Morrison v. Com., Record No. 2953-00-1.

• Decision Date: 08 January 2002
• Docket Number: Record No. 2953-00-1.
• Citation: 37 Va. App. 273,557 S.E.2d 724
• Court: Virginia Court of Appeals
• Parties: Brian Lee MORRISON v. COMMONWEALTH of Virginia.

557 S.E.2d 724

37 Va. App. 273

Brian Lee MORRISON v. COMMONWEALTH of Virginia.

Record No. 2953-00-1.

Court of Appeals of Virginia, Chesapeake.

January 8, 2002.

Michael J. Woods, Chesapeake, for appellant.

H. Elizabeth Shaffer, Assistant Attorney General (Randolph A. Beales, Attorney General, on brief), for appellee.

Present: Judges BRAY, FRANK and AGEE.

FRANK, Judge.

Brian Lee Morrison (appellant) was convicted in a bench trial of selling drug paraphernalia, in violation of Code §§ 18.2-265.1-3. On appeal, he contends the trial court applied an improper scienter standard and erred in ruling the evidence was sufficient to convict him. For the reasons stated, we affirm the conviction.

I. BACKGROUND

Sometime in January of 2000, Trooper R. Thompson of the Virginia State Police visited the Fatty Shack, a store in Virginia Beach. He photographed several of the items for sale in the store — bongs, roach clips, and other drug paraphernalia. Thompson saw stickers of mushrooms and a phrase, "4:20," on some of the pipes and bongs. He also saw some signs saying "18 years or older" and "tobacco use only." He noticed a flavored Egyptian herb for sale, but saw no cigarettes or tobacco products.

Thompson also spoke to appellant, the owner of the store, and gave him a copy of Virginia's drug paraphernalia statutes. Thompson advised appellant he intended to show the photographs of the store's inventory to the Commonwealth's Attorney. Appellant gave Thompson two catalogs, one from Gator Lou and one from Golden Lion, from which he had purchased some of his inventory. Appellant said he did not have a tobacco license.

Approximately one week later, Thompson returned to the store. He advised appellant that he was selling drug paraphernalia and must cease. Thompson did not issue a summons then because he was preparing for a military deployment and did not want to create a speedy trial issue.

On June 15, 2000, Thompson returned to the Fatty Shack. He found the store had increased in size and continued to sell bongs, roach clips, and other paraphernalia. He seized several of these items. Appellant was not present that day.

When Thompson returned to the store on June 22, appellant was there. The trooper issued a summons to appellant for selling drug paraphernalia. On this occasion, Thompson saw tobacco products for sale that he had not seen on his previous visits. Thompson did not search for, nor did he find, any marijuana or controlled substances in the store. Some of the pipes he seized had labels identifying them as tobacco pipes.

Thompson testified appellant never referred to the seized items as "bongs" but instead as "water pipes." Thompson further testified appellant said he would not sell these items to anyone who referred to them as "bongs." In fact, appellant's posted store rules stated:

You must be 18 with ID to be in this section. If you are not 18 with ID you must leave now. Use of any inappropriate language such as bong, crack pipe, weed, etc. you will be asked to leave. All of the tobacco pipes are used for tobacco are [sic] herbal blends only.

Appellant testified that the sign with these rules was "[j]ust so [customers] don't misinterpret what we sell, why we sell it, and the use of it."

Detective Glenn Michaels, a ten-year veteran of the Virginia Beach Police Department, was qualified as an expert in the areas of the possession and use of marijuana, controlled substances, and drug paraphernalia. Michaels examined several items seized from appellant's store.

Michaels identified a round gray item as a device used for smoking a marijuana cigarette. He identified another item with "4:20" printed on it as a device "commonly used when smoking marijuana," explaining the "4:20" symbol developed out of the drug culture at the University of California at Berkeley in the early 1960s. The symbol referred to "the international time to get high or smoke marijuana," five minutes after the last classes of the day at Berkeley. Michaels identified another item as a hand scale used to weigh narcotics and often found when executing search warrants for drugs.

Michaels also explained in detail a "blow-through" device, for smoking without detection, and an item marked "Formula 4:20," used to clean bongs, smoking devices, and their filters.

Michaels examined all the items seized from the store and testified that only one item was used with regular tobacco — the cigarette rolling papers. He also noted the "Swisher Sweets" and "Phillie Blunts" were used with "just marijuana." Michaels also testified a "roach clip" is not used for tobacco.

Appellant testified he had been selling cigarettes for three months. He identified a sign posted in his store that said, "For tobacco use only, not intended for any other use. We reserve the right to refuse service. Do not enter if you are not 18 or older with photo ID do not enter." He explained the sign might not have been posted when Thompson first came to the store. He also denied using the term, "bong," and selling items for any illegal use.

Appellant testified Thompson told him the first time he came into the store that his stock was "borderline" and he would discuss it with his superiors. Appellant admitted the trooper had shown him the drug paraphernalia statutes, told him that his inventory was drug paraphernalia, and informed him that people "might probably" use the items to smoke marijuana. Appellant admitted he had never used any of the items to smoke tobacco. He also admitted that, despite the expansion of the store, he did not add any additional tobacco items to his stock.

Appellant moved to strike the evidence, arguing the items seized from the Fatty Shack did not fall within the definition of drug paraphernalia in Code §§ 18.2-265.1 and 18.2-265.2. Appellant also claimed the Commonwealth had failed to prove he knew the purchasers of these items intended to use them with illegal drugs.

The trial court overruled appellant's motion and convicted him of selling drug paraphernalia.

II. ANALYSIS

Appellant contends the trial court applied the wrong scienter requirement in convicting him, asserting the Commonwealth failed to prove he actually knew the items were either designed or intended for smoking marijuana. In his brief, appellant also argues the applicable statutes are unconstitutionally vague because the "actual knowledge" scienter requirement is not explicit nor was it applied by the trial court. Therefore, he argues, the statutes present an opportunity for unconstitutional and arbitrary law enforcement.

We will not address the issue of vagueness since appellant did not raise it below nor was an appeal granted on that issue.¹ Furthermore, appellant did not comply with Code § 19.2-266.2(ii) by filing a written motion raising this constitutional objection at least seven days before the trial.²

Since we do not address the constitutionality of the statute, we need only determine whether the evidence was sufficient to prove the "scienter" element established by the statute.

To convict someone of selling or possessing with intention to sell drug paraphernalia, a trial court must find the defendant (1) sold or possessed with the intent to sell, (2) drug paraphernalia, which (3) he actually knew or reasonably should have known was designed or intended for use in connection with illegal drug use, storage, or production. See Code § 18.2-265.3.

The scienter, or mens rea, element of a crime:

is simply the unlawful intent or design necessary to any criminal act that is not a strict liability offense. See Reed v. Commonwealth, 15 Va.App. 467, 424 S.E.2d 718 (1992)

; 1 Wayne R. LaFave, Substantive Criminal Law, § 3.4 (1986); Livingston v. Commonwealth, 184 Va. 830, 36 S.E.2d 561 (1946).

Saunders v. Commonwealth, 31 Va.App. 321, 324, 523 S.E.2d 509, 511 (2000). Code § 18.2-265.3(A) includes such a scienter element The Commonwealth must prove a defendant possessed drug paraphernalia³:

knowing, or under circumstances where one reasonably should know, that [the item] is either designed for use or intended by such person for use to illegally plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale or otherwise introduce into the human body marijuana or a controlled substance.

Code § 18.2-265.3(A) (emphasis added). The scienter requirement for a conviction here, therefore, is either actual knowledge or constructive knowledge⁴ ("under circumstances where one reasonably should know") that the item is "either designed for use" or "intended by [the accused] for use to illegally. . . ingest, inhale, or otherwise introduce into the human body marijuana or a controlled substance." Id.

To determine on appeal whether the evidence was sufficient to prove this scienter element, we must examine the evidence "in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom." Martin v. Commonwealth, 4 Va.App. 438, 443, 358 S.E.2d 415, 418 (1987). The fact finder is not required to believe all parts of a witness' testimony but may accept only some parts as believable and reject other parts as implausible. See Pugliese v. Commonwealth, 16 Va. App. 82, 92, 428 S.E.2d 16, 24 (1993)

.

Further, any element of a crime may be proven by circumstantial evidence, see, e.g., Servis v. Commonwealth, 6 Va.App. 507, 524, 371 S.E.2d 156, 165 (1988),

provided the evidence as a whole "is sufficiently convincing to exclude every reasonable hypothesis except that of guilt," Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983). See also Dukes v. Commonwealth, 227 Va. 119, 122, 313 S.E.2d 382, 383 (1984). "[C]ircumstantial evidence is as acceptable to prove guilt as direct evidence, and in some cases, such as proof of intent or knowledge, it is practically the only method of proof.'" Cirios v. Commonwealth, 7 Va. App. 292, 295, ...