1977)], we
stated the principal test for determining
whether two offenses are the same for
purposes of barring successive prosecutions.
Quoting from Blockburger . . ., which in
turn relied on Gavieres v. United States,
[220 U.S. 338, 342-43 (1911)], we held that
'"[t]he applicable rule is that where the
same act or transaction constitutes a
violation of two distinct statutory
provisions, the test to be applied to
determine whether there are two offenses or
only one, is whether each provision requires
proof of a fact which the other does not."'"
432 U.S., at 166.

Dalo v. Commonwealth, 37 Va. App. 156, 162, 554 S.E.2d 705, 708

(2001) (quoting Illinois v. Vitale, 447 U.S. 410, 416 (1980)).

However, we need not reach the issue of whether the charges

constitute the "same offense" under the Blockburger analysis

because the charges at issue were brought as a part of a single

prosecution. In fact, it is well settled that an appeal de novo

from a general district court to a circuit court annuls the former

judgment as completely as if no trial had ever occurred. Gaskill

v. Commonwealth, 206 Va. 486, 489, 144 S.E.2d 293, 296 (1965).

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Thus, McClellan's argument that her voluntary appeal, after her

conviction for the misbranding charge in district court,

constituted a new trial is without merit, and we find that the

trial court committed no error in determining that McClellan's

prosecution and conviction for the charge did not violate her

rights against double jeopardy.

D.

Finally, McClellan argues that the trial court erred in

finding the evidence sufficient to establish that she sold the

food items in "package form" as required pursuant to Code

§ 3.1-396(e). We again disagree.

Code § 3.1-396, provides as follows, in pertinent part:

A food shall be deemed to be misbranded:

* * * * * * *

(e) If in package form, unless it bears a
label containing (1) the name and place of
business of the manufacturer, packer, or
distributor; (2) the name of the article;
(3) an accurate statement of the quantity of
the contents in terms of weight, measure, or
numerical count; provided, that under clause
(3) of this subdivision reasonable
variations shall be permitted, and
exemptions as to small packages shall be
established, by regulations prescribed by
the Board.

The plain and ordinary meaning of the term "package" is that of

"a commodity in its container; a unit of product uniformly

processed, wrapped or sealed for distribution." Webster's,

supra, at 1617. The photographs admitted into evidence here,

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showed that each of the cheeses were provided to the purchaser

in zip-lock bags with writing on them. This certainly provided

credible evidence upon which the trial court could reasonably

find that each product was uniformly placed in some sort of

"wrapping" or "seal" for distribution and, thus, we find no

error in the trial court's determination that the cheeses were

offered in "package form."

Nevertheless, McClellan contends that she merely placed the

cheeses in the bags for the purchaser's convenience and that

because her cheeses were sold by the pound, they were not

pre-packaged for distribution purposes. However, no evidence was

presented to this effect at trial. Accordingly, we do not

consider such evidence or argument for purposes of this appeal.

See Rule 5A:18. For the above-stated reasons, we find no error in

the trial court's rulings and affirm its judgment.

Affirmed.

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