COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Willis and Annunziata 

Argued at Richmond, Virginia 

ROBERT EARL CHALMERS 

 MEMORANDUM OPINION* BY 

v. Record No. 2482-96-2 JUDGE JERE M. H. WILLIS, JR. 

 DECEMBER 23, 1997 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Robert W. Duling, Judge 

 Matthew T. Paulk, Assistant Public Defender 

(David J. Johnson, Public Defender, on 

brief), for appellant. 

 Eugene Murphy, Assistant Attorney General 

(Richard Cullen, Attorney General, on brief), 

for appellee. 

 Robert E. Chalmers was convicted in a bench trial of 

possession of more than five pounds of marijuana with the intent 

to distribute. Code § 18.2-248.1(a)(3). Chalmers contends that 

the trial court erred in finding the evidence sufficient to prove 

beyond a reasonable doubt that the plant material seized included 

more than five pounds of marijuana. For the following reasons, 

we affirm the judgment of the trial court. 

 I. 

 Special Agent James R. Dempsey arrested Chalmers and 

recovered a black nylon bag containing a brick of plant material. 

 Dempsey testified that the brick contained marijuana leaves, 

seeds, and mature stalks. The Commonwealth moved to introduce 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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the brick of plant material and the laboratory certificate of 

analysis. The certificate stated that the brick consisted of 

marijuana plant material weighing approximately 15.4 pounds. The 

sterilized seeds and mature stalks of the plant material were not 

removed from the brick before it was weighed. 

 Chalmers objected to the admission of the certificate of 

analysis. He argued that it stated only the general weight of 

the plant material seized and did not state what portion of the 

total material consisted of marijuana seeds and mature marijuana 

stalks. Chalmers also objected to the admission of the brick of 

plant material, arguing that it contained material other than 

marijuana leaves, which was irrelevant and highly prejudicial 

because it unjustly increased the weight of the marijuana. 

 The trial judge stated for the record that the brick 

measured "slightly in excess of eighteen inches in height, 

slightly in excess of twelve inches in width and slightly in 

excess of nine inches in depth." The trial judge opened the 

packaging, examined an opening on the top of the brick, and found 

it contained "very, very few stems, very, very few seeds and 

having observed the weight of the package the Court is of the 

opinion that the total of the mass by and large is the leaf 

material." The trial judge also examined the bottom of the brick 

and found that "to be of practically the identical consistency 

and that is the leaf material by far in excess of any seeds and 

very, very few stems at that level." The trial judge then 
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unwrapped the entire brick and found that "the number of seeds 

and the number of stems is a minuscule amount compared to the 

amount of the brownish-green leafy material." The trial court 

admitted the certificate and the brick into evidence. 

 II. 

 Chalmers contends that the trial court erred in convicting 

him of possession of more than five pounds of marijuana with the 

intent to distribute because the Commonwealth failed to prove the 

marijuana weighed more than five pounds absent the seeds and 

stalks as required by Code § 18.2-248.1(a)(3). 

 In Hill v. Commonwealth, 17 Va. App. 480, 438 S.E.2d 296 

(1993), the Commonwealth introduced a bag of marijuana found in 

the defendant's possession, which contained approximately 2.98 

ounces of material including leaf marijuana, a stalk, stems, and 

seeds. See id. at 483, 438 S.E.2d at 297. The Commonwealth's 

expert testified that she did not remove the mature stalk or 

seeds before weighing the bag's contents, and she did not know 

the sterility of the seeds. Id. In reversing Hill's conviction, 

we ruled that mature marijuana stalks or sterilized seeds may not 

be included for the purpose of meeting the statutory minimum 

weight for conviction. Id. at 484-85, 438 S.E.2d at 299. See

Code § 54.1-3401. We held that the Commonwealth had failed to 

meet its burden of proving "beyond a reasonable doubt that the 

marijuana, less the weight of the mature stalk and seeds, weighed 

more than one-half ounce." Id. at 485, 438 S.E.2d at 299. 
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 Here, however, the evidence, viewed in the light most 

favorable to the Commonwealth, Higginbotham v. Commonwealth, 216 

Va. 349, 352, 218 S.E.2d 534, 537 (1975), supports the trial 

court's determination that the amount of marijuana exceeded five 

pounds. The total material seized weighed over fifteen pounds. 

The trial judge inspected the brick and found it to consist 

overwhelmingly of marijuana leaves, with a "minuscule amount" of 

stems and seeds. In concluding that the brick contained more 

than five pounds of marijuana, the trial court specifically 

excluded the stalk and seed content. The evidence permitted the 

trial court to find reasonably that the substantial weight of the 

plant material consisted of marijuana leaves and that the weight 

of the seeds and stems was inconsequential compared to the weight 

of the other plant material. Accordingly, the evidence was 

sufficient to prove beyond a reasonable doubt that Chalmers 

committed the charged offense. 

 Affirmed.
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Benton, J., dissenting. 

 "The rule is well established that 'in every criminal case 

the evidence of the Commonwealth must show, beyond a reasonable 

doubt, every material fact necessary to establish the offense for 

which a defendant is being tried. This burden never shifts.'" 

Sargent v. Commonwealth, 5 Va. App. 143, 148, 360 S.E.2d 895, 898 

(1987) (citation omitted). 

 Proof that the accused possessed marijuana, 

as that material is defined in Code 

§ 54.1-3401, is an essential element of each 

of the offenses proscribed by Code 

§ 18.2-248.1. Likewise, proof that the 

accused possessed the weight of marijuana 

proscribed by Code § 18.2-281.1(a)[(3)] is an 

essential element of that offense. Although 

the Commonwealth proved that [Chalmers] 

possessed marijuana leaf, . . . mature 

marijuana stalk[s], and marijuana seeds of 

unknown sterility, the total of which weighed 

in excess of [five pounds], the evidence 

failed to prove beyond a reasonable doubt 

that the marijuana, less the weight of the 

mature stalk and seeds, weighed more than 

[five pounds]. 

Hill v. Commonwealth, 17 Va. App. 480, 484-85, 438 S.E.2d 296, 

298 (1993). See also Code § 54.1-3401 ("[m]arijuana shall not 

include . . . the mature stalks of such plant . . . or the 

sterilized seed of such plant which is incapable of 

germination"). No evidence proved the weight of the seeds or the 

mature stalks. The only evidence of the weight of the brick of 

plant material was the certificate of analysis which listed the 

combined weight of all the plant material, including the mature 

stalks and sterilized seeds. 
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 The trial judge's visual inspection of the material and his 

statements that the brick consisted mostly of leaf material are 

insufficient to prove the weight of the marijuana contained 

within the brick. Although the trial judge found that the amount 

of seeds and stems was "minuscule" in comparison to the amount of 

leaf material, this visual observation cannot replace a 

definitive finding of mass or weight necessary to convict the 

defendant beyond a reasonable doubt. Indeed, in Hill we noted 

that any inference that was drawn of the relative weight of the 

material from a visual inspection "would be purely speculation 

because no facts were proved that would have supported such an 

inference." Id.

 The trial judge could not, by visual inspection alone, 

determine what portion of the total weight of the brick was 

attributable to the seeds and stalks. To establish beyond a 

reasonable doubt that the leaf marijuana weighed more than five 

pounds, the evidence had to prove the weight of the leaf 

marijuana exclusive of the seeds and mature stalks. Because this 

was not done in this case, I would hold that the Commonwealth 

failed to prove beyond a reasonable doubt the weight of the 

marijuana possessed by Chalmers. Therefore, I would reverse 

Chalmers' conviction.