                     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.


                                 - 3 -
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

                                - 4 -
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

                                - 5 -
"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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