Keith M. Neale v. Commonwealth of Virginia ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Coleman and Bumgardner
Argued at Salem, Virginia
KEITH M. NEALE
MEMORANDUM OPINION * BY
v. Record No. 1822-98-3 JUDGE SAM W. COLEMAN III
SEPTEMBER 28, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY
Porter R. Graves, Jr., Judge
R. Darren Bostic (Bostic & Bostic, P.C., on
brief), for appellant.
Eugene Murphy, Assistant Attorney General,
(Mark L. Earley, Attorney General, on brief),
for appellee.
Keith M. Neale was convicted by a jury of possession of more
than one-half ounce and less than five pounds of marijuana with
the intent to distribute in violation of Code § 18.2-248.1(a)(2).
On appeal, Neale contends that the trial court erred by allowing
an expert witness to offer an opinion on an ultimate issue of
fact. Neale also challenges the sufficiency of the evidence to
support the conviction. For the reasons that follow, we affirm
the conviction.
BACKGROUND
Officers discovered a brown paper bag of marijuana on the
floorboard of Neale's car. In the car's trunk, officers found a
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
plastic bag containing marijuana seeds. Inside Neale's residence,
officers discovered another package of marijuana seeds.
A certificate of analysis from the Division of Forensic
Science confirmed that the paper bag contained 9.59 ounces of
marijuana plant material.
Officer Christopher Rush qualified as an expert in drug
interdiction and distribution. Rush, who had experience removing
stems and seeds from marijuana for purposes of weighing, testified
that in his experience removing stems and seeds from marijuana
plant material reduced the weight by approximately one third.
After inspecting the marijuana in the paper bag that had been
seized from Neale, Rush stated that its proportion of stems and
seeds relative to other plant material was similar to what he
normally observed. Accordingly, he testified that in his opinion
the bag which had a gross weight of 9.59 ounces contained more
than one-half ounce of marijuana exclusive of seeds and stems.
Rush further testified that based on his experience and training,
possession of 9.59 ounces of marijuana was inconsistent with
personal use. According to Rush, purchases of marijuana for
personal use tend to be smaller and in uniform half-ounce or full
ounce units. Rush estimated the marijuana's street value to be
$1,000. Rush testified that normally marijuana is sold with seeds
and stems included. He added that when seeds are separately
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packaged, they are usually for cultivating marijuana or for sale
to individuals who cultivate marijuana.
ANALYSIS
Neale argues that Rush's testimony that the marijuana
exclusive of seeds and stems weighed over one-half ounce was
inadmissible because it is an opinion on an ultimate issue of
fact.
Neale makes this argument for the first time on appeal.
When the Commonwealth offered Rush's testimony, Neale objected,
but not on the ground that the evidence invaded the province of
the jury by being an opinion on an ultimate issue of fact.
Neale argued instead that Rush was not qualified to offer an
opinion as to the weight of the marijuana absent seeds and
stems, that the marijuana should have been weighed without the
seeds and stems by the Department of Forensic Sciences, and that
an expert from the Department of Forensic Sciences should have
been present to testify regarding the results. The objection
went to the qualifications of the expert to give an opinion, not
to the admissibility of the opinion on a fact which the jury had
to decide. We decline to address the issue whether the evidence
was inadmissible as an opinion on an ultimate issue of fact.
See Rule 5A:18. Furthermore, the fact that Neale raised the
argument in a post-verdict motion does not preserve the argument
for our review. See Boblett v. Commonwealth, 10 Va. App. 640,
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650-51, 396 S.E.2d 131, 136-37 (1990) (raising an objection to
admissibility of evidence for the first time in a post-trial
motion will not preserve the issue for appeal); Harward v.
Commonwealth, 5 Va. App. 468, 473, 364 S.E.2d 511, 513 (1988)
("To be timely, an objection to the admissibility of evidence
must be made when the occasion arises –- that is, when the
evidence is offered, the statement made or the ruling given.").
Neale also argues that the Commonwealth's evidence was
insufficient to support the conviction. On review of a challenge
to the sufficiency of the evidence, we view the evidence in the
light most favorable to the prevailing party and grant to it all
reasonable inferences fairly deducible therefrom. See
Commonwealth v. Jenkins, 255 Va. 516, 521, 499 S.E.2d 263, 265
(1998). We review the evidence that tends to support the
conviction and uphold the conviction, and we will affirm the
conviction unless it is plainly wrong or lacks evidentiary
support. See id. at 520, 499 S.E.2d at 265.
The evidence, viewed in the light most favorable to the
Commonwealth, proved that defendant possessed greater than
one-half ounce of marijuana as defined by Code § 54.1-3401 1 and in
violation of Code § 18.2-248.1. In Hill v. Commonwealth, 17 Va.
1Code § 54.1-3401 excludes from the legal definition of
marijuana, among other things, mature stalks and sterilized
seeds.
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App. 480, 485, 438 S.E.2d 296, 299 (1993), we reversed a
conviction for violation of Code § 18.2-248.1 where the
Commonwealth introduced 2.98 ounces marijuana inclusive of mature
stalk, seed, and stem. The panel determined that any inference
that the marijuana, exclusive of sterilized seed or mature stalk
exceeded one-half ounce would be pure speculation because the
Commonwealth offered no facts to support such an inference. See
id. Here, however, the Commonwealth offered expert testimony that
removal of seeds and stems from marijuana similar to that seized
from Neale normally reduces its weight by one third. Therefore,
the fact finder could permissibly infer that the 9.59 ounces of
marijuana, exclusive of seeds and mature stalks, exceeded one-half
ounce.
Finally, we find the evidence sufficient to prove intent to
distribute. "Because direct proof of intent is often impossible,
it must be shown by circumstantial evidence." Servis v.
Commonwealth, 6 Va. App. 507, 524, 371 S.E.2d 156, 165 (1988).
Proof that the quantity of controlled substance possessed exceeds
an amount normally possessed for personal use, without more, can
be sufficient to show an intent to distribute. See Hunter v.
Commonwealth, 213 Va. 569, 570, 193 S.E.2d 779, 780 (1973). Here,
the Commonwealth's expert witness testified that possession of
9.59 ounces of marijuana is possessing an amount inconsistent with
personal use. Moreover, the evidence proved that Neale also
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possessed packaged seeds which the expert testified were commonly
intended for cultivation or resale for cultivation. Under these
circumstances, the jury could reasonably infer that Neal possessed
marijuana with the intent to distribute. See Davis v.
Commonwealth, 12 Va. App. 728, 733, 406 S.E.2d 922, 925 (1991)
(finding possession of 6.88 ounces of marijuana, combined with
other circumstantial evidence sufficient to prove intent to
distribute.)
Accordingly, the evidence is sufficient to support Neale's
conviction for possession of greater than one-half ounce and less
than five pounds of marijuana in violation of Code § 18.2-248.1,
and we affirm the trial court's judgment.
Affirmed.
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