Opinion
Record No. 0963-93-3
Decided: February 7, 1995
FROM THE CIRCUIT COURT OF GILES COUNTY, A. Dow Owens, Judge
Douglas E. Brinckman for appellant.
Robert Q. Harris, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Present: Chief Judge Moon, Judges Barrow and Koontz
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Clifton Wade Taylor (Taylor) appeals his conviction for manufacturing marijuana not for his own use pursuant to Code Sec. 18.2-248.1. Taylor asserts that (1) the evidence was insufficient to support his conviction, (2) the trial court erred in permitting speculative expert testimony, and (3) the trial court erred in permitting an expert witness to express an opinion on the ultimate issue of fact. Finding no error, we affirm.
We restate only those facts necessary to explain our holding. Taylor asserts that the Commonwealth failed to show that he was aware of the presence and character of the marijuana or that he exercised dominion and control over the plants. He further asserts that if these elements were established, it was only by circumstantial evidence, and that the evidence did not exclude the reasonable hypothesis that some other person was responsible for cultivating the marijuana. We disagree.
When considering the sufficiency of the evidence to sustain a criminal conviction on appeal, we view the evidence in the light most favorable to the Commonwealth and accord to the evidence every reasonable inference fairly deducible therefrom. A jury verdict will not be disturbed on appeal unless it is plainly wrong or wholly without support in the evidence when viewed in this light. Traverso v. Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988). To prove commission of a possessory drug offense, the Commonwealth must show "evidence of acts, statements, or conduct of the accused or other facts or circumstances which tend to show that the defendant was aware of both the presence and character of the substance and that it was subject to his dominion and control." Behrens v. Commonwealth, 3 Va. App. 131, 135, 348 S.E.2d 430, 432 (1986) (citations omitted) (emphasis supplied).
Here, the evidence showed that the marijuana was being grown in an area accessible only from the backyard of the house where Taylor was living by himself and that a watering hose ran from the house to the area of cultivation. Inside the house police found weighing scales and plastic baggies surrounded by marijuana debris, giving rise to the fair inference that marijuana was being weighed and packaged for distribution. These "other facts and circumstances" are sufficient to show that Taylor was aware of the presence and character of the marijuana and exercised dominion and control over it.
When, as here, 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. Boothe v. Commonwealth, 4 Va. App. 484, 492, 358 S.E.2d 740, 745 (1987). However, the hypothesis of innocence must flow directly from evidence adduced at trial and not from the mind of the defendant or his counsel. Cook v. Commonwealth, 226 Va. 427, 433, 309 S.E.2d 325, 329 (1983); Fordham v. Commonwealth, 13 Va. App. 235, 239, 409 S.E.2d 829, 831 (1991). No evidence was presented at trial from which it could be fairly deduced that the other persons living in the vicinity actually utilized their potential access to the marijuana plot. For these reasons, we cannot say that the jury erred in finding the circumstantial evidence adduced by the Commonwealth sufficient to convict Taylor.
Taylor further asserts that the trial court erred in permitting an expert to extrapolate the potential yield of the marijuana plants seized by the police. He contends both that this was an impermissible expression of opinion and that it permitted the expert to invade the province of the jury by expressing an opinion on the ultimate issue of whether the manufacture was for personal or illicit commercial use. We disagree.
An expert in a criminal case "may give an opinion based [only] upon his own knowledge of facts disclosed in his testimony or . . . upon facts in evidence assumed in a hypothetical question," Simpson v. Commonwealth, 227 Va. 557, 565, 318 S.E.2d 386, 391 (1984), but the witness may not express an opinion as to an ultimate issue to be determined by the trier of fact. Davis v. Commonwealth, 12 Va. App. 728, 731, 406 S.E.2d 922, 923 (1991). Investigator Hall's estimations of the potential yield of the immature plants and dose divisibility of that yield were permissible assertions based upon his knowledge in response to appropriate hypothetical questions. The weight and credence given to that testimony were matters for the jury to consider. Bridgeman v. Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598, 601-02 (1986).
As Taylor concedes, Hall did not assert in his testimony that the potential yield negated the possibility that the marijuana was being grown for personal use. We cannot agree with Taylor that "semantics and careful form" of the Commonwealth's question permitted Hall to invade indirectly the province of the jury. The jury was free to accept or reject Hall's testimony and to draw what inferences from it they might.
For these reasons, Taylor's conviction is affirmed.
Affirmed.