Alfred Christian Darlington v. Commonwealth ( 1997 )

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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