Opinion
Record No. 2396-92-2
March 1, 1994
FROM THE CIRCUIT COURT OF MECKLENBURG COUNTY CHARLES L. MCCORMICK, III, JUDGE.
Buddy A. Ward, Assistant Public Defender (Robert H. Morrison, Assistant Public Defender, on brief), for appellant.
Robert B. Condon, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Present: Judges Baker, Barrow and Bray.
Argued at Richmond, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
In this appeal, we hold that the evidence was insufficient to support the defendant's conviction of possessing marijuana with the intent to manufacture marijuana not for his own use.
Police officers searched the defendant's house and found marijuana, paraphernalia and other items. In the living room, the officers discovered under a chair cushion a plastic bag containing .14 ounces of marijuana. They found on a coffee table brass fittings and a pack of 1.5 rolling papers. In a bedroom closet, the officers uncovered a plastic bag containing .23 ounces of marijuana. On a dresser in a second bedroom, they discovered a hand-held scale.
On the bar in the kitchen, the officers found a second hand-held scale, and plastic baggies were found above the kitchen sink. They discovered Miracle-Gro fertilizer on the floor beside the kitchen table, and a smoking pipe, tweezers, baggies, and some rolling papers in a cabinet above the microwave. In the bathtub, they discovered several five-gallon buckets and milk jugs. In the defendant's camper, the officers discovered a marijuana plant hanging in the camper window, being cured or dried, and weighing 1.23 ounces. The camper also contained a brown bag containing .44 ounces of stripped and dried marijuana, as well as various garden tools.
Based on these facts and the testimony of the police officers that many of the items seized were used in the growing of marijuana, the defendant was convicted of possessing marijuana with the intent to manufacture marijuana not for his own use.
The evidence in a criminal appeal must be viewed in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible from the evidence; the judgment of a trial court sitting without a jury will not be disturbed unless it is clearly wrong or without evidence to support it.Josephs v. Commonwealth, 10 Va. App. 87, 99, 390 S.E.2d 491, 497 (1990) (en banc); Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). "[T]he credibility of witnesses and the weight to be given their testimony are questions exclusively within the province of the fact finder." May v. Commonwealth, 3 Va. App. 348, 355-56, 349 S.E.2d 428, 432 (1986).
"Intent may, and most often must, be proven by circumstantial evidence and the reasonable inferences to be drawn from proven facts are within the province of the trier of fact." Fleming v. Commonwealth, 13 Va. App. 349, 353, 412 S.E.2d 180, 183 (1991);Comer v. Commonwealth, 211 Va. 246, 249, 176 S.E.2d 432, 434 (1970). However, when the Commonwealth relies solely on circumstantial evidence, all necessary circumstances proved must be consistent with guilt and inconsistent with innocence, and must also exclude every reasonable hypothesis of innocence.Inge v. Commonwealth, 217 Va. 360, 366, 228 S.E.2d 563, 567 (1976).
Our decision in this case is controlled by our decision inReynolds v. Commonwealth, 9 Va. App. 430, 440-41, 388 S.E.2d 659, 665-66 (1990). In that case, police found twenty-nine marijuana plants growing on a porch of the defendant's home. In addition, police found another fourteen-inch plant growing in the kitchen, a set of scales, and a smoking pipe. We held that this evidence was insufficient to permit an inference that the marijuana was being grown for other than personal use. Id. at 441, 388 S.E.2d at 666.
In this case, more physical evidence was introduced, some corroborating that the marijuana was being grown in the house. The evidence, however, viewed in its entirety, does not give rise to a reasonable inference that, beyond a reasonable doubt, the marijuana was being grown for a purpose other than personal use. See Morton v. Commonwealth, 13 Va. App. 6, 10, 408 S.E.2d 583, 585 (1991) ("a rational relationship must exist,beyond a reasonable doubt, between the inference and the proved fact"). The two plastic baggies, containing less than half an ounce of marijuana between them and found in different locations in the house, the rolling papers, the smoking pipe, and the tweezers are consistent with the personal use of marijuana, not distribution. No evidence connected the two hand-held scales, instruments commonly used to measure ingredients in cooking and for other legitimate purposes, to either the use or distribution of marijuana. The Miracle-Gro fertilizer, the five-gallon buckets, the milk jugs, and the garden tools are the common possessions of any gardener. The presence of the single marijuana plant found drying in the camper window, together with gardening tools, suggests that the single plant was being grown by the defendant, a fact the defendant does not contest. However, this evidence does not, without more, permit the further inference that he was doing so for something other than his own personal use.
For these reasons, we reverse the conviction and remand for a new trial on the issue of possession of marijuana.
Reversed and remanded.