Opinion
Record No. 1211-93-2
Decided: June 7, 1994
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND, James B. Wilkinson, Judge
Reversed and remanded.
Susan D. Hansen, Assistant Public Defender (David J. Johnson, Richmond Public Defender, on brief), for appellant.
Eugene Murphy, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Present: Chief Judge Moon, Judge Fitzpatrick and Retired Judge Hodges
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
On appeal from his conviction in a bench trial of felony possession with intent to distribute marijuana, Aniano Herrera Guzman (appellant) argues that the trial court erred by admitting into evidence the total weight of the marijuana, which included stems and seeds of unknown sterility or capability of germination. For the reasons set forth below, we agree with appellant and reverse his conviction.
The facts of this case are not in dispute. Appellant admitted that three bags of marijuana found during the execution of a search warrant belonged to him. The certificate of analysis indicated that the bags contained 79.55 grams (2.81 ounces) of marijuana. At trial, the police officer who executed the search warrant testified that the bags contained leaves, stems or twigs, and seeds. The officer stated that he did not instruct the Division of Forensic Science Laboratory to weigh only the leafy parts contained in the bags, nor did the laboratory personnel ever indicate to him that they weighed only the leafy parts of the plant material.
The sole issue presented in this appeal is whether the trial court erred in convicting appellant of the felony of possession of more than one-half ounce but less than five pounds of marijuana with intent to distribute, in violation of Code Sec. 18.2-248.1(a) (2), since the Commonwealth failed to prove that the marijuana weighed more than one-half ounce absent the seeds and stems.
Code § 54.1-3401 defines marijuana as: 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, or 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 such mature stalks, fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination.
This question was decided by Hill v. Commonwealth, ___ Va. App. ___, 438 S.E.2d 296 (1993). In Hill, we held that mature marijuana stalks or sterilized seeds may not be used for the purpose of meeting the statutory minimum weight for conviction.
We explained as follows:
Proof that the accused possessed marijuana, as that material is defined in Code Sec. 54.1-3401, is an essential element of each of the offenses proscribed by Code Sec. 18.2-248.1. Likewise, proof that the accused possessed the weight of marijuana proscribed by Code Sec. 18.2-248.1(a) (2) is an essential element of that offense. Although the Commonwealth proved that Hill possessed marijuana leaf, a mature marijuana stalk, and marijuana seeds of unknown sterility, the total of which weighed in excess of one-half ounce, the evidence failed to prove beyond a reasonable doubt that the marijuana, less the weight of the mature stalk and seeds, weighed more than one-half ounce.
Id. at ___, 438 S.E.2d 299. Further, we concluded that Code Sec. 54.1-3401 "expressly removes from the definition of marijuana any 'mixture' of 'such mature stalks, fiber, oil, or cake, or the sterilized seed of such plant.' " Hill, ___ Va. App. at ___, 438 S.E.2d at 299.
Under Code Sec. 18.2-248.1, the weight of the proscribed marijuana, excluding mature stalks and sterilized seeds, determines the grade of the offense. In the instant case, the Commonwealth failed to present evidence of the precise weight of the marijuana in the three bags and, therefore, failed to prove an essential element of the felony charge. The evidence, however, did prove that appellant possessed at least some amount of marijuana. Therefore, the judgment of conviction under Code Sec. 18.2-248.1(a) (2) is reversed, and the case is remanded for resentencing by the trial judge on the lesser included charge of misdemeanor possession of marijuana with intent to distribute under Code Sec. 18.2-248.1(a) (1).
Code § 18.2-248.1 states in part:
[I]t shall be unlawful for any person to sell, give, distribute or possess with intent to sell, give or 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.
Reversed and remanded.