COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Benton and Coleman 

Argued at Salem, Virginia 

KENNETH DAVID NEWTON 

 MEMORANDUM OPINION* BY 

v. Record No. 1708-96-3 CHIEF JUDGE NORMAN K. MOON 

 OCTOBER 7, 1997 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF LEE COUNTY 

William C. Fugate, Judge 

 Walter E. Rivers for appellant. 

 Linwood T. Wells, Jr., Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 Kenneth Newton appeals his jury trial convictions of 

conspiring to commit a felony in violation of Code § 18.2-256, 

distributing less than one-half ounce of marijuana in violation 

of Code § 18.2-248.1(a)(1), and distributing more than one-half 

ounce but less than five pounds of marijuana in violation of Code 

§ 18.2-248.1(a)(2). The jury recommended the maximum sentence on 

each charge, and the judge sentenced Newton based on the jury's 

recommendation, with all sentences running consecutively, for a 

total of 20 years in prison and twelve months in jail. Newton 

asserts that the trial court erred (1) in finding the evidence 

sufficient to prove that he distributed marijuana which weighed 

more than one-half ounce; and (2) in ruling admissible the 

testimony of a police officer that his definition of the term 

 

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

designated for publication. 
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"target" was "someone known to deal narcotics in the community." 

 We hold that the Commonwealth failed to prove that the 

marijuana possessed by Newton weighed more than one-half ounce. 

We also hold that it was error for the court to permit the 

"target" testimony because of its highly prejudicial nature. 

Therefore, we reverse the convictions and remand for a new trial. 

 Newton was arrested by Investigator Robert L. Givens, a 

member of the Narcotics Division of the Virginia State Police. 

During Newton's trial, Givens was asked whether Newton had become 

the "target" of an undercover investigation. Givens responded 

affirmatively and was then asked to define the term "target." He 

responded that a "target" was someone "known to deal narcotics in 

the community." Counsel objected, stating, "I am going to object 

to this and would move for a mistrial." 

 The trial court responded, "I think I would overrule the 

objection. The witness has testified that he has been a member 

of the Virginia State Police 23 years, with the Narcotics 

Division for 17 years . . . . I think that he would qualify 

under those circumstances to be able to give the general 

definition as to what that means in the area of narcotics." 

Newton filed a motion to set aside the verdict and to award a new 

trial, again arguing that Givens' testimony should not have been 

admitted. At the hearing on that motion, the trial court stated: 

 Well, I did rule at that time, when the 

motion was made, that I did not think it was 

prejudicial because in his testimony he did 

use the word "target" and some question was 

asked what the word target meant, but I don't 

think that he went beyond that point in any 
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situation when he talked about Mr. Newton. 

So I would overrule the motion on that 

particular ground. 

 Givens also testified that he had overseen a number of 

"controlled buys" during which Newton had sold marijuana to a 

police informant. On cross-examination, Givens was asked whether 

the marijuana Newton sold "appear[ed] to you to be marijuana with 

the stems and seeds and the whole nine yards." Givens testified, 

"[i]t appeared to me to be marijuana, the real thing." 

 Sergeant James Hartsock of the Lee County Sheriff's Office 

testified that he sent the seized marijuana to the state forensic 

laboratory for analysis. On cross-examination, he stated that he 

did not know if the stalks, stems, and seeds had been removed 

before it was weighed. When asked whether "[a]s far as you know, 

they probably weighed the entire thing," he responded, "[t]hat's 

their procedure." Hartsock was also asked if he had "any idea 

what this stuff would weigh without the stalks and stems and 

seeds." He testified, "No, I don't have any idea what it would 

weigh before or after; that's why I asked the lab to weigh it." 

Admissibility of Drug Weight

 It is well established that "in every 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." Hill v. Commonwealth, 17 Va. App. 

480, 484, 438 S.E.2d 296, 298 (1993). "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 
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proscribed by Code § 18.2-248.1. Likewise, proof that the 

accused possessed the weight of marijuana proscribed by Code 

§ 18.2-248.1(a)(2) is an essential element of that offense." Id.

at 484-85, 438 S.E.2d at 299. 

 Code § 54.1-3401 specifically provides that the definition 

of marijuana "shall not include . . . the mature stalk of such 

plant, fiber produced from such stalk, oil or cake made from the 

seeds of such plant, any other compound, manufacture, salt, 

derivative, mixture or preparation of such mature stalks, fiber 

oil, cake, or the sterilized seed of such plant which is 

incapable of germination." Accordingly, we have held that mature 

marijuana stalks, sterilized seeds, and stems may not be used for 

the purpose of meeting the minimum weight required for conviction 

under Code § 18.2-248(a)(2). Id. at 484, 438 S.E.2d at 298. 

 When asked whether the marijuana Newton sold "appear[ed] to 

be marijuana with the stems and seeds and the whole nine yards," 

Officer Givens replied, "[i]t appeared to me to be marijuana, the 

real thing." Sergeant Hartsock stated that he had not asked the 

state forensic laboratory to weigh the marijuana without the 

stems, seeds, or stalks and that he did not know if the marijuana 

had been weighed without that material. He further testified 

that it was the state lab's procedure to weigh marijuana with the 

seeds, stalks, and stems. 

 The Commonwealth failed to prove that the marijuana was 

properly weighed or that, less the weight of the stems and 

sterilized seeds, it weighed more than one-half ounce. Rather, 
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the testimony of the Commonwealth's witnesses permits the 

reasonable inference that the marijuana was weighed with stems 

and seeds. Therefore, the evidence was not sufficient to prove 

that the marijuana weighed more than one-half ounce. 

Admissibility of Officer Givens' "Target" Testimony

 Newton also asserts that the trial court erred in allowing 

Officer Givens' testimony concerning the term "target" because 

Givens expressed an opinion as to the ultimate fact in issue. 

Newton further contends that the testimony was inadmissible other 

crimes evidence and that its probative value was outweighed by 

its resulting prejudice. 

 Newton's argument focuses on the following colloquy: 

 Commonwealth: And, Officer Givens, was there a time when 

Kenneth Newton became what's known as a 

target of an undercover investigation? 

 Givens: Yes, there was. 

 Commonwealth: Could you describe for the jury what a 

target is? 

 Givens: A target is an individual who is known 

 to deal in narcotics in the community. 

 Counsel: Your Honor, I'm going to object to this 

and would move for a mistrial. 

 Court: I think I would overrule the objection. 

 The witness has testified that he has 

been a member of the Virginia State 

Police for 23 years, with the Narcotics 

Division for 17 years, and it's a 

question of what the common definition 

of.... what was the word? 

 Commonwealth: "Target," your Honor. 

 Court: Okay, I think that he would qualify 

under those circumstances to be able to 

give the general definition as to what 

that means in the area of narcotics. 
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 Although Newton failed to state the grounds for his motion 

for a mistrial, in response to his subsequent motion to set aside 

the verdict because of the "target" testimony, the court 

responded that it "did not think [the testimony] was 

prejudicial[,] . . . [s]o I would overrule the motion on that 

particular ground." 

 Rule 5A:18 provides that "[n]o ruling of the trial court 

. . . will be considered as a basis for reversal unless the 

objection was stated together with the grounds therefor at the 

time of the ruling, except for good cause shown or to enable the 

Court of Appeals to attain the ends of justice." Newton failed 

to specify a basis for his objection to the "target" testimony. 

In response to his motion for a new trial, however, the court 

stated that it was rejecting the motion because it did not find 

the testimony to be prejudicial. This response shows that the 

court considered whether the testimony's prejudicial nature 

outweighed its probative value. 

 "The purpose of the contemporaneous objection rule embodied 

in Rule 5A:18 is to inform the trial judge of the action 

complained of in order to give the judge the opportunity to 

consider the issue and to take timely corrective action, if 

warranted, in order to avoid unnecessary appeals, reversals and 

mistrials." Robinson v. Commonwealth, 13 Va. App. 574, 576, 413 

S.E.2d 885, 886 (1992). Here, that purpose was achieved because 

the court considered the basis on which Newton now appeals. We 
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therefore hold that Newton's assertion of error is not barred by 

Rule 5A:18. 

 We further hold that the testimony's probative value, if 

any, was outweighed by its highly and unfairly prejudicial 

nature. Officer Givens testified that Newton was a "target[--]an 

individual known to deal in narcotics in the community." The 

admission of this testimony created a manifest probability that 

Newton was improperly prejudiced. See id. at 579, 413 S.E.2d at 

888. Additionally, the jury's recommendation of the maximum 

sentence on all three charges and the court's implementation of 

this recommendation, with the sentences to run consecutively for 

a total of 20 years in prison and twelve months in jail, suggest 

that the "target" testimony was indeed highly prejudicial. The 

trial court erred by not declaring a mistrial because the 

testimony may have prejudiced the jurors against Newton by 

portraying him as a person with a propensity to distribute 

narcotics. We therefore reverse and remand for a new trial on 

the conspiracy charge and two misdemeanor charges of distributing 

less than one-half ounce of marijuana. 

 Reversed and remanded.