Brian Lee Morrison v Commonwealth of Virginia

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
- 2 -

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
- 3 -

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.
- 4 -

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.
- 5 -

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.
- 6 -

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.
- 7 -
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.

- 8 -
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.
- 9 -

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
- 10 -

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.
- 11 -

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
- 12 -

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
- 13 -

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;
- 14 -

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
- 15 -

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
- 16 -
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.
- 17 -