                      COURT OF APPEALS OF VIRGINIA


Present: Judges Frank, Felton and Kelsey
Argued by teleconference


ROBERT WILLIAM DOLAN, III
                                           MEMORANDUM OPINION * BY
v.   Record No. 3167-01-2                JUDGE WALTER S. FELTON, JR.
                                              DECEMBER 31, 2002
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
                   Paul M. Peatross, Jr., Judge

          Vanessa E. Hicks, Assistant Public Defender,
          for appellant.

          Jennifer R. Franklin, Assistant Attorney
          General (Jerry W. Kilgore, Attorney General,
          on brief), for appellee.


     Robert Dolan III was convicted in a bench trial for

manufacturing marijuana not for his own use, in violation of Code

§ 18.2-248.1(c).   On appeal, he contends that the evidence was

insufficient to support his conviction.       We affirm the judgment of

the trial court.

                            I.   BACKGROUND

                            A.   OFFENSES

     Between the dates of July 1, 1999 and August 18, 1999,

police officers from the Albemarle Police Department and the

Jefferson Area Drug Enforcement ("JADE") Task Force conducted


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
surveillance of a wooded area in Albemarle County.   On July 1,

1999, Officer Ray Walker discovered twenty-three marijuana

plants growing in eight five-gallon buckets.   The plants were

healthy and green, ranging in size from three to twelve inches.

The grass in the area was overgrown, and an abandoned trailer

was nearby.

     As a result of the discovery, Officer Farrell was asked to

install video equipment in the area in order to monitor movement

around the plants and the area.   On July 22, 1999, officers

began installing the video surveillance equipment.   During the

installation, they discovered that the larger plants, twelve in

total, had been removed.   Only eleven plants remained.

     From July 22, 1999 through August 17, 1999, officers

conducted video surveillance of the wooded area.   During that

period, Dolan was observed twice, once on July 22 and once on

August 17, watering the remaining plants and removing them.

Dolan was the only person observed caring for, watering, and

removing the plants.

     Surveillance ceased on August 18, 1999, when officers

removed the video cameras.   In addition to removing the cameras,

the officers removed the remaining six plants and submitted them

to a lab for analysis.   On September 1, 1999, Dolan was

arrested.   No scales, plastic baggies, or excessive amounts of

money were found in his possession.



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                              B.     TRIAL

     On May 26, 2001, upon a waiver of his rights to a trial by

jury, the court tried Dolan for manufacturing marijuana, not for

his own use, in violation of Code § 18.2-248.1(c).     Detective

Danny Board, qualified by the trial court as an expert in the

manufacture of marijuana for personal use and for distribution,

testified on behalf of the Commonwealth.     He stated that a

full-grown marijuana plant yields a pound of sellable marijuana

or approximately 448 individual joints.      A heavy smoker of

marijuana would smoke around six joints a day.     In Detective

Board's opinion, growing six or eleven marijuana plants is not

consistent with personal use.

     Detective Board next testified as to the typical growing

pattern of marijuana.    He stated that the first step is to begin

with seeds in a cup.    After the seeds sprout and grow a little,

they are put in a pot.   Once the plant has grown more, it is

then removed from the pot and transplanted to the ground so that

it "fruits itself better."   The typical growing season runs from

April to September, with cultivation at the end of September.

When shown pictures of the six plants that remained following

the surveillance, Detective Board noted that they were young and

that no grower would stop trying to grow or to harvest marijuana

from the plants at that size.      Dolan was convicted of

manufacturing marijuana, in violation of Code § 18.2-248.1(c).



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                            II.    ANALYSIS

     Dolan contends on appeal that the evidence was insufficient

to prove beyond a reasonable doubt he manufactured marijuana not

for his own use.   We disagree.

          When the sufficiency of the evidence is
          challenged on appeal, it is well established
          that we must view the evidence in the light
          most favorable to the Commonwealth, granting
          to it all reasonable inferences fairly
          deducible therefrom. The conviction will be
          disturbed only if plainly wrong or without
          evidence to support it.

Jones v. Commonwealth, 13 Va. App. 566, 572, 414 S.E.2d 193, 196

(1992).

     There are a number of factors that may be considered in

determining whether marijuana is being manufactured not for

personal use.   Such factors include the quantity and condition

of the marijuana plants, evidence of the potential yield of the

plants, the existence of supervised growth, evidence of devices

to assist with growth (lamps, watering devices, etc.), packaging

materials, the presence of unusual amounts of cash, and

equipment related to distribution.        See Reynolds v.

Commonwealth, 9 Va. App. 430, 440-41, 388 S.E.2d 659, 665-66

(1990); Monroe v. Commonwealth, 4 Va. App. 154, 156-57, 355

S.E.2d 336, 337 (1987); see also McCain v. Commonwealth, 261 Va.

483, 493, 545 S.E.2d 541, 547 (2001).       The list of factors is

not exhaustive.    Furthermore, presence of all the factors is not

necessary to prove the offense.


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        Dolan relies on Reynolds, 9 Va. App. 430, 388 S.E.2d 659,

to support his contention that the evidence was insufficient to

support his conviction.    That reliance is misplaced.   In

Reynolds, the police discovered twenty-nine marijuana plants

growing on Reynolds' premises.    The plants were in various

conditions of health, from good to poor, and weighed a total of

1.16 grams.    A scale and smoking pipe were also found.    We held

that the evidence was insufficient to support a conviction for

manufacturing marijuana not for personal use.

             [W]e note that the record contains no
             evidence of how much saleable marijuana
             could be produced by the twenty-nine plants
             found on the premises; no evidence of how
             many of the plants were actually healthy
             enough to produce useable product; no
             evidence as to the value, if any, of the
             product; no evidence of the presence of
             receptacles to bag the marijuana for resale;
             and no evidence of watering devices and
             lights to assist in its growth. While this
             type of evidence may not be necessary to
             prove production for use of others . . . the
             deficiencies identified are sufficient in
             this case to point to a failure of the
             Commonwealth to exclude the reasonable
             hypothesis that the plants were being grown
             for personal use.

Reynolds, 9 Va. App. at 440-41, 388 S.E.2d at 666.

        The deficiencies noted in Reynolds do not exist in this

case.    Initially, police discovered twenty-three well cared for

marijuana plants growing in pots, in a wooded area.      As a result

of this discovery, the police set up video surveillance

equipment around the plants.    Once surveillance began, however,


                                 - 5 -
only eleven marijuana plants remained.   Six marijuana plants in

very good health were recovered at the time of Dolan's arrest.

Based on Detective Board's expert testimony as to

yield-per-plant, the recovered plants had a potential yield of

six pounds of saleable marijuana, which he stated was

inconsistent with growing for personal use.

     Over a period of twenty-seven days, from July 22, 1999 to

August 17, 1999, police videotaped activity around the marijuana

plants.   During that time period, Dolan was the only person seen

exercising dominion and control over the plants.    He supervised

the growth of the plants by watering them, plucking their

leaves, and removing the larger plants while leaving the smaller

immature plants behind.

     Dolan's systematic removal of the more mature plants,

mid-way through the growing season, was consistent with

testimony describing the manufacturing of marijuana.    Detective

Board, qualified by the trial court as an expert in the

manufacture and distribution of marijuana, testified the

marijuana growing season runs from April to September.    During

the growth season, the typical growing pattern for marijuana is

to start with seeds in a cup.   After the seeds begin to sprout,

they are placed in a pot.    The plant remains in the pot until it

grows tall enough to be transplanted into the ground so that it

can "fruit itself better."



                                - 6 -
     In addition, the fact that no lighting devices, packing

materials, or distribution equipment were found does not

discount the conclusion that the marijuana plants were being

manufactured for distribution.    The marijuana plants were

cultivated outdoors so lighting devices were unnecessary.     It is

also unreasonable to expect to find packaging and distribution

materials where seedlings were being started.    According to the

expert, no grower would have attempted to harvest the marijuana

at that time, based on the size of the plants.   At most, a

grower might pull pieces off the plant in furtherance of the

growth.   Dolan was in no position to begin packaging the

marijuana at the time of his arrest.

     For these reasons we conclude that the evidence was

sufficient for the trial court to find Dolan guilty of

manufacturing marijuana not for his own use.

     The judgment of the trial court is affirmed.

                                                         Affirmed.




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