                   COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Elder and Frank
Argued at Chesapeake, Virginia


CARL LAWAYNE HUGHES
                                          MEMORANDUM OPINION * BY
v.   Record No. 2604-99-1               JUDGE JAMES W. BENTON, JR.
                                             DECEMBER 19, 2000
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
                      Verbena M. Askew, Judge

           Janice G. Murphy for appellant.

           H. Elizabeth Shaffer, Assistant Attorney
           General (Mark L. Earley, Attorney General, on
           brief), for appellee.


     The trial judge convicted Carl Lawayne Hughes of the felonies

of distributing marijuana and possessing with the intent to

distribute marijuana in violation of Code § 18.2-248.1(a)(2).

Hughes contends the evidence in each case was insufficient to

prove the weight of the marijuana exceeded more than one-half

ounce.   We reverse the felony convictions and remand for

resentencing as misdemeanor convictions.     See Code

§ 18.2-248.1(a)(1).

                                 I.

     The grand jury indicted Carl Lawayne Hughes for distributing

more than one-half ounce but not more than five pounds of

     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
marijuana and for possessing with the intent to distribute more

than one-half ounce but not more than five pounds of marijuana in

violation of Code § 18.2-248.1.   The evidence at trial proved that

Detective Stevenson met Hughes and another man at a restaurant to

buy marijuana.    Hughes permitted the detective to inspect two

separate bags, each of which contained what appeared to be

marijuana.    Detective Stevenson purchased one bag from Hughes.

     Several officers arrested Hughes after he exited the

restaurant.   Hughes still had possession of the other bag the

detective had inspected.   The officer who arrested Hughes

testified that both bags contained what appeared to be marijuana,

seeds, stems, and little twigs.   He also testified that the

laboratory technicians will not separate seeds and stems when

doing the analysis.   The detective who purchased the substance

from Hughes testified that he did not request the technicians to

separate the stems or seeds from the other material in the bag.

He also did not request that the seeds be analyzed to determine if

they were sterile or would germinate.

     When the Commonwealth moved to offer as evidence the contents

of the two bags and the two certificates of analysis, Hughes

objected on the ground that both bags contained seeds and stems,

which are not marijuana.   The certificates indicated that the bag

seized from Hughes contained 3.88 ounces of marijuana and the bag

the detective purchased from Hughes contained 3.83 ounces of

marijuana.

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     The trial judge ruled "you can visually take a look at the

packages that were submitted into evidence and see that was a very

small amount of seeds and stems and that the majority of this is

the actual leaf itself."   The judge then overruled Hughes'

objection and admitted into evidence the certificates and the bags

of material.   At the conclusion of the evidence, the judge

convicted Hughes of both felonies.

                                II.

     Pertinent to this appeal, Code § 18.2-248.1 provides as

follows:

           [I]t shall be unlawful for any person to
           . . . distribute or possess with intent to
           . . . 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[.]

At the time this offense was committed, Code § 54.1-3401 defined

marijuana as follows:

           "Marijuana" means any part of a plant of the
           genus Cannabis . . . , its seeds or resin;
           and every compound, manufacture, salt,
           derivative, mixture, or preparation of such
           plant, its seeds, or its resin. Marijuana
           shall not include . . . the mature stalks 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


                               - 3 -
           such mature stalks, fiber, oil, or cake, or
           the sterilized seed of such plant which is
           incapable of germination. 1

     The evidence proved that the bag of material the detective

purchased from Hughes contained marijuana, seeds, stems, and

little twigs.   The total weight of those substances was 3.83

ounces.   The evidence also proved that the bag of material

Hughes had after that sale, which gave rise to the prosecution

for possession with intent to distribute, similarly contained

marijuana, seeds, stems, and little twigs.   It weighed 3.88

ounces.

     The evidence did not prove the weight of marijuana, which

was statutorily defined to be exclusive of sterilized seeds,

stems, and twigs.   The prosecutor argued to the trial judge that

the Commonwealth only had to prove weight over one-half ounce,

that the weight of the bags far exceeded this amount, and that


     1
       In 1999, the legislature amended the statute so that it
now reads as follows:

           "Marijuana" means any part of a plant of the
           genus Cannabis whether growing or not, its
           seeds or resin; and every compound,
           manufacture, salt, derivative, mixture, or
           preparation of such plant, its seeds, or its
           resin. Marijuana shall not include any oily
           extract containing one or more cannabinoids
           unless such extract contains less than
           twelve percent of tetrahydrocannabinol by
           weight, nor shall marijuana include the
           mature stalks of such plant, fiber produced
           from such stalk, oil or cake made from the
           seeds of such plant, unless such stalks,
           fiber, oil or cake is combined with other
           parts of plants of the genus Cannabis.

                               - 4 -
for Hughes to prevail more than 80% of the material in the bags

would have to consist of seeds, stems, and twigs.

     As we noted in Hill v. Commonwealth, 17 Va. App. 480, 484,

438 S.E.2d 296, 298 (1993), "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."   That burden is not met when the quantity

of material is of small weight and the trier of fact merely

infers that the weight of the marijuana, less the stems,

sterilized seeds, and twigs, exceeds one-half ounce.    In this

case, when the trial judge decided the comparative weights of

the substances by a visual inspection, she did no more than draw

a mere inference of the necessary fact.   As in Hill, "any such

inference would have been purely speculative because no facts

were proved that would have supported such an inference."     Id.

at 485, 438 S.E.2d at 299.

     When the Commonwealth bears the burden of proving a fact

beyond a reasonable doubt, a mere inference or conjecture

concerning that fact is not sufficient to support the

conviction.   See Stone v. Commonwealth, 176 Va. 570, 577, 11

S.E.2d 728, 731 (1940).   Evidence that creates only "a suspicion

or probability" does not satisfy the Commonwealth's "burden

. . . to prove every essential element of the offense beyond a

reasonable doubt."   Moore v. Commonwealth, 254 Va. 184, 186, 491

S.E.2d 739, 740 (1997).   We hold that the trial judge erred by

                               - 5 -
inferring from a visual inspection that the weight of marijuana

in each bag, exclusive of sterilized seeds, stems, and twigs,

exceeded one-half ounce.   Accordingly, we reverse the

convictions and remand for imposition of misdemeanor convictions

pursuant to Code § 18.2-248.1(a)(1).

                                         Reversed and remanded.




                               - 6 -
Frank, J., concurring.

     I concur with the majority because I believe Hill v.

Commonwealth, 17 Va. App. 480, 438 S.E.2d 296 (1993), mandates

the reversal of appellant's convictions.   Since appellant was

charged with one count of distributing more than one-half ounce

but not more than five pounds of marijuana and one count of

possession with the intent to distribute marijuana, we must

determine whether the Commonwealth proved that the marijuana in

each of the two bags weighed more than one-half ounce.    One bag

weighed 3.88 ounces, including leaf marijuana, stems, seeds, and

twigs.   The other bag weighed 3.83 ounces, including the same

material.   The weight of the two bags cannot be aggregated

because there are two distinct offenses.   In Hill, the

marijuana, stems, and seeds weighed approximately 2.98 ounces.

The Commonwealth argued the trial court could have inferred,

upon a visual inspection of the contents, that the bag contained

more than one-half ounce of marijuana less the mature stalk and

seeds.   We wrote, "[o]n the evidence in this record, any such

inference would have been purely speculative because no facts

were proved that would have supported such an inference."     Id.

at 485, 438 S.E.2d at 299.

     In this case, the trial judge, after a visual inspection of

the two bags, ruled that "you can visually take a look at the

packages that were submitted into evidence and see that was a



                               - 7 -
very small amount of seeds and stems and that the majority of

this is the actual leaf itself."

        I agree with the majority that without a more detailed

factual finding of the basis of the visual inspection, any such

inference is purely speculative.    However, I write separately to

state that under the proper factual circumstances the trier of

fact can, indeed, make a factual finding of the weight of the

drugs without the testimony of an expert witness.    If the

quantity of drugs was of sufficient weight and the trier of fact

stated the factual basis of its visual inspection, the trial

court would not need an expert to determine that the weight of

the drugs fell between one-half ounce and five pounds or that

the drugs exceeded five pounds in weight.    The trier of fact,

after inspecting the drugs, could determine that the total

material consisted overwhelmingly of marijuana leaves with an

inconsequential quantity of stems and seeds.

        For example, if the total amount of material weighed one

hundred pounds and a small amount of the material consisted of

stems and seeds, with the remaining portion being leaf

marijuana, the trier of fact could make a factual finding that

over five pounds of the material was leaf marijuana.    The trier

of fact does not need expert testimony to determine that the

small amount of seeds and stems weighed ninety-five pounds or

less.    The record, however, must establish the factual basis of



                                 - 8 -
the trial judge's conclusion, such as the weight discrepancy

between the leaf marijuana and the stems and seeds.




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