                  COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Moon, Judges Benton and Coleman
Argued at Salem, Virginia


KENNETH DAVID NEWTON
                                       MEMORANDUM OPINION * BY
v.        Record No. 1708-96-3       CHIEF JUDGE NORMAN K. MOON
                                          OCTOBER 7, 1997
COMMONWEALTH OF VIRGINIA


              FROM THE CIRCUIT COURT OF LEE COUNTY
                    William C. Fugate, Judge
          Walter E. Rivers for appellant.

          Linwood T. Wells, Jr., Assistant Attorney
          General (James S. Gilmore, III, Attorney
          General, on brief), for appellee.



     Kenneth Newton appeals his jury trial convictions of

conspiring to commit a felony in violation of Code § 18.2-256,

distributing less than one-half ounce of marijuana in violation

of Code § 18.2-248.1(a)(1), and distributing more than one-half

ounce but less than five pounds of marijuana in violation of Code

§ 18.2-248.1(a)(2).    The jury recommended the maximum sentence on

each charge, and the judge sentenced Newton based on the jury's

recommendation, with all sentences running consecutively, for a

total of 20 years in prison and twelve months in jail.   Newton

asserts that the trial court erred (1) in finding the evidence

sufficient to prove that he distributed marijuana which weighed

more than one-half ounce; and (2) in ruling admissible the

testimony of a police officer that his definition of the term
     *
       Pursuant to Code § 17-116.010, this opinion is not
designated for publication.
"target" was "someone known to deal narcotics in the community."

     We hold that the Commonwealth failed to prove that the

marijuana possessed by Newton weighed more than one-half ounce.

We also hold that it was error for the court to permit the

"target" testimony because of its highly prejudicial nature.

Therefore, we reverse the convictions and remand for a new trial.

     Newton was arrested by Investigator Robert L. Givens, a

member of the Narcotics Division of the Virginia State Police.

During Newton's trial, Givens was asked whether Newton had become

the "target" of an undercover investigation.    Givens responded

affirmatively and was then asked to define the term "target."      He

responded that a "target" was someone "known to deal narcotics in

the community."    Counsel objected, stating, "I am going to object

to this and would move for a mistrial."
     The trial court responded, "I think I would overrule the

objection.    The witness has testified that he has been a member

of the Virginia State Police 23 years, with the Narcotics

Division for 17 years . . . .    I think that he would qualify

under those circumstances to be able to give the general

definition as to what that means in the area of narcotics."

Newton filed a motion to set aside the verdict and to award a new

trial, again arguing that Givens' testimony should not have been

admitted.     At the hearing on that motion, the trial court stated:
             Well, I did rule at that time, when the
             motion was made, that I did not think it was
             prejudicial because in his testimony he did
             use the word "target" and some question was
             asked what the word target meant, but I don't
             think that he went beyond that point in any

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           situation when he talked about Mr. Newton.
           So I would overrule the motion on that
           particular ground.


     Givens also testified that he had overseen a number of

"controlled buys" during which Newton had sold marijuana to a

police informant.   On cross-examination, Givens was asked whether

the marijuana Newton sold "appear[ed] to you to be marijuana with

the stems and seeds and the whole nine yards."     Givens testified,

"[i]t appeared to me to be marijuana, the real thing."
     Sergeant James Hartsock of the Lee County Sheriff's Office

testified that he sent the seized marijuana to the state forensic

laboratory for analysis.   On cross-examination, he stated that he

did not know if the stalks, stems, and seeds had been removed

before it was weighed.   When asked whether "[a]s far as you know,

they probably weighed the entire thing," he responded, "[t]hat's

their procedure."   Hartsock was also asked if he had "any idea

what this stuff would weigh without the stalks and stems and

seeds."   He testified, "No, I don't have any idea what it would

weigh before or after; that's why I asked the lab to weigh it."

                    Admissibility of Drug Weight

     It is well established that "in every 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."   Hill v. Commonwealth, 17 Va. App.

480, 484, 438 S.E.2d 296, 298 (1993).   "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
                               - 3 -
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.

      Code § 54.1-3401 specifically provides that the definition

of marijuana "shall not include . . . the mature stalk 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, cake, or the sterilized seed of such plant which is

incapable of germination."   Accordingly, we have held that mature

marijuana stalks, sterilized seeds, and stems may not be used for

the purpose of meeting the minimum weight required for conviction

under Code § 18.2-248(a)(2).    Id. at 484, 438 S.E.2d at 298.

     When asked whether the marijuana Newton sold "appear[ed] to

be marijuana with the stems and seeds and the whole nine yards,"

Officer Givens replied, "[i]t appeared to me to be marijuana, the

real thing."   Sergeant Hartsock stated that he had not asked the

state forensic laboratory to weigh the marijuana without the

stems, seeds, or stalks and that he did not know if the marijuana

had been weighed without that material.   He further testified

that it was the state lab's procedure to weigh marijuana with the

seeds, stalks, and stems.

     The Commonwealth failed to prove that the marijuana was

properly weighed or that, less the weight of the stems and

sterilized seeds, it weighed more than one-half ounce.   Rather,
                                - 4 -
the testimony of the Commonwealth's witnesses permits the

reasonable inference that the marijuana was weighed with stems

and seeds.    Therefore, the evidence was not sufficient to prove

that the marijuana weighed more than one-half ounce.

       Admissibility of Officer Givens' "Target" Testimony

     Newton also asserts that the trial court erred in allowing

Officer Givens' testimony concerning the term "target" because

Givens expressed an opinion as to the ultimate fact in issue.

Newton further contends that the testimony was inadmissible other

crimes evidence and that its probative value was outweighed by

its resulting prejudice.
     Newton's argument focuses on the following colloquy:
     Commonwealth: And, Officer Givens, was there a time when
                    Kenneth Newton became what's known as a
                    target of an undercover investigation?

     Givens:          Yes, there was.

     Commonwealth:    Could you describe for the jury what a
     target is?

     Givens:        A target is an individual who is known
          to deal in narcotics in the community.
     Counsel:       Your Honor, I'm going to object to this
                    and would move for a mistrial.

     Court:           I think I would overrule the objection.
                       The witness has testified that he has
                      been a member of the Virginia State
                      Police for 23 years, with the Narcotics
                      Division for 17 years, and it's a
                      question of what the common definition
                      of.... what was the word?

     Commonwealth:    "Target," your Honor.

     Court:           Okay, I think that he would qualify
                      under those circumstances to be able to
                      give the general definition as to what
                      that means in the area of narcotics.
                                - 5 -
     Although Newton failed to state the grounds for his motion

for a mistrial, in response to his subsequent motion to set aside

the verdict because of the "target" testimony, the court

responded that it "did not think [the testimony] was

prejudicial[,] . . . [s]o I would overrule the motion on that

particular ground."

     Rule 5A:18 provides that "[n]o ruling of the trial court

. . . will be considered as a basis for reversal unless the

objection was stated together with the grounds therefor at the

time of the ruling, except for good cause shown or to enable the

Court of Appeals to attain the ends of justice."   Newton failed

to specify a basis for his objection to the "target" testimony.

In response to his motion for a new trial, however, the court

stated that it was rejecting the motion because it did not find

the testimony to be prejudicial.   This response shows that the

court considered whether the testimony's prejudicial nature

outweighed its probative value.
     "The purpose of the contemporaneous objection rule embodied

in Rule 5A:18 is to inform the trial judge of the action

complained of in order to give the judge the opportunity to

consider the issue and to take timely corrective action, if

warranted, in order to avoid unnecessary appeals, reversals and

mistrials."   Robinson v. Commonwealth, 13 Va. App. 574, 576, 413

S.E.2d 885, 886 (1992).   Here, that purpose was achieved because

the court considered the basis on which Newton now appeals.   We

                               - 6 -
therefore hold that Newton's assertion of error is not barred by

Rule 5A:18.

       We further hold that the testimony's probative value, if

any, was outweighed by its highly and unfairly prejudicial

nature.   Officer Givens testified that Newton was a "target[--]an

individual known to deal in narcotics in the community."      The

admission of this testimony created a manifest probability that

Newton was improperly prejudiced.       See id. at 579, 413 S.E.2d at

888.   Additionally, the jury's recommendation of the maximum

sentence on all three charges and the court's implementation of

this recommendation, with the sentences to run consecutively for

a total of 20 years in prison and twelve months in jail, suggest

that the "target" testimony was indeed highly prejudicial.      The

trial court erred by not declaring a mistrial because the

testimony may have prejudiced the jurors against Newton by

portraying him as a person with a propensity to distribute

narcotics.    We therefore reverse and remand for a new trial on

the conspiracy charge and two misdemeanor charges of distributing

less than one-half ounce of marijuana.
                                             Reversed and remanded.




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