Robert Earl Chalmers v. Commonwealth of Virginia ( 1997 )

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.
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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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