                       COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Fitzpatrick and Annunziata
Argued at Richmond, Virginia

ALFRED CHRISTIAN DARLINGTON
                                        MEMORANDUM OPINION * BY
v.     Record No. 2937-96-2           JUDGE JOHANNA L. FITZPATRICK
                                          SEPTEMBER 23, 1997
COMMONWEALTH OF VIRGINIA


              FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                         James B. Wilkinson, Judge

               Felipita Athanas for appellant.
               Ruth Ann Morken, Assistant Attorney General
               (James S. Gilmore, III, Attorney General, on
               brief), for appellee.



       On July 29, 1996, Alfred C. Darlington (appellant) was

convicted in a bench trial of manufacturing marijuana not for his

own use and of possessing drug paraphernalia.         The sole issue

raised on appeal is whether the evidence is sufficient to support

appellant's conviction of manufacturing marijuana not for his own

use.       Finding that it is not sufficient, we reverse.

                                    I.

       On October 8, 1995, Detective John Truehart (Truehart) of

the Chesterfield County Police Department arrived at appellant's

home located at 4715 Castlewood Road in the City of Richmond.          He

observed appellant inside the house "smoking a marijuana pipe."

As appellant came toward the door, Truehart saw him "put the pipe

in the sofa closest to the door."        Appellant then stepped out

onto the front stoop of the house.       When Truehart requested that
       *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
appellant return stolen property (a CD tower) to him, Truehart

observed appellant take a bag of marijuana out of the CD shelves

and drop it "off the railing down to the ground."

     After obtaining appellant's permission, Truehart, Officer

Michael Bender (Bender) of the Richmond police and other officers

searched appellant's home.   In the basement the officers found

scales, plastic bags, and, behind a fake wall, "four pots with

plants inside them, grow lights, and a fan for ventilation."

Bender testified at trial that "[t]he plants were recovered

downstairs.   The marijuana itself was recovered upstairs," and no

marijuana was recovered from appellant's person.    Bender also

recovered the marijuana that was dropped to the ground.
     Appellant testified that he smoked marijuana, and he

admitted ownership of the plants in his basement.   He denied

selling or giving the marijuana away.   He denied using the scales

or knowing that the scales or the bags were located in the

basement.    Appellant stated that prior to this incident he had

never grown marijuana before.   He said that in the past when he

smoked marijuana it was because he had gotten it from someone

else, and that he had been smoking marijuana for ten to fifteen

years.

     Among the items recovered from appellant's home were the

following:    marijuana, plastic baggies, rolling papers, a "bong,"

a number of smoking bowls, a grow light, scales, and fourteen

marijuana plants.   The amount of marijuana at issue is




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approximately .15 ounces.

                                II.

     Appellant argues that the Commonwealth failed to prove that

appellant had the intent to distribute the marijuana recovered

from his home, and that such proof is necessary to establish that

the marijuana was not for appellant's personal use.   We agree

that the evidence was insufficient to convict appellant of

manufacturing marijuana not for his own use.
     "On appeal, when the sufficiency of the evidence is

challenged, 'we review the evidence in the light most favorable

to the Commonwealth, granting to it all reasonable inferences

fairly deducible therefrom.'"   Welch v. Commonwealth, 15 Va. App.

518, 523, 425 S.E.2d 101, 105 (1992) (quoting Bright v.

Commonwealth, 4 Va. App. 248, 250, 356 S.E.2d 443, 444 (1987)).

"The Commonwealth is required to prove every material element of

the alleged crime beyond a reasonable doubt, and, when it relies

on circumstantial evidence to sustain that burden, 'all necessary

circumstances proved must be consistent with guilt and

inconsistent with innocence and exclude every reasonable

hypothesis of innocence.'"   Reynolds v. Commonwealth, 9 Va. App.

430, 440, 388 S.E.2d 659, 665 (1990) (quoting Inge v.

Commonwealth, 217 Va. 360, 366, 228 S.E.2d 563, 567 (1976)).

"'The judgment of a trial court sitting without a jury . . . will

not be set aside unless it appears from the evidence that the

judgment is plainly wrong or without evidence to support it.'"




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Josephs v. Commonwealth, 10 Va. App. 87, 99, 390 S.E.2d 491, 497

(1990) (en banc) (quoting Martin v. Commonwealth, 4 Va. App. 438,

443, 358 S.E.2d 415, 418 (1987)).

     In the instant case, our decision is controlled by our

holding in Reynolds v. Commonwealth, 9 Va. App. 430, 388 S.E.2d

659 (1990).   In that case, the defendants were charged with

manufacturing marijuana not for their own use.   The Commonwealth

proved that the police seized twenty-nine marijuana plants, a

scale and a smoking pipe from the defendants' home.   However, in
Reynolds, we held that such evidence was insufficient to convict

defendants of manufacturing marijuana for distribution rather

than for personal use.   The defendants explained that they grew

the plants for their own use, and the Commonwealth failed to

introduce evidence of:   (1) how many plants were healthy enough

to produce a useable product; (2) how much saleable marijuana

could be produced from the seized plants; (3) the value of the

contraband; (4) the presence of the receptacles to bag the

marijuana for sale; or (5) watering devices and lights to assist

in the plants' growth.   We held that the Commonwealth failed to

meet its burden of proof.

     We find that the circumstantial evidence proved by the

Commonwealth in the instant case is similarly insufficient to

support appellant's conviction.   The evidence recovered from

appellant's home, .15 ounces of marijuana and fourteen marijuana

plants, when combined with the other evidence adduced, does not



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permit the inference that appellant was manufacturing marijuana

for other than his personal use.       Rather, the evidence is

consistent with the personal use of marijuana.      Here, the police

observed appellant smoking when they arrived at his house.

Appellant testified that he had been smoking marijuana for ten to

fifteen years, and that he had the marijuana solely for his own

use.    He specifically denied selling or giving the marijuana

away.    Moreover, the minimal quantity of marijuana at issue is

consistent with personal use.     See, e.g., Davis v. Commonwealth,

12 Va. App. 728, 730, 406 S.E.2d 922, 923 (1991) (analyzing

expert testimony that 6.88 ounces of marijuana is not consistent

with personal use, but that "an ounce or less of the drug on

hand" is typical for a marijuana user).

        Finally, the Commonwealth failed to produce any evidence of

how much saleable marijuana could be produced from the fourteen

plants recovered or of the value, if any, of the marijuana.

Viewing the evidence in its entirety and in the light most

favorable to the Commonwealth as the prevailing party, we find

that "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 441, 388 S.E.2d at 666.       Accordingly, the

judgment of the trial court is reversed.
                                             Reversed and dismissed.




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