 A Rehearing En Banc was granted for this case on June 27, 1995.

                     COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judges Benton and Elder
Argued at Richmond, Virginia


JEFFERY CLAIBORNE ALLEN, S/K/A
 JEFFREY C. ALLEN
                                         MEMORANDUM OPINION * BY
v.   Record No. 2559-93-1              JUDGE JAMES W. BENTON, JR.
                                              MAY 30, 1995
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
                        Robert W. Curran, Judge

             Ronald L. Smith for appellant.

             Leah A. Darron, Assistant Attorney General
             (James S. Gilmore, III, Attorney General;
             Eugene Murphy, Assistant Attorney General,
             on brief), for appellee.



      Jeffrey C. Allen was convicted of possessing marijuana, in

an amount in excess of one-half ounce, with the intent to

distribute, Code § 18.2-248.1(a)(2).    Allen contends that the

trial judge erred in finding that the weight of unanalyzed seeds

may be considered when determining whether the statutory weight

requirement had been proved.    We reverse the felony conviction

and remand for imposition of judgment for the misdemeanor

offense.    Code § 18.2-248.1(a)(1).

      The evidence proved that the police executed a search

warrant at Allen's residence and seized several bags of

marijuana.    The forensic scientist who analyzed the marijuana

      *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
determined its weight to be 40.5 ounces.    She testified that

seeds were present in the marijuana.   She did not remove the

seeds; she did not know whether the seeds were capable of

germination; and she did not weigh the seeds.    In denying the

motion to strike the evidence, the trial judge ruled that the

seeds were properly used in determining the weight of the

marijuana.

     In Hill v. Commonwealth, 17 Va. App. 480, 438 S.E.2d 296

(1993), we held "that 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."   Id. at 484, 438 S.E.2d at 298.   See Code § 54.1-3401.

The Commonwealth failed to do so in this case.

     Because the evidence failed to prove Allen possessed the

amount of marijuana necessary to support a felony sentence

pursuant to Code § 18.2-248.1(a)(2), we reverse the felony

sentence and remand the conviction for imposition of a judgment

for the misdemeanor offense pursuant to Code § 18.2-248.1(a)(1)

and sentencing.
                                           Reversed and remanded.




                               - 2 -
MOON, C.J., dissenting.



     I respectfully dissent from the majority's opinion that the

Commonwealth's evidence was insufficient to prove beyond a

reasonable doubt that Jeffrey C. Allen possessed more than one-

half ounce of marijuana.

     After the Commonwealth proved possession by Allen of the

material in question, it introduced into evidence Commonwealth's

Exhibit No. 1, the Certificate of Analysis signed by Karen B.

Deutsch.   It shows that the material was marijuana weighing 40.5

ounces. The critical part of the exhibit shows the following:
     Evidence submitted by: D. K. Waters

     Sealed packaging containing:

     7, 8, 9, 10, 12 and 13, Six (6) plastic bags, each
     containing plant material.

     11.   Two (2) plastic bags, each containing plant material.

     RESULTS:

     7.    Marijuana,   435.8 grams (15.37 ounces).
     8.    Marijuana,   432.1 grams (15.24 ounces).
     9.    Marijuana,   159.7 grams (5.63 ounces).
     10.   Marijuana,   110.6 grams (3.90 ounces).
     11.   Marijuana,   total weight: 10.3 grams (0.36 ounce).
     12.   Marijuana,   1.4 grams (0.04 ounce).
     13.   Marijuana,   0.2 gram (0.007 ounce).


     Officers Waters testified that the two larger bags of

marijuana would sell on the street for over a thousand dollars.

All of the marijuana, he testified, if divided into smaller

portions, could be sold for $10,000.    The defendant admitted to

being a marijuana user and having paid $500 for the five ounce




                                - 3 -
bag.       Defendant's girlfriend testified that she had agreed to pay

$4800 for the marijuana found in the house.

       This evidence, in my opinion, made out a prima facie case of

possession by Allen of more than one-half ounce of marijuana.

       The defense then called as its witness Karen B. Deutsch, the

Forensic Scientist for the Division of Forensic Science who had

signed the certificate of analysis.        She was told to look at the

bags "7," "8," and "9" and asked "are there seeds in these bags?"

She responded "there are some, yes."        Also, in response to

questions, she stated that she did not weigh the seeds and did

not know if the seeds were germinating or sterile.
       She was not asked about bags "10," "11," "12," and "13." 1

       Bag "9" is obviously a clear plastic bag of plant material

containing, as Deutsch testified, "some seeds," not a bag of

seeds containing some plant material.       One can handle bag "9"

and, without removing the marijuana and the seeds from the bags,

tell that the weight of seeds in the bag is inconsequential

compared to the weight of the other plant material.       By isolating

seeds to one corner of the bag and feeling the seeds, it is

apparent that the seeds are not of matter possessing an unusually

high specific gravity.      It is obvious that the plant material

greatly outweighs that of the seed material.       Only if the seeds
       1
        Only the plastic bag within the manila envelope marked
"#9" has Exhibit 1 labeled on it. The other manila envelopes
marked "#7," "#8," "#10," "#11," "#12," and "#13" were kept by
the circuit court clerk as part of the court file and forwarded
at our request along with bag #9 to the Court of Appeals.



                                   - 4 -
weigh eighty times more than does the plant material could the

evidence be insufficient.

     In my opinion, a rational fact finder could have believed

beyond a reasonable doubt that bag "9" alone contained more than

one-half ounce of marijuana.   The weight of the bags containing

marijuana that appellant did not challenge was over five ounces.

     I would affirm the judgment, and therefore, I dissent.




                               - 5 -
