Thompson v. Commonwealth

• Citation: 73 Va.App. 721,865 S.E.2d 434
• Decision Date: 23 November 2021
• Docket Number: Record No. 1262-20-2
• Parties: Thomas Othel THOMPSON, Jr. v. COMMONWEALTH of Virginia
• Court: Court of Appeals of Virginia

73 Va.App. 721

865 S.E.2d 434

Thomas Othel THOMPSON, Jr.

v.COMMONWEALTH of Virginia

Record No. 1262-20-2

Court of Appeals of Virginia.

NOVEMBER 23, 2021

Elizabeth Hurt, Deputy Public Defender, for appellant.

Mason D. Williams, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Chief Judge Decker, Judges Humphreys and O'Brien

OPINION BY CHIEF JUDGE MARLA GRAFF DECKER

Thomas Othel Thompson, Jr., appeals his conviction for possession of marijuana in violation of Code § 18.2-250.1, a second or subsequent offense. On appeal, he argues that the evidence was insufficient to prove that the substance was marijuana because the Commonwealth did not establish the tetrahydrocannabinol (THC) concentration of the material. Under the applicable statutory scheme, we hold that the evidence was sufficient to prove that the loose plant material was marijuana. As a result, we affirm the appellant's conviction.

I. BACKGROUND¹

The appellant was the back-seat passenger in an automobile subject to a traffic stop in Halifax County on October 9, 2019. A gray plastic bag was on the seat next to the appellant, and one of the officers smelled "raw" marijuana when the appellant rolled down his window. Another officer involved in the stop saw the appellant slowly and surreptitiously "scootch" the bag to the edge of the seat until it fell off onto the floorboard. An open box of "Ziplock" bags with a digital scale inside it was also found in the back seat. Other drug paraphernalia, including a second digital scale with white residue on it, was found in the front-seat area. The front-seat passenger had $1,600 in cash and two rocks of crack cocaine in his possession.

Further examination of the plastic bag that the appellant pushed off the seat revealed that it contained a vacuum-sealed bag of plant material that had been opened. Laboratory testing of the bag's contents established that it contained just under twelve ounces of "[m]arijuana, ... plant material." The certificate of analysis also provided that the "[c]oncentration of cannabinoid(s)" in the material was "not determined."²

The appellant was indicted for one count of possession of marijuana with intent to distribute, involving a quantity of "more than one-half ounce but not more than five pounds," in violation of Code § 18.2-248.1(a)(2).

At trial, the Commonwealth introduced the certificate of analysis without objection from the appellant. It also introduced a photograph of the bag of marijuana.

Tyler Clark of the Halifax County Sheriff's Office was involved in the traffic stop and also testified as an expert in the packaging and distribution of marijuana. On cross-examination, counsel for the appellant inquired whether Investigator Clark was "familiar with the kind of hemp you can buy ... at your standard corner store or at vape stores." Clark replied that he "ha[d] been to [a particular] hemp farm ... before [it] shut down." Counsel showed Clark what he described as "Crutchfield Farm Hemp," noting "a little indicator" on the package reflecting that it contained "less than three percent of THC."³ She then asserted that the "indicator ... sound[ed] consistent with the difference between a hemp product ... and marijuana." Investigator Clark replied, "Yes, ma'am." On redirect examination, Clark confirmed that none of the occupants of the car "claimed that [the substance] recovered was hemp." He also testified that he did not recall that the officers found anything in the search of the car or its occupants indicating that they had a "license to grow or possess hemp."

At the close of the Commonwealth's case, the appellant moved to strike the evidence on the ground that it failed to prove either that he intended to distribute the substance or that the substance was marijuana because it was not tested for THC content.

The court granted the motion in part by reducing the charge to simple possession. However, it rejected the appellant's challenge to the sufficiency of the evidence to prove that the substance was marijuana. The judge observed that the statute permitted the possession of two different types of hemp—industrial hemp and hemp products. She stated that what was recovered from the automobile might have been industrial hemp but was not a hemp product. The judge further noted "that the percentage of THC ha[d] to be done" only if the court was "looking at a hemp product. " (Emphasis added). With regard to industrial hemp, the judge observed that the appellant could have lawfully possessed it only if he was a registered grower or manufacturer. For those reasons, the judge denied the motion to strike insofar as it challenged the Commonwealth's proof that the substance was marijuana.

The appellant did not introduce any evidence. The court found him guilty of possession of marijuana in violation of Code § 18.2-250.1 as a second or subsequent offense and sentenced him to thirty days in jail.

II. ANALYSIS

The appellant contends that the evidence was insufficient to support his conviction because it did not prove that the substance in his possession was marijuana. He suggests that under the applicable statutory scheme, the substance could have been "legal hemp" and the Commonwealth bore the burden of proving that it was not.

When an appellate court reviews the sufficiency of the evidence to support a conviction, it "[ ]views th[at] evidence in the light most favorable to the Commonwealth, as the prevailing party at trial, and considers all inferences fairly deducible from that evidence." Powell v. Commonwealth, 289 Va. 20, 26, 766 S.E.2d 736 (2015) (quoting Allen v. Commonwealth, 287 Va. 68, 72, 752 S.E.2d 856 (2014) ). The appellate court presumes that the judgment of the trial court is correct and reverses that judgment only if it is "plainly wrong or without evidence to support it." Id. (quoting Allen, 287 Va. at 72, 752 S.E.2d 856 ). Resolution of the appellant's assignment of error primarily requires statutory interpretation, which is a question of law that the appellate court reviews de novo. See id.

The appellant was convicted of violating Code § 18.2-250.1. When he committed the offense in October 2019, Code § 18.2-250.1(A) made it "unlawful for any person knowingly or intentionally to possess marijuana unless the substance was obtained ... pursuant to[ ] a valid prescription" or in a fashion "otherwise authorized by the Drug Control Act." See 2019 Va. Acts ch. 690.⁴ The only element of the offense at issue in this appeal is whether the evidence was sufficient to support the trial court's finding that the substance was in fact marijuana.

The applicable version of Code § 18.2-247(D) 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." See 2019 Va. Acts chs. 653-54, cls. 1, 7. Subsequent sentences of the statute further specifically state that "[m]arijuana shall not include" certain substances. Id. (emphasis added). Listed among the excluded substances are certain types of industrial hemp and hemp products, as further defined by the statutory scheme. Id. ⁵ For an item to satisfy the exclusion for a hemp product, it must, among other things, "contain[ ] a [THC] concentration of no greater than 0.3 percent." Id. ⁶

The appellant contends that the Commonwealth bore the burden of proving that the almost twelve ounces of plant material he possessed had a THC concentration of more than 0.3 percent. He suggests that in the absence of such evidence, the Commonwealth failed to prove that the substance was "illegal marijuana" and not a legal "hemp product." The Commonwealth responds that, once it presented evidence proving that the substance was marijuana, the statutory scheme placed the burden on the appellant to prove that the substance was a legal form of hemp, exempt from the statutory definition of marijuana. In the absence of such proof, the Commonwealth asserts that the evidence in the certificate of analysis establishing that the substance was marijuana is sufficient to support the conviction.

In construing a statute, the court "must presume that the General Assembly chose, with care, the words that appear in a statute, and [it] must apply the statute in a manner faithful to that choice." Johnson v. Commonwealth, 292 Va. 738, 742, 793 S.E.2d 321 (2016). "Consequently, we ‘apply[ ] the plain meaning of the words unless they are ambiguous or [doing so] would lead to an absurd result.’ " Eley v. Commonwealth, 70 Va. App. 158, 164, 826 S.E.2d 321 (2019) (quoting Wright v. Commonwealth, 278 Va. 754, 759, 685 S.E.2d 655 (2009) ). "Although criminal statutes are to be strictly construed against the Commonwealth, the appellate court must also ‘give reasonable effect to the words used’ in the legislation." Green v. Commonwealth, 72 Va. App. 193, 202, 843 S.E.2d 389 (2020) (quoting Johnson v. Commonwealth, 37 Va. App. 634, 639, 561 S.E.2d 1 (2002) ). Finally, the Code of Virginia constitutes a single "body of ... laws," and related statutes should be considered together and "harmoni[zed]" if necessary as part of the interpretive process. Amonett v. Commonwealth, 70 Va. App. 1, 10, 823 S.E.2d 504 (2019) (quoting Lucy v. Cnty. of Albemarle, 258 Va. 118, 129-30, 516 S.E.2d 480 (1999) ).

We hold that Code § 18.2-263 governs the outcome in this case. That code section provides in pertinent part that "in any ... proceeding ... [to] enforce[ ] ... any provision of this article," which proscribes various drug crimes, "it shall not be necessary to negative any exception, excuse, proviso, or exemption contained in this article." Code § 18.2-263 ; see 1975 Va. Acts. chs. 14-15 (enacting the version of Code § 18.2-263 that is still in effect). Elaborating further, Code § 18.2-263 expressly indicates that "the burden of pro[ving] ... any such exception, excuse, proviso, or exemption" under any sta...