COURT OF APPEALS OF VIRGINIA 

Present: Judges Bray, Frank and Agee 

Argued at Chesapeake, Virginia 

BRIAN LEE MORRISON 

 OPINION BY 

v. Record No. 2953-00-1 JUDGE ROBERT P. FRANK 

 JANUARY 8, 2002 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH 

H. Thomas Padrick, Jr., Judge 

 Michael J. Woods for appellant. 

 H. Elizabeth Shaffer, Assistant Attorney 

General (Randolph A. Beales, Attorney 

General, on brief), for appellee. 

 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 

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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 

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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. 

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 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) 

 1

 "The Court of Appeals will not consider an argument on 

appeal which was not presented to the trial court." Ohree v. 

Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998). 

See Rule 5A:18. Accordingly, Rule 5A:18 bars our consideration 

of these questions on appeal. Moreover, the record does not 

reflect any reason to invoke the good cause or ends of justice 

exceptions to Rule 5A:18. 

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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 

 2

 Code § 19.2-266.2 reads in part: 

Defense motions or objections seeking . . . 

(ii) dismissal of a warrant, information, or 

indictment or any count or charge thereof on 

the ground that a statute upon which it was 

based is unconstitutional shall be raised by 

motion or objection, in writing, before 

trial. The motions or objections shall be 

filed and notice given to opposing counsel 

not later than seven days before trial. A 

hearing on all such motions or objections 

shall be held not later than three days 

prior to trial, unless such period is waived 

by the accused, as set by the trial judge. 

The court may, however, for good cause shown 

and in the interest of justice, permit the 

motions or objections to be raised at a 

later time. 

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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 

 3

 Code § 18.2-265.1 defines "drug paraphernalia" as: 

[A]ll equipment, products, and materials of 

any kind which are either designed for use 

or which are intended by the person charged 

with violating § 18.2-265.3 for use in 

planting, propagating, cultivating, growing, 

harvesting, manufacturing, compounding, 

converting, producing, processing, 

preparing, strength testing, analyzing, 

packaging, repackaging, storing, containing, 

concealing, injecting, ingesting, inhaling, 

or otherwise introducing into the human body 

marijuana or a controlled substance. 

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4

 As we find appellant had actual knowledge of the character 

and intended purpose of the items for sale in his shop, we do 

not address the constructive knowledge issues in this opinion. 
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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, 373 S.E.2d 

164, 165 (1988) (quoting Parks v. Commonwealth, 221 Va. 492, 498, 

270 S.E.2d 755, 759 (1980)). See also Servis, 6 Va. App. at 524, 

371 S.E.2d at 165. 

 
 In Posters 'N' Things, Ltd. v. United States, 511 U.S. 513 

(1994), the United States Supreme Court interpreted former 21 

U.S.C. § 8575 of the Mail Order Drug Paraphernalia Control Act 

which defined "drug paraphernalia." The statute defined drug 

paraphernalia as "'any equipment, product, or material of any 

kind which is primarily intended or designed for use' with 

 5

 This statute was repealed in 1990. See Pub. L. 101-647, 

§ 2401(d), 104 Stat. 4859 (1990). A statute incorporating major 

sections of this repealed legislation can be found at 21 U.S.C. 

§ 863, which outlaws the sale, offer to sell, use of the mail to 

transport, and the import or export of drug paraphernalia. 

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illegal drugs." Id. at 517. See Mail Order Drug Paraphernalia 

Control Act of 1986, Pub. L. No. 99-570, § 1822, 100 Stat. 

3207-51. 

 The Court held: 

[W]e conclude that a defendant must act 

knowingly in order to be liable under § 857. 

Requiring that a seller of drug 

paraphernalia act with the "purpose" that 

the items be used with illegal drugs would 

be inappropriate. The purpose of a seller 

of drug paraphernalia is to sell his 

product; the seller is indifferent as to 

whether that product ultimately is used in 

connection with illegal drugs or otherwise. 

If § 857 required a purpose that the items 

be used with illegal drugs, individuals 

could avoid liability for selling bongs and 

cocaine freebase kits simply by establishing 

that they lacked the "conscious object" that 

the items be used with illegal drugs. 

Further, we do not think that the knowledge 

standard in this context requires knowledge 

on the defendant's part that a particular 

customer actually will use an item of drug 

paraphernalia with illegal drugs. It is 

sufficient that the defendant be aware that 

customers in general are likely to use the 

merchandise with drugs. Therefore, the 

Government must establish that the defendant 

knew that the items at issue are likely to 

be used with illegal drugs. Cf. [United 

States v.] United States Gypsum, 438 U.S. 

[422, 444 (1978)] (knowledge of "probable 

consequences" sufficient for conviction). A 

conviction under § 857(a)(1), then, requires 

the Government to prove that the defendant 

knowingly made use of an interstate 

conveyance as part of a scheme to sell items 

that he knew were likely to be used with 

illegal drugs. 

Finally, although the Government must 

establish that the defendant knew that the 

items at issue are likely to be used with 

illegal drugs, it need not prove specific 

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knowledge that the items are "drug 

paraphernalia" within the meaning of the 

statute. Cf. Hamling v. United States, 418 

U.S. 87 (1974) (statute prohibiting mailing 

of obscene materials does not require proof 

that defendant knew the materials at issue 

met the legal definition of "obscenity"). 

As in Hamling, it is sufficient for the 

Government to show that the defendant "knew 

the character and nature of the materials" 

with which he dealt. Id. at 123. 

Id. at 523-26. 

This analysis is applicable to Article 1.1, Chapter 7, of 

the Virginia Code, which includes Code § 18.2-265.3, as this 

article is the state equivalent of the federal paraphernalia 

act. The federal act prohibited the sale or the offer to sell 

paraphernalia through interstate or international commerce, see

§ 1822(a), 100 Stat. 3207-51, and Virginia law prohibits the 

sale or intent to sell paraphernalia, see Code § 18.2-265.3. 

Both legislative schemes define "drug paraphernalia" in general 

terms as "any equipment, product" or material "intended" or 

"designed" "for use in" "manufacturing, compounding, 

converting," "producing, processing, preparing," or "otherwise 

introducing into the human body" illegal drugs. See Code 

§ 18.2-265.1; § 1822(d), 100 Stat. 3207-51. Both statutes also 

define "drug paraphernalia" through non-exclusive examples. See

Code § 18.2-265.1; § 1822(d), 100 Stat. 3207-51. Both statutes 

also include factors a court may consider "[i]n determining 

whether an item" is "drug paraphernalia." See Code 

§ 18.2-265.2; § 1822(e), 100 Stat. 3207-52. 

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 As the language of our statute and the former federal 

statute is so similar, the Supreme Court's analysis explaining 

that language applies here. Therefore, we hold that Code 

§ 18.2-265.3 requires the Commonwealth prove only that appellant 

was aware when he sold the items, or possessed them with the 

intent to sell, that buyers "in general" are likely to use the 

items with illegal drugs, not that a particular buyer intended to 

use the items in this fashion. Posters 'N' Things, 511 U.S. at 

524. 

 When Thompson first spoke to appellant, he gave him a copy 

of the applicable statutes, which defined "drug paraphernalia" as 

including numerous items for sale in the Fatty Shack. When he 

returned a week later, Thompson told appellant that he had spoken 

with the Commonwealth's Attorney and other state agencies, 

concluding that sales of the items were illegal and must cease. 

Thompson saw no tobacco products for sale in the store at that 

time. He returned a third time and noticed appellant still had 

bongs, roach clips, and other such items for sale. 

 When Thompson returned to issue a summons, appellant said he 

would not sell these items to any customer who referred to the 

"water pipes" as "bongs." Appellant had posted rules that 

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prohibited the use of "any inappropriate language such as bong, 

crack, pipe, weed, etc. . . ." 

 Detective Michaels, a narcotics expert, testified that 

various items seized in appellant's store were used for smoking 

marijuana, weighing marijuana, and cleaning bongs. Michaels 

testified he had never seen any of these objects used with 

"simple tobacco." He further testified a "roach clip" is not 

used with "simple tobacco." Appellant admitted on the stand that 

Thompson told him the items were drug paraphernalia and that his 

customers "might probably . . . use them" for marijuana. 

 Under the Posters 'N' Things criteria, appellant was aware 

that "customers in general are likely to use the merchandise with 

drugs." He admitted under oath that Thompson told him about the 

typical use of the items. Additionally, the rules posted in the 

store, warning customers not to use terms such as "bongs" or 

"weed," further demonstrated his knowledge of the items' illegal 

uses. 

 Moreover, he sold few, if any, tobacco products in his 

store. According to the expert witness, most of the items 

recovered by Thompson were used with illegal drugs only and had 

no legitimate tobacco use. Furthermore, the trial judge did not 

have to accept appellant's testimony that he did not intend to 

sell products for use with illegal drugs. "In its role of 

judging witness credibility, the fact finder is entitled to 

disbelieve the self-serving testimony of the accused and to 

conclude that the accused is lying to conceal his guilt." 

Marable v. Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d 233, 

235 (1998). From the evidence presented, the trial judge could 

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conclude that appellant sold or possessed with the intent to sell 

drug paraphernalia, knowing the items were either designed for 

illegal drug use or were intended by the buyer for such use in 

violation of Code § 18.2-265.3. 

 Appellant further contends the trial court erred in failing 

to consider the guidelines set forth in Code § 18.2-265.2. While 

appellant concedes the guidelines are discretionary, he argues 

the guidelines "are essential in the statutory scheme." 

 To the extent appellant maintains we must look to the entire 

statutory scheme, we agree. However, this examination does not 

support appellant's argument. 

 Code § 18.2-265.1 defines drug paraphernalia and then 

provides a non-exhaustive list of devices included under the 

definition of drug paraphernalia. The list "includes, but is not 

limited to:" 

Objects intended for use or designed for use 

in ingesting, inhaling, or otherwise 

introducing marijuana, cocaine, hashish, or 

hashish oil into the human body, such as: 

a. Metal, wooden, acrylic, glass, stone, 

plastic, or ceramic pipes with or without 

screens, permanent screens, hashish heads, 

or punctured metal bowls; 

b. Water pipes; 

c. Carburetion tubes and devices; 

d. Smoking and carburetion masks; 

e. Roach clips, meaning objects used to 

hold burning material, such as a marijuana 

cigarette, that has become too small or too 

short to be held in the hand; 

f. Miniature cocaine spoons, and cocaine 

vials; 

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g. Chamber pipes; 

h. Carburetor pipes; 

i. Electric pipes; 

j. Air-driven pipes; 

k. Chillums; 

l. Bongs; 

m. Ice pipes or chillers. 

Code § 18.2-265.1(12). The list is essentially the same as the 

examples of drug paraphernalia in former 21 U.S.C. § 857(d). 

 The Supreme Court, in Posters 'N' Things, characterized this 

list as "per se paraphernalia." 511 U.S. at 519. The Supreme 

Court opined: 

The inclusion of the "primarily intended" 

term along with the "designed for use" term 

in the introduction to the list of per se

paraphernalia suggests that at least some of 

the per se items could be "primarily 

intended" for use with illegal drugs 

irrespective of a particular defendant's 

intent that is, as an objective matter. 

Id. Code § 18.2-265.1(12) also introduces its list with the 

phrases, "intended for use" and "designed for use." 

 Additionally, the items listed in Code § 18.2-265.1(12) are 

designed specifically for use with illegal substances. "Bongs," 

"roach clips," "chillums," and "smoking and carburetion masks," 

have no use other than to consume illegal substances. See

Posters 'N' Things, 511 U.S. at 518. 

 Therefore, the trial court did not need to look beyond the 

list of items found in Code § 18.2-265.1(12). The Commonwealth 

introduced several items photographed or seized from appellant's 

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shop.6

 Once this evidence proved appellant offered any of these 

per se paraphernalia items for sale, the Commonwealth has made a 

prima facie case. 

 Code § 18.2-265.2 does provide guidance, as appellant 

suggests, to courts trying to determine "whether an object is 

drug paraphernalia." This section, however, says "the court may 

consider, in addition to all other relevant evidence, the 

following," before listing factors such as expert testimony, 

instructions, advertising, and confessions. Id. (emphasis 

added). 

 "Generally, the words and phrases used in a statute should 

be given their ordinary and usually accepted meaning unless a 

different intention is fairly manifest." Woolfolk v. 

Commonwealth, 18 Va. App. 840, 847, 447 S.E.2d 530, 534 (1994). 

"Further, 'we may determine the intent of the legislature from a 

comparison of the statute's several parts in pari materia,' a 

'rule of statutory construction that statutes . . . relating to 

the same subject "should be read, construed and applied together 

. . . . "' Hanson v. Commonwealth, 29 Va. App. 69, 77, 509 

S.E.2d 543, 547 (1999) (citations omitted)." Pannell v. 

Commonwealth, 34 Va. App. 287, 294, 540 S.E.2d 527, 531, aff'd en 

banc, 35 Va. App. 643, 547 S.E.2d 529 (2001). 

 If Code § 18.2-265.2, which clearly is permissive and not 

required, is viewed together with Code § 18.2-265.1, it becomes 

clear that the legislature intended the objects listed in Code 

§ 18.2-265.1(12) to be drug paraphernalia per se. Under those 

 

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6

 Appellant does not deny that several of the items listed 

in subsection (12) were found in his store. 
circumstances, the trial court need not consider the factors set 

forth in Code § 18.2-265.2. 

 Other items that are sometimes labeled "drug paraphernalia" 

have multiple uses, some legal and some illegal.7 When the 

Commonwealth's case is based on the sale of such items, a trial 

court may consider the factors in Code § 18.2-265.2 to determine 

whether the "ambiguous" object is drug paraphernalia. 

 The trial court had sufficient evidence to find appellant 

intended to sell per se drug paraphernalia and to find he knew 

the items were drug paraphernalia. We affirm the conviction. 

Affirmed. 

 7

 Examples are scales, some pipes, bowls, containers, 

balloons, envelopes. We intend this list to be illustrative and 

not exhaustive. 

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