                   COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Willis and Annunziata
Argued at Richmond, Virginia


ROBERT EARL CHALMERS
                                         MEMORANDUM OPINION * BY
v.   Record No. 2482-96-2             JUDGE JERE M. H. WILLIS, JR.
                                           DECEMBER 23, 1997
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                      Robert W. Duling, Judge
           Matthew T. Paulk, Assistant Public Defender
           (David J. Johnson, Public Defender, on
           brief), for appellant.

           Eugene Murphy, Assistant Attorney General
           (Richard Cullen, Attorney General, on brief),
           for appellee.


      Robert E. Chalmers was convicted in a bench trial of

possession of more than five pounds of marijuana with the intent

to distribute.   Code § 18.2-248.1(a)(3).   Chalmers contends that

the trial court erred in finding the evidence sufficient to prove

beyond a reasonable doubt that the plant material seized included

more than five pounds of marijuana.   For the following reasons,

we affirm the judgment of the trial court.

                                I.

      Special Agent James R. Dempsey arrested Chalmers and

recovered a black nylon bag containing a brick of plant material.

 Dempsey testified that the brick contained marijuana leaves,

seeds, and mature stalks.   The Commonwealth moved to introduce

      *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
the brick of plant material and the laboratory certificate of

analysis.    The certificate stated that the brick consisted of

marijuana plant material weighing approximately 15.4 pounds.      The

sterilized seeds and mature stalks of the plant material were not

removed from the brick before it was weighed.

     Chalmers objected to the admission of the certificate of

analysis.    He argued that it stated only the general weight of

the plant material seized and did not state what portion of the

total material consisted of marijuana seeds and mature marijuana

stalks.   Chalmers also objected to the admission of the brick of

plant material, arguing that it contained material other than

marijuana leaves, which was irrelevant and highly prejudicial

because it unjustly increased the weight of the marijuana.
     The trial judge stated for the record that the brick

measured "slightly in excess of eighteen inches in height,

slightly in excess of twelve inches in width and slightly in

excess of nine inches in depth."   The trial judge opened the

packaging, examined an opening on the top of the brick, and found

it contained "very, very few stems, very, very few seeds and

having observed the weight of the package the Court is of the

opinion that the total of the mass by and large is the leaf

material."   The trial judge also examined the bottom of the brick

and found that "to be of practically the identical consistency

and that is the leaf material by far in excess of any seeds and

very, very few stems at that level."    The trial judge then




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unwrapped the entire brick and found that "the number of seeds

and the number of stems is a minuscule amount compared to the

amount of the brownish-green leafy material."      The trial court

admitted the certificate and the brick into evidence.

                                 II.

     Chalmers contends that the trial court erred in convicting

him of possession of more than five pounds of marijuana with the

intent to distribute because the Commonwealth failed to prove the

marijuana weighed more than five pounds absent the seeds and

stalks as required by Code § 18.2-248.1(a)(3).
     In Hill v. Commonwealth, 17 Va. App. 480, 438 S.E.2d 296

(1993), the Commonwealth introduced a bag of marijuana found in

the defendant's possession, which contained approximately 2.98

ounces of material including leaf marijuana, a stalk, stems, and

seeds.   See id. at 483, 438 S.E.2d at 297.     The Commonwealth's

expert testified that she did not remove the mature stalk or

seeds before weighing the bag's contents, and she did not know

the sterility of the seeds.    Id.     In reversing Hill's conviction,

we ruled that mature marijuana stalks or sterilized seeds may not

be included for the purpose of meeting the statutory minimum

weight for conviction.   Id. at 484-85, 438 S.E.2d at 299.      See

Code § 54.1-3401.   We held that the Commonwealth had failed to

meet its burden of proving "beyond a reasonable doubt that the

marijuana, less the weight of the mature stalk and seeds, weighed

more than one-half ounce."    Id. at 485, 438 S.E.2d at 299.




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     Here, however, the evidence, viewed in the light most

favorable to the Commonwealth, Higginbotham v. Commonwealth, 216

Va. 349, 352, 218 S.E.2d 534, 537 (1975), supports the trial

court's determination that the amount of marijuana exceeded five

pounds.   The total material seized weighed over fifteen pounds.

The trial judge inspected the brick and found it to consist

overwhelmingly of marijuana leaves, with a "minuscule amount" of

stems and seeds.   In concluding that the brick contained more

than five pounds of marijuana, the trial court specifically

excluded the stalk and seed content.     The evidence permitted the

trial court to find reasonably that the substantial weight of the

plant material consisted of marijuana leaves and that the weight

of the seeds and stems was inconsequential compared to the weight

of the other plant material.   Accordingly, the evidence was

sufficient to prove beyond a reasonable doubt that Chalmers

committed the charged offense.
                                                          Affirmed.




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Benton, J., dissenting.

     "The rule is well established that 'in every criminal 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.   This burden never shifts.'"

Sargent v. Commonwealth, 5 Va. App. 143, 148, 360 S.E.2d 895, 898

(1987) (citation omitted).
          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 proscribed by Code
          § 18.2-248.1. Likewise, proof that the
          accused possessed the weight of marijuana
          proscribed by Code § 18.2-281.1(a)[(3)] is an
          essential element of that offense. Although
          the Commonwealth proved that [Chalmers]
          possessed marijuana leaf, . . . mature
          marijuana stalk[s], and marijuana seeds of
          unknown sterility, the total of which weighed
          in excess of [five pounds], the evidence
          failed to prove beyond a reasonable doubt
          that the marijuana, less the weight of the
          mature stalk and seeds, weighed more than
          [five pounds].

Hill v. Commonwealth, 17 Va. App. 480, 484-85, 438 S.E.2d 296,

298 (1993).   See also Code § 54.1-3401 ("[m]arijuana shall not

include . . . the mature stalks of such plant . . . or the

sterilized seed of such plant which is incapable of

germination").   No evidence proved the weight of the seeds or the

mature stalks.   The only evidence of the weight of the brick of

plant material was the certificate of analysis which listed the

combined weight of all the plant material, including the mature

stalks and sterilized seeds.




                               - 5 -
     The trial judge's visual inspection of the material and his

statements that the brick consisted mostly of leaf material are

insufficient to prove the weight of the marijuana contained

within the brick.   Although the trial judge found that the amount

of seeds and stems was "minuscule" in comparison to the amount of

leaf material, this visual observation cannot replace a

definitive finding of mass or weight necessary to convict the

defendant beyond a reasonable doubt.    Indeed, in Hill we noted

that any inference that was drawn of the relative weight of the

material from a visual inspection "would be purely speculation

because no facts were proved that would have supported such an

inference."   Id.

     The trial judge could not, by visual inspection alone,

determine what portion of the total weight of the brick was

attributable to the seeds and stalks.   To establish beyond a

reasonable doubt that the leaf marijuana weighed more than five

pounds, the evidence had to prove the weight of the leaf

marijuana exclusive of the seeds and mature stalks.   Because this

was not done in this case, I would hold that the Commonwealth

failed to prove beyond a reasonable doubt the weight of the

marijuana possessed by Chalmers.   Therefore, I would reverse

Chalmers' conviction.




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