COURT OF APPEALS OF VIRGINIA 

Present: Judges Frank, Felton and Kelsey 

Argued by teleconference 

ROBERT WILLIAM DOLAN, III 

 MEMORANDUM OPINION* BY 

v. Record No. 3167-01-2 JUDGE WALTER S. FELTON, JR. 

 DECEMBER 31, 2002 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY 

Paul M. Peatross, Jr., Judge 

 Vanessa E. Hicks, Assistant Public Defender, 

for appellant. 

 Jennifer R. Franklin, Assistant Attorney 

General (Jerry W. Kilgore, Attorney General, 

on brief), for appellee. 

 Robert Dolan III was convicted in a bench trial for 

manufacturing marijuana not for his own use, in violation of Code 

§ 18.2-248.1(c). On appeal, he contends that the evidence was 

insufficient to support his conviction. We affirm the judgment of 

the trial court. 

I. BACKGROUND

A. OFFENSES

 Between the dates of July 1, 1999 and August 18, 1999, 

police officers from the Albemarle Police Department and the 

Jefferson Area Drug Enforcement ("JADE") Task Force conducted 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.
surveillance of a wooded area in Albemarle County. On July 1, 

1999, Officer Ray Walker discovered twenty-three marijuana 

plants growing in eight five-gallon buckets. The plants were 

healthy and green, ranging in size from three to twelve inches. 

The grass in the area was overgrown, and an abandoned trailer 

was nearby. 

 As a result of the discovery, Officer Farrell was asked to 

install video equipment in the area in order to monitor movement 

around the plants and the area. On July 22, 1999, officers 

began installing the video surveillance equipment. During the 

installation, they discovered that the larger plants, twelve in 

total, had been removed. Only eleven plants remained. 

 From July 22, 1999 through August 17, 1999, officers 

conducted video surveillance of the wooded area. During that 

period, Dolan was observed twice, once on July 22 and once on 

August 17, watering the remaining plants and removing them. 

Dolan was the only person observed caring for, watering, and 

removing the plants. 

 Surveillance ceased on August 18, 1999, when officers 

removed the video cameras. In addition to removing the cameras, 

the officers removed the remaining six plants and submitted them 

to a lab for analysis. On September 1, 1999, Dolan was 

arrested. No scales, plastic baggies, or excessive amounts of 

money were found in his possession. 

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B. TRIAL

 On May 26, 2001, upon a waiver of his rights to a trial by 

jury, the court tried Dolan for manufacturing marijuana, not for 

his own use, in violation of Code § 18.2-248.1(c). Detective 

Danny Board, qualified by the trial court as an expert in the 

manufacture of marijuana for personal use and for distribution, 

testified on behalf of the Commonwealth. He stated that a 

full-grown marijuana plant yields a pound of sellable marijuana 

or approximately 448 individual joints. A heavy smoker of 

marijuana would smoke around six joints a day. In Detective 

Board's opinion, growing six or eleven marijuana plants is not 

consistent with personal use. 

 Detective Board next testified as to the typical growing 

pattern of marijuana. He stated that the first step is to begin 

with seeds in a cup. After the seeds sprout and grow a little, 

they are put in a pot. Once the plant has grown more, it is 

then removed from the pot and transplanted to the ground so that 

it "fruits itself better." The typical growing season runs from 

April to September, with cultivation at the end of September. 

When shown pictures of the six plants that remained following 

the surveillance, Detective Board noted that they were young and 

that no grower would stop trying to grow or to harvest marijuana 

from the plants at that size. Dolan was convicted of 

manufacturing marijuana, in violation of Code § 18.2-248.1(c). 

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II. ANALYSIS

 Dolan contends on appeal that the evidence was insufficient 

to prove beyond a reasonable doubt he manufactured marijuana not 

for his own use. We disagree. 

When the sufficiency of the evidence is 

challenged on appeal, it is well established 

that we must view the evidence in the light 

most favorable to the Commonwealth, granting 

to it all reasonable inferences fairly 

deducible therefrom. The conviction will be 

disturbed only if plainly wrong or without 

evidence to support it. 

Jones v. Commonwealth, 13 Va. App. 566, 572, 414 S.E.2d 193, 196 

(1992). 

 There are a number of factors that may be considered in 

determining whether marijuana is being manufactured not for 

personal use. Such factors include the quantity and condition 

of the marijuana plants, evidence of the potential yield of the 

plants, the existence of supervised growth, evidence of devices 

to assist with growth (lamps, watering devices, etc.), packaging 

materials, the presence of unusual amounts of cash, and 

equipment related to distribution. See Reynolds v. 

Commonwealth, 9 Va. App. 430, 440-41, 388 S.E.2d 659, 665-66 

(1990); Monroe v. Commonwealth, 4 Va. App. 154, 156-57, 355 

S.E.2d 336, 337 (1987); see also McCain v. Commonwealth, 261 Va. 

483, 493, 545 S.E.2d 541, 547 (2001). The list of factors is 

not exhaustive. Furthermore, presence of all the factors is not 

necessary to prove the offense. 

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 Dolan relies on Reynolds, 9 Va. App. 430, 388 S.E.2d 659, 

to support his contention that the evidence was insufficient to 

support his conviction. That reliance is misplaced. In 

Reynolds, the police discovered twenty-nine marijuana plants 

growing on Reynolds' premises. The plants were in various 

conditions of health, from good to poor, and weighed a total of 

1.16 grams. A scale and smoking pipe were also found. We held 

that the evidence was insufficient to support a conviction for 

manufacturing marijuana not for personal use. 

[W]e note that the record contains no 

evidence of how much saleable marijuana 

could be produced by the twenty-nine plants 

found on the premises; no evidence of how 

many of the plants were actually healthy 

enough to produce useable product; no 

evidence as to the value, if any, of the 

product; no evidence of the presence of 

receptacles to bag the marijuana for resale; 

and no evidence of watering devices and 

lights to assist in its growth. While this 

type of evidence may not be necessary to 

prove production for use of others . . . the 

deficiencies identified are sufficient in 

this case to point to a failure of the 

Commonwealth to exclude the reasonable 

hypothesis that the plants were being grown 

for personal use. 

Reynolds, 9 Va. App. at 440-41, 388 S.E.2d at 666. 

 The deficiencies noted in Reynolds do not exist in this 

case. Initially, police discovered twenty-three well cared for 

marijuana plants growing in pots, in a wooded area. As a result 

of this discovery, the police set up video surveillance 

equipment around the plants. Once surveillance began, however, 

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only eleven marijuana plants remained. Six marijuana plants in 

very good health were recovered at the time of Dolan's arrest. 

Based on Detective Board's expert testimony as to 

yield-per-plant, the recovered plants had a potential yield of 

six pounds of saleable marijuana, which he stated was 

inconsistent with growing for personal use. 

 Over a period of twenty-seven days, from July 22, 1999 to 

August 17, 1999, police videotaped activity around the marijuana 

plants. During that time period, Dolan was the only person seen 

exercising dominion and control over the plants. He supervised 

the growth of the plants by watering them, plucking their 

leaves, and removing the larger plants while leaving the smaller 

immature plants behind. 

 Dolan's systematic removal of the more mature plants, 

mid-way through the growing season, was consistent with 

testimony describing the manufacturing of marijuana. Detective 

Board, qualified by the trial court as an expert in the 

manufacture and distribution of marijuana, testified the 

marijuana growing season runs from April to September. During 

the growth season, the typical growing pattern for marijuana is 

to start with seeds in a cup. After the seeds begin to sprout, 

they are placed in a pot. The plant remains in the pot until it 

grows tall enough to be transplanted into the ground so that it 

can "fruit itself better." 

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 In addition, the fact that no lighting devices, packing 

materials, or distribution equipment were found does not 

discount the conclusion that the marijuana plants were being 

manufactured for distribution. The marijuana plants were 

cultivated outdoors so lighting devices were unnecessary. It is 

also unreasonable to expect to find packaging and distribution 

materials where seedlings were being started. According to the 

expert, no grower would have attempted to harvest the marijuana 

at that time, based on the size of the plants. At most, a 

grower might pull pieces off the plant in furtherance of the 

growth. Dolan was in no position to begin packaging the 

marijuana at the time of his arrest. 

 For these reasons we conclude that the evidence was 

sufficient for the trial court to find Dolan guilty of 

manufacturing marijuana not for his own use. 

 The judgment of the trial court is affirmed. 

 Affirmed. 

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